Exam/General

*Copyright Act: https://www.law.cornell.edu/uscode/text/17

Exam

• Two Questions – Unequal Value, Strict World Limit, Write Word Limit on Exam (3000)

• use the cases’ principles/argument in my arguments (don’t need to distinguish cases from one another)

  • “this is like Feist because…”

  • analogize the case to the facts/reasoning/holding

• make arguments on both sides

  • Break it down by issue: #1: is there copyright?

    • Fixation – 60% all your arguments, 30% all counter arguments, 10% counter to counter

    • Originality – 60% all your arguments, 30% all counter arguments, 10% counter to those

    • Authorship -- 60% all your arguments, 30% all counter arguments, 10% counter to those

• Include policies in exam:

  • Whether this law should apply to this particular set of facts:

    • “they should do that because it is a good outcome for the following reasons”

    • “Court should apply case X because 1,2,3 this is what he is looking for”

• Formalities:

  • If you are not clearly given that formalities satisfied- write about it:

    • “if she did – what are her rights, and if she didn’t – what are her rights”

• Duration & Termination

  • Only if it an issue write about it – like if it expiring soon or something really valuable

• analyze each potentially copyrightable work and each potential infringement

  • start from top: prime facie case for copyright validity: fixed, original… (look at §101 definitions)

  • obviously spend more time on the complex issues

    • ex: if it’s a photo, just say it’s a photo, so it’s fixed. Don’t go into lengthy discussion of fixation.

• think about/write questions you would ask and why/how certain answers influence outcomes

  • ex: in Batlin (Uncle Sam), we would ask Batlin why he made the choices he did. And a good answer would be that “I changed the umbrella to make it look like my uncle’s umbrella, since I view Uncle Sam as similar to my uncle.” A bad (for him) answer would be “oh it was too hard to emulate the original.”

Course Outline

1. Questions of copyright validity (who gets a copyright)

   1. Has the author done enough/the right kind of stuff to merit a copyright?

   2. Originality, creativity, fixed, 102(b), separability doctrine for useful articles

   3. Who has the copyright – authorship?

2. Details & technicalities of protectability, ownership, transfer of copyrights, authorship, duration

   1. Nitty-gritty of copyright – how long they last, how to keep it going, etc.

3. Infringement & prima facie case – who you can sue once you have a copyright

   1. What does the plaintiff have to prove in order to show that one of her rights has been violated?

4. Fair Use (defense)

   1. The effect of fair use on alleged infringement

General Pointers

• Summary Judgement – who’s facts do we focus on:

  • If you do summary judgement – you look at the non-moving party’s facts as most favorable

**Circle: inside is original work, outside layer is derivative work (some transformation) and outside circle is fair use (transformative)**

INTRO/BACKGROUND

Property & Copyright Law

• in absence of real property law, ppl would just take stuff

• consumption is rivalrous and property goes into the hands of those who value it the most

• natural rights approach (not how we treat copyright law, but is the approach in many countries – preserving the author’s moral/spiritual relationship w/things that he/she has created)

• Lockean labor Theory – person who adds his/her labor to resources that are either unowned or held by all in common has property right in the product of his/her own efforts

• but information is infinitely fungible (version of a song vs. another version of the song) unlike “stuff”

• consumption of information is non-depletable/non-rivalrous and ppl can consume this info simultaneously

• consider, in a world without copyright, the cost of purchasing a book would be competed down to the marginal cost of physical reproduction.

  • And if authors can’t make any money, they’re just going to stop writing books. This is where copyright law steps in, to create incentives to create things

• Copyright law grants authors certain controls over the use of their works, including allowing them to charge a particular cost for access to the work

  • ex: our copyright book has a “copyright price” of $200

• WHAT IS COPYRIGHT?

  • Copyright is a set of rights of limited scope and duration, that are granted by law to the authors of original artistic and literary works, and that arise when such works are fixed in a tangible medium of expression

Why not let a copyright last for infinity years (more incentives to create)?

• This would negatively affect other ppl who may want to use the work

  • if you want to use an existing copyrighted work, have to license/ask permission – obviously costs $ if get permission)

• Would also negatively affect consumers who would then have to pay a higher cost for goods.

  • Sometimes they can’t afford access; “deadweight loss” someone who can’t afford a book so doesn’t get access

• Copyright law attempts to balance the relationship between authors (who need financial incentives to keep producing stuff) and consumers (who are interested in accessing work) and the general public (concerns of freedom of speech, free expression) and downstream users (people who want to produce new versions of existing works

  • US copyright law balances these relationships as opposed to the moral/natural rights approach

Public Domain

• the reserve of all the stuff that’s not protected by copyright

• some bc copyright expired; some bc too generic; some bc came about before first copyright act (ex: R&J)

History

• copyright and patent law came about in same year but are very different areas of law

• copyright law from England, origin in Printers Guild attempting to restrain the behavior of rogue printers

  • later, the Statute of Anne (England, 1709) made copyright law about authors’ interest (not printers’)

• US: first Copyright Act in 1790:

  • discusses formalities – most important publication date: if failed, public domain

  • limited to...

Buy the full version of these notes or essay plans and more in our Copyright Law Outlines.