Formalities, Fixation, Idea-Expression, Merger

Intro to IP – Prof Merges

2.9.10

Fixation

• “It makes no difference what the form, manner, or medium of fixation may be . . . Sculptural, punched, magnetic, or any other stable form . . . whether it is capable of perception directly or by means of any machine or device . . .”

Live Broadcasts

• Originality– Photography, video– “Authorship” of real-life images

• Fixation

White-Smith v. Apollo (1908)

“They are not intended to be read as an ordinary piece of sheet music …. [W]e cannot think that they are copies within the meaning of the copyright act.” – 209 US at 18.

Fixation issues

• Simultaneous recording and broadcast

• “Authorized” fixation only . . . (bootleg recording cases)

• State law (preemption) – Hemingway case, p. 405

• Original work and copy must merge through fixation copyrightable subject matter

“Copies” and “phonorecords”

• Physical objects

• In which copyrighted works are embodied

– The work starts with a physical instantiation; but is conceptually distinct from the instantiation

– Property is not tied to/limited to the physical object

Transitory duration

Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 127-30 (2d Cir. 2008): data that resides in a buffer for no more than 1.2 seconds before being automatically overwritten is merely of transitory duration and hence does not constitute a ‘‘copy’’ for copyright purposes.

Formalities

• Notice

• Publication

• Registration

• Deposit

Three primary eras

• 1909 Act

• 1976 Act (effective Jan. 1, 1978)

• 1989 Berne Implementation Act (effective March 1, 1989)

What is the “Berne Convention”?

Victor Hugo

Continental tradition

• Droit d’auteur – vs. “copyright” (Anglo-American tradition)

• Declaration of the Rights of Man (1791); moral rights

World Intellectual Property Organization: WIPO

Notice

• Historically: required

• Today (post-Berne Act, March 1, 1989): Encouraged (see section 401(d))

Publication

• No longer quite as important as under 1909 and pre-1989 1976 Act

Deposit

• Still required for US works

Formalities: Publication and Notice

1/1/78: Relevant to works created and “published” in the U.S. before 1978

Distinguish general publication from limited publication

Divesting v. Investing Publication

• Publication cut off state (common law) protection; publication without notice forfeited federal rights.

• Therefore courts were loath to find “divesting” publication

• Not so when notice given; “investing”publication

If general publication occurred, ask: Was there strict compliance with 1909 Act notice rules? If no, the work is in the public domain.

If limited publication (or no publication) occurred, ask: Was the work registered anyway (for certain kinds of works)? If it was, still copyrighted.

Formalities: Publication and Notice

For works fixed after 1/1/78, or fixed before 1/1/78 but not published or registered before 1/1/78, ask:

Was the work disclosed to the public before 3/1/89?

If no, copyright applies

If yes, ask: Was notice included? If no, copyright applies if limited publication occurred; work is in the public domain if general publication without notice occurred.

Estate of Martin Luther King, Jr. v. CBS (11th Cir. 1999)

Careful attention to the work

• Rev. King case:

• Spoken words? Audio recording? Video recording? Text of speech?

Categories of Works

• Literary Works –Has nothing to do with literary merit (if novel is good or bad)

• © Protects: Plot, Structure & Organization –

• Computer Software included under literary works

Musical Works – Two Forms:

• (1) Sheet music, lyrics, musical compilation

• (2) Sound Recording/ Musical Composition: of the composition

Dramatic Works –

Plays, pantomimes & choreographed work (the score is copyrightable)

Pictorial, graphic, sculpture

Audio Visual Works and Motion Pictures (Soundtrack is included in Motion Picture)

Architectural Works --

Eg, Rock & Roll Museum in Cleveland.

a. Limited rights: reproduction as a building

b. Can have copyright for architectural elements

Recordings could be published …

• And not the written speech

• Result: Preserves copyright

– > Copyright not divested under 1909 Act

Formalities: Notice

For works fixed after 3/1/89, notice no longer required; publication status irrelevant to existence of copyright protection.

Notice still brings benefits (eliminates “innocent infringer” defense w/regard to damages) § 405(b)

Acquiring, Keeping and Transferring Copyright

Formalities: Registration

Pre-1/1/78, registration was optional for initial copyright protection, but required as a condition of filing an infringement suit, and for renewal

Post-1/1/78, registration is optional, but U.S. works must be registered as a condition of suit, under § 411

Formalities: Registration

Post-1/1/78, benefits of registration: Evidentiary benefits (registration must be w/in 5 years of first publication) § 410

Registration (cont’d)

Expanded remedial options--statutory damages and attorneys’ fees (registration effected prior to infringement commencing or within 3 months of publication, for newly published works) § 412

Formalities: Deposit

Two copies of published works (§ 407)

One copy of unpublished works

Special rules for certain kinds of works (nb. computer programs) 37 CFR § 202.20

Formalities: RestorationApplies to Berne and WTO members. § 104A

Relevant to lost U.S. copyright protection lost due to failure to comply with U.S. formalities.

Work must still be subject to protection in its country of origin

If notice rules complied with, then restored protection applies (for most countries) as of 1/1/96

Provisions for “reliance” parties

Morrissey v. P&G

• What was copyrighted?

Morrissey

• What would be the effect of upholding the copyright?

Merger doctrine

• Why worry about merger if there is independent creation defense?