COPYRIGHT LAW 2003: CLASS 5 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA JANUARY 22, 2003

CLASS OUTLINE 1. Wrap-Up Points 2. Goals for this class: –A. To learn about the idea-expression dichotomy –B. To be able to analyze the copyrightability of compilations of facts after Feist so that, as lawyers, you can provide good advice on whether a given compilation is copyrightable. –C. To be able to analyze the copyrightability of derivative works

Wrap-Up General Trend for Originality Originality is a constitutional requirement (along with fixation requirement) The originality requirement appears in 17 U.S.C. § 102 “original works of authorship” The courts over the years have progressively lowered both the statutory and constitutional standards for originality. Although Congress did not want the language in §102 to be coextensive with Art. 1 s. 8 cl. 8 of the Constitution, these standards have converged.

Idea-Expression Dichotomy What is the idea-expression dichotomy and does it appear in the 1976 Copyright Act?

Idea-Expression Dichotomy 1976 Copyright Act Section 102(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.

The Idea-Expression Dichotomy Remember that this is the third requirement for copyrightability under 17 U.S.C. § 102. See 102(b). An idea can never be copyrightable but its expression will be. This is in Berne (art. 2(8)) – copyright doesn’t apply to “news of the day”. Also in TRIPS (art. 9(2)), WIPO Copyright Treaty Art. 2 Easy to understand as a matter of theory; hard to apply in practice Works of history

Historical Theories Hoehling v. University City Studios, Inc. 2d Cir. 1980): were Hoehling’s historical theories on the sabotage of the Hindenberg copyrightable? Why or why not? Should they be?

LABELS/SLOGANS To what extent is the label on my Poland Spring water bottle copyrightable?

How To Distinguish Ideas from Expression? This difficult issue is confronted in two cases: Baker v. Selden (1879) American Dental Association v. Delta Dental Plans Association (7 th Cir. 1997)

Baker v. Selden (1879) CB 91 Baker v. Selden – for what work did Charles Selden seek copyright protection? Idea-expression dichotomy Merger doctrine Are blank forms ever copyrightable? Question 1 on p. 94

American Dental Ass’n v. Delta Dental (7 th Cir. 1977) CB 103 What did Delta Dental do that allegedly amounted to copyright infringement? How did it differ, if at all, from what Baker did in Baker v. Selden? Was this case correctly decided?

COPYRIGHTABILITY OF PHONE BOOKS What kind of work is a telephone directory white pages under copyright law? To what extent, if at all, is a telephone directory white pages copyrightable? Does it make any difference if a lot of sweat of the brow has been shed in compiling the white pages?

COMPILATIONS A telephone directory white pages is a COMPILATION under the Copyright Act of 1976? See section 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 work.” What’s an example of a collective work?

COLLECTIVE WORKS 17 U.S.C. § 101: 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.

The Feist Case (1991) CB p 118 This is a very significant case: the last word from the U.S. Supreme Court on the copyrightability of compilations. Feist copied Rural’s white pages listing, and Rural sued for copyright infringement. Supreme Court: Essentially what is copyrightable in a factual compilation is the selection, coordination or arrangement of facts, provided this is sufficiently original. Compare Hoehling CB p. 101 – quotes Learned Hand :”there cannot be any such thing as copyright in the order of presentation of the facts, nor, indeed, in their selection” – pre-Feist case