COPYRIGHT LAW SPRING 2004

CLASS 4Professor Fischer

Columbus School of Law

The Catholic University of America

January 28, 2004

Differences Between Copyright and Other Intellectual Property

• Other than copyrights, what other forms of intellectual property are there?

DIFFERENCES BETWEEN COPYRIGHTS AND OTHER FORMS OF INTELLECTUAL

PROPERTY

• Patent Law (e.g. Bell v. Catalda (2d Cir. 1951) -- CB p. 52

• Trademark Laws (e.g. Frederick Warne v. Book Sales, Inc. (S.D.N.Y. 1979)) -- CB p. 65

Patents

• Protect inventions - right to exclude others from making, using, offering for sale, or importing for 20 years (utility)

• Constitutional basis for Patent Act (35 U.S.C. s. 1 et seq.)

• How do you obtain patent rights and how long do they last?

REQUIREMENTS FOR PATENTABILITY (Utility

Patent)• Patentable subject matter• Novelty• Utility• Non-obvious to people with

ordinary skill in the art• REMEMBER: Catalda case

HOW DO YOU GET A PATENT?

• File a patent application • Comply with

Description/Enablement/Disclosure requirement

• Pay a Fee• Rigorous PTO examination process• Getting a patent is very expensive and time

consuming compared to getting a copyright!•

TRADEMARKS• Protects symbols/brands from unauthorized or

confusing use by others• Not because they are especially creative or novel• But because they signify a single source of a

product and a consistent level of quality to customers

• Protects reputation and goodwill - relates to use, not invention or authorship

• Duration: 10 years renewable if used• CONSTITUTIONAL BASIS for TMS?

Constitutional Basis for TMs

• Commerce Clause of U.S. Constitution: Art. I cl. 1 s. 3

• Federal TM statute is the Lanham Act, codified at 15 U.S.C. § 1051 et seq.

• Also state, common law protection

Can there be overlap between

• Copyrights and patents?

• Copyrights and trademarks?

COPYRIGHTABILITY

• What are the two statutory requirements for copyright protection?

COPYRIGHTABILITY

Two statutory requirements for copyright protection in s. 102(a)

• 1. Original work of authorship

• 2. Fixation

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?

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)

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?

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.”

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

ORIGINALITY OF LABELS/SLOGANS

• TO WHAT EXTENT ARE THESE 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)

WORKS OF AUTHORSHIP

• See s. 102(a) (1)-(8)

• Overlapping?

• Exclusive?

STAND-UP COMICS AND COPYRIGHT

• Jay Leno: “I get ripped off. Everybody gets ripped off. There’s nothing you can do about it. You just learn to write faster.”

FIXATION

• Like originality, fixation is required for a work to be copyrightable

• It is a constitutional requirement - a work must be a “writing” to be copyrightable