COPYRIGHT LAW 2002: CLASS 4

Professor Fischer

Columbus School of Law

The Catholic University of America

January 23, 2002

WRAP UP: ORIGINALITY REQUIREMENT

• Under the Constitution, copyright law protects the “Writings” of “Authors”.

• To be such a work of authorship does not require novelty but does require originality

• Copyright Act of 1976 s. 102(a): “Copyright protection subsists. . . in original works of authorship . . .”

• Original is not defined.

WRAP UP CONT’D: ORIGINALITY REQUIREMENT

• Originality means work owes its origin to the author, that is, is independently created.

• Any distinguishable variation of a prior work is enough to make it original, so long as the author independently creates the distinguishable variation and it is more than merely trivial.

• Fragmentary words and short phrases do not meet this originality requirement.

Relationship between creativityand independent effort

• Nimmer suggests that despite the Copyright Office Regulation under the 1909 Act that provides that words and short phrases are not subject to copyright, that a sufficiently creative short phrase may be copyrightable. 37 CFR § 202.1(a)

• Nimmer suggests that “there is a reciprocal relationship between creativity and independent effort. The smaller the effort (e.g. two words) the greater must be the degree of creativity in order to claim copyright protection.” Nimmer § 2.01[B]

NEW YORK ARROWS SOCCER TEAM

• Should the advertising company (John Muller & Co.) that designed the team logo for the NY Arrows team that appears on p. 80 of the CB win their appeal against a district court judgment that found the logo was not copyrightable? Why or why not?

QUESTIONS ON PAGE 81

• Are any of these works copyrightable under the Copyright Act of 1976? If so, which?

FIXATION

• Like originality, fixation is required for a work to be copyrightable

• It is a constitutional requirement - a work must be a “writing” to be copyrightable

• What provision(s) of the 1976 Act contains the fixation requirement?

FIXATION REQUIREMENT

• See 17 U.S.C. § 102(a): Copyright protection subsists. . . 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 device.”

FIXATION REQUIREMENT

• See also 17 U.S.C. § 101: “A work is “fixed” in a tangible medium of expresion 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. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission”

FIXATION OF BROADCASTS

• See 17 U.S.C. § 101 “transmit”: To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.”

FIXATION OF BROADCASTS

• See 17 U.S.C. § 101: A “device”, “machine,” or “process” is one now known or later developed.

MATERIAL OBJECTS IN WHICH WORKS CAN BE FIXED

• What are the 2 categories of material objects in which works can be fixed?

2 CATEGORIES OF MATERIAL OBJECTS IN WHICH WORKS CAN

BE FIXED

• COPIES (see definition in s. 101)

• PHONORECORDS (see definition in s. 101)

COPIES

• 17 U.S.C. § 101: “Copies” are material objects, other than phonorecords, in which a work is fixed, by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

PHONORECORDS

• 17 U.S.C. § 101: “Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

FIXATION

• How do I describe our casebook in copyright law language?

• What about a George Harrison CD?

• What about a DVD of “Snow Dogs”?

SPORTING AND OTHER EVENTS

• Is a tennis match between Venus Williams and Monica Seles at the Australian Open on January 22 a fixed work?

• How about the Rangers-Islanders game?

• How about the Macys Thanksgiving Day parade?

FIXATION OF BROADCASTS

• Is a live broadcast of the Venus Williams-Monica Seles match fixed?

• Note that a work is not “fixed” unless its embodiment in tangible form is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”

• Aren’t the images broadcast ephemeral and hence not fixed?

• See definition of fixation in s. 101

Definition of Fixation• 17 U.S.C. § 101: A work consisting of sounds,

images, or both that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

• Common practice for radio and tv broadcasts to simultaneously record live broacasts - so this statutory extension of the concept of fixation seems to effectively protect virtually all broadcasts.

• Is this constitutional?

The Nightclub Performer

• Eve is a musician. Forget about anti-bootlegging provisions for the moment.

• If Adam videotapes Eve’s live performance of improvised music, can Eve argue that her live performance is copyrightable?

• Does it make a difference if it’s simultaneously recorded? If it is simultaneously recorded and broadcast?

ANTI-BOOTLEGGING PROVISIONS

• Title 17 s. 1101

• Grew out of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) and became law by operation of the 1994 Uruguay Round Agreements Act

• What types of works does it cover?

• Is it constitutional (see U.S. v. Moghadam (11th Cir. 1999)

DIGITAL WORKS

• Are works stored in ROM, e.g. a hard disk, fixed?

• Are works stored in RAM fixed?

COMPILATIONS

• What is a compilation under the Copyright Act of 1976?

COMPILATIONS

• What is a compilation under the Copyright Act of 1976? See section 101: “A complation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilatation” includes collective work.

COLLECTIVE WORKS

• 17 U.S.C. § 101: A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.