Intro to Copyright II: More on Formalities, Fixation, Idea- Expression, Merger Intro to IP – Prof Merges 2.7.12.

Intro to Copyright II: More on Formalities, Fixation, Idea-

Expression, Merger

Intro to IP – Prof Merges

2.7.12

Agenda

• Finish Idea/Expression Dichotomy

• On to formalities merger/17 USC 102(b)

• Seng-Tiong Ho v. Taflove, 648 F.3d 489 (7th Cir. 2011)

Under the merger doctrine, when “there is only one feasible way of expressing an idea, so that if the expression were copyrightable it would mean that the idea was copyrightable,” the expression is not protected. Bucklew v. Hawkins, Ash, Baptie & Co., LLP, 329 F.3d 923, 928 (7th Cir.2003).

The copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds, or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires. The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book. – 648 F.3d at 498

[T]he “arrangement, expression and manner of presentation” of the mathematical data could be protected by copyright, even if the equations and formulae themselves were in the public domain. Id. Specifically, we commented on the coloring, wording and location of titles and type of shading used by the parties. [Citing Flick–Reedy Corp. v. Hydro–Line Manufacturing Co., 351 F.2d 546, 548 (7th Cir.1965)]

Tufte Dagram

Limiting doctrines

• Formalities

• Originality (subject matter)

• True limitation on original work whose author has complied with formalities: Idea-Expression dichotomy

Baker v. Selden

• What exactly was copyrighted here?

• What did the copyright owner seek to achieve by the suit?

Section 102(b)

17 USC Sec. 102(b):

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Section 102(b)

17 USC Sec. 102(b):

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Section 102(b)

17 USC Sec. 102(b):

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Pam Samuelson: The Story Behind Baker v Selden, on SSRN.com

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

• 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?

King case holding

• Public broadcast of speech did not amount to “general publication”

• No “divesting publication without notice”

• So the speech may still be copyrighted

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?