Intellectual Property Boston College Law School January 12, 2007 Copyright – Fixation, Exclusions

17 U.S.C. § 102 (a) Copyright protection subsists,… in original works of authorship fixed in a tangible medium of expression, …. Works of authorship include the following categories: –(1) literary works; –(2) musical works, …; –(3) dramatic works; –(4) pantomimes and choreographic works; –(5) pictorial, graphic, and sculptural works; –(6) motion pictures and other audio visual works; –(7) sound recordings; and –(8) architectural works

Originality Elements –1. Independent creation –2. Some modicum of creativity Not original –Short words and phrases –Works dictated purely by function –Literal reproductions of public domain works –Some databases

Fixation 17 U.S.C. § 102(a): –“Copyright protection subsists,… in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 101: –“A work is ‘fixed’ in a tangible medium expression when its embodiment in a copy … by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived … for a period of more than transitory duration.”

Fixation Possible justifications –Constitutionally required –Defines scope of the entitlement Avoids unreasonable liability Evidentiary value in infringement action –Evidence of commercial importance of work

Formalities

Idea/Expression Dichotomy 17 U.S.C. § 102: Subject Matter –(a) Copyright protection subsists,… in original works of authorship fixed in a tangible medium of expression, …. –“(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

Baker v. Selden

Copyright, Patent, Trademark PatentCopyright Trademark Idea / Expression & Useful Article Doctrines

Baker v. Selden Idea/expression doctrine –Copyright law protects expression, not ideas –Ideas, methods, etc. are subject to patent Merger doctrine –Where only one or a few ways to express an idea, not copyrightable –Otherwise, effectively grants protection to idea

Cookbook Hypo Elements of cookbook –Recipes –List of ingredients –Description of specific steps –Pictures illustrating techniques –Pictures of finished dishes –Description of history of dishes

What is the idea? –Story about wizarding school –Story about wizarding school with orphan hero –Story about wizarding school with orphan hero and spunky group of friends –Story about wizarding school with orphan hero and spunky group of friends and friendly headmaster, fighting evil wizard

When is there merger? Morrissey –Entrants should print name, address and social security number on boxtop, or a plain paper. –Entries must be accompanied by … boxtop or by plain paper on which the name … is copied from any source. P&G –Entrants should print name, address and Social Security number on a Tide boxtop, or on plain paper. –Entries must be accompanied by Tide boxtop (any size) or by plain paper on which the name “Tide” is copied from any source.

Video Game Hypo What is the idea? –Hand to hand combat game –Hand to hand martial arts combat game –Hand to hand martial arts combat game with side view –Hand to hand martial arts combat game with side view and changing backgrounds –Hand to hand martial arts combat game with side view, changing backgrounds, power bars, special moves,...

Bee Pin Hypo What is the idea? –Insect pin –Bee pin –Bee pin made of gold –Bee pin made of gold and jewels –Bee pin made of gold and white/blue jewels –Bee pin made of gold and white/blue jewels in a certain arrangement

Assignment for Next Class Read II.C.2 – Types of Works