class 2 copyright, winter, 2010 copying randal c. picker leffmann professor of commercial law the...

Class 2Copyright, Winter, 2010

CopyingRandal C. PickerLeffmann Professor of Commercial Law

The Law School

The University of Chicago

773.702.0864/[email protected] © 2005-10 Randal C. Picker. All Rights Reserved.

April 21, 2023 Copyright © 2005-10 Randal C. Picker 2

1870 Copyright Act: 2nd General Revision

That any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photographs or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and his executors, administrators, or assigns,


1870 Copyright Act

shall, upon complying with the provisions of this act, have the full liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others; and authors may reserve the right to dramatize or to translate their own works.


1897 Act Amendments

“Any person publicly performing or representing any dramatic or musical composition for which a copyright has been obtained, without the consent of the proprietor of said dramatic or musical composition, or his heirs or assigns, shall be liable for damages therefor …”

Copying the Music I

Hypo Visit The Hackley Collection at the Detroit

Public Library Look at Kentucky Babe In 1902, Individual copies by hand all of the

music notation and lyrics creating pieces of paper that look exactly like the original

Copyright violation?


Playing the Music I

Hypo In 1902, Individual buys copy of sheet

music for Kentucky Babe Memorizes the music Plays the music from memory at home by

herself Copyright violation?


Copying the Music II

Hypo In 1902, Individual copies by hand all of the

music notation creating pieces of paper that with indentations that when rolled through a player piano will result in equivalent to Individual playing the music on the piano

Search Google Book Search on pianola Copyright violation?


The Lower Courts: Rolls for Piano Player

Kennedy v. McTammany, 33 Fed. 584 “I cannot convince myself that these

perforated strips of paper are copies of sheet music within the meaning of the copyright law. They are not made to be addressed to the eye as sheet music, but they form part of a machine.”


The Lower Courts: Rolls for Piano Player

Kennedy v. McTammany, 33 Fed. 584 “They are not designed to be used for such

purposes as sheet music, nor do they in any sense occupy the same field as sheet music. They are a mechanical invention made for the sole purpose of performing tunes mechanically upon a musical instrument.”

Yes? No?


The Lower Courts: Wax Cylinders for Phonographs

Stern v. Rosey, 17 App. D.C. 562 “It is not pretended that the marks upon the

wax cylinders can be made out by the eye or that they can be utilized in any other way than as parts of the mechanism of the phonograph.”


The Lower Courts: Wax Cylinders for Phonographs

Stern v. Rosey, 17 App. D.C. 562 “Conveying no meaning, then, to the eye of even

an expert musician, and wholly incapable of use save in and as a part of a machine specially adapted to make them give up the records which they contain, these prepared wax cylinders can neither substitute the copyrighted sheets of music nor serve any purpose which is within their scope.”

Yes? No?



Not Really Copying

Says the Court in White-Smith “What is meant by a copy? … It may be true that

in a broad sense a mechanical instrument which reproduces a tune copies it; but this is a strained and artificial meaning. When the combination of musical sounds is reproduced to the ear it is the original tune as conceived by the author which is heard. These musical tones are not a copy which appeals to the eye.”


Not Really Copying

“In no sense can musical sounds which reach us through the sense of hearing be said to be copies, as that term is generally understood, and as we believe it was intended to be understood in the statutes under consideration. …”


The Statute Protects Things, Not Works

“The statute has not provided for the protection of the intellectual conception apart from the thing produced, however meritorious such conception may be, but has provided for the making and filing of a tangible thing, against the publication and duplication of which it is the purpose of the statute to protect the composer.”


Perforated Rolls Are Machine Parts, Not Copies

“After all, what is the perforated roll? The fact is clearly established in the testimony in this case that even those skilled in the making of these rolls are unable to read them as musical compositions, as those in staff notations are read by the performer. … These perforated rolls are parts of a machine which, when duly applied and properly operated in connection with the mechanism to which they are adapted, produce musical tones in harmonious combination. But we cannot think that they are copies within the meaning of the copyright act.”


How Should We Approach Copies and Copying?

1870 Statute Doesn’t Separate Work and Physical Object This is the Court’s point about not offering

protection for the “intellectual conception apart from the thing produced.”


Is Copying About

Literal reproduction? Star Trek replicator-like requirement: the

copy must look like the original? Functional reproduction?

Music compositions were played on pianos, and so are piano rolls

Piano rolls therefore substitute for music sheets and therefore are copies?


1909 Copyright Act

§1 Exclusive Rights as to Copyrighted Works. Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive right: (a) To print, reprint, publish, copy, and vend the copyrighted work;


101: “Fixed”

A work is “fixed” in a tangible medium of expression 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.


Legislative History on Fixation

Overruling White-Smith As a basic condition of copyright protection, the bill

perpetuates the existing requirement that work be fixed in a “tangible medium of expression,” and adds that this medium may be one “now known or later developed,” and that the fixation is sufficient if the work “can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”


Legislative History on Fixation

This broad language is intended to avoid the artificial and largely unjustifiable distinctions, derived from cases such as White-Smith Publishing Co. v. Apollo Co., 209 U.S. 1 (1908) …

Statutory License for Mechanical Reproduction

Added in 1909 See current Section 115

Discuss later when we turn to music and sound recordings


Copying and Substantial Similarity

Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966). “whether an average lay observer would

recognize the alleged copy as having been appropriated from the copyrighted work.”



Rogers v. Koons


Screen Capture Slide

Link

Rogers’s Puppies

Scanlon Hires Rogers to Photograph Puppies Rogers is paid $200 for prints by the

Scanlons Rogers did the creative work in figuring out

how to do the picture Rogers retained the copyright to the work


Rogers’s Puppies

Rogers Licenses Work to Museum Graphics 5,000 notecards printed initially Subsequent printings


Creating “String of Puppies”

1988 Banality Exhibition at Sonnabend Gallery Koons looking create a group of art works Selects studios to do physical work of

creating pieces Buys notecard of Puppies Tears off copyright notice and gives it

executing artisans


Authorship?

Not discussed here but note … Koons as animating creative force vs.

artisans who actually build the thing in question

One author? Koons or the artisans? Joint authors?


The Lawsuit

Facts Koons sells three copies of String of

Puppies for $367,000 Keeps fourth copy for himself Friend of Scanlon sees picture of Koon’s

work in LA Times, who in turn tells Rogers Rogers sues for infringement


What Counts as a Copy?

Hypo 1 I take a picture of Stonehenge You see my picture and are inspired by it You fly to Stonehenge and take another

picture of it I sue you for copyright infringement: who

wins?


Answer

No copyright infringement



Hypo 2 Again, I take a picture and again, you see it You say: “I could fly to Stonehenge to take

a picture or I could Xerox this one.” You copy it

I sue you for copyright infringement: who wins?


Answer

Simple copyright infringement



Hypo 3 I take a picture of Stonehenge You see my picture and are inspired by it You fly to Stonehenge and make a

miniature model of it out of clay I sue you for copyright infringement: who

wins?


Answer

No infringement



Hypo 4 I take picture of Stonehenge, you see it. You decide to make a miniature model of

Stonehenge out of clay Working from my picture, you build your

model of Stonehenge I sue you for copyright infringement: who

wins?


Answer

No infringement Sculpted work won’t preserve lighting,

camera angles Should just re-create the original object built

by the Druids


Copying the Work v. Accessing the Original

Holmes’s Statement in Bleistein “Others are free to copy the original. They

are not free to copy the copy.” Implementing Holmes

Does the mini-Stonehenge made from looking at my photo copy the copy or copy the original?


Copying the Work v. Accessing the Original

What limits how a subsequent user can access the original? Do I have to go directly to the original or can

I access the original through someone else’s work?


Why Not This?

Mini-Stonehenge obviously not a copy because Photo was just two-dimensional image of

Stonehenge Mini-Stonehenge is 3D form Change in dimensionality precludes

copying?


Now Rogers v. Koons

Shouldn’t we say … Koons was just accessing original through

the photograph ala the mini-Stonehenge example

Koons also switched the dimensonality Ergo no copying of copy, just 3D

implementation of original accessed through the photo?


No Independent Original Here

Stonehenge Exists Separately I didn’t create Stonehenge when I took a

picture of it; it existed already


No Independent Original Here

Rogers Created Puppies “It is not therefore the idea of a couple with

eight small puppies seated on a bench that is protected, but rather Roger’s expression of this idea—as caught in the placement, in the particular light, and in the expressions of the subjects—that gives the photograph its charming and unique character, that is to say, makes it original and copyrightable.”


What Could Koons Have Used?

The Idea Behind Puppies “… had appellant simply used the idea

presented by the photo, there would not have been infringing copying … “


class 2 copyright, winter, 2010 copying randal c. picker leffmann professor of commercial law the...

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