#16483 - Ip Attack Outline - IP Law (Attack Outline)

COPYRIGHT

Copyright Requirements

• (1) Originality

  • Low bar/standard: don’t want to pass judgment on works’ aesthetic merit

  • Feist: independent creation + modicum of (little) creativity

    • Copyright protection in a factual compilation is thin and is based on and limited to the selection and arrangement of facts. (Feist)

    • Facts are not copyrightable, but compilations of facts generally are, e.g. phone book

    • Creativity: even trivial variation, rarely fall below de minimis threshold

      • E.g. choices made by a photographer, game design

      • But not when artist tries to copy and made no creative choices

  • If an artist sets out affirmatively to make a copy of someone else’s creation rather than create an original work, it is likely that the resulting product won’t be original. (Meshwerks)

    • Author is entitled to copyright if independently contrived a work completely identical with what went before;

    • Similarly, not right to prevent another from publishing identical work, if not copied from his

• (2) Fixation

  • Policy reasons: knowledge and cultural preservation, evidence

  • s 101 Requirements: a work is

    • “fixed” in a tangible medium of expression when its embodiment,

    • in a copy or phonorecord (sound)

    • by or under the authority of the author,

    • is sufficiently stable to permit it to be perceived, reproduced, or otherwise communicated

    • for a period of more than transitory duration

  • Functional definition (need not be readable by humans)

  • Trouble applying this to digital materials

    • Interactive works: sufficient element of the look and feel of the game remained fixed regardless of the individual player’s action Stern Electronics

    • Software stored in memory

    • Material stored in buffers/caches: duration sufficiently small to be considered transitory and not fixed Cartoon Network

  • Works that are not fixed

    • Non-broadcast performance recorded by audience member (not under the authority of the author)

    • Work produced by mechanical process or random selection

    • Federal Copyright law requires works to be fixed, but some state and common law may protect work even if not fixed

• (3) Formalities

  • No longer required post Berne Convention March 1, 1989, see P.18

  • Publication Notice Registration Deposit Recordation of transfers

Copyrightable Subject Matter

• S 102 Copyright does not protect any:

  • idea, procedure, process, system, method of operation, concept, principle or discovery (should look to patent protection)

  • Blank Forms (e.g. graph paper, scorecards, account book) are not copyrightable, unless it contains expressions

• Copyright only protect expression of ideas. (Baker – bookkeeping method not protected)

  • Policy: unfair to allow monopolizing an idea only just because they got it first

• Abstraction test to distinguish idea and expression Nichols

  • (1) Level of abstraction: Idea of story plot/ subplot general and specific characters and scenes text

  • (2) Filtration: remove originality, merger, scenes a faire, facts, historical events to remove uncopyrighted material

  • (3) Investigate substantial similarity

• Merger doctrine:

  • courts will not provide protection to expression if the idea embodied in the expression can effectively be expressed in only one or a limited number of ways. (Morrissey)

  • cf. scenes a faire standard treatment of a given topic is not copyrightable

    • Policy: would unduly restrict subsequent authors in building their own works within general settings which their audiences would relate to

• S 102(a) Works of Authorship includes work of:

  • (1) literary: verbal/numerical, literal text + non-literal elements

  • (2) musical: e.g. a musician who composes a song is the author of a musical work

  • (3) dramatic: incl. accompanying music (though the music could be copyrighted separately as a musical work)

  • (4) pantomimes and choreographic: fixed in notation or film recording

  • (5) pictorial, Graphic and Sculptural:

    • 2D and 3D works of fine, graphic and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models and technical drawings, including architectural plans.

    • Works of artistic craftsmanship, but not mechanical/ utilitarian aspects

    • Design of a useful article considered as a PGS work only if the design incorporates PGS features that:

(1) can be identified separately from and

(2) are capable of existing independently of the utilitarian aspect of the article

• (6) motion picture/ audiovisual;

  • Audiovisual: series of related images that intrinsically intended to be shown by the use of machines/ devices such as projectors, viewers, or electronic equipment, tgt with accompanying sound

  • Motion pictures: audiovisual work consisting of a series of related images which when shown in succession, impart an impression of motion, tgt with accompanying sounds

• (7) sound recording: sound recordings fixed in phonorecord

  • but not sound accompanying motion picture

  • reproduction right in sound recording is infringed only by a literal copy

  • c.f. musical work: a producer who records sound is author of sound recording if record is put on a CD a phonorecord of both musical work + sound recording

  • s.114(b) non-literal copying will not infringe the copyright in the sound recording, but a recording can be a phonorecord of a sound recording + another copyrighted work (e.g. the CD)

  • s. 106(6) Public Performance is limited to the right to perform the copyrighted work by means of a digital audio transmission (a business playing CD won’t infringe sound recording copyright)

• (8) architectural (Protection since 1990)

  • Thin protection + on compilation-like grounds

  • Design of a building (and plan) is protected, but doesn’t include individual standard features

  • If building is visible to public, no right against making distribution/ display of images of the building

  • Based on the combination of common features to create a unique design.

    • Usually, more generous than a separability analysis

• The useful article doctrine is intended to prevent backdoor patent protection.

  • The design of a useful article shall be considered a PGS work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” (§ 101)

    • (1) Two- and three-dimensional features that are parts of PGS works that are useful articles must be subjected to separability analysis. (Star Athletica)

      • To be identified separately from the utilitarian aspects of an article, the decision maker need only spot some two- or three-dimensional element that appears to have PGS qualities.

    • (2) To be capable of existing independently of the utilitarian aspects of the article, a feature must be able to exist as its own PGS work once imagined apart from the useful article. (Star Athletica)

      • i.e. shape, cut & physical dimensions of the clothes not copyrightable

  • Functional = if there is any purpose to a useful article other than conveying info/ portraying the appearance [form + function in one obtain design patent protection]

• Alternative to Copyright:

  • Patent requirements: novelty, non-obvious, ornamentally, non-functionality

  • Sui Generis Design Protection (specialised design protection statutes) P.32

    • Semiconductor Chip Protection; Vessel Hull Design Protection Act

• [9] Derivative works and compilations are also subject matter of copyright

  • But often have thin copyright protection

  • Derivative work: a work based on one or more preexisting works

    • e.g. translation, musical arrangement, sound recording, art reproduction

    • A work consisting of editorial revisions, annotations, elaborations, or other modification which represent an original work of authorship as a whole

    • e.g. book author licensing a toy co. to produce stuffed toy based on book characters

  • Compilation: work formed by collection and assembling of preexisting materials or data that are selected, coordinated, or arranged in a way that resulting work as a whole constitutes an original work of authorship (including collective work)

    • Unoriginal elements can be combined in an expressive way. (Roth Greeting Cards)

    • Relatively common drawings/statements copyrightable if compiled expressively

Ownership and duration

• Copyright vests initially in a work’s author(s) (§ 201). Often easy to tell, except for special categories:

• (1) Works made for Hire (P.36)

  • (i) The patron (e.g., employer) is the copyright owner of a work made for hire, unless the preparer and patron have agreed otherwise in a signed writing. (§ 201)

  • (ii) Prepared by employee within the scope of employment (as determined by common law agency principles) (§ 101, CCNV)

    • Scope of employment: Kind of work employed to perform; within authorised work hours; motivated by a purpose to serve the employer

    • Whether an employment relationship exist (Ried) (see P.39): [most important] employee benefits tax treatment method of payment skilled required right to assign additional projects to hired party source of tools hired party’s discretion over when and how long to work duration of relationship whether part of regular course of hired party’s business location of work hired party’s role in hiring & paying assistants right to control work being performed label whether hiring party is in business [least important]

  • (iii) Certain classes of work specially commissioned or ordered, with a signed writing indicating that the work is for hire (§ 101):

    • Categories: (1) Contribution to a collective work; (2) part of a motion picture/ audiovisual work; (3) translation; (4) supplementary work; (5) compilation; (6)...