Ip Attack Outline

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)

  • 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

Copyrightable Subject Matter

• S 102 Copyright does not protect any:

  • idea, procedure, process, system, method of operation, concept, principle or discovery (should look to patent protection)

  • 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)

  • 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:

  • 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)

  • 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:

  • (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)

  • (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

  • 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)

• (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.

  • The design of a useful article...

Buy the full version of these notes or essay plans and more in our IP Law (Attack Outline) Outlines.