INTRO TO IP LAWFALL 2009: CLASS 3

Professor Fischer

Copyrightability: The Idea-Expression Dichotomy, Protection

for Factual Works

AUGUST 27, 2009

Wrap-Up of Class 2

• Wrap-up of Class 2: To be copyrightable, a work must be original (independently created and having some minimal degree of creativity) and fixed in a tangible medium of expression (either a copy or a phonorecord)

Review Problem 6-3 [C p. 334]

• PC can win the case only if it can establish that its parade is copyrightable. Is it?

• [note typo in hypo – Cincinnati should be Chicago]

• See Production Contractors, Inc. v. WGN Continental Broadcasting Co., 622 F.Supp. 1500 (N.D. Ill. 1985)

17 U.S.C. § 101

• “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. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” . . . if a fixation of the work is being made simultaneously with its transmission.”

Big Picture Theme

• Copyrightability (Unit II): What subject matter is protected by copyright law?

Constitutional Question

• U.S. Constitution Article I, § 8, cl. 8: “The Congress shall have power . . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”

Originality Requirement

17 U.S.C. § 102(a): “Copyright protection subsists in original works of authorship fixed in a any tangible medium of expression . . . .”

Protection Limited to Expression: Why?

17 U.S.C. § 102(b): In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work

IDEA-EXPRESSION DICHOTOMY

• Brandeis (dissent in INS v. AP (1918): “The general rule of law is, that the noblest of human productions – knowledge, truths ascertained, conception and ideas – become after voluntary communication to others, free as the air to common use.”

Baker v. Selden (1879) [C p. 335]

Baker v. Selden (1879)

• Where the use of the ''art,'' i.e., the idea, which a copyrighted work explains (or embodies) necessarily requires a copying of the work itself, then such copying will not constitute an infringement of copyright.

• However, if such copying occurs not in using the art but rather in explaining it, then such copying will constitute an infringement.

To what extent is Baker v. Selden current law?

Blank Forms

• What is the blank form rule in Copyright Office Regulation 202.1(c)?

The Blank Forms Rule

• Copyright Office Regulation 202.1(c): The following are examples of works not subject to copyright . . . Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information.

• Is this good law?

COPYRIGHTABILITY OF RECIPE

• Julia Grownup perfects a recipe for pumpkin pie. She writes down the ingredients and a straightforward set of instructions for making the dish using standard terms/style for recipe writers. Emeril copies her recipe verbatim in his bestselling cookbook. Can she win a copyright infringement case?

COPYRIGHT IN FACTUAL NARRATIVES

• To what extent are facts copyrightable? – see s. 102(b)

COPYRIGHT OFFICE REGULATION: No protection in• [W]orks consisting entirely of information

that is common property containing no original authorship, such as, for example: Standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists of tables taken from public documents or other common sources. (§ 202.1(d))

• Can you copyright a conversation?

Nash v. CBS (7th Cir. 1990) [C p. 339]

• Extent of Copyright in historical facts?

• Extent of Copyright in interpretation of historical facts?

What did Nash think happened at the Biograph?

• Lady in Red (left)• Biograph (below)

Abstractions Test

• Learned Hand (on left) was a judge with great influence on copyright doctrine

Is Nash consistent with Hoehling and Toksvig?

Merger Doctrine

• What is it?• How does the First

Amendment relate to it?

Wrap-Up

• Copyright does not protect ideas, only expression.

• It’s easy to state and hard to apply this fundamental principle.

• Copying ideas or facts is not copyright infringement.

• Copyright does not protect functionality.• Both functional and factual works can receive

copyright protection.