Professional Documents
Culture Documents
General publication
(1) "If tangible copies of the work are distributed to the general public in such a
manner as allows the public to exercise dominion and control over the work," or (2) if
the work is exhibited or displayed in such a manner as to permit unrestricted copying
by the general public (11th Estate of MLK)
EXCLUSIVE RIGHTS
106
(1) reproduction, (2) derivation, (3) distribution, (4) performance, (5) display, (6)
transmission
2d Circuit
- would ordinary observer regard aesthetic appeal as the same unless looking for
differences? (2d Boisson)
- with uncopyrightable elements filtered out, would a discerning observer still see
similarity? (2d Boisson)
- BUT: this runs the risk of filtering out elementary componentse.g. colors and
shapes
- AND: some courts ambivalent about dissection; against isolation of elements
(S.D.N.Y. Mannion)
- infringing similarity may involve only a small portion of the work (2d Steinberg)
- SJ if evidence so overwhelming that directed verdict would be justified (2d
Steinberg)
- BUT: D may be excused for using scenes a fairedetails which, as a
practical matter, are indispensable or standard in the treatment of a given topic
(2d Steinberg)
9th Circuit
- extrinsic test for ideas: all manifestations, analytic dissection and expert testimony
okay (9th Krofft)
- intrinsic test for expression: reasonable perception of substantial similarity, no
dissection (9th Krofft)
- both are required for infringement
- tests get conflated: main difference is that pre-jury dissection, expert testimony, and
SJ are allowed via the extrinsic test (9th Cavalier)
- extrinsic: whether two works share a similarity of ideas and expression as
measured by external, objective criteriaif indicia of a sufficient disagreement
exist then case should go to jury (9th Carey)
Computer programs
- apply abstraction/filtration test to Ps program and then Ds to avoid unnecessary
inquiry (2d Altai)
- expert witnesses are optional (2d Altai)
- courts should (1) "dissect the allegedly copied programs structure and isolate each
level of abstraction, (2) successively filter out protectable expression from non-
protectable material, and then (3) compare what remains as the core of protectable
expression (2d Altai)
- non-protectable material includes (i) elements dictated by efficiency (merger), (ii)
elements dictated by external factors (scenes a faire, e.g. compatibility
requirements, design standards, industry demands, widely accepted programming
practices), and (iii) elements taken from the public domain (2d Altai)
- at highest level of abstraction, analyze interrelationships among elements (2d
Softel)
Musical works
- owners of musical recordings only retain rights under 106(1), (2), (3), and (6) (
114(a))
- owners of musical recordings retain rights over re-recording and remixing, but not
sound-alike records
( 114(b))
- those who make recordings of musical works must obtain a license from the author (
115)
- de minimis sampling allowed if not a quanitatively or qualitatively significant portion
of the work
(9th Newton)
BUT: in the 6th Circuit, sampling requires a license under 114(b) (6th Bridgeport)
- webcasting services are subject to different requirements depending upon
interactivity
( 114(d), Launch)
Fixation requirement
- a derivative work must incorporate a protected work in some concrete or permanent
form (9th Galoob)
- this concrete or permanent form may include referential MAP files (9th Micro Star)
Has there been infringing distribution?
- mere making available is not distribution; distribution requires dissemination (D.
Minn. Thomas)
- is the distribution covered by the First Sale Doctrine? (Straus, 109)
- First Sale Doctrine may trump 602 importation restrictions if product bought
domestically (LAnza)
- BUT: FSD may not apply to works that are reproduced abroad and then imported
(9th Omega)
1201(a)(2) plaintiffs must prove: (1) ownership of a valid copyright (2) that is
effectively controlled by a technological measure that has been circumvented (3) and
that third parties can now access (4) without authorization, in a manner that (5)
infringes or facilitates infringing a right protected by the Copyright Act, because of a
product that (6) the defendant either (i) designed or produced specifically for
circumvention, (ii) made available despite only limited commercial significance other
than circumvention, or (iii) marketed for use in circumvention of the controlling
technological measure (Chamberlain)
LIABILITY
Is it fixed?
- is the work embodied in a manner sufficiently permanent or stable to permit it to
be perceived, reproduced, or otherwise communicated for a period of more than
transitory duration ( 101)
- if AV, is the AV repetitive and constant from display to display? (3d Williams)
- if a computer program, is the work copied to RAM? (9th Cir MAI)
- is the embodiment more than transitorye.g. longer than 1.2 seconds? (2d
Cartoon Network)
- is it being simultaneously recorded and transmitted? ( 101 fixation)
- if not, is it being bootlegged? ( 1101(a))
Is it original?
- is it the product of . . . intellectual invention? (Burrow-Giles)
- would finding it unoriginal constitute an arbitrary aesthetic judgment? (Bleistein)
- does it possess at least some minimal degree of creativity? (Feist)
- the phone book is not subject to copyright
- BUT: taxonomies may be copyrightedclassification is a creative endeavor
(Delta Dental)
- if it is a copy, are there sufficiently distinguishable variations, even accidental
ones? (2d Alfred Bell)
- merely very good copies that took a lot of work and skill are not original (10th
Meshworks)
- BUT: possible exception for high-quality fine art reproductions with public benefit
(S.D.N.Y. Alva)
- if it is a photograph, is it original in rendition, timing, and subject creation? (S.D.N.Y.
Mannion)
If it is a derivative work:
- does it contain an original contribution not present in the underlying work of art?
(2d Batlin)
- is there a putative exception for high-quality reproductions with public benefit?
(S.D.N.Y. Alva)
- are the original aspects of the derived work more than trivial and not purely
mechanical? (9th Genesis)
If it is a compilation:
- did choices as to selection and arrangement . . . entail a minimal degree of
creativity? (Feist)
- even if individual elements are uncopyrightable or not infringed, is the total concept
and feel of the compilation sufficiently original? (9th Roth Greeting Cards)
- did the compilation involve discretion, judgment, interpretation, and skill? (5th
Mason)
- does variation in similar compilations prove that there is a range of possible
expressions? (5th Mason)
- are there at least four separate elements in the compilation? (Copyright Office)
If it is an architectural work:
- is it original in its overall form as well as the arrangement and composition of spaces
and elements (101, D.Md. Nelson-Salabes)
- similar to compilations: thin protection for originality in selection and arrangment
(11th Intervest)
- BUT: actually unique designs (e.g. Epcot Center) may be protected
- ALSO: architectural work copyright does not extend to pictures or destruction of
buildings ( 120)
If it is a database:
- obvious arrangements of publicly available information are not copyrightable (11th
Donnelly)
- original arrangements of data involving professional judgment and expertise are
(2d Maclean Hunter)
- merger doctrine avoided if ideas are in the weaker categoryinfused with
opinion (2d Kregos)
If it is a useful article:
- is the expression physically separable without impairing utility? (Mazer)
- is the expression conceptually separable as a creative work?
A. (1) is the design primarily aesthetic v. functional? (2) can the work be sold as
art? (2d Keiselstein)
B. no copyright if the aesthetic and utilitarian features are inextricably intertwined
(2d Barnhart)
C. can the expression be conceived separately from the utilitarian function? (2d
Barnhart dissent)
D. no copyright if form is influenced in significant measure by utilitarian concerns
(2d Brandir)
E. would a reasonable observer perceive an aesthetic concept unrelated to use? (2d
Brandir dissent)
- NOTE: this analysis is only necessary for PGS works that are useful articles
- ALSO: these are difficult to determine while respecting the Bleistein principle
If it is a computer program:
- object code as well as source code may be copyrighted as a literary work (3d
Apple Computer)
- command menus are uncopyrightable methods of operation ( 102(b), 1st Lotus)
- Supreme Court is ambiguous on patentability of software (Bilski)
If it is a fictional character:
- is the character the story being told rather than a pawn in a plot? (C.D. Cal. MGM,
9th Sam Spade)
- is the character sufficiently unique and especially distinctive (C.D. Cal. MGM, 2d
Air Pirates)
- is the characters distinctively delineated? (D.Conn. Titan Sports)
- BUT: does this clash with the right that performers have in their own personas?
OTHER DEFENSES
Technological interchange
- when unprotectable aspects of work are inaccessible without disassembly, prong (2)
favors fair use
(9th Sega, 9th Sony)
- this has an antitrust motivation: supports innovation and interoperability
- online search indexing is significantly transformative, although unrelated to
expression (9th Perfect 10)
Market failure
- fair use should be permitted when: (1) market failure is present, (2) Ds use is socially
desirable, (3) award of fair use would not cause substantial injury to the incentives of
the copyright holder (Wendy Gordon)
- when markets exist for payment, these markets should be entered (Texaco); BUT:
circular? (dissent)
Is a copyright misuse defense available?
- is plaintiff using the right asserted contrary to the public interest? (3d Video
Pipeline)
- generally relates to anticompetitive behavior, but may go further
- BUT: anticompetitive behavior must be in a nexus with copyright allegation (N.D.
Cal. Napster)
REMEDIES
Statutory damages
- if copyright is registered in advance, between $750 and $30k available per work (
504(c))
- up to $150k for willful infringement, down to $200 for innocent infringment
- willfulness = knowledge that ones conduct constitutes copyright infringement (6th
Zomba)
- those who infringe innocently must do so (1) reasonably, and (2) in good faith
- large statutory damages (44:1) are not violations of due process (6th Zomba)
- BUT: Gore factors for punitives may at some point play a role: (1) degree of
reprehensibility, (2) disparity between harm and award, (3) difference between
award and penalties for comparable cases
CONTRACTS
PREEMPTION
Is a state law preempted?
- does it interfere with federal patent laws? (Sears, Bonito Boats)
- state trade secret laws are compatible with federal patent (Kewanee Oil)
- state copyright laws were compatible with federal copyright before 1976 Act
(Goldstein)
- is it (1) equivalent to an exclusive right under 106, and (2) within the subject
matter of 102?
( 301, 7th Baltimore Orioles)
- conversion claims are NOT preempted (2d Harper & Row)
- replevin claims are NOT preempted (D.N.J. Video Pipeline)
- unfair competition claims are NOT preempted (D.N.J. Video Pipeline)
- misappropriation claims are NOT preempted (5th Brown)
- tortious interference with contract claims ARE preempted (2d Harper & Row)
- unjust enrichment ARE preempted (D.N.J. Video Pipeline)
- right of publicity claims ARE preempted for AV recordings of performances (7th
Baltimore Orioles)
- BUT: may NOT be preempted if right of likeness extends to evocation of
identity (9th White)
- BUT: this is a big problem for parody and fair use (Kozinski dissent)