COPYRIGHT LAW 2004: CLASS 5 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA FEB 2, 2004

WRAP-UP Originality Requirement for Copyrightability

FIXATION Second requirement for copyrightability Constitutional Requirement Statutory Requirement

FIXATION REQUIREMENT See 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.”

FIXATION REQUIREMENT See also 17 U.S.C. § 101: “A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission”

MATERIAL OBJECTS IN WHICH WORKS CAN BE FIXED What are the 2 categories of material objects in which works can be fixed?

2 CATEGORIES OF MATERIAL OBJECTS IN WHICH WORKS CAN BE FIXED COPIES (see definition in s. 101) PHONORECORDS (see definition in s. 101)

COPIES 17 U.S.C. § 101: “Copies” are material objects, other than phonorecords, in which a work is fixed, by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

PHONORECORDS 17 U.S.C. § 101: “Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

COPYRIGHT LINGO What would a copyright lawyer call a DVD of the film “Along Came Polly”?

SPORTING AND OTHER EVENTS Is the tennis match between Kim Clijsters and Justine Henin- Hardenne at the Womens Final of the Australian Open a fixed work?

SPORTING AND OTHER EVENTS How about the Macys Thanksgiving Day parade?

SPORTING AND OTHER EVENTS How about a live broadcast of the Superbowl?

Definition of Fixation 17 U.S.C. § 101: A work consisting of sounds, images, or both that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission. Separate definition of “transmission” Is this constitutional?

FIXATION OF BROADCASTS See 17 U.S.C. § 101 “transmit”: To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.”

FIXATION OF BROADCASTS See 17 U.S.C. § 101: A “device”, “machine,” or “process” is one now known or later developed.

IS THE BROADCAST PART OF THE FIXATION DEFINITION CONSTITUTIONAL? 17 U.S.C. § 101: A work consisting of sounds, images, or both that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

The Nightclub Performer Eve performs dramatic improvisations. If Adam videotapes Eve’s live performance of improvised drama,can Eve argue that her live performance is copyrightable? Does it make a difference if Eve performance is simultaneously recorded? If it is simultaneously recorded and broadcast?

SPECIAL TREATMENT FOR MUSICA PERFORMANCES: THE ANTI-BOOTLEGGING PROVISIONS Title 17 s Grew out of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) and became law by operation of the 1994 Uruguay Round Agreements Act What types of works does it cover? What rights does it give? Is it constitutional (see U.S. v. Moghadam (11th Cir. 1999)

FIXATION IN DIGITAL MEDIA Is a work temporarily stored in a computer’s RAM memory “fixed”?

COPYRIGHTABILITY OF FACTS Feist addressed this problem: How should we reconcile the following “well- established propositions 1. Idea/Expression Dichotomy and 2. Statutory copyright protection for compilations in Copyright Act

103(a) The subject matter of copyright as specified by s. 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

103(b) The copyright in a compilation or derivative work extends only to the matter contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

DEFINITION OF COMPILATION AT S. 101 A compilation is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation:” includes collective works.

COLLECTIVE WORK A collective work is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.

COPYRIGHTABILITY OF FACTS How does Feist resolve the problem: How should we reconcile the following “well- established propositions 1. Idea/Expression Dichotomy and 2. Statutory copyright protection for compilations in Copyright Act

FEIST Sweat of the brow doctrine “Thin” Copyright Protection