Cannot copyright your name because other people have that name

Last names cannot be copyrighted because that defeats conventional wisdom, problem
is originality, because originality requires a modicum of creativity, there must be some
minimal level of creativity and last names simply not meet this standard

Mickey Mouse is both a trademark and a copyright

Originality
Fixation

Whenever you recognize a right, there is a corresponding duty, rights are not empty,
they restrict freedom of action

Copyrights are property rights, meaning that right to exclude, property rights are in
rem rights (rights against the world) avail against the rest of the world

What freedom does copyright law restrict?
Restricts third partys expression

Adaptation or derivative
Is there an upside to allowing people to copyright last names
Last names can be trademarked trademarks only prevent commercial uses

Background of intellectual property law

Federal level

IP Law
o CR law
Protects Original Expressive works
Prerequisites:
Originality
A modicum of creativity
Fixation in a tangible medium
Protection Term: life of author + 70 years
Registration is optional, no additional action is necessary
o Patent Law
Utility Patent
Functional invention
o Novelty
o Usefulness (must be able to solve its intended
purpose)
o Non obviousness (not obvious to someone outside
the field)
Examination
Registration
Protection term: 20 years from date of filing
Design Patents
All about aesthetics
Non-functional design elements
Protection term: 14 years form Date of issuance
o TM Law
Source identifiers
Any information pertaining to the source of goods and services
Trigger of protection: Use of mark in interstate or foreign commerce
Distinctiveness meaning that your mark is different enough from other
marks that are already in existence so we compare the sight and the
sound
Starrbucks is too similar to starbucks
Registration is optional if you register you can claim your mark even
before using it in commerce based on your intent to use it
Term: indefinite
As long as the mark is being used.

State level
Common law CR
This is Largely pre-empted by the federal CR Act
There may be a residual option in some cases protected under the federal act
Oral works are not protected under the federal act because it is not fixed medium, but
you can get something through state common law


Trade secrets
Allows you to protect Any valuable commercial information that is not public
Prerequisite to Secrecy:
Need reasonable precautions to protect secrecy
Term: as long as information remain not known to the public

Right of Patentability
Right of publicity right given to celebrities to commercially exploit the value of their
image/personality, and even likeness
Unfair competition Under trademark a body of law regulating business practices




Misappropriation is like a cloud hovering over the entire area, recognized in the case
INS v AP WW1
Two news agencies



The History of Anglo-American CR law

1534
The English Crown grants a publishing monopoly to a group of London publishers and
printers called: the stationers company
(Crown was worried that information will be disseminated, so grant the rights of
publishing to a company that can be trusted)

1694 the monopoly expired
The company started lobbying the Crown to extend the monopoly

In 1710 the Crown decided to enact a state of Anne (first copyright act in Anglo-
American world) printed books
Give copyright directly to authors instead of trader companies (major change in
substance)

Subject matters: printed books
Trigger: publication
List of protected rights: control reproduction
Term: 14 years (+ 14 years if author is still alive)

By the middle of the 17
th
Century, copyright has gained considerable purchase on the
United States and shortly after the revolution, 12 states adopted copyright statutes and
in 1787 in the Constitution
The framers of the Constitution in Article 1 section 8 clause 8, empowered Congress 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 [Famous
IP clause]

1790
Subject matter in the beginning: applied to maps, charts and books
Trigger: publication and subsequently Registration and deposit was added
In terms of exclusive rights, the list was very short
Exclusive rights:
Print (reprint)
Publication
Vent
Term: 14 years + 14 years

1909 Revision, a new copyright act was adopted (expansion)
Subject matter (long list is the trend): all works of an author including
o Books
o Periodicals
o Lectures
o Dramatic works
o Musical compositions
o Maps
o Works of art
o Technical drawings
o Photographs
o Prints + pictorial illustrations
o Motion pictures
o Sound recordings
Trigger: Publication, subsequently added (notice + registration + deposit)
Exclusive rights
o To print
o Vent
o Translate
o Adapt
o Deliver
o Present
o Perform
The work
Term: 28 years + 28 years (56 years)

1976 copyright act (most current version that we have)
Subject matter (expansive, consists of an open list that includes):
o Literary
o Musical works
o Dramatic
o Choreographic works
o Pictorial graphic + motion pictures
o Used works
o Sound recordings
o Architectural works (added)
Exclusive rights
o Reportation
o Adaptation
o Public Distribution
o Public performance
o Public display
o Digital performance of sound recordings
Trigger: fixation
Term: life + 50
In 1998 it was extended to life + 70

1998 DMCA prohibited circumvention of technological measures employed by
copyright owners e.g. if you require a password or other method of authorization to my
works online, you are not allowed to tamper with these protected measures that
copyright owners use to protect their content

Strict liability if you copy someones work you are liable, even if you do not know that
it is protected
Effective against direct infringers: People who engage in one of the exclusive
rights/powers of the rights owners
Also against indirect infringers: Napsters liability for making it possible for users to
infringe

Why is copyright expanding?
1. Power of the individual
2. Technology based explanation: Theres a lot more that you can copy now, more
value that is out there that can be captured
Technology is not symmetrical: some favour copyright owners, others challenge the
copyright regime

How much technological advancement are we willing to sacrifice to protect the
copyright regime?

Create an interest group every time you create a right, and they will try to push the right
further

One reaction to disruptive technology to copyright is to create new protective
technology, another is to lobby Congress and make laws

Divergence between tangible rights and intangible goods:
why download music but not steal a record in a record store?
1. Ease of access
2. Non-rivalry in consumption Downloading does not deprive possibility of using
the asset/music
3. Anonymity/Low likelihood of apprehension
4. No physical barriers (psychologically we are hard-wired to think that it is wrong
if taking something physical)
Social norm that it is acceptable to take works