Copyright Law Handout

8/7/2019 Copyright Law Handout

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Copyright Law

Law School LegendsProfessor Roger Schechter

I. Justifications for a Copyright System

A. You might wonder at the outset why society needs copyright laws at all

B. Usually two alternative reasons identified

1. The continental theory a moral entitlement

2. The Anglo-American justification an economic incentive

C. Countervailing considerations why there should be limits on copyright

1. To enable subsequent authors to build on the work of their

predecessors

2. To promote the free exchange of ideas

D. We didnt see copyright hundreds of years ago because copying was very

difficult

1. Authors had exclusive rights to their works as a practical matter.

2. As copying technologies have gotten more sophisticated, copyright law

has gotten more complex to continue to preserve the economic

incentive of authors.

3. The history of copyright law can be seen as a legal response to ever more

effective copying technologies.


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COPYRIGHT LAW LAW SCHOOL LEGENDSPage 2

II. The Constitutional and Statutory Framework

A. The Subject Matter of Copyright

1. Specifies certain general prerequisites

2. Provides us with a non-exclusive list of specific categories of subject

matter

B. First Prerequisite for protection Fixation

1. Fixed means memorialized, captured, or made permanent.

2. There are two types of objects in which a work can be fixed:

a. Phonorecords are material objects in which sounds are fixed.

b. Copies are any other type of object in which a work could be

fixed.

c. To be fixed it must be permanentlyor stably embodied in

either a copy or phonorecord.

d. In other words, it must be written down, taped, painted, or

filmed.

3. Thus, there is no federal protection for non-fixed works.

4. EXCEPTION Under 1101, making an unauthorized copy of a live

musical performance is equivalent to copyright infringement.

5. Historically, there was some ambiguity about what constituted the

proper types of copies into which a work could be fixed.

6. The present statute defines copies as: Material objects in which a work is

fixed and from which the work can be perceived, reproduced, or

communicated either directlyor with the aid of a machine.

7. Dont forget that there is also the requirement ofpermanence.

8. Finally, note that copyright protection attaches the minute the work is

fixed.


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C. Second Prerequisite for Protection Originality

1. A compound requirement encompasses two separate notions

2. Not copied

a. One must create the work through independent effort.

i. No copyright if you copy verbatim from a preexisting

work.

b. Parallel independent creation can yield multiple copyrights.

3. Minimally Creative

a. Not every expressive work created from scratch is eligible for

copyright.

b. You need some creativity.

c. The amount of creativity required is very low.

d. There is no requirement of artistic merit.

III. Idea/Expression Distinction

A. Protection extends only to literal expression and not to underlying ideas of the

work.

B. The principle dates back at least as far as the 19th century case ofBaker v. Selden.

C. Closely related to the no protection for ideas rule is the Merger Doctrine.

1. If there is only one way to express an idea, the idea and the expression

merge.

2. Protecting such expression would prevent others from using the idea.

3. So the expression is deemed unprotected.

D. Determining which parts of a work are protected expression and which parts

are unprotected ideas is quite different.


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IV. Specific Types of Protected Works

A. The statute lists 8 categories.

1. The list is non-exclusive.

2. Some items in the list are not particularly important.

B. Literary Works

1. Anything in words or symbols including fiction and non-fiction

works, prose and poetry, and even computer programs.

2. Historical research or factual discoveries are not protected by

copyright.

3. Pictorial fictional characters are protected.

4. Literary characters are more troublesome

a. Many are nothing more than mere ideas and thus

unprotectable.

b. Those drawn with great enough specificity become expressive

and eligible for protection.

5. Computer software

a. Computer code is protectable expression under the statute.

b. Courts continue to struggle with the non-literal elements of

the program.

c. Organizational structure of the program is only narrowly

protected.

d. The user interface of a program is only narrowly protected.

C. Pictorial Graphic and Sculptural Work

1. Includes painting, sculpture, advertisements, maps, and technical

diagrams


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2. Protection does not extend to those aspects of a work that are

utilitarian.

3. If the work overall is a useful article there can only be protection for

design features if they can be identified separately from and can exist

independently of the utilitarian aspects.

4. Some courts extend protection to the aesthetic components of a useful

object when there is no physical separability if there is conceptual

separability.

5. Toysare NOT useful articles, and are thus copyrightable.

D. Musical Works and Sound Recordings

1. These are actually two separate categories.

2. Musical works is notes and lyrics on sheet music or in a phonorecord

3. Sound recording is a collection of sounds embodied in a phonorecord.

a. A sound recording need not be of music.

b. Could be a comedy album, a recording of bird songs, or a

foreign language instruction tape.

4. With recorded music note that there are two separate copyrightableworks:

a. The composer of the music owns the copyright in the music.

b. The record producer has a separate copyright in the sound

recording.

E. Compilations

1. Collection of either data or already existing work

a. Could be a poetry anthology or law review issue

b. Could be a book of stock quotations

c. Could be a computer database


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2. If the compilation consists of previous work not in the public domain,

the compilation-author needs permission from the copyright holders to

use it.

3. Compiler is entitled to a separate copyright.

a. Originality is deemed to lie in the selection and organization of

the work.

b. The owners of the copyrights in each individual work included

in the compilation retain those copyrights.

4. Some collections of information may be so banal and obvious that they

lack the requisite creativity, and thus are not copyrightable.

F. Derivative Works

1. These are works based on an earlier work that transform it in some way.

2. A derivative work is entitled to its own, separate copyright.

a. Of course, the author of the derivative work needs permission of

the copyright owner of the underlying work, unless it is in the

public domain.

b. If you do not get permission, your derivative work is an

infringement of the earlier work and will not itself be eligible forcopyright.

3. To qualify for new copyright, there must be a non-trivial difference

between the underlying work and the derivative work.

4. Finally works prepared by government officers, such as judicial

opinions, regulations, and government reports, do not have copyright

protection.

V. Ownership

A. General rule is easy: the author of a work is the copyright owner

B. Note, however, that ownership of copyright is different from ownership of the

object in which the work may be embodied.


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C. Multiple authors

1. The question is whether the parties intend to produce joint work.

2. To make that determination, you look for two things:

a. First, each party must contribute copyrightable expression to

the final product.

b. Second, the parties must each have the requisite intent at the

time

3. Each co-author owns an undivided share in a joint work.

a. Each can exploit it without getting permission of co-authors.

b. Each can make derivative works based on it without permissionof co-authors.

c. There is a duty to account to co-authors for profits earned.

D. Authors who work for others

1. The hiring party, rather than the actual author, is the owner of the

copyright IF the work is awork for hire.

2. It is a work for hire if the author was an employee acting within thescope of his or her employment, determined under the law of agency.

3. If the author is not an employee, consider the type of work.

a. Only 9 types of work can be works for hire:

i. contribution to collective works;

ii. part of a motion picture;

iii. translation;

iv. supplementary work;

v. compilation;

vi. instructional text;


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vii. test;

viii. answer material for a test; or

ix. an atlas

b. There must also be a written agreement specifying work for

hire status.

i. If yes, it is a work for hire

ii. Without the writing, it is NOT a work for hire.

VI. Duration and Renewal

A. Copyright lasts for the life of the author, plus 70 years after death.

B. For joint work, copyright lasts for the life + 70 years of the last surviving author.

C. Special duration rules for works for hire and for anonymous works: copyright

lasts 95 years from publication or 120 years from creation, whichever comes

first.

D. These rules only apply to works created after 1/1/1978. For older works, look

to the 1909 Act.

E. Basic scheme under 1909 Act:

1. Federal protection began upon publication with proper notice.

2. Unpublished works were protected under state common law

copyright which lasted indefinitely until publication.

3. On publication, you got 28-year term, plus 28-year renewal for a total of

56 years.

4. Renewal was not automatic you had to apply for it, and, if you didnt,

your copyright expired in the 28th year.

F. In 1978, there were three categories of pre-existing works:

1. Those unpublished and protected under state law


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2. Those published in 1950 or later and still in their first term of

copyright.

3. Those published before 1950, renewed, and in their second term of

copyright.

G. Works unpublished on 1/1/1978.

1. These get the life plus 70 term,

2. But with a minimum guarantee that copyright lasts until 12/31/2002

3. With a further extension through 2047, if the work is published before

2002.

H. Works in the renewal term on 1/1/1978.

1. Copyright expires 95 years from the date the work was first published

2. If the work was in the public domain before 1998, it stays there.

3. Bright line tests

i. All works published before 1923 are in the public domain.

ii. No new works will enter the public domain until 2018.

I. Works in the first term on 1/1/1978

1. These works can be renewed in their 28th year and get a second term of

67 years to make a total of 95 years.

2. Prior to 1992, you had to affirmatively file for renewal.

3. After 1992, the renewal is automatic.

4. There is still optional renewal, however, with various statutoryincentives.

VII. Transfers and Termination of Transfers

A. Copyrights are fully transferable, like any other property.


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B. However, transfer of a physical object does not transfer copyright.

C. Moreover, you can transfer various sub-parts of your ownership interest.

D. Technicalities surrounding transfers:

1. For anything other than a non-exclusive license, the transfer must be in

writing.

2. The instrument of transfer may, but need not, be recorded.

3. There are priority rules in the event of conflicting transfers.

E. Transfer of renewal interests

1. Transfers of renewal interests are like transfers of a contingency in realestate.

a. If the author survived until the renewal date, the contingency

would vest, the transfer would be valid, and the transferee gets

the renewal term.

b. If the author died before the renewal date, there is no vesting

and, thus, the authors surviving heirs get the renewal term

rather than the transferee.

2. There is a presumption that if the contract does not mention the

renewal term, then it is not transferred it must be referred to

specifically.

F. Renewal transfers and derivative works.

1. Assume author transferred both original and renewal term to assignee.

2. Assume assignee prepared derivative works during the first term.

3. Assume author died before the end of that term, so that the assignmentof the renewal did not vest in the assignee, but instead belongs to the

authors heirs.

4. The heirs can stop the assignee from using the derivative work.

G. Termination of Transfer


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1. The 1976 statute has provisions to terminate a transfer.

2. These do not apply to works for hire.

3. For transfers made after 1/1/1978:

a. Applies only if the grant was made by the author.

b. Can be done in the time from 35 years after the grant to 40

years after the grant.

c. Termination can be effected by the author or by majority vote of

spouse and children the author has died.

d. Advance notice of termination must be served at least two, but

no more than ten, years before the selected termination date.

e. The original transferee may continue to exploit any derivative

works made during the period prior to termination.

4. For transfers made before 1/1/1978:

a. Only applies to transfers of the renewal term

b. Doesnt matter who made the grant could have been the

author himself or a family member

c. Termination can be done from 56 to 61 years after publication.

d. Notice, again, must be served from two to ten years before

termination.

e. Same rule regarding transferees right to continue using

derivative works

f. The practical effect here is to allow the author or his heirs to

recover the 39 year extension in copyright when the old 56 yearperiod is compared with the new 95 year period.

VIII. Publication and Formalities

A. Under current law, federal copyright attaches the minute the work is fixed so


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publication is not as significant as formerly, but it still retains some importance.

1. Many statutory time periods are measured from the date of publication.

2. Publication without notice still has some remedial significance.

B. Definition of publication: Distribution of copies or phonorecords to the public

by sale, other transfer of ownership, or by rental lease or lending

C. It is not a publication to perform a work publicly, even to a very large crowd.

D. Second, limited distribution of copies is not considered to be a publication.

1. This concept was confusingly called limited publication.

2. It was the distribution of copies to a limited audiencefor a limited

purpose.

3. For example, giving out copies of a play to friends for their comments.

E. General publication required the unrestricted distribution of copies to the

public.

F. Notice

1. Form of Notice

a. The word copyright or the symbol

b. Name of the copyright owner

c. Year date of first publication

2. Significance of omitting notice depends on the date of the first

publication of the work

3. Pre-1978 publication without notice injected work into the public

domain.

4. From 1978-1989 what Nimmer calls decennial works publication

without notice placed copyright in jeopardy, but was subject to cure

5. Publication after March 1989


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a. Notice is entirely optional

b. Thus, absence of notice has no effect on validity of copyright

c. Use of notice is advisable, however, because it cuts off an

infringers ability to argue innocent infringement as a mitigationof damages.

G. Registration

1. Registration of a copyright claim with the Copyright Office is optional

2. It is, however, a prerequisite to suing for infringement of domestic

works.

3. To encourage prompt registration, however, there are carrots and sticks.

4. Registration requires submission of an application, a fee, and a deposit

of the work either one copy if unpublished or two copies if published.

H. Archival Deposit

1. In a separate provision, the law requires that copies of all published

works must be submitted to the Library of Congress.

2. This requirement is not a condition of copyright protection.

3. Instead, it is enforced by a system of fines.

I. Special Treatment for Foreign Works

1. Under the formalities of the 1909 Act, it is possible that works

published abroad by foreign authors might have lost their protection

under US law.

2. In 1994, the US adopted legislation in response to a new international

treaty known as the TRIPS agreement to deal with the issue.

3. Section104A automatically restores copyright in any foreign work

effective on 1/1/1996, if it was still protected in its home country but

had fallen in the public domain in the US due to failure to comply with

formalities.


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4. The law has certain protections for parties called reliance parties

who were exploiting the work in the US prior to the key date.

IX. The Rights of the Copyright Holder

A. Section 106 originally listed five different exclusive rights of copyright

owners.

1. Not every work has all five rights.

2. Several of the rights are significantly limited by other provisions of the

law.

3. In recent years, a number of highly specialized rights have been added

to the statute, largely in response to digital technologies.

B. The Reproduction Right

1. This is the right to make copies or phonorecords.

2. It is violated whenever anyone makes a copy without permission.

3. One limitation on this right permits libraries to make copies for

preservation purposes or to provide users excerpts of works or works

that are out of print.

4. Three limitations on the reproduction right apply in the music industry:

a. Once a musical composition has been recorded under the

authority of the copyright owner, anyone else may also make

recordings of it an activity known as covering the record

without asking permission.

i. But, you still have to pay a fee for use of the song.

ii. This is known as a compulsory license found in section

115.

b. Second, in the case of sound recordings, the reproduction right

is limited to so called mechanical reproductions creating a

sound-alike recording does not violate the copyright in the

first sound recording.


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c. Third, the non-commercial use of audio equipment by a

consumer to make musical recordings is exempted from liability

under the Audio Home Recording Act, (see 1008 of the

copyright statute).

5. There are numerous other specialized limitations on the reproductionright:

a. It is permissible to make back-up copies of computer software

and copies of software in connection with computer

maintenance and repair.

b. It is permissible to take photographs of protected architectural

works provided they are visible from a public place.

c. Certain authorized parties are allowed to reproduce copies of

published works in specialized formats for blind people orpeople with disabilities.

C. Adaptation

1. This is the right to make a derivative work.

2. It overlaps with the reproduction right since most derivatives contain

elements of the underlying work, and, in that sense, there has been a

reproduction.

3. If one is licensed to produce a certain type of derivative work and goes

beyond the terms of the license, it violates this right and is copyright

infringement.

D. Distribution

1. This is the right to disseminate copies to the public.

2. This is necessary because if an unknown party makes multiple illegal

copies of a work and then turns them over to a bookstore or record

store, the copyright owner needs some basis to enjoin the bookstore orrecord store.

3. There is one major limitation on this right known as the first sale

doctrine.


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a. The owner of a LAWFULLY made copy is entitled to sell,

dispose of, or rent that copy without incurring any liability.

b. So, you can sell your used paperback books or CDs without

worry.

c. Note, however, that if you sell a bootleg video you bought on

the street corner, you are not protected by the first sale doctrine

because the copy was not legally made.

d. There are two important exceptions to the first sale rule:

i. You cannot rent phonorecords.

ii. You cannot rent computer software.

4. The first sale doctrine does not apply, however, if the copyright ownerexports copies or phonorecords.

E. Performance and Display

1. To perform a work is to recite, render, play, dance, or act it, either

directly or by means of a device.

2. To display a work is to show a copy of it, either directly or by means of a

film, slide, television image, or any other devices or process.

3. Both of these rights are limited to public performance or display.

a. When you read a book aloud to a few friends or pop a video in

the VCR you are performing it, but that is not public, so no

infringement.

b. When you hang a painting in your living room, you are

displaying it, but that is not public, so no infringement.

4. Two alternative definitions of public:

a. To perform or display it at a place open to the public or at any

place where a substantial number of persons outside of a normal

circle of a family and its social acquaintances is gathered


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b. To transmit to a place specified above, or to the public, whether

the members of the public are in the same place or in separate

places.

5. Sound Recordings

a. Sound recordings are not granted a performance right.

b. That means that when you publicly perform a sound

recording, you do not need permission.

c. Of course, if the sound recording also contains music not in the

public domain, you do need permission from the holder of the

music copyright.

6. Exceptions to the performance right include the following:

a. Face to face teaching and educational broadcasting

b. Performances in the course of religious worship services

c. Nonprofit performances with no fee to performers and no

charge to audience, or net proceeds given to charity

d. Playing a single radio or TV in a public place like a store or a

restaurant

e. Certain performances for the blind and deaf

7. Performing Rights Societies the practical side of these rules

a. ASCAP & BMI

b. They grant licenses to those who wish to publicly perform

music.

c. They monitor outlets to determine frequency of play of various

works.

d. They distribute the royalties they collect to the copyright owners.


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X. Newer, Exotic Rights Contained in The Copyright Statute

A. Moral Rights

1. Only granted to "works of visual art" produced in either a one of a kind

edition or in a limited edition of less that two hundred.

2. The rights are independent of the ownership of the copyright.

a. Belongs to the artist

b. Cannot be transferred, but can be waived

3. Right of attribution

a. Claim authorship of your own work

b. Prevent use of name on works which he did not create

c. Prevent use of name as author in the event of a distortion,

mutilation, or other modification of the work which would be

"prejudicial to his honor"

4. Right of Integrity

a. Prevent intentional distortion, mutilation, or other modification

which would be prejudicial to his honor

b. Prevent destruction of a work of recognized statute

c. You have the right

5. Digital Performance Right

a. As we noted, there is no public performance right for sound

recording.

b. However, in 1995, Congress granted sound recording copyrightowners the exclusive right to perform the work publicly by

means of a digital audio transmission.

c. They also adopted numerous, technical limits on this new right.

d. All the gory details can be found in Section 114(d).


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6. Protection Against Circumvention of Technological Measures

a. In 1998, Congress enacted a very elaborate and significant new

provision called the Digital Millennium Copyright Act or

DMCA.

b. In the years leading up to the DMCA, many copyright owners

had begun to use technological measures to make it impossible

for non-paying parties to gain access to their works, or to make

copies of their works.

c. DMCA is designed to make it illegal to defeat these kinds of

technological measures in certain circumstances.

d. It makes it impermissible to:

i. Circumvent a technological measure that controls access

to a copyrighted

work

ii. Manufacture or sell devices that are primarily designed

to circumvent either access controls or copy controls

iii. Note that the law does not forbid circumventing

technological copy control measures in order to avoid

conflict with the fair use privilege

e. There are several exceptions to these anti-circumvention

provisions:

i. Law enforcement authorities

ii. Good faith encryption research

iii. Reverse Engineering

f. Copyright Management Information (CMI)

i. To facilitate licensing, copyright owners, especially in the

digital environment, often embed information about

their name, address, phone number, or e-mail address in

their works.


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ii. DMCA prohibits tampering with or removing this CMI

and imposes liability for anyone who provides or

distributes false CMI.

iii. Liability is only imposed if the violator knows or has

reasonable grounds to know that tinkering with theinformation will facilitate infringement.

XI. Infringement -- Really a matter of proof

A. The owner of any exclusive right under a copyright can sue for infringement.

1. Federal District Courts have exclusive jurisdiction.

2. Registration is a prerequisite for bring suit.

B. There is no intent requirement for infringement

C. You need not copy every word, or image, or line in order to be an infringer.

1. Many infringement cases involve non-identical copies.

2. And of course, plaintiffs rarely have an eyewitness to the infringement.

3. So infringement is usually proved by circumstantial evidence.

D. First, plaintiff must prove "copying"

1. To do this, plaintiff must show "access"

a. Proof that defendant possessed a copy of the work,

b. Or proof that it would have been easy for the defendant to get

the work

2. In addition, plaintiff must show some resemblance between the two

works.

a. The resemblance can be as to any element of the work,

b. Including unprotectable elements like common ideas or factual

material,


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c. Because at this point all we are trying to establish is copying

E. The second element is "substantial similarity."

1. Plaintiff must show that defendant took a sufficient amount ofprotected

expression so that an ordinary observer would view the works as beingsimilar.

2. Inquiry here is confined to protectable elements of the works.

3. Thus, the fact that defendant took plaintiff's "idea" does not show

infringement.

4. Difficult problems of infringement analysis often occur with works that

have similar plots but different words and different details.

F. Vicarious Liability for Infringement

1. Requirements:

a. Must be a right to supervise

b. Must be a financial interest

2. So a bar owner is liable for the infringements of a band who plays there.

3. A TV station is liable for infringing uses carried out over its facilities.

G. Contributory Infringement

1. This is kind of like aiding and abetting.

a. You have knowledge of another partys infringement.

b. You either induce the infringement or materially assist in it.

2. For instance, if you supply a machine to another, with knowledge that it

will be used for infringement, you too can be held liable.

3. The knowledge in question will be inferred if the machine has no

substantial non-infringing uses.

4. However if the machine has some legitimate uses -- like a photocopy

machine, making and selling it is not an infringement.


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H. Internet Service Providers (ISPs)

1. These two doctrines suggest some difficulties for ISPs.

2. They have millions of users who send e-mail and post material to webimages.

3. Much of this material might be infringing, but the ISPs are in a poor

position to police these activities and prevent the infringements in

advance.

4. Section 512 of the statute that provides certain safe harbors for ISPs.

5. There are two general requirement to qualify:

a. ISP must adopt and inform subscribers of a policy providing fortermination of users who are repeat infringers, and

b. ISP must adopt standard technical measures used by copyright

owners to identify and protect copyrighted works.

6. There are a number of different rules depending on what type of

Internet activity is involved.

a. Under most provisions, if a copyright owner informs the ISP of

alleged infringement, the ISP must remove the material or blockaccess to it.

b. The affected subscriber may then send a counter-notice.

c. Unless the copyright owner then informs the ISP that it has

filed a court action, the ISP must unblock or restore the

material.

XII. Fair use

A. A completely airtight copyright scheme would be suffocating.

B. So, perhaps the most important limit on copyright is the fair use doctrine

originally judge made, but now codified by statute.

1. Statute begins with a non-exhaustive list of examples of fair uses.


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2. It then lists four analytical factors.

C. Purpose and Character of the Use

1. Here, nonprofit uses are arguably more "fair" that profit making uses.

2. Transformative uses are arguably more fair that merely reproductive

ones.

3. The Supreme Court has indicated that parody should be given

somewhat greater latitude under the fair use doctrine because it is

usually transformative.

D. Nature of the work

1. Certain works are said to have "thin" copyright, and thus uses of themare more likely to be "fair."

2. Factual works and data compilations might fall into this category.

3. The fact that the nature of the work is "unpublished" makes it more

likely that an unauthorized use is UNFAIR, but recently added statutory

language makes it plain that this is not dispositive.

E. Amount and substantiality of the portion used

1. This is obviously: the more you take, the less likely the use is fair.

2. But even if you take very little, taking the heart of the work, can be

unfair.

F. Effect of the use upon the potential market for the work

1. This is the factor that the Supreme Court has labeled "most important."

XIII. Remedies

A. Injunctive relief is available.

B. Impoundment of the infringing materials while the case is pending and

destruction after judgment can be ordered.


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C. Monetary remedies

1. Two alternatives

2. Either actual damages suffered plus any profits of the infringer in excess

of those damages; OR

3. Statutory damages

a. Minimum of $750 and max of $30,000, as the court deems just,

for each infringement.

b. If the infringement is willful, the maximum statutory damages

can be $150,000.

c. If the defendant can prove he was an innocent infringer, the

court may reduce the statutory damages as low as $200, but youcan effectively cut off that argument by including notice on your

work.

d. Remember that you can only get statutory damages if you

registered the work prior to the infringement or within three

months of publication.

4. The prevailing party may recover costs and attorney's fees at the

discretion of the court, but again, that is only available if you registered

D. Criminal sanctions can be imposed if a party infringes a copyright willfully,

and for purpose of commercial advantage or private financial gain, or by the

reproduction of 1 or more copies or phonorecords with total retail value of

more that $1,000."

XIV. State Claims and Preemption

A. States often protect various types of intellectual property.

B. These doctrines raise the question of possible conflict with federal law.

1. If there is a conflict, of course, the state law must give way.

2. That's the Supremacy Clause of the Constitution.

C. Fortunately, the 1976 Act addresses pre-emption directly.


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1. Section 301 says state laws are preempted if they meet a two-part test:

a. They deal with subject matter of copyright, and

b. They confer rights equivalent to those conferred by thecopyright law.

2. Thus, a state statute that expanded the copyright term from life-plus-70

to life-plus-100 would be preempted.

3. But a statute that prevents the unauthorized taping of extemporaneous

speeches would be fine because those speeches are not fixed, and thus

not within the subject matter of copyright.

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