Copyright
Analysis Synthesis
[for copyright things we’ve covered so far]
Prof. Eric E. Johnson
ericejohnson.com
This handout is intended to give you a unified to-do list for approaching copyright problems ______________.
Important notes regarding how this document relates to our course:
First, note that this document will not cover all the legal doctrine in the course. As one example, we learned a bit about patent and trademark, and those things aren’t covered.
Second, this document is not meant to be a source for helping you to understand the law. Rather, it is meant to be a road map for approaching problems in order to apply what you’ve learned.
Third, do not try to make inferences about what will be on the exam from this document. The amount of words devoted to a topic in this document will reflect my judgment in the amount of detail necessary to give you a comprehensible scheme for applying what you’ve learned. The amount of words devoted to topics in this document is not intended to correspond to the amount of time devoted to the topic in class or to correspond to the amount of emphasis a topic will receive on the exam. Thus, a topic might receive detailed coverage in this document but little emphasis on the exam.
General approach / big concepts
Think about the cases you’ve read. Much of federal copyright law under the Copyright Act of 1976 is essentially a
common-law endeavor; therefore be mindful of the power of reasoning by analogy from
the cases.
If you have a copyright, what does that allow you to do?
It allows you to use the coercive power of the state against private parties. Mostly that means suing people.
So think of copyright in terms of its causes of action.
CAUSES OF ACTION:
infringement
· of the reproduction right
· of other rights
accounting
compelling registration
The principal cause of action for copyright is the action for
infringement.
And the exclusive right that is the most fundamental is
the reproduction right.
Infringement of the reproduction right
An action for copyright infringement of the reproduction right under §106(1) of the Copyright Act of 1976 requires the plaintiff to prove that (1) there is a work subject to copyright, (2) the copyright is owned by the plaintiff, (3) the defendant in fact copied from the work, and (4) there was substantial appropriation of the copyrighted work (which F&S call “copying in law”).
Then, one must consider defenses. Those include:
fair use,
first sale,
and license.
Element (1) is: there is a work subject to copyright.
Analyze:
Fixation—was the work fixed in a tangible medium of expression?
Often this is an easy question. Sometimes, however, it is a difficult issue; if so reason from the cases we read. Those include Williams Electronics (Defender video game), Cartoon Network (cloud DVR), and Kelley v. Chicago Park District (garden)
Originality—is the work an original work of authorship?
Often this is an easy question. Sometimes it’s hard. But often it is the case that something in the plaintiff’s work is original authorship, but maybe not the portion the defendant is alleged to have copied. Thus, even when there is clearly some originality, you must carefully consider whether the aspects at issue in the case are original works of authorship.
Is the work a work of authorship?
· It has to be the work of a human author. Consider
o Alfred Bell v. Catalda Fine Arts (mezzotints)
(“clap of thunder” theory)
o Kelley v. Chicago Park District (garden)
o (“forces of nature”)
o monkey case (p. 144)
To what extent is the plaintiff’s work original?
· Consider the cases we read—Burrow-Giles (Oscar Wilde photo), Bleistein v. Donaldson (circus posters), Alfred Bell v. Catalda Fine Arts (mezzotints), Feist v. Rural (white pages), Meshwerks v. Toyota (3-D models), and Kelley v. Chicago Park District (garden). Use those to predict how concepts of originality might vindicate, narrow or eliminate the scope of the plaintiff’s copyright interest.
Is the plaintiff’s work a derivative work? If so, is there enough new, copyrightable content to meet the originality requirement? And if so, what is it?
· Consider Batlin & Son (toy bank case) and Schrock v. Learning Curve (Thomas the Tank Engine photos case) and how that might narrow or eliminate the scope of the plaintiff’s copyright interest.
Is the plaintiff’s work a compilation? If so, is there enough additional copyrightable content in the arrangement to meet the originality requirement? And if so, what is it?
· Consider Feist (white pages case) and how that might narrow or eliminate the scope of the plaintiff’s copyright interest.
Expression—is the work that is claimed actually expression?
Again, this can be a question that’s both easy and hard. It may be easy to say there’s expressive content. But drawing the line between what is expression and what is not can be a hard question. Thus, even when there is clearly some expressive content, you must carefully consider whether the aspects at issue in the case are expression or something non-copyrightable—such as ideas, processes, methods, or facts.
To what extent does the plaintiff’s work comprise an idea, process, method, fact, or set of facts? If so, is there enough expressive, copyrightable content beyond that to meet the originality requirement? And if so, what is it?
· Consider Baker v. Selden (bookkeeping ledger case), ATC Distribution (auto transmission parts catalog case), Hoehling v. Universal Studios (Hindenburg book-and-movie case) and how that might narrow or eliminate the scope of the plaintiff’s copyright interest.
Excluded subject matter—is the subject matter excluded from copyright eligibility?
Some things are outside the bounds of copyright protection even if they are original, fixed, expression.
Is the plaintiff’s work a work of the federal government?
· Consider §105.
Is the plaintiff’s work uncopyrightable under the government edicts doctrine?
· Consider the teachings of the note cases discussed in the book.
Has plaintiff’s work entered the public domain?
· Consider expiration, lack of notice, lack of renewal.
Is the plaintiff’s work a useful article? If so, how does that narrow the plaintiff’s protectible interest?
· Consider Mazer (lamp base case), Star Athletica (cheerleading uniform case), Silvertop (banana costume case).
Is the plaintiff’s work software? If so, what aspects are protectible against copying by the defendant?
· Software is copyrightable. But because software is by its nature so functional, much of software can be copied without invading the copyright interest. Consider the cases in understanding where the line is likely to be drawn.
Is the plaintiff’s work an architectural work? If so, what aspects are protectible against copying by the defendant?
· Architectural works are copyrightable. But because works of architecture are by nature functional, the scope of what is protectible through copyright can be narrow. And courts may apply ideas of originality and scenes-a-faire to narrow the scope of the protectible interest. Consider the Zalewski case in predicting where courts are likely to draw the line.
[What follows below is in the thinking/brainstorming stage …]
Element (2) is:
The copyright is owned by the plaintiff
Formalities
Who is the author? (e.g, creator, fixer, producer, employer, director, actor, helper, advisor, holder of the camera)
asdf asdf asdf
Asdf?
Asdf:
· asdf
· asdf
Asdf
Asdf?
Asdf.