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Ip Attack Outline

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COPYRIGHT
Copyright Requirements
 (1) Originality

Low bar/standard: don't want to pass judgment on works' aesthetic merit

Feist: independent creation + modicum of (little) creativity
 Copyright protection in a factual compilation is thin and is based on and limited to the selection and arrangement of facts. (Feist)
 Facts are not copyrightable, but compilations of facts generally are, e.g. phone book
 Creativity: even trivial variation, rarely fall below de minimis threshold
 E.g. choices made by a photographer, game design
 But not when artist tries to copy and made no creative choices

If an artist sets out affirmatively to make a copy of someone else's creation rather than create an original work, it is likely that the resulting product won't be original. (Meshwerks)
 Author is entitled to copyright if independently contrived a work completely identical with what went before;
 Similarly, not right to prevent another from publishing identical work, if not copied from his

(2) Fixation

Policy reasons: knowledge and cultural preservation, evidence

s 101 Requirements: a work is
 "fixed" in a tangible medium of expression when its embodiment,
 in a copy or phonorecord (sound)
 by or under the authority of the author,
 is sufficiently stable to permit it to be perceived, reproduced, or otherwise communicated
 for a period of more than transitory duration

Functional definition (need not be readable by humans)
o Trouble applying this to digital materials
 Interactive works: sufficient element of the look and feel of the game remained fixed regardless of the individual player's action Stern Electronics
 Software stored in memory
 Material stored in buffers/caches: duration sufficiently small to be considered transitory and not fixed Cartoon Network

Works that are not fixed
 Non-broadcast performance recorded by audience member (not under the authority of the author)
 Work produced by mechanical process or random selection
 Federal Copyright law requires works to be fixed, but some state and common law may protect work even if not fixed

(3) Formalities

No longer required post Berne Convention March 1, 1989, see P.18

Publication  Notice  Registration  Deposit  Recordation of transfers

1 Copyrightable Subject Matter
 S 102 Copyright does not protect any:
o idea, procedure, process, system, method of operation, concept, principle or discovery
(should look to patent protection)
o Blank Forms (e.g. graph paper, scorecards, account book) are not copyrightable, unless it contains expressions
 Copyright only protect expression of ideas. (Baker - bookkeeping method not protected)
o Policy: unfair to allow monopolizing an idea only just because they got it first
 Abstraction test to distinguish idea and expression Nichols

(1) Level of abstraction: Idea of story  plot/ subplot  general and specific characters and scenes  text

(2) Filtration: remove originality, merger, scenes a faire, facts, historical events  to remove uncopyrighted material

(3) Investigate substantial similarity
 Merger doctrine:
o courts will not provide protection to expression if the idea embodied in the expression can effectively be expressed in only one or a limited number of ways. (Morrissey)
o cf. scenes a faire standard treatment of a given topic is not copyrightable
 Policy: would unduly restrict subsequent authors in building their own works within general settings which their audiences would relate to
 S 102(a) Works of Authorship includes work of:
o (1) literary: verbal/numerical, literal text + non-literal elements

(2) musical: e.g. a musician who composes a song is the author of a musical work

(3) dramatic: incl. accompanying music (though the music could be copyrighted separately as a musical work)
o (4) pantomimes and choreographic: fixed in notation or film recording

(5) pictorial, Graphic and Sculptural:
 2D and 3D works of fine, graphic and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models and technical drawings,
including architectural plans.
 Works of artistic craftsmanship, but not mechanical/ utilitarian aspects
 Design of a useful article considered as a PGS work only if the design incorporates
PGS features that:
(1) can be identified separately from and
(2) are capable of existing independently of the utilitarian aspect of the article

(6) motion picture/ audiovisual;
 Audiovisual: series of related images that intrinsically intended to be shown by the use of machines/ devices such as projectors, viewers, or electronic equipment, tgt with accompanying sound
 Motion pictures: audiovisual work consisting of a series of related images which when shown in succession, impart an impression of motion, tgt with accompanying sounds

(7) sound recording: sound recordings fixed in phonorecord
 but not sound accompanying motion picture
 reproduction right in sound recording is infringed only by a literal copy 2 

c.f. musical work: a producer who records sound is author of sound recording  if record is put on a CD  a phonorecord of both musical work + sound recording
 s.114(b) non-literal copying will not infringe the copyright in the sound recording,
but a recording can be a phonorecord of a sound recording + another copyrighted work (e.g. the CD)
 s. 106(6) Public Performance is limited to the right to perform the copyrighted work by means of a digital audio transmission (a business playing CD won't infringe sound recording copyright)
o (8) architectural (Protection since 1990)
 Thin protection + on compilation-like grounds
 Design of a building (and plan) is protected, but doesn't include individual standard features
 If building is visible to public, no right against making distribution/ display of images of the building
 Based on the combination of common features to create a unique design.
 Usually, more generous than a separability analysis
The useful article doctrine is intended to prevent backdoor patent protection.
o The design of a useful article shall be considered a PGS work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." (§ 101)
 (1) Two- and three-dimensional features that are parts of PGS works that are useful articles must be subjected to separability analysis. (Star Athletica)
 To be identified separately from the utilitarian aspects of an article, the decision maker need only spot some two- or three-dimensional element that appears to have PGS qualities.
 (2) To be capable of existing independently of the utilitarian aspects of the article, a feature must be able to exist as its own PGS work once imagined apart from the useful article. (Star Athletica)
 i.e. shape, cut & physical dimensions of the clothes not copyrightable

Functional = if there is any purpose to a useful article other than conveying info/ portraying the appearance [form + function in one  obtain design patent protection]
Alternative to Copyright:
o Patent  requirements: novelty, non-obvious, ornamentally, non-functionality

Sui Generis Design Protection (specialised design protection statutes) P.32
 Semiconductor Chip Protection; Vessel Hull Design Protection Act
[9] Derivative works and compilations are also subject matter of copyright

But often have thin copyright protection

Derivative work: a work based on one or more preexisting works
 e.g. translation, musical arrangement, sound recording, art reproduction
 A work consisting of editorial revisions, annotations, elaborations, or other modification which represent an original work of authorship as a whole
 e.g. book author licensing a toy co. to produce stuffed toy based on book characters

Compilation: work formed by collection and assembling of preexisting materials or data that are selected, coordinated, or arranged in a way that resulting work as a whole constitutes an original work of authorship (including collective work)
 Unoriginal elements can be combined in an expressive way. (Roth Greeting Cards)
3 

Relatively common drawings/statements copyrightable if compiled expressively

Ownership and duration
 Copyright vests initially in a work's author(s) (§ 201). Often easy to tell, except for special categories:

(1) Works made for Hire (P.36)
o (i) The patron (e.g., employer) is the copyright owner of a work made for hire, unless the preparer and patron have agreed otherwise in a signed writing. (§ 201)
o (ii) Prepared by employee within the scope of employment (as determined by common law agency principles) (§ 101, CCNV)
 Scope of employment: Kind of work employed to perform; within authorised work hours; motivated by a purpose to serve the employer
 Whether an employment relationship exist (Ried) (see P.39): [most important]
employee benefits  tax treatment  method of payment  skilled required  right to assign additional projects to hired party  source of tools  hired party's discretion over when and how long to work  duration of relationship  whether part of regular course of hired party's business  location of work  hired party's role in hiring & paying assistants  right to control work being performed  label
 whether hiring party is in business [least important]
o (iii) Certain classes of work specially commissioned or ordered, with a signed writing indicating that the work is for hire (§ 101):
 Categories: (1) Contribution to a collective work; (2) part of a motion picture/
audiovisual work; (3) translation; (4) supplementary work; (5) compilation; (6)
instructional text; (7) test; (8) answer material for a test; (9) atlas/maps

(2) Joint Works (P.40)
o A work prepared by 2 or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole  both are co-owners of the copyright. (§§ 101, 201)
o To be a co-author of a joint work, (Aalmuhammed)
 (a) each author's contribution must be separately copyrightable; and
 high bar, cannot be incorporated, or no longer independently copyrightable
 (b) each author must superintend the work (or mastermind) it, with the intent that the different contributions be merged into inseparable or interdependent parts of a unitary whole

Owners treated as tenants-in-common:
 Each an undivided ownership interest in the entire work
 Each have exclusive right + assign license (need consent if exclusive license)
 Subject to duty to account profit to each other

(3) Collective Works

S. 201(c) only privilege of reproducing and distributing the contribution as part of that particular collective work any revision of that collective work and later collective work in the same series

Duration (P.43)
o 1909 Act: 28 years + 28 years 4 o

o

o

o

1976 Act (plus Sonny Bono Term Extension Act)
 Generally, work created after 1978: lifetime of the author + 70 years
 Anonymous or pseudonymous work (or work for hire): 120 years from year of creation or 95 years from year of publication, whichever expires first
Works published between 1923-1964: 28 + 28 (if renew) + 19 (1976 Act) + 20 (Sony) = 95
Works published between 1964-1978: 28 + 28 (auto renew) + 19 (1976 Act + end of calendar year) + 20 (Sony) = 95
Work created but unpublished before 19787 fall into public domain
 State protection for work unpublished by 2003:
 Author died before 2003  work protected up to 2003
 Author still alive  life of author + 70 years
 State protection for work published by 2003: whichever is longer
 Additional years until Dec 31, 2047 or
 Life of author + 70 years
Joint author  life of last remaining author + 70 years

Exclusive Rights
(1) Reproduction; (2) Derivative; (3) Distribution; (4) Public Display/ Performance; (5) Moral
(1) Reproduction Right: right to make copies
 Infringement elements: (i) copying in fact, and (ii) copying in law (Arnstein) [need not distribute]
 (i) Copying in fact can be shown by

1. Direct evidence (rarely available), or

2. Circumstantial evidence of copying (access + similarity; inverse relationship)
 (a) Access: chain of events connecting plaintiff's work to defendant's access, or wide dissemination of plaintiff's work
 Subconscious copying can count (Three Boys v Bolton) - accidental copying is still infringement of copyright
 (b) Similarity: No matter how great the similarity, there must be some access.
 Yet strong similarity is evidence of access - striking similarity
 (ii) Copying in law - Improper Appropriation

Protected material must be copied, and the amount copied must be more than de minimis

Copying need not be literal or exact to rise to the level of copying in law  Substantial similarity suffices

Court would consider substantial similarity from perspective of an ordinary observer:

1. The type of people to whom the works seem similar

2. The nature of the similarity

3. The degree of similarity that amounts to substantial

General test: Whether the ordinary observer, unless he or she set out to detect the disparities,
would be willing to overlook them and regard their aesthetic appeal as the same (Peter Pan
Fabrics)
(2) Right to Prepare Derivative Works (§ 101) (Right of Adaptation)
 Derivative work

A work based on one or more preexisting works in which a work may be recast,
transformed, or adapted

5 



E.g. a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form

A work consisting of editorial revisions, annotations, elaborations, or other modifications,
which represent an original work of authorship as a whole.
Some courts suggest that a work that is substantially similar to a copyrighted work (in nontransformative ways) is also a derivative work (Castle Rock),
o while others suggest that they are distinct (Warner Brothers  Statute "derivative works are recast, transformed, or adapted into another medium, mode, language, or revised version,
while still representing the original work of authorship")
Substantial similarity for derivative works can't always be tested accurately with the "total concept and feel" test, so quantitative and qualitative similarity are measured. (Castle Rock)
Graphic characters delineated in sufficient detail can be granted copyright protection (Stallone)
Literary character: must constitute the story being told (more rigid test than graphic characters)

(3) Distribution Right § 106(3)
- Listed separately so as to limit proliferation of unauthorized copies, not just creation of them
- Merely making a work available to the public doesn't constitute a distribution; an actual distribution or dissemination is required. (Capitol Records)  distribution of even a single copy can suffice
- First Sale Doctrine: Copyright owners can't ordinarily control distributions beyond the first sale of a copyrighted work. (§ 109(a))
o Customers can resell/ disposition of a copy of a lawfully bought work

Some exceptions: phonorecords, computer software (§ 109(b))
o Digital file transfers because a copy is made (ReDigi) record rental; software rental s109(b)
- Importation right (§ 602)
o Important adjunct of the distribution right

But it becomes a big concern when copyright rights are divided up geographically:
 When a work is lawfully manufactured in U.S. for export and subject to a valid first sale, § 602(a) applies through § 106(3) and hence is subject to first-sale limitations.
(Quality King)
 First-sale doctrine applies to protect a buyer or lawful owner of a copy (of a copyrighted book) lawfully manufactured and sold abroad, to bring that copy into the
US and sell it or give it away, without obtaining permission from the copyright owner
(Kirtsaeng: no infringement for reselling textbook he bought abroad and sold in US)
o Exceptions: 602(a)(1) gov use; (2) importer for one copy and used once or multiple copies as part of personal baggage; (4) scholarly, education, or religious purposes (limited to one copy solely for archival purposes and no more than 5 for library lending
(4) Public Performance/Display Right
- Performance or display is public if (§ 101)
o (1) the place in which it takes place is public;  doesn't matter how many actually viewed

(2) the place is accessible to a large number of people (determined by the size and composition of the audience); or
 Substantial no. of persons outside of a family and social acquaintances

(3) it is transmitted to (1) or (2) or the public (even in different places or times, e.g. TV).
- How to evaluate whether a performance or display is public:

6 One approach: whether a place is public can be evaluated functionally (by rolling up multiple transmissions to be one to the public, plus potential market substitution effects) and/or by analogy to known public places or systems (Aereo)
o Another approach: based on a technical reading of copyright law (E.g., when a single copy is transmitted just to one person  that is not a public performance (even if other people are watching the same work in another copy) (Cartoon Network))
The right of public performance

applies to literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works. (§ 106(4))
o Perform = recite, render, play, dance, or act…etc.
o An entity that receives programs that have been released to the public and carries them by private channels (antennas, transcoders, and servers) to additional viewers is performing.
(Aereo)
The right of public display

applies to literary, musical, dramatic, and choreographic works, pantomimes, and PGS works,
including the individual images of a motion picture or other audiovisual work. (§ 106(5))
o Display = to show a copy of it

Exception: owner of a lawfully owned copy (e.g. museums) may display that copy publicly,
without authority of the copyright owner, either by directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located (§ 109(c))
o-

(5) Moral Rights
- Rights of Attribution: right to have one's name associated with one's work
- Rights of Integrity: right to protect one's works from mutilation or distortion
- U.S. law might vindicate these rights in a limited fashion through protection of the right to prepare derivative works (e.g., unauthorized editing of an underlying work) § 43(a) Lanham Act  Berne
Convention  US passed Visual Artists Rights Act 1990:
- VARA (§ 106A)
o Applies to works of visual art (as defined restrictively in § 101):
 (1) painting, drawing, print, sculpture, existing in a single copy, in limited edition 200 copies; (2) photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author/ limited edition of 200 copies or fewer
 Exclusions: (A) posters, maps, charts, technical drawings… (B) works made for hire;
(C) any work not subjected to © protection

Unlike § 106, which grants rights in the intangible work, as distinct from the "copy" in which the intangible work is embodied, the rights here are granted only to certain physical embodiments.
o Protection against
 (i) False or no attribution (authorship of the work)
 (ii) Intentional distortion, mutilation, or other modification of a work which would be prejudicial to the author's honor or reputation, and attribution in those cases
 (iii) Destruction of a work of recognized stature

Duration: on/after June 1, 1991  author's life;
 1970 - June 1, 1991  if author retained a copy: life + 70 years (no copy - no right)
 Before 1970  author retained a copy: 56 years

Nontransferable (only the author can exercise these rights, even if the author isn't the copyright holder). But may be waived 7

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