COPYRIGHT LAW 2004: CLASS 7 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA JANUARY

WRAP-UP POINTS: COMPILATIONS The 1992 decision of the U.S. Supreme Court in Feist made clear that the sweat of the brow doctrine was not good law. According to Feist, to be copyrightable as an original work of authorship, a compilation required a sufficiently original selection, arrangement, or coordination. Feist made clear that originality was a low standard, requiring only some “minimal level of creativity”. Even if copyrightable, a compilation’s copyright protection was thin.

COPYRIGHT IN FACTUAL NARRATIVES To what extent are historical facts copyrightable?

Nash v. CBS CB p. 129 Extent of Copyright in historical facts? Extent of Copyright in works of history?

Wainwright Securities CB p. 133 Copyright protection of news events? Overprotection?

DERIVATIVE WORKS What is a “derivative work”?

DERIVATIVE WORKS 17 U.S.C. § 101: A ''derivative work'' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ''derivative work''.

103(b) (b) The copyright in a compilation or derivative work extends only to the material 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.

VIEWED BROADLY, ALMOST ALL WORKS ARE DERIVATIVE ! Mr. Justice Story in Emerson v. Davies “In truth, in literature, in science and in art, there are, and can be, few, if any, things which, in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows and must necessarily borrow, and use much which was well known and used before.”

BATLIN V. SNYDER (2d Cir. 1976) CB p. 109

TEST FOR ORIGINALITY FOR DERIVATIVE WORK According to the Batlin majority, what is the proper test for originality for a derivative work?

TEST FOR ORIGINALITY FOR DERIVATIVE WORK Is Batlin really distinguishable from Alva Studios v. Winninger (the “Hand of God” case)?

TEST FOR ORIGINALITY FOR DERIVATIVE WORK Why does Meskill CJ dissent? Do you agree with the dissent?

Durham v. Tomy (2d Cir. 1980) CB p. 171 What is a more than trivial variation? Did the 2d Circuit find that the Tomy authorized reproductions of Mickey Mouse were original? Why or why not? (Hint: Harrassment)

INCONSISTENT APPLICATION OF BATLIN IN THE SECOND CIRCUIT? Is TOMY consistent with the EDEN TOYS case, the SHERRY case, or the ERG case? How can we reconcile these cases?

Gracen v. Bradford Exchange CB p. 174 What was the issue in this case? What test for originality did the 7th circuit apply? What was the 7 th Circuit afraid of?

GRACEN COURT “[I]f the difference between the original and A’s reproduction is slight, the difference between A’s and B’s reproduction will also be slight, so that if B had access to A’s reproductions, the trier of fact will be hard-pressed to decide whether B was copying A or copying the Mona Lisa itself.”

Mona Lisa Reproductions

Derivative Works: Harassment Fears Batlin majority: “To extend copyrightability to miniscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain works.” Is this fear justified, in your view? Why or why not?

Ets-Hokin v. Skyy Spirits, 323 F.3d 763 Did the first photographer’s photograph have enough originality to be copyrightable? (see photos on p. 16 of Supp) Did the second photograph infringe?

Schiffer Pub. V. Chronicle Books (E.D.Pa. 2004) Photographs of fabric designs sufficiently original to be copyrightable? Is the purpose relevant?

MIRAGE v. Albuquerque A.R.T. (9th Cir. 1988) Mirage published Nagel/owns coyrights Albuquerque bought books and mounted them on tiles Were they derivative works? If so, infringed Mirage’s rights

9th Circuit: A Lesser Test for Originality for Derivative Works Seems to follow Catalda case, which required only a modest grade of originality (a de minimis standard). Batlin seems to suggest some higher standard of creativity required. See e.g. cases like the Mirage case - mounting artworks on tiles found to be a derivative work (856 F. 2d (1988))