COPYRIGHT PROFESSOR LEON FRIEDMAN COURSE OUTLINE FALL 2008 GENERAL OUTLINE OF COPYRIGHT LAW

Statute of Anne 1710 protected copyright for a period of 14 years. First American CR law was passed in 1790 US CONST Art. 1, 8, Cl. 8 The Congress shall have power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries Copyright (life +70 years) Authors Writing Patent (20 years) Useful arts Inventors Discoveries

1909 Copyright Law 28 years + 28 years theory is if you made a bad deal, at the end of term you can recapture that right and make a lot of money on the second term. 1976 law if already something in CR, then it is 28 + 47 = 75 years Sonny Bono revision of the CR law The Copyright Act of 1976 102(a) is the key provision of the copyright law Copyright protection subsists in original works of authorship fixed in a tangible medium of expression Alfred Bell & Co. v. Catalda Fine Arts (p. 52) - FACTS: Reproduction of works of art from the 16th and 17th centuries. Original in reference to a copyrighted work means that the particular work owes its origin to the author. No large measure of novelty is necessary. - HOLDING: The US Constitution provided different standards for patents and copyrights. Defendants failed to establish an unclean hands defense. Defendants contention that reproduction of works in the public domain could not be copyrighted was untenable. You can copyright something even though it is in the public domain but must be an independent reproduction. The Age of Innocence Case (film) - FACTS: Edith Wharton wrote it originally in a magazine to be CR in 1920 in 1937 it became a book they renewed the CR in the book but not in the magazine. In 1990s, they made a film about the movie and they said that the work was in the PD the magazine version went into the PD but the work never went into PD the CR was renewed in the book form. UNDERLYING POLICIES OF COPYRIGHT Nature of Copyright 1. Fostering Creation 2. Fostering efficient and competitive marketplace by giving the freest possible public access to works of authorship and the ideas they encompass 102! Oscar Wilde Sarony Photograph
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- Original work of authorship. Enough of contribution by photographer to make it protectable under copyright. ORIGINALITY. What is the work? the work is NOT the sheet music, it is the actual song the soul the work is something intangible What is a work of authorship? it must be something that an author does i.e. cannot be the creation of a chair, etc. FUNCTIONALITY is not a work of authorship. Authors make things that create an aesthetic reaction in an audience. Photographers are making a choice as to what to do when taking the photograph. Bleistein v. Donaldson Lithographing Co. PARODY - FACTS: Circus poster advertisement case. If something is a true parody it is OK, but if not then it does not work *NO COPYRIGHT PROTECTION UNTIL THE WORK IS FIXED! If not fixed, then federal copyright law will not protect you, but state law can. Must be in some kind of tangible form before the federal law will protect you. Can sue in state court under the tort of misappropriation. Once you write it down you get federal copyright protection. No fixed term of copyright for an unfixed work *Sound recordings got CR protection in 1972. Architectural works in 1989-90. Governmental works = no CR. (105) 102(a) tells you what IS covered by the CR law; 102(b) tells you what is NOT covered by the CR law 104 deals w/ international protection 104A requirements for copyright copyright in restored works. 104A says that if you lost your copyright b/c of some technical requirements that existed before the US joined the Berne Convention, then you can restore your CR. Derivative Work i.e. if you write a novel and someone makes a movie out of it, it is DERIVED from the original work 106 107 109 101 outlines what rights you have as a copyright owner Fair Use Provisions once you have bought a copy of a book, you can sell it! - Limitations on exclusive rights compulsory license in music (101), etc.

PRINCIPLES OF PATENT & TRADEMARK LAW

Material Protected what is protected? Test for Protection Copyright An artistic creation a work of authorship; 17 USC 102a Must be original work of authorship Patents Process, machine, manufacture, or composition of matter; 35 USC 101 Non-obvious to a person trained in
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Design Patent A design for an article of manufacture

Trademarks A word, name, symbol or device 15 USC 1127

New, original, and ornamental

A word, symbol or device that

the 35 USC 103

35 USC 171

Length of Protection Extent of Protection

Authors life + 70 years (used to be +50) Against anyone who copies substantial portions of the work

20 years from application (used to be 17) (35 USC 150) 35 USC 271 Any patented invention whether copied or not (no requirement of copying) much broader than CR

14 years from the grant 35 USC 271 Any design patent whether copied or not (as long as it is the same no requirement of copying) much broader than CR

identifies and distinguishes your goods from those of others 15 USC 1127 So long as TM is used Any mark that is used likely to cause confusion 15 USC 1114

***You can NEVER get CR and Patent on the same object! 102 of the CR law prohibits a CR on ANY process or idea. Can get a CR and a design patent on the same object. Can get a CR and TM on the same possession (comic book characters, Disney characters, etc.) Frederick Warne & Co. v. Book Sales, Inc. (p. 63) Trademark Protection - FACTS: Copyright on Peter Rabbit books expired, but the cover imagery was still covered by trademark so even though the story went into the PD, the TM did not expire as long as it is in use. Alfred Bell & Co. v. Catalda Fine Arts (p. 52) - FACTS: Made a mezzotint (a soft copper object where the reproduction was carved into the copper). What the reproducer was doing here was very artist like and was very carefully duplicating the image very artistically - HOLDING: If you reproduce art, it really depends on the mechanism by which you do it to define whether or not it is art! Wizard of Oz case Hearn v. Meyer (664 F. Supp. 832; SDNY 1987) (p. 387) - FACTS: One of Friedmans clients duplicated one of the drawings and made some changes since he duplicated, there was nothing author-like about the reproduction. Then another guy completely duplicated his guys illustration but didnt use different process to duplicate illustration. They copied our illustrations and it was a copy of a copy except the images were different. NO COPYRIGHT. *In 1937, after Erie v. Tompkins, destroyed all of federal common law, and the federal common law of Trademarks in particular. Post 1937, Congress enacted a TM act in 1946 The Lanham Act it made up the deficiency from the earlier TM laws by saying that it only applies IN COMMERCE (you have to use word, phrase, symbol or device IN COMMERCE). *Trademark protection is kept for as long as it is used (no specific time limit). POLICY: TO ENCOURAGE CREATIVE WORKS Dastar Corp. v. Twentieth Century Fox Film Corp. (2003, p. 68) designation of origin
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False

FACTS: Since Dastar originally issued the film, it was a false designation of origin because they did not use the Twentieth Century Fox Film Corp. name on the film. Fox TV show, did not renew copyright. Dastar put it out on video, claimed producer. Respondent owners of rights in a book sued producer of a video copy of a television series in the public domain which was based on the book, alleging that the producer violated the Lanham Act. HOLDING: No false designation of Origin Lanham Act. No false designation of origin was shown since the phrase origin of goods did not connote the person or entity which originated the ideas contained in the video, and instead referred only to the producers tangible video product. Designation of false origin is a violation of the copyright law. PEOPLE MIGHT THINK IT CAME FROM THE PLAINTIFF.

COPYRIGHT AND PROPERTY RIGHTS IN CHATTEL

Forward v. Thorogood (1993, p. 71) - FACTS: Mr. Forward arranges for a demo record to be prepared he pays for the demo and brings someone from Rounder Records to listen to the Destroyers (The Band). The band becomes very successful and he is sitting there with the original demo record there is a difference between the piece of paper and the copyright. - HOLDING: There is a difference between the physical object in which the copyright subsists and the actual copyright and the law makes a BIG DISTINCTION. Owning the tangible medium of expression entitles you to NOTHING. i.e. if you have 25 letters from John Lennon they are not your property you can sell them for a lot of money, but you do not own the copyright to them. Physical transfer of the tape merely created a presumption and the ultimate question was one of intent. Appellee never surrendered copyright and transfer of the tapes ownership was not a sharply defined event distinct from the reservation of appellees rights. Chattel is a tangible object and copyright is not tangible. 202 Salinger v. Random House (1987, p. 759) FAIR USE - FACTS: Here quoting from letters was deemed copyright infringement fair use issues, etc. The unpublished nature of the letters weighed heavily against the authors claim of fair use, as did the amount taken, which included close paraphrases as well as direct quotations of Salingers unpublished letters. - HOLDING: Copyright infringement. The Court stopped the publication of a biography that quoted from Salingers unpublished letters. The fact that the work is unpublished shall not itself bar a finding of fair use. 202 Ownership of Copyright as Distinct from Ownership of Material Object Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the world is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object. Copyright statute of 1978 makes very clear that there is a different between the original object and the CR 204 a transfer of CR ownership is not valid unless an instrument of conveyanceis in writing and is signed by the owner of the rights conveyed as a general proposition you must convey the entire copyright by WRITING

ORIGINALITY AND WORK OF AUTHORSHIP

*TANGIBLE AND FIXED MEDIUM
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Pushman v. New York Graphic Society, 287 NY 302 (1942) - FACTS: Art sale case. The painter sued the university for selling the painting to the calendar company as a matter of NY Contract law, the NY Ct. of App. said that if you sell the painting, you sell all the rights, including reproduction rights. - HOLDING: Held that an artist who had sold a painting to a gallery and the gallery sold it to the University of Illinois and then the University sold it to a calendar company, with no mention of copyright, could not prevent the University from authorizing another to make copies of it. Bridget Riley Case - FACTS: Pop art expert. Sold one of her paintings to a clothing manufacturer and he started putting the design on sheets and pillowcases and NY then passed a statute that says that if you sell a piece of art and nothing else is said, you dont get the reproduction rights. - HOLDING: No copyright rights unless you comply w/ 204 of the copyright law 106 of the CR law says that the CR owner has the right to make copies and distribute copies of the work 109(a) states that notwithstanding the provisions of 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord Shell v. City of Radford (p. 74) - FACTS: The police come in and take a hard drive and on it is all kinds of incriminating stuff about the homicide that he created. The police then make copies and the guy then sues them for CR infringement. The idea that criminal law or civil discovery creates CR infringement concerns is an issue. - HOLDING: Police homicide investigators took from the apartment of a photographer his computer hard drive, which contained many of his photographs, including ones of the murdered woman, who was his assistant. Several days later, he was placed under arrest. He asked for the return of his HD and photos, which he claimed were necessary for him to pursue his professional career, but the police refused. The photo sued for CR infringement, seeking among other things the return of those physical belongings. CR does not afford such a right. HELD: CR does not afford such a right. Conveyance of a physical object is NOT the same as the conveyance of the copyright because it MUST be conveyed in writing! The copyright is a very intangible right 102 Subject Matter in Copyright; in General (a) Copyright protection subsists, in accordance with this title, 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. Works of authorship include the following categories: 1. literary works 2. musical works, including any accompanying words; 3. dramatic works, including any accompanying music; 4. pantomimes and choreographic works; 5. pictorial, graphic, and sculptural works; 6. motion pictures and other audiovisual works 7. sound recordings; and 8. architectural works (added in 1990). (b) Prohibited from copyright: 1. idea
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2. process 3. method of operation, etc. Magic Marketing v. Mailing Services of Pittsburgh (1986, p. 76) - FACTS: stationary company had standard words on its envelopes stating PRIORITY MESSAGE: CONTENTS REQUIRE IMMEDIATE ATTENTION. This was NOT a work of authorship because it was not author-like. Plaintiff was a designer and marketer of mass mailing advertising campaigns. Plaintiff and defendant supplier signed a contract whereby defendant would supply the materials to plaintiff. - RULE: To be ORIGINAL, a work must be the product of independent creationwhile the test for originality is a low threshold, the author must contribute more than a trivial variation of a previous work, i.e. the work must be recognizably his own (77-78) 37 CFR 202.1(a)(1985) Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents (p. 78) things that are NOT COPYRIGHTABLE - HOLDING: Court said that the envelopes lacked the level of originality to warrant copyright protection. (1) the envelopes did not exhibit a sufficient degree of creativity to be copyrightable (2) phrases printed on the envelopes were generic in nature and lacked minimum creativity (3) the protection accorded pictorial, graphic or sculptural works was inapplicable; AND (4) summary judgment was premature as to the infringement of the forms and letters Copyright in compilation when you start putting things together (lists of recipes, songs, etc.) this could be compilation Mattel, Inc. v. Walking Mountain Productions (2003, p. 739) (Barbie Doll case) - FACTS: A recent case where a Barbie doll was put in the kitchen and she was put into the mixer, toaster, etc. and photos were taken of the doll. Food Chain Barbie is a series of photos depicting Barbie with different vintage kitchen appliances. - HOLDING: Mattel sued for copyright infringement and they sued b/c of PARODY. Held that the copyright, trademark, trade dress and dilution claims were groundless, unreasonable and frivolous. This was FAIR USE! Jokes - Short jokes are NOT copyrightable b/c they are just not long enough. One-liners are not copyrightable, but the whole compilation of jokes can be copyrighted Sporting Events - Sporting events themselves are NOT in and of themselves copyrightable, but the photograph or video of the event is copyrightable. The event is not copyrightable, but the fixed medium is. CONTU - Committee on New Technological Uses. 1980s after the Copyright bill was passed with no mention of computers or internet. Computer programs are not necessarily copyrightable. *Teachers exception to work-for-hire rule Uruguay Round of GATT General Agreement on Trade and Tariffs
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Expanded copyright protection in the area of enacting Ch. 11 of CR law. Sound recordings and music video. Gave protection under the copyright law for live performance that is fixed by someone else and sold

1101 Unauthorized Fixation and Trafficking in Sound Recordings and Music Videos

METHOD OR OPERATION NO COPYRIGHT

Baker v. Selden (1879, p. 97) - FACTS: Someone created a new bookkeeping system. Selden was the first to create the condensed ledger. Copyright on a treatise on the useful art of bookkeeping. Obtained a copyright for a book and sued defendant, an author of a similar book for copyright infringement. - HOLDING: If Selden wanted to protect his bookkeeping system, he could have patented the system because it was a PROCESS. He had the right to the description of the process, but NOT the process itself. STILL the major law in this area. Court held that record failed to show that D had violated the copyright of complainants book. The matter plaintiff alleged was infringed was not even a lawful subject of copyright. NO COPYRIGHT PROTECTION BUT COULD PATENT B/C IT WAS A PROCESS Morrissey v. Procter & Gamble (1967, p. 103) - FACTS: Sweepstakes type language on a context for a boxtop. Owner had a set of rules for a sales promotional sweepstakes style contest. He sued the alleged infringer, claiming that it had infringed the copyright by copying, almost precisely, one of the owners rules. - HOLDING: Language was too narrow. If the words are necessary to establish the sweepstakes, then no CR. The court found that the subject matter embraced by the owners rule was so straightforward and simple that permitting the copyrighting of its expression would appropriate it. The copyright does NOT extend to this subject matter at all. WHEN THERE IS ONLY ONE WAY TO EXPRESS SOMETHING, THE MERGER DOCTRINE APPLIES B/C THE IDEA MERGES AND YOU CANNOT COPYRIGHT THAT Blumberg Form - CANNOT be copyrighted because it is necessary to get the effect from the statement that you want to get Continental Casualty v. Beardsley (p. 105) - FACTS: They had a form and explained how to fill out the form. Sought a declaration that copyrights of an insurance broker, were invalid. District Court held that Ds insurance forms in pamphlets setting forth insurance plan were NOT copyrightable and enjoined D from declaring that the copyrights were valid. - HOLDING: Court found no infringement by plaintiff, since plaintiffs forms were sufficiently different from those of defendant. Affirmed the judgment. Publications International v. Meredith Corp. (p. 106) RECIPE BOOKS ARE NOT COPYRIGHTABLE - HOLDING: Recipe books are not copyrightable because you are dealing with a process. Recipes contain no expressive elaboration upon the functional components. Bibbero Systems, Inc. v. Colwell Systems, Inc. (p. 106) - FACTS: Plaintiff had a certificate of registration, and the burden was shifted to defendant to demonstrate why the copyright was invalid. The court stated that blank forms that did not convey information were not copyrightable. Blank form that doctors use. - HOLDING: Plaintiffs form was a blank form that was NOT copyrightable.
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Harcourt Brace (p. 109) - FACTS: Someone put out a test like the SAT and there was a blank form that you used to put your answers on. - HOLDING: A computer program, whether in object or source code, is a literary work, and is protected from unauthorized copying, whether from its object or source code version.

COPYRIGHTABILITY OF FACTS
NOT copyrightable: useful objects A fact (copyright in the compilation of facts but must be CREATIVE),

COPYRIGHT: Independent creation and a minimal amount of creativity Feist Publications v. Rural Telephone Service (p. 112) - FACTS: Kansas case. Each telephone company put out its own telephone directory for their area and Feist was one of them. Feist wanted to compile all of the information from all the telephone companies in Kansas. Everyone but Rural agreed to license their list of people to Feist. Feist took it anyway without permission. - HOLDING: Court said that the selection, coordination, and arrangement of respondents white pages did not satisfy the minimum constitutional standards for copyright protection. White pages, which contained only factual information, lacked requisite originality because respondent had not selected, coordinated, or arranged the uncopyrightable facts in any original way. - The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence. Factual compilations on the other hand may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers - MINIMUM DEGREE OF CREATIVITY - MAJOR HIGHLIGHTER!!!! the choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws - WHITE PAGES LACKED CREATIVITY SO THEY DID NOT SATISFY THE ORIGINALITY REQUIREMENT

COPYRIGHT IN COMPILATION
Jewelers Circular Publishing Co. (p. 177) - FACTS: Every jeweler has their own symbol. Someone came along and put out a listing of all the jewelers symbols, with their address and contact information. - HOLDING: Copyright in compilation here. An individual symbol is not copyright protected, but the compilation is protectable under 101 101 Definition of Compilation 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.

DERIVATIVE WORKS
103 Subject Matter of Copyright: Compilations and Derivative Works

Mazer v. Stein (1954, p. 17) COPYRIGHT IN THE DESIGN OF USEFUL ARTICLES - FACTS: Manufacturers and sellers of lamps sought review of a judgment holding that respondents had a valid copyright in statuettes it copyrighted as works of art and used as bases for table lamps it manufactured and sold. Respondents copyrighted statuettes as works of art and later used the statuettes as table lamp bases it manufactured and sold. The statuettes were original tangible expressions of an authors ideas. - HOLDING: A work of art as an element in a manufactured article was not a misuse of the copyright. The court affirmed and held respondents copyright valid b/c the statuettes were original expression of the authors ideas. Upheld the copyrightability of works of art that had been incorporated as the designs of useful articles. Masquerade Novelty v. Unique Industries - Costumes are considered useful items unless they have a requisite amount of artistry and then they will be copyrightable Sony Corp. of America v. Universal City Studios (p. 18) - FACTS: Sony against Betamax case. Copying the program for later use. You are making an entire copy of a copyrighted television program. - RULE: If there are substantial non-infringing uses to an item of manufacture, then they are neither a vicarious nor a contributory infringer. - HOLDING: Limited grant of copyright is a means by which an important public purpose can be achieved. Intended to motivate the creative activity of authors and inventors with the award of limited monopoly. FAIR USE HERE. If only using for time-shifting purposes it is non-commercial. Court says no effect on the use b/c someone is going to look at the TV program later on. FAIR US because no harm but a benefit! American Geophysical Union v. Texaco, Inc. (p. 18) - FACTS: Class action suit brought by six scientific publishers on behalf of other publishers registered with the Copyright Clearance Center. Copied articles without providing the appropriate fee to the publishers. - HOLDING: The copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will result in the proliferation of knowledge. Said that profit motive of the company was a relevant consideration in the analysis of the purpose of the use. The found against Texaco in considering the amount of work used focusing on the article as the whole work rather than the journal it came from. Burrow-Giles Lithographic Co. v. Sarony (1884, p. 29) - FACTS: Defendant lithographic company. Photographer, under his agreement with the subject, was the author, inventor, designer and proprietor of a photo to which he had signed his name, using only the initial letter of his given name and his surname. - HOLDING: The court agreed that the words used sufficiently gave notice of the copyright. When the photographer sued for a violation of his copyright, the existence of the facts of originality, intellectual production, thought, and conception on the part of the photographer should be prove. The findings showed the photo to be an original work of art. Affirmed. Bleistein v. Donaldson Lithographic Co. (1903, p. 33) - FACTS: Members of a company engaged in the lithography business brought an action for CR infringement alleging that appellees copied chromolithographs prepared by appellants employees to advertise a circus. The design belonged to appellants, copyrights were taken out in the proper names prior to publication, and the works were pictorial illustrations.
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HOLDING: Court saw no reason to construe the statute as protecting only pictorial illustrations connected with the fine arts, but that even if it did, the works would be protected b/c even ordinary posters used in advertisements were original works entitled to protection.

Trade-Mark Cases (1879, p. 57) - FACTS: Criminal defendants, who were convicted for counterfeiting trademarks challenge the statute as unconstitutional. Common law history behind trademarks and Congress power under the Commerce Clause the statute in question was unconstitutional. Congress lacked authority under the Commerce Clause to pass legislation pertaining to the registration of trademarks not used in interstate commerce - HOLDING: Statute was unconstitutional. If the main purpose of the regulation was to govern commerce wholly b/w citizens of the same state, such legislation was unconstitutional. When the right of the owner of the registered trademark was infringed, the remedies provided by the act were NOT confined to the case of a trademark used in foreign or inter-state commerce UNCONSTITUTIONAL Frederick Warne & Co. v. Book Sales, Inc. (1979, p. 63) - FACTS: Publisher filed suit against book marketer, alleging trademark infringement. Some of the publishers childrens books were no longer or never covered by copyright protection in the United States. The book marketers version of the books in the public domain included illustrations from the publishers book. - HOLDING: the publisher has the burden of establishing the illustrations had acquired secondary meaning, defined as the power of a name or other configuration to symbolize a particular business, product, or company. NO TRADEMARK INFRINGEMENT, SECONDARY MEANING, or LIKELIHOOD OF CONFUSION HERE. No fair use. Sebastian International Inc. v. Consumer Contact (PTY) Ltd. (1987, p. 79) - FACTS: Importing products copyrighted by plaintiff and shipped to a foreign country. P entered contract that permitted D to sell and distribute Ps product in a foreign country. Upon shipment, the product containers were shipped back to the US. - HOLDING: Court held that the place of manufacture was irrelevant to the scope of protection. The right of plaintiff to control the importation of the goods was not extinguished when those goods were first sold. ABR Benefits Services, Inc. v. NCO Group (1999, p. 110) - FACTS: Plaintiff claimed that defendant had without authorization reproduced plaintiffs copyrighted blank form that was used to notify clients of rights and services under the Consolidated Omnibus Budget Reconciliation Act of 1985. - HOLDING: Defendant motion for summary judgment was denied. The question of whether plaintiffs works were deserving of copyright protection was a mixed question of law and fact about which genuine issues of material fact remained. Rockford Map Publishers Inc. v. Directory Service Co (1985, p. 123) - FACTS: Plaintiff map company arranged aerial photos into plat maps by interpreting the legal metes and bounds descriptions into pictures. Defendant directory service company hired a person to enlarge plaintiffs plat maps, check them for errors, and give them to defendant for the production of a new map. - HOLDING: Defendant infringed by copyright plaintiffs work and using it as a template for production. Nash v. CBS (1990, p. 124) NOT COPYRIGHTABLE - FACTS: Plaintiff wrote several books regarding the death of John Dillenger. Defendants made an episode concerning the death of Dillinger for one of their weekly television series.
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Plaintiff sued for CR infringement. Nashs theory that Dillenger survived and that he is really living in Santa Monica and survived until 1979. Simon & Simon had an episode about this same theory. You can copyright the words if they took specific words. HOLDING: 102(b) did not cover ideas or discoveries such as historical facts. Held that broad latitude must be given to subsequent authors who make use of historical subject matter. Plaintiffs work was composed of analyzing other peoples facts and defendants work borrowed plaintiffs analysis. Ds work did NOT involve any of plaintiffs expression; used their own distinctive overlay in creating their episode no infringement

Wainwright Securities v. Wall Street Transcript Corp. (p. 128) - FACTS: Plaintiff prepared in-depth analytical reports for companies. They are used by 1,000 Wainwright clients including major banks, insurance companies, etc. Defendant publishes Wall Street Transcript. News cannot be copyrighted. - HOLDING: News cannot be copyrighted. What is protected is the manner of expression, the authors analysis or interpretation of events, his choice of words, emphasis, etc. Roth Greeting Cards v. United Card Co. (1970, p. 131) COMPILATION - FACTS: Plaintiff is a designer and distributor of greeting cards. Claimed infringement on seven cards. All judges on appeals court agreed that text was too commonplace to be copyrighted. BUT considering all the elements together, the Roth cards are both original and copyrightable. All the elements of the card had to be considered as a WHOLE. Ds artwork is somewhat different from Ps in each case. - HOLDING: Overall arrangement of the text, the artwork, and the association of the artwork to the text, the cards are copyrightable and the copyright infringed. The overall cards would be recognizable by an ordinary observer, so this was copyright infringement here. Sem-Torq, Inc. v. K-Mart Corp. (p. 132) COMPILATION - FACTS: Plaintiff designed placards with simple phrases on each side such as for rent or for sale. Decided to market signs in sets of five to stores such as K-Mart which placed them in slotted display stands and could be bought singly. If they are very simple minded and obvious and not a lot of originality no copyright. - HOLDING: Copyrightable compilation usually involve a work whose value to consumers is in the combination of the individual parts. This is not the case here. These signs can all be treated separately. Still too simple minded even if sold as a package in compilation. Atari Games Corp. v. Oman (p. 133) COMPILATION - FACTS: Register of Copyrights did not allow the copyrighting of the videogame Breakout b/c level of creativity is very low. Even viewing the game as a whole, no original authorship in selection or arrangement of images. - HOLDING: NO COPYRIGHT. Too simpleminded of a game concept to get copyright protection. Matthew Bender & Co. v. West Pub. Co. (1998, p. 135) - FACTS: HyperLaw noted its intention to publish some decisions on CD read-only. - HOLDING: Wests overall decision to group all of the four elements in its case reports exhibits little, if any, creative insight, even though its editorial work entails considerable scholarly labor and care. For West or any other editor of judicial opinions, faithfulness to the public domain original is the dominant editorial value. Copyright granted to West is
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THIN, but sufficient to protect against the verbatim digital copyrighted proposed y HyperLaw. Matthew Bender & Co. v. West Pub. Co. (1998, p. 137) - FACTS: West claimed that HyperLaws insertion into their CD-ROM products containing court decisions of the page-break numbers in the West hard-copy law reporters infringed Wests copyright in its case compilations. Star pagination does not constitute a copy of the sequence or arrangement of court decisions. Since page breaks do not result from any original creation by West, their location may be lawfully copied. - HOLDING: Star paginations volume and page numbers merely convey unprotected information and that their duplication does not infringe Wests copyright. Star pagination is NOT the type of creativity that the court is interested in protecting. CCC Information Services v. Maclean Hunter Market Reports, Inc. (p. 140) THIN COPYRIGHT - FACTS: Publishers of used car valuation guide. Redbook alleged that Bluebook copied them. CCC uses a computer database VINguard Valuation Service provides subscribers with the average of a vehicles Red Book valuation and its valuation in the NADA Bluebook - HOLDING: Since 1988, numerous Red Book customers have canceled their subscriptions, opting instead to purchase CCCs services. District Court erred in ruling that the Red Book commands no copyright protection by reason of lack of originality. Given the nature of the compilations, it is almost inevitable that the original contributions of the compilers will consist of IDEAS. Copying is so extensive that CCC effectively offers to sell its customers Macleans Red Book through CCCs database. COPYRIGHTABLE BUT THIN COPYRIGHT Southco, Inc. v. Kanebridge, Corp. (p. 147) - FACTS: Screw manufacturer. Said that the numbering of the screw is NOT copyrightable b/c it is not a work of authorship. It is an idea that is not subject to copyright. - HOLDING: The Southco part numbers are not protected by copyright because they are mechanically produced by the inflexible rules of the Southco system. ATC Distribution Group, Inc. v. Whatever It Takes Transmission & Parts, Inc. (p. 148) - FACTS: Catalogue of automotive transmission parts. ATC cannot copyright its prediction of how many types of sealing ring will be developed in the future so as to leave certain sequential digits unused at this time. - HOLDING: Overall compilation of parts numbers in the catalogue is not copyrightable because they only add up to a long list of numbers and also because the plaintiff added too little to an earlier transmission parts catalogue which it had based its own catalogue. BellSouth Advertising & Publishing Co. v. Donnelley Information Publishing, Inc. (p. 149) COMPILATION - FACTS: BellSouth (BAPCO) publishes a yellow-page directory in the Miami area. Donnelley admitted to copying the material from BAPCO but asserted that this material was NOT copyrightable. - HOLDING: BAPCOs choice of a geographic area and a closing date for its yellow-page listings was not copyrightable, relying on implications from Feist. Donnelley selected a somewhat different category of headings for their listings. Copied a great deal quantitatively, but did not appropriate whatever original elements might arguably exist in the BAPCO directory. If he had taken the original elements, would have been copyright infringement. Superman Case - Siegel and Shuster created Superman but never got the rights to the comic because they sold the strip and the future rights in March 1938 for $130.
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Lipton v. The Nature Company - FACTS: James Lipton and his book An Exaltation of Larks created a collection of veneries (groups of things). Someone comes along and puts together a series of books, posters and drawings of these veneries in his book. - HOLDING: Copyright in compilation. Open Source Yogan Unity v. Choudhury (p. 151) - FACTS: Yoga poses are not copyrightable. There is a certain logic to doing yoga poses so it does become a certain method of operation NO COPYRIGHT PROTECTION. Wrote a copyrighted book that detailed a sequence of yoga positions and breathing exercises. Both parties agreed that the positions were in the public domain. - HOLDING: Sequence of yoga poses are NOT copyrightable. Facts were in dispute as to whether any publication occurred prior to the copyrights registration and whether the Bikram yoga mark was generic. Assessment Technologies v. Wire Data (p. 152) - FACTS: Tax assessment tables that people want to protect. They put this information together in order to assess their taxes. Wire Data wants the raw data from these tables. Plaintiff brought suit to stop defendant from making demands of several municipalities for data. - HOLDING: Wire Data only wants the raw data therefore, NO COPYRIGHT PROTECTION. If you collect data and the way in which you collect it is machine-like, then the database that results from this machine-like collection of data is NOT copyrightable.

ARCHITECTURAL WORKS PROTECTION - only protected if conceptual separability exists

Sparaco v. Lawler Tuskey Skelley Engineers (p. 156) COMPILATION - FACTS: Site plan for the development of a plot of land. The plan contains the location and contour of the building footprint, parking lots, curbs, driveways, and walkways. Placement of utilities and provision for sediment and erosion control, landscape design, etc. ARCHITECTURAL DRAWINGS ARE COPYRIGHTABLE. The surveyor contended that his plans depiction of the existing characteristics of the site was protectable as a map or as an original compilation of facts. - HOLDING: The site plan was a fully-capable site-plan. All of this together becomes a compilation because there was an amount of originality in all of this that constitutes a protected map. Upheld copyright for detailed plan. SPECIFIC AMOUNT OF ORIGINALITY SO IT IS COPYRIGHTABLE Batlin & Son v. Snyder DERIVATIVE WORKS - FACTS: There is an original Uncle Sam bank. They got a design patent but it expired. Snyder wanted to make a plastic version of the original cast iron bank. Baitlin then copies the plastic version of the bank. Based on a plastic reproduction of an antique that was long in the public domain and did not meet the constitutional and statutory requirement of originality necessary for copyright protection. - HOLDING: NO COPYRIGHT BECAUSE NO ORIGINALITY! 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 work! NOT DERIVATIVE b/c there were functional considerations.
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In order to be copyrightable, a derivative work must contain some substantial, not merely trial variation from the underlying work on which the derivative work is based.

Rodins Hand of God case (p. 167) DERIVATIVE WORKS - The author got this own copyright and was not infringing on Rodins piece b/c there was originality in the making of the very large hand MUCH SMALLER. Bridgeman Art Library, Inc. v. Corel Corp. (p. 170) - FACTS: There is originality in taking a picture of a famous author, but if you just take a work of art and you want to take a photograph of it as accurate as possible to duplicate every part of it, then there is NO ORIGINALITY! - HOLDING: NO ORIGINALITY HERE. No originality No copyright protection. Paddington Bear Case (p. 171) - Was copyrightable because it was different enough from the original drawing of Paddington Bear Wizard of Oz Plate Contest (p. 173) - FACTS: Woman sued Disney for using her plate. If you make a slight variation of a copyrighted work, the original copyright owner is the ONLY one who can assert work. - HOLDING: Even though it was an authorized version of something that is part of their copyrighted work, they do not have any rights to the copyright. Entertainment Research Group v. Genesis Creative Group (p. 175) - FACTS: When you make a 3D object out of a 2D picture. Costumes based on twodimensional characters. - HOLDING: Some facial expression differences are NOT enough. Two prong test: 1. The derivative work must have original aspects that are more than trivial. 2. It must appear that granting copyright in the derivative work will not affect the copyright protection of the underlying work. Dr. Seuss Cases - Dr. Seuss created a number of cartoons for Liberty Magazine in 1932. The copyrights were owned by Liberty. More than thirty years later, Liberty authorized Don Poynter to make three-dimensional dolls based on these cartoons. Dr. Seuss, finding these dolls to be tasteless, unattractive and of inferior quality (70) Ets-Hokin v. Skyy Spirits (p. 176) DERIVATIVE WORK - FACTS: Someone takes a photo of Skyy Vodka bottle. He has the light shining on the S but the shadow is in front of the bottle. Skyy asked someone else to do the photo b/c they did not like the way that the first one came out. THIS IS NOT A DERIVATIVE WORK BECAUSE YOU HAVE TO COPY A COPYRIGHTABLE OBJECT AND THE BOTTLE ITSELF IS NOT COPYRIGHTABLE. - HOLDING: Ets-Hokin wins. His photograph could be copyrighted b/c the way that he did it was original. The Vodka bottle was not copyrightable and therefore the photograph was NOT a derivative work and therefore his photograph was the only thing that could be copyrighted. NOT A DERIVATIVE WORK. Lotus Development Corp. v. Borland International, Inc. (p. 195)
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FACTS: Lotus command menu hierarchy case. Plaintiff sued defendant alleging CR infringement. HOLDING: This is NOT copyrightable b/c there was no law before this on the issue. The Lotus menu command hierarchy is a METHOD OF OPERATION NOT COPYRIGHTABLE. Court found that the menu was not copyrightable b/c it was a method of operation and therefore was foreclosed from copyright protection. Boudins Concurrence: Utility does not bar copyright, but it alters the calculus.

Mitel, Inc. v. Iqtel, Inc. (p. 203) - FACTS: Mitels command codes comprise the method by which a long distance carrier matches the call controllers functions the carriers technical demands, and the telephone customers choices. - HOLDING: The menu command hierarchy was NOT protected by copyright b/c the hierarchy was a method of operation unprotectible under 102(B). Schiffer Pub. v. Chronicle Books (2004, p. 177) - FACTS: Defendants created a book of different fabric patterns using photos that they lifted directly from plaintiffs books, scanned into digital form, and reproduced. The photos were sufficiently original to be copyrightable as they exhibited the requisite level of creativity. - HOLDING: Defendants use of plaintiffs work was NOT fair use. Court entered judgment in favor of plaintiffs. Maljack Productions, Inc. v. UAV Corp. (1997, p. 180) - FACTS: Two versions of an original screenplay for the motion picture were written in 1962. In 1963, plaintiffs produced the motion picture and registered the movie for copyright, but did not separately register the screenplays. Plaintiffs failed to renew CR in 1991. In 1993, Ps created a pan and scan version of the motion picture for videocassette, which was copyright as a derivative work. - HOLDING: Plaintiffs pan and scan changes to the motion picture and changes to the soundtrack were properly copyrighted by plaintiffs in 1993 as a derivative work and defendant corporations duplication of the 1993 movie was an infringement of the copyright.

COMPUTER PROGRAMS ORIGINALITY AND WORK OF AUTHORSHIP

Apple Computer, Inc. v. Franklin Computer Corp. (1983, p. 185) - FACTS: Apple alleged copyright infringement of computer programs, patent infringement, unfair competition, and misappropriation. - HOLDING: Copyright could exist in computer operating systems and that the district courts denial of its injunction was based in large part on the erroneous view of the law. The jeopardy to Ps investment and competitive position caused by Ds copying satisfied the requirement of irreparable harm needed to support a preliminary injunction. COURT REJECTED ARGUMENT THAT OBJECT CODE SHOULD NOT BE PROTECTED B/C IT ONLY COMMUNICATES TO MACHINES. EXPRESSION OF THE METHOD AND JUST B/C HUMANS CANT READ IT DOES NOT MEAN THAT IT SHOULDNT BE PROTECTED IS COPYRIGHTABLE American Dental Association v. Delta Dental Plans Association (1997, p. 205) - FACTS: The ADA created and published a taxonomy of dental procedures. Gave them number assignments. Delta Dental, an insurance company, publishes Universal Coding and Nomenclature, which includes most of the numbering system and short descriptions from the ADA code.
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HOLDING: The dental-procedure taxonomy satisfies the minimal standards for creativity to secure copyright.

Mannion v. Coors Brewing Company (2005, p. 206) - FACTS: Mannion is a freelance photographer who specializes in photos of celebrity athletes and musicians in the Rap & R&B worlds. SLAM basketball magazine hired Mannion to photograph Kevin Garnett in connection with an article planned to be published about him. In 2001, defendant CHWA decided to use the same idea as the Garnett photograph for an Iced Out Comp Board. - HOLDING: Photograph may be original in three respects: (1) Rendition (originality which resides instead in such specialties as angle of shot, light and share, exposure, etc.); (2) Timing (a person may create a worthwhile photo by being at the right place at the right time); (3) Creation of the Subject (copyright confers no right over the subject matter. A photo may be original to the extent that the photographer makes the scene, etc) - Protection conferred by the CR in the Garnett photograph. HELD that photo was copyrightable. Rogers v. Koontz string of puppies photograph. It was put on a picture postcard. Koontz did a two-ton sculpture of the string of puppies and the photographer sued and WON because Koontz copied the exact layout of the photo Gross v. Seligman someone took a photo of a nude model, sold the rights to the photo, and then placed the model in the exact same position, put a rose in her mouth. Court held that he violated the copyright of his own photo! Diadato v. Spade (2005, p. 218) - FACTS: Photographer claimed infringement of his photo. Womans feet at bottom of a bathroom stall shot. - HOLDING: The photo lacked sufficient originality. Secondary Supplementary Report & the Register of Copyrights on the General Revision of the US Copyright Law - Inappropriateness - Judicial hostility - Cost - Delay Harry Potter Case - FACTS: Someone makes a Harry Potter lexicon on a website. He thought up the idea of making a book out of this lexicon. A Harry Potter encyclopedia. - HOLDING: NO FAIR USE DEFENSE HERE. Violation of copyright and the book is enjoined from being published Seinfeld Aptitude Case, Twin Peaks Case, Star Trek Case, etc. - People want to do spin offs and make money off of the information by putting it in another form w/out violating CR of the show. NY Mercantile Exchange, Inc. v. Intercontinental Exchange, Inc. (2007, p. 7 Supp.) - FACTS: Commodity futures exchange brought action against Internet-based competitor alleging copyright and trademark violations, stemming from competitors use of exchange settlements prices. - HOLDING: Held that (1) exchange could not enforce copyright in settlement prices it produced to value customers open positions, and (2) district court did not abuse its
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discretion in declining to exercise supplemental jurisdiction over the state law claims. Affirmed. Silverstein v. Penguin Putnam (2007, p. 8 Supp.) - FACTS: Compiler of poetry collection sued publisher of similar collection for copyright infringement and unfair competition. Someone wanted to collect all the poetry of Dorothy Parker ruled that Silversteins categorization of Parker fragments into Prose or Poetry lacked creativity. - HOLDING: Held that (1) compilation purporting to include all poems of author lacked originality necessary for copyright protection; (2) claim that editor had to determine what constituted a poem did not provide necessary creativity; (3) there was no reverse palming off, in violation of Lanham Act; (4) complaint could not be amended to allege false promotion under Lanham Act; and (5) Copyright Act preempted state law claims of reverse palming off, unfair competition and immoral trade practices. Reyher v. Childrens Television Workshop - FACTS: Sesame Street case. Plaintiffs had written a book of Russian folktales. Sesame Street did a take-off of one of these folktales. The woman who collected the story sued for copyright infringement and LOST because it was an idea. - HOLDING: Book writer loses b/c this was an IDEA that was copied.

USEFUL ARTICLES
Aesthetic Conceptualness something that can be made separate from. When you look at it, do you say pretty mannequin head or pretty head or pretty mannequin head that will have wigs on top of it. Pivot Point International, Inc. v. Charlene Products, Inc. (2004, p. 231) USEFULNESS - FACTS: Pivot Point designs and develops mannequin heads. Wax molds of Mara were made and sent to Pivot Points manufacturer in Hong Kong and they were made out of PVC. They had double hairlines. Charlene, a wholesaler of beauty products displayed its own Liza mannequin which was very close in appearance to Mara and it also had a double hairline. Hungry look of the mannequins. - Conceptual Separateness for the design features to be separate, the article must stimulate in the mind of the beholder a concept that is separate from the concept evoked by its utilitarian function. - HOLDING: Mara is copyrightable because it passes the physical separability test. 1. Artistic features are primary and the utilitarian features subsidiary 2. Useful article would still be marketable to some segment simply b/c of aesthetic qualities 3. Article stimulates in the mind of the beholder a concept that is separate from the concept evoked from its utilitarian function 4. Artistic design was not significantly influenced by functional considerations 5. Artistic features can stand alone as a work of art 6. Artistic features are not utilitarian Kieselstein Cord v. Accessories by Pearl, Inc. (p. 236) - FACTS: Kieselstein created a line of decorative belt buckles inspired by works of art. Pearl copied the designs and marketed its own, less-expensive versions of the belt buckles. - HOLDING: The artistic aspects of the belt buckles reflected purely aesethic choices, independent of the buckles function. IS COPYRIGHTED B/C THE SCULPTED SURFACES ARE AESTHETIC.
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Carol Barnhart, Inc. v. Economy Cover Corp. (p. 237) FUNCTIONAL CONCERN - FACTS: Barnhart developed four mannequins consisting of human torsos for the display of shirts and jackets. She obtained copyright registrations for each of the forms. - HOLDING: NOT copyrightable. For the design features to be conceptually separate from the utilitarian aspects of the useful article that embodies the design, the article must stimulate in the mind of the beholder a concept that is separate from the concept evoked by its utilitarian function. These torsos showed that accurate anatomical design and functional concerns were key here. Features in the mannequin were not the result of purely aesthetic choices Brandir International v. Cascade Pacific Lumber Co. (p. 240) - FACTS: Involved the work of an artist that was a sculpture of thick, interwoven wire. Could function as a bicycle rack. The artist worked with Brandir to change the sculpture into a functional Ribbon Rack which was marketed in 1979. - HOLDING: Court found that the rack was NOT copyrightable. When the ribbon rack was compared to earlier sculptures, it was in its final form essentially the product of industrial design. - The adoption of design features were influenced by utilitarian considerations, then the features are inextricably intertwined with the utilitarian function of the article and are not conceptually separable. Copyright of Typeface Designs - A typeface is a set of letters, numbers or other symbolic characters. The copyright office declines registration for typeface designs because there is a fear of monopoly in that business. Architectural Works Copyright Protection Act of 1990 - Architectural Works Copyright Protection Act of 1990 (Effective December 1, 1990). Designs to expand scope of copyright protection. It is an art form that performs a very public, social purpose. - 101 An architectural work is the design as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the form as well as the arrangement and composition of spaces and elements in the design but does not include individual standard features. - 120 Scope of Exclusive Rights in Architectural Works pictorial representations of the building are permitted and to allow the owner of the building to alter and destruct the building however he wants to. - *Buildings not built by 12/1/90 but unpublished drawings of plans had been made by that date could get copyright protection as long as they were competed within two years afterwards. Viad Corp v. Stak Design court held that a kiosk was NOT a building protected by 102. Defines a building as a humanly habitable structure that is intended to be both permanent and stationery. Hunt v. Pasternack court held that such a work is protectable against infringement even though it exists only in the form of two-dimensional plans and has not yet been constructed Attia v. Society of NY Hospital No infringement of preliminary sketches for renovated hospital building. Parts on drawing included platform over highway, which showed placement of building, use of truss technology, alignment of floor heights, etc. Demetriades v. Kaufmann (1988, p. 253)
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FACTS: Plaintiff designed a one-of-a-kind residence in Scarsdale. Defendants secured unauthorized access to the plans, had their architect trace the ps plans and began to build essentially the same house. HOLDING: Court found that the traced plans infringed but that the construction of the offending residence did NOT infringe. This was prior to the 1990 amendment extending protection to architectural works.

Warner Brothers Pictures v. Columbia Broadcasting System (Maltese Falcon case) (1954, p. 260) - FACTS: Published serially in a magazine and then in a book. In 1930, Hammett and Knopf conveyed to Warner Brothers for $8500 the copyright assignment of the use of The Maltese Falcon in moving pictures, radio, and television. In 1946, Hammett granted to CBS the right to use the Sam Spade character and name, along with the names and characters of others in The Maltese Falcon. CBS broadcast weekly half-hour Sam Spade radio programs from 1946-1950. - HOLDING: Court said that Warners purchase price of $8500 would seem inadequate compensation for the complete surrender of the characters made famous in the Falcon book. They own the right to that work but they do not own the characters in the work as long as the characters in the next work do not follow the same plot line as the characters in the first work. Anderson v. Stallone (1989, p. 261) COPYRIGHTABLE CHARACTERS - FACTS: Stallone discussed his ideas for Rocky IV in a press conference. Timothy Anderson wrote a thirty-one page treatment entitled Rocky IV that he hoped would be used by Stallone and MGM/UA Communications as a sequel to Rocky III. Andersons attorney wrote to MGM requesting compensation for the alleged use of his treatment in the forthcoming Rocky IV movie. - HOLDING: Andersons treatment was an infringing derivative work based on those copyrightable and that the unlawful use of those characters forfeited the plaintiffs copyright by virtue of 103(a) of the Copyright Act Metro-Goldwyn-Mayer Inc. v. American Honda Motor Co. (1995, p. 264) - FACTS: The various dramatic elements of the commercial were copied from and substantially similar to several copyrighted James Bond films. Bond-like commercial. Very well dressed character comes down from helicopter and lands in a car. - HOLDING: The court found an infringing use of James Bond character even though no name was used in the commercial. Bond is a highly delineated character COPYRIGHT INFRINGEMENT Gaiman v. McFarlane (2004, p. 265) COPYRIGHT IN CHARACTERS - FACTS: McFarlane began publishing a series of comic books entitled Spawn, which at first he wrote and illustrated himself. McFarlane accepted an invitation to wrote a script for issue 9 of Spawn through an oral contract in 1992. Gaimans work for McFarlane was not work made for hire. Gaiman introduced a new character to issue 9 (Medieval Spawn). - HOLDING: Although Gaimans verbal description of Cogliostro may well have been a stock character, once he was drawn and named and given speech be became sufficiently distinctive to be copyrightable Franklin Mint Corp. v. National Wildlife Art Exchange (p. 587) COPYRIGHT OF PAINTINGS - FACTS: Picture of a blue jay. The guy hired by a different company to do blue jay paintings, but the two images are almost identical.
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HOLDING: No infringement because if you sell the rights to a blue jay painting, then you can never do another blue jay painting which is not true with a model. It will not be a blue jay if you dont paint what the blue jay is.

ConWest Resources v. Playtime Novelties (p. 10 Supp.) - FACTS: ConWest had created and registered claims of copyright in twelve sculptures of male penises which it reproduces and sells as adult novelty items under the trademark FALCON. - HOLDING: Not copyrightable. Sheet music Recording Public Perf. (Analog) 100% Public Perf. (Digit al) 100% Synchs Jukebox 116 Noncommerci al Broadcast ing

Compos er (author)

15%

9.1 cents

Harry Fox Agency for mechanical s; Individual publishers for mechanical s

Perform er (sound recordin g)

15-20% of 0% 100% each record sold. 50% of any license cold by the record company. *Composer almost ALWAYS sells the song to a publisher. 106 of the copyright law gives the copyright owner the right to publicly perform the work. Every time it is publicly performed, the copyright owner should collect. In theory, any time the song is performed in public, an ASCAP license must be granted and royalties must be paid. Piano Rolls and Copyright Evolution - Congress was unhappy with the idea of someone trying to get a monopoly on piano rolls so they put in a provision of the copyright law to stop the monopoly (1(e) of the 1909 CR law) - 1(e) any person shall have the exclusive right to perform the copyrighted work publicly for profit if it a musical composition provided that the provision of this terms so far as they procure copyright concerning the parts of instruments serving to produce mechanically, the musical work shall include works after July 1909 and whenever the owner of the music copyright has knowingly used or acquiesced the musical work, any other person may make similar use of the work upon the payment of 2 cents on each part manufactured. - COMPULSORY LICENSE Breaks the monopoly on piano rolls! - Today, the compulsory rate is 9.1 cents (from 2 cents in 1909) Newton v. Diamond (2003) SOUND RECORDINGS - FACTS: Performers recorded a song using a segment of the composers performance of his composition, consisting of three notes separated by a half-step over a background note and lasting approximately six seconds. The performers obtained a license for use of the
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recorded performance but did not obtain a separate license for use of the composition itself. Did NOT get permission to use the sample from the owner of the underlying composition. HAD PERMISSION TO USE SAMPLE BUT NOT UNDERLYING COMPOSITION. HOLDING: Court held that the performers use of the composition, as distinct from the use of the composers performance, was de minimis and therefore not actionable. Scope of the similarity was not sufficiently substantial to support he composers infringement claim. USE WAS DE MINIMIS AND NOT ACTIONABLE.

GOVERNMENT WORKS
105 Subject Matter of Copyright: United States Government Works - Copyright protection under this title is not available for any work of the US Government, but the US Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. o i.e. everything that the President sys in public is a work of the United States Government. - Hyman Rickover (p. 275) Gave speeches about nuclear power and the navy, the education of our children, etc. The navy paid for his transportation, he would type the speeches in his office, would dictate to his navy secretary and the navy was very happy with all of these speeches because they encouraged the public to go out and support the nuclear submarine programs. US v. Washington Mint (p. 275) - FACTS: Glenda Goodyear (who was not an employee of the mint), prepared a plaster sculpture of Sacagawea, a Native American. She assigned the copyright to the US mint and then Minnetonka Mint issued silver replicas of the Sacagawea dollar coin. The replica was three inches so it was not the same size as the US coins were. - HOLDING: The Mint won this case because the copyright was owned by this woman and she assigned the rights to this copyright to the US Mint. County of Suffolk v. First American Real Estate Solutions (2001) - FACTS: County alleged that defendants infringed its copyrights in its official tax maps by publishing and marketing those maps without the countys permission. The company said that NYs FOIL law barred the county from asserting a copyright in its official tax maps. - HOLDING: Court said that the state legislature by enacting FOIL did not abrogate the countys copyright in its tax maps, it was possible for the county to comply with its obligations under FOIL which preserving its rights under the Copyright Act, the county sufficiently alleged that its tax maps possessed enough originality to withstand a motion to dismiss for failure to state a claim, and the official tax maps could not, as a matter of law, be deemed to be in the public domain since their inception. Veeck v. Southern Bldg. Code Cong. International (2002, p. 280) GOVERNMENTAL WORKS - FACTS: Operator cut and pasted the text of model building codes onto his website despite the fact that software licensing agreement and copyright notice indicated that the codes could not be copied and distributed. - HOLDING: The court held that when the operator copied only the law which he obtained from the organizations copyrights in its model building codes. The court said that the building codes could be expressed in only one way; they were facts. You CANNOT copyright the law. If someone prepares a model statute and someone adopts that statute, you still have to copyright the model statute that you prepared.

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Mitchell Bros. Film Group v. Cinema Adult Theater (1979) OBSCENITY - FACTS: Defendant theaters obtained copies of and exhibited an adult motion picture, on which plaintiffs owned a copyright issued under the 1901 Act without plaintiffs permission. Defendants successfully asserted in the district court that plaintiffs were not entitled to relief under the unclean hands doctrine, as the movie was obscene. - HOLDING: The court concluded that nothing in the 1909 Act indicated that obscene materials could not copyrighted. The Act was constitutional under the necessary and proper clause even though it accorded protection to works that arguably did not promote science and useful arts under the Copyright Clause. Held it was improper to apply the equitable unclean hands doctrine in contravention of the Acts pro-creativity purposes. You can copyright obscene films. Devils Films, Inc. v. Nectar Video (1998) OBSCENITY - FACTS: Plaintiff film company sought an order to show cause to direct the US Marshal to enter the defendants, video company and related individuals, premises and seize videocassettes containing unlicensed copies of the film companys copyrighted pornographic films and seize all business records relating to the video business and a freeze on all assets. - HOLDING: The films at issue were hard core pornography and thus, obscene. The court denied the film companys application for an order of seizure and injunctive relief, holding that the strong public policy against the distribution of obscene material compelled it to conclude that it should not exercise its equitable powers to benefit the film company.

DURATION AND RENEWAL OF COPYRIGHTED WORKS

SONNY BONO TERM COPYRIGHT TERM EXTENSION ACT 1998 (p. 392) - In 1998, this act was passed that extended the term of copyright from 50-70 years following the death of the author. For anonymous and pseudononymous works, increased from 75 years from publication to 95 years. The term extension act provides that a library in a nonprofit educational institution may freely reproduce, distribute, display and perform a published work during the newly added 20 years. - 1998 Law delays the reception in the public domain not only of future but of pre-existing works. The public domain is a crucial counterpart of the copyright system, the Constitution authorizes Congress to secure copyright for limited times. Eldred v. Ashcroft (2003, p. 393) - FACTS: Under the CTEA Congress enlarged the duration of copyrights by 20 years in order to harmonize the baseline United States copyright term with the term adopted by the European Union. Petitioners argued that the CTEA violated the limited times prescription of the copyright clause. Essentially is the Sonny bono copyright term extension act. - HOLDING: Determined that the CTEA was constitutional. The CTEAs extension of existing copyrights did not exceed Congress power under the Copyright Clause. 302 Duration of Copyright: Works Created on or After January 1, 1978 303 Duration of Copyright: Works created but not published or copyrighted before January 1, 1978 - Basic purpose is to substitute statutory for common law copyright for everything now protected at common law, and to substitute reasonable time limits for the perpetual protection now available.

COPYRIGHT TERM CHART

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Date of Work Published before 1/1/1923 From 1923-1963

From 1964-1977 (after 1964, the copyright was automatically renewed) Created before 1/1/1978 but NOT published

Protected From EVERYTHING published before this time is in the public domain Had to publish WITH NOTICE AND RENEWED THE COPYRIGHT (and works published without notice are in the public domain) Published with notice (and works published without notice are in the public domain) Protected from 1/1/1978 he is dead but he never published the work (The Effective Date of the 1976 Copyright Act) 303 of the Copyright Act Copyright in a work created before 1/1/1978 1/1/1978

Term of Protection NONE

Example Moby Dick

95 years but if copyright was not renewed, then work is now in public domain

Gone With the Wind

95 years

Life + 70 years

Created before 1/1/1978 but published between then and 12/31/2002 Created before 1/1/1978 but published AFTER 12/31/2002

Life + 70 years, or 12/31/2047, whichever is greater Life + 70 years

Letter from Thomas Jefferson that was written but never published. Lasts for the term of copyright but it will not expire before 12/31/2002. This gave everyone a chance to publish works not published between 1978 and 2002. Letters from Mark Twain that were never published Popular music, new books, etc.

1/1/1978

*Sonny Bono Copyright Extension Law came into effect on January 1, 1998

FORMALITIES IN PROTECTION OF COPYRIGHT, PUBLICATION, NOTICE, DEPOSIT

CHECKLIST FIRST REGISTRATION - If you do not register before infringement you lose statutory damages and attorneys fees (412) - Prima facie evidence of a valid copyright SECOND PUBLISH (101?) THIRD NOTICE (401) [no longer necessary check chart to see if necessary!] FOURTH DEPOSIT (407) 9

Letter Edged in Black Case

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Sculpture by Picasso. It was in the public domain. A copy of that sculpture was not infringement b/c it is PD

Academy of Motion Picture Arts & Sciences v. Creative House Promotions, Inc. (p. 477) (COPYRIGHTABLE EVEN W/ NO NOTICE) - FACTS: Defendant manufacturer and distributor of advertising specialty items, commissioned and sold trophies shaped almost identical to the Oscar statuette, except that the gold male figure was shorter and held a star rather than a sword. The Academy insisted that Creative House discontinue or significantly change its star award. In 1941, the Academy registered the Oscar with the copyright office as an unpublished work of art, and all Oscars since then have borne the copyright notice. Copyright was renewed in 1968. - HOLDING: Held that the display and presentation of the Oscar statues at the annual award ceremonies was such a limited publication, even though there was no express restriction on the use or sale of the award. Publishing two-dimensional pictures does not constitute a divesting publication of three-dimensional objects. This is NOT general publication. Publication the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. White-Smith Music Publishing Co. v. Apollo Co. - FACTS: Piano rolls did not embody a system of notation that could be read and hence were not copies of the musical composition within the meaning of the law. While the statute uses copies and phonorecords in the plural, the committee reports state that under this definition a work is published if one or more copies or phonorecords embodying it are distributed to the public. - HOLDING: Piano rolls were not copies of the musical composition within the meaning of the law, but constituted merely parts of devices for mechanically performing the music. 302(c) and (e), the duration of protection for anonymous and pseudonymous works and works made for hire is measured from publication or creation. 303 works created before 1978 but not yet published are given statutory protection for the term of life plus 70; and under 407 deposit for Library of Congress purposes is mandatory for works once they are published BMG Music v. Gonzalez - FACTS: The defendant downloaded numerous recorded songs for the internet. She sought a diminution of statutory damages on the ground that the copies from which she copied did not bear a copyright notice. When you download a song, you do not see any notice, you only get the electronic file. GROKSTER CASE. A distributed file-sharing system is engaged in contributory copyright infringement when its principal object is the dissemination of copyrighted material. - HOLDING: Court enjoyed Gonzalez from further infringement and awarded $22K in damages. She downloaded more than 1370 songs and so she had to pay damages for 30 songs. 401 Notice of Copyright: Visually Perceptible Copies The Rear Window Case - FACTS: Someone wrote a short story called It had to be murder. Alfred Hitchcocks company did a movie based on the movie Rear Window. The author of the original story
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died and someone else renewed the copyright term. A guy named Abben got the renewal rights. Abben had went around buying renewal terms for a lot of these movies and he lucked out because now he owned the underlying work on which Rear Window was based and after 28 years they continued to distribute the film. HOLDING: Abben wins.

COPYRIGHT NOTICE TRENDS

Time Period Jurassic Period Middle Ages Modern Times Requirements Technicalities on notice. Every part of notice had to be COMPLETELY accurate or else copyright was lost. Three Escape Hatches (some relief from the harshness of the old law) 405 CR of 1976 After 3/1/1989, notice was no longer necessary

405 Notice of Copyright: Omission of Notice on Certain Copies and Phonorecords 406 Notice of Copyright: Error in Name or Date on Certain Copies and Phonorecords Matthew Bender & Co. v. West Publishing Co. (p. 506) - FACTS: Bender and HyperLaw sought a judgment declaring that star pagination will not infringe Wests copyrights in its compilations of judicial opinions. West argues that plaintiffs have inserted or will insert all of Wests volume and page numbers for certain case reporters. - HOLDING: The only fixed arrangement is the non-West sequence that is embedded on plaintiffs CD-ROM discs and that appears with the aid of a machine without manipulation of the data. Star pagination was not enough. Phillips v. Kidsoft LLC - FACTS: Plaintiff was an author and artist who designed mazes and maze theme books, particularly for children. - HOLDING: Scanning the maze images into Kidsofts computer constituted the making of unauthorized derivative works of the mazes. Tiffany Design, Inc. v. Reno-Tahoe Specialty, Inc. - FACTS: Plaintiff took aerial photos of the Las Vegas Strip and retained the services of a graphic artist to make modifications in the appearance and size of the buildings and other elements. - HOLDING: Held that the scanning and digitizing produced infringing copies, even though the scanned images resided only temporarily in the random access memory (RAM) of the defendants computer. Arnstein v. Porter (p. 509) - FACTS: Copyrights to several musical compositions, infringement of his rights to other uncopyrighted musical compositions, and wrongful use of the titles of others. Plaintiff alleged that defendants songs were plagiarism from plaintiffs compositions. He gave no direct proof that defendant knew of the compositions. If there are no similarities, no amount of evidence of access will suffice to prove copying. If there is evidence of access and similarities exist, then the trier of the facts must determine whether the similarities are sufficient to prove copying. - HOLDING: No conclusion that defendant copied here. A jury might infer access to the song and therefore copying if the case goes to a trial. You can still copy if it is subconscious.
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Dawson v. Hinshaw Music, Inc., (1990, p. 514) - FACTS: - HOLDING: Held that the determination of substantial similarity as the second test under Arnstein v. Porter is to be made from the perspective of the audience that was intended by the author to constitute the commercial market. Ordinary observer test should be displaced only when the intended audience has specialized expertise and not merely when its tastes might differ from those of the lay observer. Lyons Partnership, LP v. Morris Costume (2001, p. 515) - FACTS: Defendant company rented and sold costumes to adults. One was named Duffy the Dragon, whose appearance was alleged by the plaintiff to infringe Barney the Dinosaur. The average adult purchaser would not find Duffy and Barney to be similar in appearance but two-to-five year olds might find them similar and confusing. - HOLDING: A childs belief that Barney and Duffy are one in the same could deprive Barneys owners of profits in a manner that the Copyright Act deems impermissible. Therefore, copyright infringement here. Bright Tunes Music Corp. v. Harrisongs Music, Ltd. (1976, p. 516) - FACTS: George Harrison made a song and created the text of My Sweet Lord. The Billy Preston recording was issued by Apple Records (listing Harrison as the composer), and printed music sheets were later prepared and used for the US copyright registration. Infringement here was NOT purposeful. - HOLDING: Neither Harrison nor Preston were conscious of the fact that they were utilizing the Hes So Fine theme in their song. Court found for plaintiff on issue of plagiarism and set action to trial. Three Boys Music Corp v. Bolton (p. 518) - Court said Michael Bolton had subconsciously infringed a song heard by him as a youngster some twenty years before he wrote his substantially similar song of the same title. Heim v. Universal Pictures court declined to hold that the similarities between Ps and Ds songs resulted from access to and copying of Ps song, even though Ps song was included in the motion picture that was widely exhibited throughout the US, had been publicly performed in major cities, and had been sold in sheet music Selle v. Gibb (p. 519) the court affirmed a JNOV that Ds, the Bee Gees, did not copy from Ps song in creating How Deep is Your Love the court held that there was no credible evidence of access to Ps song when Ds created their song in France, and Ps song was unpublished and had only been performed by P at Chicago-area weddings and bar mitzvahs Gaste v. Kaiserman court reaffirmed its willingness to find copying, even without evidence of access, when the two works are exceptionally close the court upheld the verdict that Ds work, the song Feelings infringed the rather obscure French song Pour toi to lay ear, songs were indeed quite similar evidence of access somewhat skimpy Repp v. Webber (p. 520) similarity can be so striking as by itself to constitute proof of access sufficient to withstand summary judgment the world-renowned popular stage composer, Andrew Lloyd Webber, composed his Phantom Song for Phantom of the Opera in 1983 Ty, Inc. v. GMA Accessories, Inc. (1997, p. 521) allowed a P to base its proof of access solely on striking similarity so long as there is no earlier exemplar, typically in the PD, that could have independently inspired both works although the D denied having had access to the copyrighted works, the court found such striking similarity as to justify the conclusion that the copier must have had access to the original. In this case, GMAs pig is strikingly similar to Tys
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pig but not to anything in the PD a real pig real pigs are not the only pigs in the public domain.

VENUE FOR COPYRIGHT INFRINGEMENT

1901 Law 1976 Law Mind --Out Loud State court State court (except 1101) Written State court Federal Court Published Federal court Federal Court

504(c) Damages Assessed for Copyright Infringement

Innocent infringer Ordinary Infringer Willful Infringer Minimum Penalty $200 $750 $750 Maximum Penalty $30,000 $30,000 $150,000

411 Registration and Infringement Actions. Applies only to US works. IT IS VERY IMPORTANT TO REGISTER! Laureyssens v. Idea Group, Inc. - FACTS: Whether the plaintiffs jigsaw type puzzle named Happy Cube, was infringed by defendants Snafooz puzzle. Defendant admitted access to plaintiffs Happy Cube. There must be substantial copying for there to be infringement. - HOLDING: Court found similarities that are probative of copying and which at least raise a question of actual copying. Have to subject the nonprotectable elements and only compare what is left of the two objects. Ringgold v. Black Entertainment Television (p. 526) - FACTS: Plaintiff had authorized the making of a poster featuring her pictorial quilt but had not authorized the inclusion of a copy of the poster as a part of the set for a television program. De minimis in the copyright context can mean: a technical violation of a right so trivial that the law will not impose legal consequences. - HOLDING: De minimis can mean that copying has occurred to such a trivial extent as to fall below the quantitative threshold of substantive similarity which is always a required element of actionable copying. Herbert Rosenthal Jewelry Corp. v. Kalpakian - FACTS: Copyright registration of pin in shape of a bee formed of gold encrusted with jewels. - HOLDING: Held that inasmuch as the idea of a jeweled bee pin and the expression of the idea were inseparable, copying the expression would not be barred by copyright registration. Educational Testing Services v. Katzman - FACTS: Nonprofit corporation engaged in development of educational testing programs. Sued corporate president and corporation which coached person taking SAT and Achievement Tests. - HOLDING: Held that (1) injunction needed not be vacated to toto for failure to meet requirement of specificity; (2) testing company had shown likelihood of success on the merits of copyright issues sufficient to sustain and injunction; (3) words adapting and or any other information in injunction were not sufficiently specific; (4) findings were inadequate to support portion of injunction enjoining test coaching company from breach
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of contract with testing company not to infringe on copyright and not to attend testing companys examinations Nichols v. Universal Pictures Group COPYRIGHTABLE CHARACTERS - FACTS: Suit by Anne Nichols against Universal Pictures Corporation and others for the infringement of a copyright. Affirmed. Abies Irish Rose case. A Jewish family living in prosperous circumstances in NY. You Jewish man marries an Irish Catholic girl against the wishes of both of their fathers. - HOLDING: Held that copyright protection cannot be extended to the characteristics of literal copying of a dramatic work. Held that copyright protection cannot be extended to the characteristics of stock characters in a story, whether a book, play, or film. A CHARACTER IS ENTITLED TO PROTECTION IF IT IS A DISTINCT CHARACTER. Sheldon v. MGM Corp. - FACTS: Bill in equity by Edward Sheldon and another against the MGM Pictures Corporation and others for infringement of a copyright. Woman is innocent and she meets her first lover. She met a young journeyman of French blood who was ten years older than her. - HOLDING: Reversed with directions. It is not infringement if the movie copied the trial or the novel. Anyone could copy the trial, the movie could copy the novel, but the movie could NOT copy the play! - Basic concept: Well brought-up young woman, has a boyfriend, wants to leave boyfriend, meets someone else, boyfriend wants to blackmail her, boyfriend dies (or she kills him) Peter Pan Fabrics, Inc. v. Martin Weiner Corp. - FACTS: District Court granted preliminary injunction forbidding the defendant to infringe copyright for a design printed upon cloth, used to make womens dresses. For Sale doctrine. The ordinary observer, when he looks at two different things and there are protectable and nonprotectable elements, there is no doubt that it was copying. - HOLDING: Held that under the circumstances there was infringement of the patent and that the design should be protected pendent elite. - In the case of designs, which are addressed to the aesethic sensibilities of an observer, the test is, if possible even more intangible. No one disputes that the copyright extends beyond a photographic reproduction of the design, but one cannot say how far an imitator must depart from an undeviating reproduction to escape infringement (p. 528) Types of Plagiarism - Fragmented literary appropriation - Pattern appropriation - Elements of a Play: o Mis en scene = setting o Plot o Characters o Incident Boisson v. Banian - FACTS: Defendant argued that a substantial similarity comparison should be undertaken only after the filtration of the public domain art elements in plaintiffs quilt. - HOLDING: Held the view that an original compilation has a concept and feel may be protectable, so long as accomplished by a more discerning scrutiny o what is in the public domain. No infringement because the total concept and overall feel created by the two works may not be said to be substantially similar
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Computer Associates International, Inc. v. Altai, Inc. (1992, p. 559) - FACTS: Computer Associates had a program called CA-SCHEDULER that is a job scheduling program designed in IBM mainframe computers. ADAPTER is not an independently marketed product of CA. It has no capacity for independent use outside of CA-SCHEDULER. Altai hired an ex-employee of CA. It was found that the code written by employee consisted of 30% of code taken from his previous employer. - HOLDING: Held that there was no infringement in the second version. A new test for substantial similarity, known as the abstraction/filtration/comparison test. The filtration test first examines the allegedly infringed program and excludes from consideration design elements made for efficiency, elements dictated by external factors, and elements taken from the public domain. Anything left over is protectable. Lay observers opinion of infringement is NOT relevant to complicated subjects like computer software. Steinberg v. Columbia Pictures Industries (1987, p. 572) - FACTS: Artist Saul Steinberg sued various parties involved with producing and promoting the 1984 movie Moscow on the Hudson claiming that the promotional poster for the movie infringed his copyright in a magazine cover that he created for The New Yorker. - HOLDING: Court held that the Moscow on the Hudson poster was NOT a parody because it was not meant to satirize the Steinberg image itself, but merely satirized the same concept of the parochial New Yorker that was parodied by Steinbergs work. Held that defendants had not proved any elements of estoppel: (1) representation of fact; (2) reasonable reliance thereon; and (3) injury or damage resulting from denial of the party making the representation. Kisch v. Ammirati & Puris, Inc. (1987, p. 579) - FACTS: Two photos taken at the Village Vanguard, famous jazz club in NY. - HOLDING: Held that the rational trier of fact COULD find sufficient similarities to prove COPYING.

SOUND RECORDINGS
101 - Phonorecord - 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. - Embodies a musical composition or a literary work AND a sound recording 115 Compulsory License - Authors of literary works enjoy full rights to authorize or prohibit the creation of recorded performances of their works. - A person wishing to obtain a compulsory license must file with the copyright owner a notice of intention to distribute phonorecords of the copyrighted work, and is to pay a royalty for each record of the work that is made and distributed. The Harry Fox License - A large number of music publishers and copyright owners have authorized HFA to issue licenses and collect royalties on their behalf for making and distributing phonorecords of their musical compositions in the form of CDs, cassettes, and vinyl records. - Harry Fox also licenses other reproduction rights outside of 115, including the use of musical works as ringtones, and for background music and for digital jukebox services.
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In 2001, the music publishers and record labels reached an agreement to license such online description services (i.e. Rhapsody, Napster, etc.). The agreement, which was followed by similar agreement with non-label owned music services, extends the mechanical license to cover copies/phonorecords made as part of time-limited downloads and on-demand digital audio streams.

ABCKO Music, Inc. v. Stellar Records, Inc. (1996, p. 591) - FACTS: Defendant Performance Tracks provided discs in the CD+G format. These discs allowed song lyrics to be played on a video screen as the songs are played (karaoke). Performance Tracks said that they did not require a synch license from the copyright owners of the songs since the y showed the words only, and not the words superimposed a background video image, as commonly appears with laser disc karaoke systems. - HOLDING: CD+G records are NOT phonorecords under the copyright law. Phonorecords are defined as objects on which sounds are fixed. CD+Gs, however, are objects on which sounds and visual representations of song lyrics are fixed. Digital Phonorecord Deliveries - 11/1/1995, President Clinton signed the Digital Performances Right in Sound Recordings Act of 1995. It made needed adjustments, principally by expanding rights held by owners of copyright in sound recordings, in light of dramatic technological innovations in digital radio transmissions. - A single compulsory license CANNOT cover bulk deliveries of digital files of recorded musical compositions. Capitol Records v. Naxos of America - FACTS: - HOLDING: Recordings made in Great Britain in the 1930s, whose copyrights had expired there, will continue to be protected in US until 2067. Bridgeport Music v. Dimension Films - FACTS: Three note chord, played in a broken fashion can be sufficiently original to sustain copyright; but even when the chord was repeatedly looped through sampling on the defendants recording, the taking was de minimis and NOT an infringement. - HOLDING: Court imposed a bright-line test. Get a license or DO NOT SAMPLE. Audio Home Recording Act of 1992 (AHRA) adopts copyright law to impose a technological fix. *You can make ONE copy for yourself only. 1. Prohibits infringement actions based on the noncommercial use by a consumer of a digital recording device or medium for making digital or analog musical recordings 2. Imposes royalty charges upon sales of digital audiotape recorders and recording media to be paid by manufacturers and importers 3. Obliges manufacturers and importers to include in all consumer digital audio recording devices a serial copy management system (SCMS) to disable machines from recording a copy from a prior copy RIAA v. Diamond Multimedia Systems, Inc. (1999, p. 601) - FACTS: RIAA sought to restrain the dissemination of the Rio digital recording device. Handheld playback device that permits the storage of up to 6 0minutes of compressed music files that are on the hard drive of the PC and then transferred by a cable to the Rios memory. - HOLDING: The Rio was NOT a digital audio recording device at all. The Rio is incapable of receiving audio files from anything other than a PC, and only output is through headphones.
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EXCLUSIVE RIGHTS UNDER COPYRIGHT

RULE: Only copyright owner has the right to reproduce the work that he copies. To prove copying, the P must prove that the ownership is valid, access in copying, and substantial similarity (106) 106 Exclusive Rights in Copyrighted Works Horgan v. MacMillian, Inc. (1986, p. 605) - FACTS: Ballet moves. And a photograph is a single reproduction of what happens at one moment in time. 60 color photos following the sequence of the ballet in photos. - HOLDING: Even a small amount of the original, if it is qualitatively significant, may be sufficient to be an infringement. Lee v. A.R.T. Co. (1997 p. 610) - FACTS: Artist which held copyrights in notecard designs and lithographs brought infringement action against company which mounted artists works onto ceramic tiles. - HOLDING: Held that the companys ceramic tiles were NOT derivative works under the copyright act. Affirmed summary judgment for the tile company. NOT A DERIVATIVE WORK. - 109 the first sale doctrine the owner of a particular copy or phonorecord lawfully made under this title is entitled without the authority of the copyright owner to sell or otherwise dispose of the copy. National Geographic Society v. Classified Geographic, Inc. (1939, p. 613) - FACTS: National Geographic sued Classified Geographic for injunctive relief under the copyright and trademark statutes and for unfair competition. - HOLDING: Defendants activities to constitute copyright infringement. The statute also gave the plaintiff the exclusive right to compile, adapt or arrange its copyrighted articles, and held that the defendants use of lawfully purchased National Geographic Magazines constituted an unlawful compilation, adaptation, or arrangement. VIOLATION OF DERIVATIVE WORK AND ENGAGED IN UNLAWFUL COMPETITION. Micro Star v. FormGen, Inc. (1998, p. 614) - FACTS: Duke Nukem case. FormGen created a system like a Game Genie. Micro Star combines form files which are higher levels, etc. that the users made these levels and they combined them on the screen. - HOLDING: The Court disagreed with Micro Stars arguments that Nuke It was not a derivative work because the MAP files, which contain the instructions defining the custom levels, did not incorporate in a concrete or permanent form any of Duke Nukem 3Ds protected expression. The Court found Nuke It to be a derivative work in concrete or permanent form because it was embodied onto a CD and the MAP files described in detail the audiovisual display that appears on the computer monitor. Family Movie Act of 2005 - A device was made that when hooked up to a DVD player, recognizes sex and violent scenes in the films for which the device has been programmed, and allows the viewer to skip those scenes. The devices resulted in unapproved clean versions, while directorapproved mild versions were available for commercialization. 117 Adaptations of Computer Programs Krause v. Titleserv, Inc. (2005, p. 620) - FACTS: Krause designed several computer programs as an employee of Titleserv to be used by Titleserv in dealing with its customers.
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HOLDING: The court said that Titleserv was not technically the owner of a copy of certain of the computer programs, it concluded nonetheless that Titleservs rights as a mere possessor were so broad.

Denker v. Uhr - Relationship between an older Jewish character and a black attendant (like Driving Miss Daisy) Zervitz v. Hollywood Pictures (p. 554) - FACTS: Kevin Bacon goes to Africa to enlist very tall people to join the NBA in the film The Air Up There. - HOLDING: Hoehling v. Universal City Studios, Inc. - FACTS: Infringement suit stemming from several works on the Hindenburg disaster. - HOLDING: The similarities in representations of German beer halls, scenes depicting German greets such as Heil Hitler, or the singing of certain German sons would not lead to a finding of infringement because they were indispensable, or at least standard, in the treatment of life in Nazi Germany. EMI Entertainment World v. Priddis Music (p. 73 Supp.) - Song lyrics on karaoke screen without accompanying visual images are NOT an audiovisual work that requires a synchronization license, but rather a mere display of literary work Gilliam v. American Broadcasting Companies (1976, p. 621) - FACTS: Appellants created the television series Monty Pythons Flying Circus. Under a contract with the BBC to license the program for rebroadcast in America. Defendant had drastically shortened the programs and edited them for profanity, then they sued for copyright infringement. - HOLDING: Ordered that they enjoin appellees from further broadcasting of appellants severely edited television programs, because the editing constituted infringement of appellants copyright in their scripts and because mutilation of appellants programs was precluded by the Lanham Act. 106A Rights of Certain Authors to Attribution and Integrity Carter v. Helmsley-Spear, Inc. (1995, p. 629) - FACTS: Plaintiffs had been contracted in a one year agreement by a previous managing agent of the building to install artwork in several areas of the building, including lobby. Plaintiffs were to retain copyrights for their works. Plaintiffs were assigned additional projects, received a bi-weekly paycheck, employee benefits, etc. On April of the third contracted year, defendants took possession of property and defendant became new managing agent of the building. - HOLDING: The work does not qualify for injunctive relief under the VARA statute. The fats of the case provide sufficient evidence that the artwork created by the plaintiffs was created by employees within the scope of their employment. Flack v. Friends of Queen Catherine, Inc. (2001, p. 630) - FACTS: Agreements related to a failed project to erect a statue on a site overlooking Manhattan. Plaintiff was the artists, defendants were the non-profit organization managing the project. - HOLDING: Defendants motions to dismiss were denied regarding plaintiffs Visual Artists Rights Act of 1990 and Copyright Act claims, denied regarding plaintiffs claims for breach of contract against defendant non-profit organization, and otherwise granted.
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Martin v. City of Indianapolis (1999) - FACTS: Defendant city demolished a work of art by plaintiff artists. Plaintiff sued under VARA of 1990. - HOLDING: Held that the evidence submitted was not hearsay. The newspaper articles and letters in support of the artwork were opinions, not offered to prove the truth of the matter asserted. Held that the destruction of the art was not willful, but rather the result of bureaucratic failure. The court affirmed the trial court. Pollara v. Seymour (2003, p. 630) - FACTS: Artist alleged that defendant individual unlawfully damaged and destroyed a work of art that the artist created. - HOLDING: Found that the artists work constituted advertising or promotional material. A banner was not a work of visual art subject to VARA protection. Phillips v. Pembroke Real Estate, Inc. (2003, p. 635) (MODIFIED ON APPEAL DO NOT CITE TO IT!) - FACTS: Plaintiff stated that for site-specific art, the location of the work was a constituent element of the work. Defendant argued that the park itself is not a work of visual art protected by VARA. - HOLDING: Held that the plaintiff had a likelihood of proving that certain sculptures within the park were one integrated work of visual art, that the sculptures were a critical element of that work, and that changing the location of the sculptures constituted an alteration under MAPA. Defendants First Amendment rights were not impacted where defendant agreed to keep Plaintiffs sculpture in the park and did not obtain a written waiver of MAPA rights.

TEST FOR INFRINGEMENT

Columbia Pictures Industries, Inc. v. Aveco (1986, p. 669) - FACTS: Holders of copyrights in video cassette motion pictures brought action alleging infringement. The video was piped into the rooms. Provided the site and facilities for known infringing activity is sufficient to establish contributory liability. - HOLDING: Held that video cassette rental business, by venting its rooms to members of the general public in which they could view performances of copyrighted video cassettes, obtained from any source, authorized public performances of those cassettes and violated the producers exclusive rights to perform the work publicly. Ocasek v. Heelung (1987, p. 674) - FACTS: Action brought for infringement of copyright musical compositions and motion was brought to compel attendance at depositions and countermotion was filed for a protective order prohibiting taking of depositions. ASCAP can sue on behalf of one of their members. - HOLDING: Held that owners of allegedly infringed copyrighted musical compositions were entitled to protective order to prohibit taking of their depositions.

MORAL RIGHTS
*There is no exception. You can copyright anything sexual. Wojnarowicz v. American Family Association (1990, p. 643) - FACTS: Plaintiff was a multimedia artist whose work was funded by National Endowment for Art, sued to enjoin publication of a pamphlet by defendant nonprofit corporation and its director, and for copyright infringement, defamation, Lanham Act, and New York Artists Authorship Rights. Pamphlet incorporated sexually explicit images from the plaintiffs work. Homo-erotic art.
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HOLDING: Granted judgment to plaintiff for violation of the Act, but dismissed all other claims. Judgment was granted to plaintiff on a claim under state artists protection law; all other claims were dismissed because those who accepted federal funds had to accept the right of others to protest such expenditures.

MORAL RIGHTS PROVISION Article 6bis of Berne Convention (p. 431 of Supp.) Perfect 10 v. Google, Inc. (2006, p. 686) - FACTS: Website operator sued Internet search engines for, inter alia, infringement of its copyrighted images. - HOLDING: Held that search engine did not itself display or distribute images to which it inline linked, the search engine did display thumbnail versions of responsive images, the search engines display of thumbnail versions was not likely to qualify for fair use defense, and search engine was not likely to be found secondarily liable for direct infringement either by its users or third-party websites Perfect 10 v. American Express (p. 117 Supp.) - FACTS: They sue everyone in sight including Visa and American Express. Other people copy the pictures and the other people will sell the pictures to you for less than Perfect 10 will and put it on a credit card. - HOLDING: The infringement already occurred on the other website before you purchase the pictures. Perfect 10 v. Visa (2007) - FACTS: Subscription based website for adult photographs, sued the credit card company Visa for secondary copyright infringement, including contributory and vicarious infringement, as well as inducement. - HOLDING: Held that even though Visa had knowledge of the infringement, the credit card company did not materially contribute to the violations. Herbert v. Shandley (p. 664) - Music being played publicly for profit. Held that musical performance by a small orchestra in a restaurant was for profit despite the fact that no separate admission charge was made to hear the music.

FAIR USE & NEW TECHNOLOGIES

FAIR USE 107 - Limitations on Exclusive Rights: Fair Use FOUR FACTORS: 1. The purpose and character of the use by the infringer, including whether such use is of commercial nature or is for nonprofit educational purposes (TRANSFORMATIVE) 2. the nature of the copyrighted work 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; AND 4. the effect of the use upon the potential market for or value of the copyrighted work Harper & Row Publishers, Inc. v. Nation Enterprises (p. 746) - FACTS: Nixon case. The Nation sold its magazine and people had to pay for it. Ford had written a memoir including an account of his decision to pardon Nixon. Ford had licensed his publication rights to Harper & Row, which had contracted for the memoir to be printed in TIME. Instead, The Nation magazine published significant excerpts of this account without permission of Ford, Harper & Row or TIME magazine. Basically, was about Watergate and the invasion to put wiretaps on Larry OBriens phone (DNC chairman). - HOLDING: The theory of fair use as you apply each of the four factors is that whoever wins the most factors WINS the case. Fair use is NOT a defense to the appropriation of
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work by a famous political figure simply because of the public interest in learning of that political figures account of a historical event. Campbell v. Acuff-Rose Music, Inc. (Pretty Woman Case / 2 Live Crew) (p. 717) - FACTS: 80% of the words are the same in this song. Even the backing track of the song is pretty much the same. The more transformative the new work, the less will be the significance of the other factors, like commercialism, that may weigh against a finding of fair use. - HOLDING: Held that 2 Live Crews commercial parody may be a fair use within the meaning of 107. Reasoned that the amount and substantiality of the portion used by 2 Live Crew was reasonable in relation to the bands purpose in creating a parody of the song. Settled the case out of court. 2 Live Crew agreed to license the sale of its parody of the song. MCA v. Wilson - The heart of any parodists claim to quote from existing material is the use of some elements of a prior authors composition to create a new one that, at least in part, comments on that authors works Dr. Seuss Enters. v. Penguin Books (p. 730) - FACTS: Parody of the Dr. Seuss book The Cat in the Hat for an OJ Simpson parody. - HOLDING: No fair use here because the content was not connected back to the substance or the style of the original composition. It is not commenting or criticizing. Suntrust Bank v. Houghton Mifflin Co. (2001, p. 736) - FACTS: Gone with the Wind. Publisher of Alice Randalls The Wind Done Gone. The owner of Margaret Mitchells Gone with the Wind prohibited the publisher of Alice Randalls The Wind Done Gone from distributing the book. - HOLDING: Vacated an injunction prohibiting the distribution of Alice Randalls parody of Gone with the Wind. But the court recognized that Mitchell had suffered a harm that can adequately be remedied through an award of monetary damages. Sunderman v. Seajay Society, Inc. (1998, p. 760) - FACTS: Isolated scholarly uses of materials. A researcher at a nonprofit foundation selected quotations from an unpublished literary manuscript of historical and cultural interest, and she included those quotations in an analytical, oral presentation that she delivered to a scholarly society. - HOLDING: Her use was scholarly, transformative and provided criticism and comment on the original manuscript. The court relied on a long series of cases to resolve that the unpublished nature of the work militates against fair use. The amount used was consistent with the purpose of scholarly criticism and commentary and no evidence of taking the heart of the work. Found no evidence that the presentation displaced any market for publishing the original work, and a presentation at a scholarly conference may in fact have increased demand for the full work! Craft v. Kobler (1987, p. 761) - FACTS: Plaintiff, a close companion of Igor Stravinsky had published several books on the composer including conversation books presented in the form of interviews between them. - HOLDING: Successfully claimed infringement of copyright by the defendants biography of Stravinsky, which was richly stocked with quotations of the composer taken from these interviews and other material published by the plaintiff. Castle Rock Entertainment, Inc. v. Carol Pub. Group, Inc. (1998, p. 764)
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FACTS: Producers of copyrighted television program brought copyright infringement and unfair competition action against author and publisher of book containing trivia questions about the program. Trivia questions about Seinfeld. Book did not constitute fair use of Seinfeld. HOLDING: Held that quantitative and qualitative components of copying were sufficient to establish prima facie case of infringement, and book did not amount to fair use of copyrighted work. Found that any transformative purpose possessed in the derivative work was slight to non-existent.

Bill Graham Archives v. Dorling Kindersley Ltd. (2006, p. 766) - FACTS: Involved the use of reduced sized images of Grateful Dead concert posters in the biography of the band. This is fair use. - HOLDING: Fair use. The Grateful Dead biography blended poster art with authentic biographical material that did not disrupt any market expectation. NXIVM Corp. v. Ross Institute (2004, p. 770) - FACTS: Provides a course manual for the paid subscribers of its exclusive and expensive seminar training program Executive Success. The manual contains a copyright notice on almost every page and all seminar participants sign non-disclosure agreements, purporting to bar them from releasing the manual or the proprietary techniques learned in the seminar to others. Ross commissioned two experts to run reports of their analyses and criticisms of the NXIVM manual. NXIVM sued Ross for copyright infringement, trademark disparagement, etc. - HOLDING: Found that the websites use of quotations from the manual to support their critical analyses of the seminars was transformative, and that this outweighed the concurrent commercial purpose of Rosss use and his bad faith in obtaining the manuscript in violation of NXIVMs NDA. Held that the defendants use of portions of 17 pages out of a 500 page manual was not unreasonable in light of their purpose, and any damage to the mark of NXIVMs work was in criticism NOT substitution. Sega Enterprises, Ltd. v. Accolade, Inc. (1992, p. 776) - FACTS: Ishido is the first game Accolade ported to the Sega Genesis and is NOT a Japanese pastime. It was developed in 1990 as a type of tile matching game. - HOLDING: Sony Computer Ent. Inc. v. Connectix Corp. (2000, p. 783) - FACTS: Connectix Virtual Game Station was a huge hit with Mac users when it was released in 1999. Before VGS the number of computer games playable on the Apple platform was small. Sony PlayStation was originally produced in conjunction with Nintendo as a rival to Segas Genesis CD video game console. Nintendo backed out of the deal, leaving Sony with a prototype CD-ROM based game console. - HOLDING: Connectrix won its court battle and Sony bought the rights to VGS in 2001, and immediately shut it down Williams & Wilkins Co. v. United States (p. 786) - FACTS: Making of single photocopies of individual articles from a range of medical and scientific journals was done by the National Institutes of Health (NIH) and the National Library of Medicine (NLM) at the request of researchers and physicians. - HOLDING: Held that the plaintiff published had failed to prove future harm even though the defendants had photocopied over 100,000 articles in full in a year (about 1 million pages) Princeton University Press v. Michigan Document Services, Inc. (1996, p. 787) - FACTS: A photocopying service was sued for copyright infringement for making coursepacks for students at the University of Michigan. The copyshop in this case
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refused to pay the fees for copyright to publishers. They said it was fair use. Michigan Document Services clearly went beyond the agreement. HOLDING: NO FAIR USE HERE BECAUSE THEY WENT BEYOND THE LIMITS. A teacher can make one (1) copy of a chapter from a book, an article from a periodical or newspaper. A prose article of 2500 words or less can be copied once for academics so long as it is done spontaneously.

108 sets forth a special regime favoring certain acts of copying by primarily nonprofit libraries. Congress recognized the unique social and educational functions that libraries perform.

BETAMAX, MUSIC CASES, NAPSTER, BMG, GROKSTER

UMG Recordings, Inc. v. MP3.com (2000, p. 812) - FACTS: Defendant claims that this service permits users to store and listen to their CDs from any location at which they can access the Internet. To operate this service, defendant purchased a large number of CDs containing plaintiffs sound recordings, converted them into MP3 files, and stored these Mp3s on its servers. Any user wishing to access any of the songs contained in these files were first required to demonstrate to defendant that it owned a CD containing a song in question (by inserting the CD into the computer), or to purchase the CD from a designated online vendor. - HOLDING: Defendants My.MP3.com service infringes plaintiffs copyrights in various sound recordings. Held that defendants act of converting plaintiffs CDs into MP3 files and providing access to these files to users in the manner outlined infringed plaintiffs copyrights in these sound recordings. LA Times v. Free Republic (p. 824) - Website operated, posted, or its visitors posted, news articles from sources such as Washington Post and the LA Times. The Free Republic commented and criticized the facts recited in the article, not on the article itself. Wall Data Inc. v. LA County Sheriffs Department (p. 824) - Paid for the license to install copies of the RUMBA office software program and used 6000 copies instead. Clear violation of the license. A&M Records, Inc. v. Napster (2001, p. 834) - FACTS: Plaintiffs are engaged in the commercial recording, distribution and sale of copyrighted musical compositions and sound recordings. Napster uses peer to peer to allow its users to make MP3 music files stored on individual computer hard drives available for copying by other Napster users, search for MP3 music files stored on other users computers, and transfer exact copies of the contents for other users MP3 files from one computer to another via the internet. Napster claims fair use (sampling, space-shifting, and permissive distribution of recordings by both new and established artists). - HOLDING: Copying an entire work militates against a finding of fair use. Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied. Lack of harm to an established market cannot deprive the copyright holder of the right to develop alternative markets for the works. Napster harms the market in at least two ways by reducing audio CD sales and raises barriers to plaintiffs entry into the market for the digital downloading of music. Sufficient knowledge exists to impose contributory liability when linked to demonstrating infringing use of Napster because they had actual knowledge that specific infringing material is available using their system. Sony, Napster and MGM v. Grokster (p. 846)
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FACTS: Targets of the litigation were not users but the commercial entities which enabled the end users to infringe by supplying the means to copy and in the later two cases or further communicate infringing files. HOLDING: Napster knew of the infringing activity. Court said that the evidentiary record supported the finding that plaintiffs provided reason to know of the infringement and the substantial non-infringing use. Failed to demonstrate that it is capable of commercial noninfringing uses. They had to prove substantial non-infringing uses and they did not do so. RULE: There is a principal of inducement for copyright infringement. If you induce someone even if the contributory infringement rules do not apply, you are STILL LIABLE as an infringer.

VICARIOUS AND CONTRIBUTORY INFRINGEMENT

MGM v. Grokster (p. 866) - FACTS: Distributors were aware that users employed their free software primarily to download copyrighted files, but the distributors contended that they could not be contributorily liable for the users infringements since the software was capable of substantial non-infringing uses such as downloading works in the public domain. - HOLDING: Held that the distributors could be liable for contributory infringement, regardless of the softwares lawful uses, based on evidence that the software was distributed with the principal, if not exclusive, object of promoting its use to infringe copyright. Fonovisa, Inc. v. Cherry Auction, Inc. (1996, p. 848) - FACTS: Copyright action against the operators of a swap meet (flea market) where thirdparty vendors routinely sell counterfeit recordings that infringe on the plaintiffs copyrights and trademarks. - HOLDING: The owner of the shop can kick people out. They have to know what you are selling and they get a cut of the sale. Right and ability to supervise and a direct financial relationship exists. Shapiro Bernstein & Co. v. Green - Court was faced with a copyright infringement suit against the owner of a chain of department stores where a concessionaire was selling counterfeit recordings. Elektra Records Co. v. Gem Electronic Distributors (1973, p. 852) - FACTS: A record shop rented sound recordings to customers who would also purchase blank tape and then use a recording machine (known as a make-a-tape), on the store premises to copy the rented recording onto the blank tape. The store owners knowledge of the likely use of the blank tape was patent, and the store owner could control the customers use of the on-site machine. - HOLDING: Kalem Co. v. Harper Brothers (p. 854) - FACTS: The copyright decision of his court on which respondents place their principle reliance. The producer in Kalem did not merely provide the means to accomplish an infringing activity; the producer supplied the work itself, albeit in a new medium of expression. - HOLDING: Held that the producer of an unauthorized film dramatization of the copyrighted book Ben Hur was liable for his sale of the motion picture to jobbers, who in turn arranged for the commercial exhibition of the film. Vault v. Quaid Software, Ltd. (1988, p. 858) - FACTS: Defendants purchased CopyWrite, a software program designed to neutralized PROLOK, the anticopying protection plaintiffs company had placed A copy of the PROLOK
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program made with RAMKEY protects an owner from all types of damage to the original program, while a copy made with RAMKEY only serves the limited function of protecting against damage to the original program by mechanical and electrical failure. HOLDING: RAMKEY is capable of substantial non-infringing uses.

A&M Records, Inc. v. Abdallah (1996, p. 859) - FACTS: Abdallah sold hundreds of thousands of time-loaded audiocassettes to clients who used the cassettes to produce and market illegally counterfeited phonorecords. - HOLDING: This is infringement. If the cassette were blank, it would be okay, but it is timeloaded, so he knowingly and materially contributed to the underlying counterfeiting activity. Faulkner v. National Geographic Society (2002, p. 861) - FACTS: National Geographic Magazine has placed all of the content (text and photographs) of all of its issues onto a CDROM, which it distributes widely - HOLDING: No permission had been secured from the various photographers, many of whom are the present owners of copyright in their photos. 501 Infringement of Copyright Silvers v. Sony Pictures Entertainment, Inc. (p. 908) - FACTS: Issue was whether an assignee who held an accrued claim for copyright infringement, but who had no legal or beneficial interest in the copyright itself, could institute an action for infringement. The assignee wrote a script of a made-for-television movie, but she did not hold the copyright, as the movie was a work-for-hire that the assignee completed for the assignor. - HOLDING: She was not entitled to institute and could not maintain this action against the company for alleged copyright infringement. Congresss explicit listing of who could sue for copyright infringement was to be understood as an exclusion of others from suing for infringement. Stewart v. Abend (1990, p. 910) - Defendants well-known motion picture, Rear Window, was based upon a copyrighted short story, but added creative contributions of the screen writers, the director Alfred Hitchcock, the actors Jimmy Stewart and Grace Kelly, the cinematographer, and the composer of the musical score.

REMEDIES UNDER STATUTE

New York Times v. Tasini (p. 910) - Suggested that injunctive relief may not always be the most appropriate way of resolving a copyright dispute 504 Remedies for Infringement: Damages and Profits Davis v. The Gap (2001, p. 914) - FACTS: Plaintiff was designer of eyeglass jewelry. Defendant was a major international retailer of clothing and accessories. One of plaintiffs designs appeared prominently on a model in a photographic advertisement. Plaintiff sued for infringement. - HOLDING: Court denied plaintiffs claims for infringers profits and for punitive damages, but vacated and remanded to plaintiffs claims for declaratory relief and actual damages. Frank Music Corp. v. MGM (1985, p. 920)
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FACTS: Hotel used several songs from the holders copyrighted musical play in a stage production at the hotel. MGM Grand Hotel. They want a portion of the profit made by MGM for the use of 6 minutes of the music from Kismet. HOLDING: Held that hotel infringed and awarded $22K to the holder as a share of the hotels casino profits. Indirect profits from the hotel and gaming operations, as well as direct profits from the show itself, were recoverable by the holder, if ascertainable.

Cream Records, Inc. v. Joseph Schlitz Brewing Co. (1985, p. 926) - FACTS: Appellant record corporation sued appellees alleging that music in a TV commercial prepared by appellee advertiser to advertise appellee companys beer infringed on appellants copyright of a popular R&B composition. - HOLDING: Held that the district court had to assess a separate award of damages against appellee advertiser by making a reasonable approximation of the portion of appellee advertisers profits that were due to the use of the infringing music in order to avoid unjust enrichment. 501 502 503 504 505 411 Infringement of Copyright Remedies for Infringement; Injunctions Remedies for Infringement; Impouding and Disposition of Infringing Articles Remedies for Infringement; Damages and Profits Remedies for Infringement; Costs and Attorneys Fees Registration A PREREQUISITE TO BRINGING A SUIT UNDER COPYRIGHT LAW

FINANCIAL REMEDIES - You cannot get statutory damages and attorneys fees unless you have registered BEFORE the infringement - Can get actual damages and profits of infringer and attorneys fees if you have registered before infringement - Actual Damages AND profits of the infringer OR Statutory Damages AND Attorneys Fees - REASON FOR YOUR LOST MUST BE RELATED TO THE INFRINGEMENT. Engel v. Wild Oats (1986, p. 930) - FACTS: Plaintiff, the daughter and executrix of the estate of a well-known photographer, sued defendants, a manufacturer of t-shirts and other clothes and its subcontractor distributor, for copyright infringement. Plaintiff alleged defendants used without permission one of the photographers pictures on their t-shirts and sweatshirts. - HOLDING: Plaintiff was entitled to choose b/c statutory and actual damages, defendant manufacturers infringement was willful, $20K was proper award of damages, defendant subcontractor distributor was liable to plaintiff for the sales commissions it derived from infringement, and plaintiffs attorneys fees request was excessive. College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Board (1999, p. 934) - FACTS: Petitioner, a NJ Chartered bank, sold a patented methodology to administer the financing costs of education. Respondent state agency, an arm of the state of Florida, administered a tuition prepayment program for college expenses. Alleged respondent made misstatements about petitioners tuition savings program in respondents brochures and annual reports. - HOLDING: determined that respondents alleged misstatements about petitioners product did not intrude on any property right. The court also found that Florida did not constructively waive its immunity. Feltner v. Columbia Pictures Television (1998, p. 936)
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FACTS: Petitioner was found liable for infringing respondents copyrights in several television series. Sought to recover statutory damages for infringement. HOLDING: Held that seventh amendment of the Constitution provided petitioner a right to a jury trial for a determination of the amount of statutory damages sought by respondent. The jury trial might extend to calculation of the actual amount of statutory damages to be awarded. STATUTORY DAMAGES IS A JURY QUESTION!

Fogerty v. Fantasy, Inc. (1994, p. 939) - FACTS: Petitioner sought review of a judgment that denied his claim, after a successful defense of a copyright infringement action, for reasonable attorney fees. - HOLDING: Held that unless provided otherwise, neither party was entitled to compensation for attorney fees incurred in litigation. Held also that 505 which provided for the recovery of attorney fees for a prevailing party as a matter of a courts discretion, was to be applied identically. Because lower court erroneously held petitioner, the prevailing defendant, to a more stringent standard than that applicable to a prevailing plaintiff, its judgment was reversed and the case was remanded for further proceedings. - OLD RULE: Successful defendants have to show that the lawsuit was brought in bad faith to get attorney fees - NEW RULE: We must treat both plaintiffs and defendants to same with respect to attorney fees - Attorneys fees are awarded by the judge. 1201 Circumvention of Copyright Protection Systems IMS Inquiry Management Systems, Ltd. v. Berkshire Information Systems, Inc. (p. 954) - FACTS: Defendant moved to dismiss plaintiffs copyright infringement claim arguing that the court lacked SMJ. Plaintiff filed suit against defendant claimed defendant committed three violations of the Computer Fraud and Abuse Act (CFAA), infringed plaintiffs copyright, violated the Digital Millennium Copyright Act (DMCA), and tortiously interfered with plaintiffs contractual relations. - HOLDING: Court did not possess SMJ to entertain plaintiffs copyright infringement claims and whatever the impropriety of defendants conduct, the DMCA and the anticircumvention provision at issue did not target its activity. Defendants motion was denied with respect to the CFAA claims. This is NOT a violation of DMCA. Chamberlain v. Skylink (p. 961) - FACTS: The technology at issue was a copyrighted rolling code computer program that constantly changed the transmitter signal needed to open a garage door with the owners garage door opener (GDO). The competitors product was a transmitter that activated the owners GDO using this rolling code. - HOLDING: Held that the competitors accused device enabled only uses that copyright law explicitly authorized, and was therefore presumptively legal. Universal City Studios v. Reimerdes (p. 964) - FACTS: Eight major US motion picture studios distributed many of their copyrighted motion pictures for home use on digital versatile disks (DVDs) which contain copies of the motion pictures in digital form. They protected those motion pictures from copying by using an encryption system called CSS. Defendants, computer hackers, devised a computer program called DeCSS that circumvented the CSS protection system and allowed CSS-protected motion pictures to be copied and played on devices that lacked the licensed decryption technology. - HOLDING: Held that the DMCA as applied to posting and linking here did not contravene. Plaintiffs were entitled to appropriate injunctive and declaratory relief. United States v. Elcom, Ltd. (p. 979)
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FACTS: Software company claimed that 1201 of the Digital Milennium Copyright Act was unconstitutionality vague as applied to it, that it violated the First Amendment because it constituted a content-based restriction on speech that was not sufficiently tailored to serve a compelling government interest because it impermissibly infringed upon the First Amendment rights of third parties to engage in fair use and because it was too vague in describing what speech it prohibits and that the US Congress exceeded its constitutional power in enacting the DMCA. HOLDING: Held that 1201(b) was not unconstitutionally vague as applied to the software company b/c it allowed a person to conform his or her conduct to a comprehensible standard. Also held that the governmental interests in enacting the DMCA were both legitimate and substantial and did not burden substantially more speech than was necessary to achieve those interests. DMCA is not facially unconstitutionally vague and did not exceed US Congressional power.

International News Service v. Associated Press (p. 1000) - FACTS: Defendant engaged in the systematic practice of taking the bodies of news stories from bulletin boards and early editions of complainants newspapers and selling them as its own. Complainant sued to enjoin defendant from engaging in such activity. - HOLDING: Issued an injunction and thus restrained defendant from taking or gainfully using any of complainants news until its commercial value as news had passed away. Although it involved misappropriation rather than misrepresentation, defendants strategy amounted to unfair competition in business.

James Brown case Foster-Beater a bunch of robots would go into a bar and drink their ordinary beer. And the bartender would give them a Foster bear and then the robots would become very good looking people who would dance around singing I feel good they got copyright permission but not permission from Mr. Brown sued under right to publicity b/c his personality was being used to advertise a product
Sears, Roebuck & Co. v. Stiffel Co. (p. 1008) - FACTS: Manufacturer claimed that the retailer had violated the states unfair competition law by selling lamps identical to those designed by the manufacturer. The lamps were not patented under federal law. - HOLDING: Held that because federal law was the supreme law on the subject of copyrights and patents, the states were precluded from providing more protection to unpatented articles. Further held that because the lamps were not protected under federal patent law, the state could not preclude others, such as the retailer from selling the lamps. Held that the mere inability of the public to tell two identical articles apart was not enough to support an injunction against copying or an award of damages for copying that which the federal patent laws permitted to be copied.

Stiffel case pole lamp case there was an unfair competition claim that the shape of the pole was an indication of source it indicated to the public WHO made the product. The problem was that that which they are claiming as a trademark was exactly the same as what they were claiming to be a patent Just as a state cannot encroach upon the patent laws correctly, it cannot under some other law (such as unfair competition) get protection of a KIND that clashes with the objective of the federal patent laws (which is the grant to inventors FOR A LIMITED TIME)
Compco Corp. v. Day-Brite Lighting (p. 1009) - FACTS: Each party manufactured fluorescent lighting fixtures. Respondent obtained a design patent on a reflector for a lighting fixture. Respondent began selling its fixture,
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and petitioners predecessor began making and selling fixtures very similar to respondents. HOLDING: Supreme Court held that the judgment forbidding the sale of a copy of an unpatented article was in conflict with the federal patent laws because, when an article was unprotected by a patent or a copyright, state law could not afford others to copy that article.

Goldstein v. California (p. 1010) - FACTS: Petitioners were convicted for violating state penal law by pirating recordings that were protected under state copyright law. As a live performance it was not being published. The argument was made that if Congress did not protect sound recordings before 1972, they did not want sound recordings protected under ANY law. There is no comparable conflict b/w state law and federal law. - HOLDING: Court upheld the convictions, finding that the states did not relinquish all control of copyright matters to the federal government and that uniformity was not required for successful implementation of copyright laws. The Supremacy Clause did not preempt state regulation. Kewanee Oil Co. v. Bicron Corp. (p. 1013) - FACTS: Petitioner was a leading manufacturer of a type of synthetic crystal, which was useful in the detection of ionizing radiation. The individual respondents were former employees of petitioner, who formed and later joined respondent corporation. Respondents executed at least one agreement each requiring them not to disclose confidential information or trade secrets obtained as employees of petitioner. Unlike the pole lamp case, with trade secrets, you have to show more than unfair competition. - HOLDING: Held that federal patent law did not preempt Ohio state trade secret law. The two systems were not in conflict. They offered different degrees of protection to inventors and others. Noted that matter, once in the public domain, was not incompatible with the existence of trade secret protection. Bonito Boats, Inc. v. Thunder Craft Boats, Inc. (p. 1015) - FACTS: Petitioner developed and marketed a fiberglass boat hull. No patent application was filed to protect the utilitarian or design aspects of the hull. The hull was successful and an interstate market developed the hulls trade. Six years after the hull had been made publicly available, a statute in Florida was enacted to make it unlawful for anyone to duplicate for the purpose of sale the process used by another hull manufacturer without written permission from that person. Petitioner sued respondent alleging that respondent violated the statute by using the same molding process petitioner used to manufacture the boats hull. Florida passed a law for someone to take a hull and copy it through direct molding process. They are protecting an item of manufacture. - HOLDING: Held that by offering patent-like protection for ideas deemed unprotected under federal scheme, statute conflicted with federal policy favoring free competition in ideas which did not merit patent protection. The statute was preempted by the 11th Amendment and judgment in favor of respondent was affirmed.

Supreme Court Preemption Decisions in IP Cases - The Constitutional provision on patent and copyrights says that for the advance of science and the useful arts we may grant to authors and inventors for a limited time the exclusive rights to their writings and inventions 301 Preemption with Respect to Other Laws 106 Subject matter of copyright if not within the subject matter of copyright, you dont have to worry about preemption
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*Sound recordings that were fixed before February 15, 1972 can continue to be protected under state law until February 15, 2067 95 years the concern was that state law which would give unlimited protection to sound recordings, we dont want that to happen *******p. 1019 bottom paragraph EXAM QUESTION!!! 1101 - Bootleg recordings of live musical performances are now covered by they are preempted from state law protection b/c they are a part of our federal copyright law Congress wanted to be helpful and lay out state causes of action which are not preempted b/c they go beyond the rights that are not equivalent to any of the rights granted under the copyright law they do not correspond to 106. The Justice Department objected. They did not like the use of the word misappropriation p. 1021 had (b)(3) and the Justice Department persuaded the Senate to knock it out. Complete Preemption - p. 1025
*The jury decides on the amount of statutory damages that are granted. Innocent infringer = $200-30,000; Ordinary infringer = $750-30,000; Willful infringer = $750150,000 504(c)(1) ORDINARY INFRINGEMENT RULE 504(c)(2) INNOCENT AND WILLFUL INFRINGEMENT RULE Robert Stigwood / Jesus Christ Superstar Case - One producer said that he could do the show and the other producer said that he owned the rights to it. - Each performance was a separate event but they were singing the same songs. There were three separate copyrighted items that were performed forty times = is that 120 infringements. The court said that it was 40 infringements. Congress did not like this result of separate infringements. In 504(c)(1) the language of for all infringements exists to minimize the infringements. Pennsylvania v. Union Gas - Suggests that Congress has the power to overcome 11th Amendment immunity. - Patent improvement act, copyright improvement act, and trademark improvement act were all passed in a response by Congress. Attorneys Fees 505 the court in its discretion may allow the recovery of all costs by and against the party other than the Untied States. The Court may also award reasonable attorneys fees to the prevailing party. Taylor v. Meirick (p. 941) - Absent fraudulent concealment, the statute of limitations will be tolled. The prevailing rule is that even absent such concealment, the statute will be tolled during the period when a reasonable person in the plaintiffs shoes would not have discovered the infringement. Digital Millennium Copyright Act
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Congresss effort to modernize and bring the Copyright law up to speed with the digital age. IN 1976 when the law was passed, there was one reference to a computer program (under 117) and in the mean time, there is a technological revolution going on. 512 SAFEHARBOR As long as they are notified that something is copyrighted and within two weeks they remove it, then there is no liability. A website fits within the language of the law for the safe harbor here.

1201 Circumvention the control mechanism that restricts you from accessing things. Realnetworks, Inc. case (p. 950) - FACTS: Realnetworks would transmit the audio and video content but you had to get the secret handshake. It is like the password for authentication mechanism that assures that files hosted on a Realnetworks server will be sent only to a RealPlayer. - HOLDING: You cannot circumvent a protection device that allows you to have access. Substantial non-infringing uses have to exist, and here they did not. *Congress has the right to protect copyrighted works in general. *Common law copyright used to exist until Erie in 1936. Now, once work is fixed you can get a federal copyright to it. TYPES OF UNFAIR COMPETITION: 1. Trademark Infringement i. Under the Lanham Act ii. Under the common law 2. Passing Off 3. Title Protection i. Play Gold Diggers of Paris then someone comes along and makes Gold Diggers of 1993 the title has become a trademark. 4. Disparagement i. Like the Olympic Committee case. 5. Dilution i. Famous marks should not be disrupted by not so famous marks 6. Misappropriation i. INS case. The news cannot be copyrighted b/c it is facts/ Nothing wrong with taking information, but it must be after the news has lost its quality of being first. 7. Breach of Contract 8. Idea Compensation/Protection i. If it is truly a new and novel idea, you can protect it here. 9. Breach of Trust 10.Trade Secrets Protection i. Anything and any information that is used in ones business and affords a competitive advantage for those who do not know it. ii. i.e. Formula for Coca-Cola, etc. 11.Defamation/Libel i. p. 1004 12.Privacy 13.Publicity

Highland Labs v. Topps Chewing Gum - A persons image was used on baseball card and was found to be a violation of privacy and publicity
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Types of Trademarks - Arbitrary (i.e. Kodak, Kleenex) - Suggestive (i.e. suggest a product) - Descriptive (i.e. describes the quality of the product. DISTINCTIVENESS) - Generic (i.e. chair = chair) *Book titles are descriptive. They describe the source of the book and it must have acquired secondary meaning. Stop the Olympic Prison v. United States Olympic Committee (1980) - FACTS: They converted the space from the 1980 Olympics in Lake Placid to a federal prison. Someone made an ad saying that the Olympic prison should not be created The Olympic Committee sued b/c they did not want to be associated with a prison. Wagner Records v. Metropolitan Opera - FACTS: Someone recorded the live performances and put it on a record. They used the voices of the opera singers. The Opera said that they were misappropriating the intellectual property of the opera singers. - HOLDING: No infringement here because the music is in the public domain and the voices are not fixed in any when they are live recordings.

PREEMPTION PROBLEMS
301 Preemption with Respect to Other Laws Toney v. LOreal USA, Inc. (2005, p. 1026) - FACTS: The companies predecessor used the models photograph in advertisements for a hair relaxer product. Company one later acquired the product. Sold it to company two, who marketed it to company three. The model alleged that the companies had used her likeness in connection with the product without her permission. - HOLDING: Court held that complaint sufficiently put the companies on notice that the model was asserted IRPA claims as to her identity. The IRPA protected the models identity or persona, rather than the photographs that were taken of her. Her identity was not fixed in a tangible medium of expression. No work of authorship was at issue in the models IRPA rights of publicity claim. Bromhall v. Rorvik, 478 F.Supp. 361 (1979, p. 1029) - Court rejected a preemption challenge to plaintiffs claim that defendant, who had read plaintiffs eight-page thesis abstract on the cloning National Basketball Association v. Motorola, Inc. (1997, p. 1031) - FACTS: Appellants were enjoined from transmitting scores or other data about professional basketball games in process via handheld pagers. - HOLDING: Held that appellees state law claims for misappropriation survived preemption. Because appellants expended their own resources to collect purely factual information, they did not free-ride on appellees product. False statements pertained to nonmaterial minutiae and did not misrepresent an inherent quality or characteristic of the appellees product. SPORTS GAMES ARE NOTCOPYRIGHTABLE>

EQUIVALENT SUBJECT MATTER

ProCD, Inc. v. Zeindenberg (86 F.3d 1447) (7th Cir. 1996) (p. 1042)
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FACTS: Appellant included a shrink-wrap license in its packaged software. Appellant also chose to discriminate in its pricing of the software between commercial and noncommercial users. Appellee purchased a consumer package of the software, but chose to ignore the license restricting its use to non-commercial purposes. HOLDING: Held that the license was to be treated as an ordinary contract accompanying the sale of products. While the terms of the license were included within the package, its terms afforded the purchaser an opportunity to review the product and its terms before being bound. Since the license agreement was a two-party contract, it was not equivalent to the rights of copyright.

Wrench LLC v. Taco Bell Corp. (2001, p. 1050) - FACTS: Plaintiffs were creators of a "Psycho Chihuahua" character and their company, brought suit against defendant, a national fast food chain, claiming breach of implied contract and various torts related to defendant's alleged use of their ideas. Plaintiffs argued, that district court erred in its preemption analysis under both the "subject matter" and "equivalency" prongs, and that their ideas and concepts lacked novelty as a matter of law. - HOLDING: Court noted that defendant did not claim that it was aware of plaintiffs ideas prior to disclosure and thus, summary judgment was inappropriate on the ground that plaintiffs failed to show that their ideas were novel or original

RIGHTS EQUIVALENT TO COPYRIGHT

Ehat v. Tanner (1985, p. 1054) - FACTS: Plaintiff, a graduate student, made a compilation of educational materials and added comments. Defendants operated a microfilm company, and they copied the compilation without authorization, redacted plaintiff's comments, and sold the original materials. Plaintiff brought a federal copyright infringement claim and a state law claim of unfair competition. - HOLDING: The federal claim preempted the state claim because the claims were equivalent to each other; under each claim, he sought damages due to the reproduction and distribution of his notes.

SUBJECT MATTER OF COPYRIGHT - NY has something called the NY Civil Rights Act (301, 302) which protect your right to privacy and publicity. A picture of a person involves two separate rights. Whoever took the picture owns a copyright of the picture but then there is the subject matter of the photograph. If the subject matter of the photograph is someones identity, it is protected by statute Verge case - There are lot of cases of younger female science students who worked for an older male professor and they steal the students work. The professor in this case made an application to the federal government to get a grant to exploit her work. He got the grant to exploit the work. She brought a false claims act against the university. She added to the false claim that he converted her intellectual property b/c he took her ideas. But her ideas were not protected by copyright. - JUST BECAUSE COPYRIGHT LAW WONT PROTECT IT DOES NOT MEAN THAT STATE LAW WILL PROTECT IT IF IT IS IN THE SUBJECT MATTER OF COPYRIGHT! Neither federal law nor state law can protect it! - STUDENT LOSES.
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p. 1031 Problems 1. NOT preempted by 301 b/c they are not within the subject matter of copyright 2. Typeface is NOT a writing. 3. A proposed state statute protecting characters. A picture of a cartoon character is a writing. 4. Databases are within the subject matter of copyright Fogerty case (p. 940) the need to advance considerations To get attorneys fees, standard is easy for plaintiffs b/c it fits in w/ unreasonableness. If bad guys have to pay attorneys fees, they will be deterred from copying material

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