Introduction to Intellectual Property: CopyrightTheory of ©To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveriesCategories of © Subject Matter 17 USC 102(a)Subject Matter of CopyrightOriginal Works of AuthorshipFeist Publications c. Rural Telephone Service, 1991Why is Rural’s Telephone Book Not Deserving of © ProtectionTake AwayOriginal Work of AuthorshipFixedFixation in a Tangible MediumWhat Isn’t The Subject Matter of CopyrightBaker v. Selden, 1879Slide 15Merger DoctrineMorissey v. Procter & Gamble, 1967Slide 18Slide 19What things can be copyrighted 17 USC 102(a)Categories of © Subject MatterSlide 22Slide 23Slide 24Useful Article DoctrineSlide 26Slide 27Exclusive Rights of Copyright OwnersWorks for HireCommunity for Creative Non-Violence v. ReidWork For Hire DefinitionWork Made For HireCopyright Duration 302-05Eldred v. Ashcroft, 2003Slide 35Slide 36The Right to Reproduce the WorkTest of Infringement for CopyingBright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F.Supp. 177 (SDNY 1976),Steinberg v. Columbia Pictures Industries, Inc.Slide 41Slide 42Scenes a FaireSlide 44Rights of Copyright OwnersRight of Public Performance and DisplayDisplay and PerformanceDisplay RightPerformance RightStatutory Limits on Performance and Display RightsFair UseFair Use TestPurpose of the UseNature of the WorkAmount and Substantiality of the Portion UseEffect on the MarketCampbell v. Acuff-Rose Music, Inc.Factor One:Factor One: Take AwayFactor Two:Factor Two Take-AwayThird Factor:Third Factor Take-AwayFourth Factor:Fourth Factor Take-AwayIntroduction to Intellectual Property: CopyrightProfessor Todd BrunoIntellectual PropertyCopyright © Beth NoveckTheory of ©•Reward for the author•Stimulate artistic creativityTo promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveriesArticle 1, Clause 8, Section 8Noah WebsterIntellectual PropertyCopyright © Beth NoveckCategories of © Subject Matter17 USC 102(a)• literary works• musical works, including any accompanying words• dramatic works, including any accompanying music• pantomimes and choreographic works• pictorial, graphic, and sculptural works• motion pictures and other audiovisual works; • sound recordings; and• architectural worksIntellectual PropertyCopyright © Beth NoveckSubject Matter of CopyrightCopyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device1 2 34 5Intellectual PropertyCopyright © Beth NoveckOriginal Works of Authorship•Independent Creation•Modicum of OriginalityFeist Publications c. Rural Telephone Service, 1991The “Telephone Book” CaseIntellectual PropertyCopyright © Beth NoveckWhy is Rural’s Telephone Book Not Deserving of © Protection1.2.3.4.5.6.Intellectual PropertyCopyright © Beth NoveckTake Away•Rejects “sweat of the brow”•Must read Copyright Act in conjunction with the Constitution•Sine qua non (An essential element) of copyright is originality•Infringement requires–Valid ©–Copying of original elements•Facts are not copyrightable•Copyright in compilations is “thin”Intellectual PropertyCopyright © Beth NoveckOriginal Work of Authorship•Work of authorship must be original•Fixed in a tangible medium•What is original?–an independent creation–modicum of originality•What is fixed?Intellectual PropertyCopyright © Beth NoveckFixedA work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration…Intellectual PropertyCopyright © Beth NoveckFixation in a Tangible Medium•Words, numbers, notes, sounds, pictures, any other graphic or symbolic indicia•Embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic or any other stable form•Why have a fixation requirement?Intellectual PropertyCopyright © Beth NoveckWhat Isn’t The Subject Matter of Copyright•Exception•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 a work.”Baker v. Selden, 1879The Idea-Expression DichotomyIntellectual PropertyCopyright © Beth NoveckTake Away•The idea is the “common property of the whole world”•The author has the right to express the idea in his own way. Only expression is protectable.•Why?–Cannot enclose fundamental ideas–Copyright is not subject to examination and allowing copyrights of ideas would potentially perpetrate a “surprise and fraud upon the public” (Baker v. Selden)Intellectual PropertyCopyright © Beth NoveckMerger Doctrine•The subject matter is not an idea but there are so few ways of expressing the idea that there is a MERGER•The expression merges into the idea itself•Examples: Picture of airplane to communicate airport; garbage can icon to communicate “trash”Morissey v. Procter & Gamble, 1967Rules to a contest“We cannot recognize copyright as a game of chess in which the public can be checkmated”First to express a simple idea would prohibit all future usersIntellectual PropertyCopyright © Beth Noveck•“1. Entrants should print name, address and social security number on a boxtop, or a plain paper. Entries must be accompanied by * * * boxtop or by plain paper on which the name * * * is copied from any source. Official rules are explained on * * * packages or leaflets obtained from dealer. If you do not have a social security number you may use the name and number of any member of your immediate family living with you. Only the person named on the entry will be deemed an entrant and may qualify for prize.•“Use the correct social security number belonging to the person named on entry * * * wrong number will be disqualified.“•(Plaintiff’s Rule)Intellectual