COPYRIGHT LAW FALL FALL 2008 CLASS 4

COPYRIGHTABILITY IColumbus School of Law

The Catholic University of America

Professor Fischer

August 27, 2008

Wrap-Up

• Rationale underlying copyright law (e.g. utilitarian, natural right, personhood) will affect how you view the ideal scope of the law as well as

• What is meant by “Author” “writing” and “to Promote the Progress of Science and the Useful Arts” in the U.S. Constitution

DISTINGUISHING COPYRIGHT FROM OTHER TYPES OF IP

• Patent

• Trademark

• Trade Secrets

Frederick Warne & Co. v. Book Sales, Inc. (S.D.N.Y. 1979) CB

p. 63

• Lanham Act requires a “likelihood of confusion”

• Does © public domain status preclude trademark protection??

Dastar v. 20th Century Fox (2003) CB p. 68

Crusade in Europe

Campaigns in Europe

Article on Dastar

• See Jane C. Ginsburg, Of Mutant Copyrights, Mangled Trademarks, and Barbie's Beneficence: The Influence of Copyright on Trademark Law, Columbia Research Paper (Aug. 2007) Forthcoming in Graeme B. Dinwoodie and Mark D. Janis (eds.) Trade Mark Law and Theory: A Handbook of Contemporary Research (Edward Elgar Press, USA).

• Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1008595

UNIT II

• Copyrightability: What subject matter is protected by copyright law?

Constitutional Question

• Is it a “Writing” of an “Author”? If so, Congress may protect it for a “limited time” to “promote the progress of Science and the Useful Arts”

• See e.g. Burrow-Giles

Originality Requirement

• Where in statute?

Originality Requirement

• 17 U.S.C. § 102(a)

“Copyright protection subsists in original works of authorship fixed in a any tangible medium of expression . . . .”

Originality Requirement

• 17 U.S.C. § 102(a)

“Copyright protection subsists in original works of authorship fixed in a any tangible medium of expression . . . .”

Is there a definition of “Original”?

An Originality Question

• Jane writes a song. Jane never plays her song for anyone else, and consequently Emma has never heard Jane’s song. Suspend credulity and imagine that Emma writes a song that is identical to Jane’s. Is Emma’s song copyrightable?

NOVELTY IS NOT REQUIRED FOR COPYRIGHT PROTECTION

• Unlike patent protection

• See Alfred Bell & Co. v. Catalda (2d Cir. 1951) CB 52

Learned Hand: Independent Creation Requirement

• “. . .[I]f by some magic a man who had never known it were to compose anew Keats’ Ode On a Grecian Urn, he would be an “author,” and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats.”

• Sheldon v. MGM, 81 F.2d 49, 54 (2d Cir. 1936), aff’d, 309 U.S. 390 (1940)

In Bell v. Catalda, Justice Frank stated:

• “A copyist’s bad eyesight or defective musculature, or a shock caused by a clap of thunder, may yield sufficiently distinguishable variations [to be considered original enough to be copyrighted]. Having hit on such a variation unintentionally, the “author” may adopt it as his own and copyright it.”

Can “Dr. Nerd” Copyright . . .

• . . . a heretofore undiscovered and unpublished manuscript of a Shakespeare play that he found while exploring the stacks of Mullen Library?

Exact Copies• Arthur, a forger,

creates an exact reproduction of Rembrandt’s 1629 Self Portrait.

• Experts cannot distinguish Arthur’s copy from the original

• Is Arthur an “author” for the purposes of copyright?

2 requirements of originality

• What are they?

COPYRIGHTABILITY: ORIGINALITY

REQUIREMENTTwo aspects: • (1) independent creation • (2) at least some minimal

degree of creativity • See Feist, 499 U.S. 340 (1991)

– CB p. 75

Bleistein v. Donaldson Lithographing Co. (1903) CB 33 (at

34)• Personality always contains something unique.

It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible which is one man's alone. That something he may copyright unless there is a restriction in the words of the act.

Bleistein v. Donaldson Lithographing Co. (1903) CB 33

•

Catalda (p. 54)

• '‘Originality [in the copyright] context means little more than a prohibition of actual copying. No matter how poor the 'author's' addition, it is enough if it be his own.”

Jabberwocky

• WOULD “‘TWAS BRILLIG AND THE SLYTHY TOVES” be copyrightable?

Copyright Office Regulation provides that some works are not copyrightable, including:

• “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.” – 37 C.F.R. § 202.1(a)

ANOTHER TYPE OF IP MAY HELP HERE

• Trademarks

ORIGINALITY OF LABELS/SLOGANS

• TO WHAT EXTENT ARE THESE COPYRIGHTABLE

• See Sebastian, Int’l v. Consumer Contact (D.N.J. 1987) (CBmp. 79)?

Magic Marketing v. Mailing Services of Pittsburgh (W.D.Pa. 1986) CB p

79• Do the envelopes at issue exhibit a

sufficient degree of creativity to be copyrightable?

John Muller & Co. v. New York Arrows Soccer Team, 802 F.2d 989

(8th Cir. 1986)

• See the logo at p. 81 of your casebook – is it original enough to be copyrighted?

John Muller & Co. v. New York Arrows Soccer Team, 802 F.2d 989

(8th Cir. 1986)

Earth Flag Ltd. v. Alamo Flag Co., 154 F. Supp. 2d 663 (S.D.N.Y. 2001)