COPYRIGHT LAW FALL FALL 2008 CLASS 4 COPYRIGHTABILITY I Columbus School of Law The Catholic...
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Transcript of COPYRIGHT LAW FALL FALL 2008 CLASS 4 COPYRIGHTABILITY I Columbus School of Law The Catholic...
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)