Copyright: Expression vs. Facts

Review (3/13)

• The constitution promotes progress for authors within limited times
• Copyright scope is broad due to the constitution and statutes
• Public domain exists
• There's an inherent conflict between the public domain and broader rights to encourage creation
• Copyright protects expressions of ideas, not the ideas themselves

Expression v. Facts

• Copyright protections extend to the expression of an idea, not the facts themselves
• This applies to history books and medical research
• Sports betting popularity is on the rise in the U.S.
• The NBA commissioner stated the league spends nearly $6.5 billion creating games, so intellectual property creators should receive a 1% fee from all money bet

What is an expression?

• The defining characteristic of a copyright expression is creativity
• Making an exact copy of existing work does not require creativity
• Creating a symphony, writing a book, or painting a picture involve creativity
• It's difficult to determine where to draw the line for creative content

Bleistein v. Donaldson

• Bleistein created advertisements for a circus
• A competitor, Donaldson Lithographing Company, made copies when the circus ran out
• Bleistein sued Donaldson Lithographing Co. for copyright infringement
• Donaldson claimed the advertisements lacked art and originality, so copyright does not protect them
• The question is how is art determined and if it has enough originality to be copyrighted
• Another question can something be considered art if it's commercially successful or an advertisement
• Another question presented is, who is qualified to make this determination
• Copyright law applies to all art, whether high or low, regardless of its commercial nature
• The advertisement was subject to copyright and was infringed

Feist Pubs v. Rural Tele

• Rural Telephone Service Co. distributes phone directories to customers
• Feist copied 4,000 entries from Rural's directory and Rural detected it
• Rural sued, as Feist used small number of phony entries
• Facts cannot be copyrighted
• Copyright protection is not for "sweat of the brow" work
• Labor put into making something does not subject it to copyright
• Securing copyright when compiling facts is a question, such as for a history book
• Copyright hinges on originality so it must be original to the author
• Originality involves independent creation and a modicum of creativity
• Copying is not a work of authorship
• There is no originality or copyright when creating an alphabetical list of names and numbers

Ets-Hokin v. Skyy Spirits

• Ets-Hokin is a professional photographer
• Skyy hired Ets-Hokin to photograph its vodka bottle using different color backdrops and lighting from a straight-on perspective
• Skyy hired other photographers to make similar photos and used them in advertising
• Ets-Hokin claimed copyright infringement
• Ets-Hokin was confirmed to have a copyright because it showed a modicum of creativity
• The other photographers did not commit copyright infringement by making very similar photographs
• Courts won't protect a copyrighted work from infringement if the underlying idea can be expressed in only one way
• Ets-Hokin isn’t the only one who can photograph the Skyy bottle

Practice Question

• Plaintiffs sued former restaurant partners, Tomaydo-Tomahhdo, for copyright infringement for copying recipes for use in catering business
• Plaintiffs claimed recipes developed through trial and error, they purchased defendants' interest in the business, including all the recipes
• Recipes are not copyrightable subject matter
• A list of ingredients is merely a factual statement
• "Functional directions," such as a recipe, are statutorily excluded from protection
• Recipes are not copyrightable
• Extra text, such as thoughts on cooking, may make copied recipes copyrightable

Fixation - Securing a copyright

• A copyright requires that a work is fixed in a tangible medium
• Fixation is when a copy shows the author is sufficiently permanent or stable to be perceived, reproduced, or communicated for a non-transitory duration

Review

• Facts cannot be copyrighted, but an expression of the facts can be

• Copyright law applies to all art, high and low, regardless of commercial nature

• The "sweat of the brow" doctrine does not apply

• Functional directions are excluded from copyright protection

• Copyright is created when work is fixed in a tangible medium

• Fixation occurs when expression is permanently or non-transitorily fixed in a readable medium, including digital copies

Williams Electronic v. Arctic

• Arctic sold circuit boards that produce a game almost identical to Williams' DEFENDER game
• Arctic did not copy the underlying code
• Williams cited copyright infringement for the game's AV depiction
• Copyright can exist when authorship is fixed in a tangible medium of expression
• Fixation was found in attract and play modes, granting copyright validity
• This case set precedent for how AV content is protected
• A "transient" image can be considered fixed if it exists in authorship fixed in any tangible medium of expression
• Game code can be protected
• Public domain does not always mean that a product is necessarily public

US Copyright Office

• Copyright is created via fixation in a tangible medium, registration is not required
• The U.S. Copyright Office registers copyrights, but does not create the copyrights themselves
• The office also issues certificates of registration, keeps records of assignments and licenses, and regulates deposit of copyrighted materials
• Registration does not mean examination
• USCO only asks if the resource is copyrightable material to register
• Registration is litigation-related and the output to AI is not subject to copyright protection

Duration of Copyrights

• Copyright standard durations have changed over time

• Content made before 1925 is in the public domain

• A goal is to promote the progress of science of useful arts

• This creates public domain

• This encourages creation

• Original copyright length consisted of 14 years

• Current copyright lengths last for the author's life, plus 70 years

Derivative Works

• Derivative work uses one or more preexisting works, like translations, musical arrangements, dramatizations, motion picture versions, sound recordings, art reproductions, abridgments, condensations
• This is when the work is recast, transformed, or adapted
• The copyright owner controls the rights to prepare derivative works based on the copyrighted work

Derivative Works

• Permission is needed to create a derivative work from another's copyright expression
• The rights in derivative works made with permission, or from a work in the public domain, differ

L. Batlin & Son v. Snyder (1976)

• Snyder manufactured plastic Uncle Sam banks
• Batlin created similar Uncle Same banks and Snyder claimed there was copyright infringement
• A defense declared that is work doesn't show originality
• Rule: Originality = independent creation + modicum of creativity
• The bank is a direct replica of an earlier bank which is now in the public domain, so is doesn't show a modicum of creativity
• The "author" must contribute substantial originality for a copyright to be valid.

Ownership of Copyright

• Initial copyright ownership belongs to the author of the work
• Joint authors co-own the copyright
• In work made for hire, the employer is considered the author, but only in limited circumstances

Lindsay v. Abandoned Titanic

• RMST has exclusive authorization to carry on salvage operations of Titanic

• Lindsay is the filmmaker who oversaw the filming of the savage

• Lindsay created storyboards and designed underwater light towers

• Lindsay directed the wreck filming giving tower instructions to divers/submarines

• Lindsay claims authorship and is pursuing copyright infringement

• Lindsay can't be an author if he didn't hold the camera at the site filming the movie

• To be the author you have to translate an idea into a fixed expression

• Thinking about the Oscar Wilde case and authorship

• If someone exercises high control over film operation he is the author

• Even if Lindsay is the author, there is a joint authorship situation

• They will discuss joint authorship more later

• Lindsay claims to have had full control with veto rights over everything in the film

• Fixation has to fall under the authority of the author

• Where one party has veto power there is no joint authorship

Garcia v. Google

• Cindy Lee Garcia acted in a movie that morphed her performance into a blasphemous video against the Prophet Mohammed.
• She was paid $500 to say two lines and "seem concerned."
• Garcia said she owns the copyright for her acting and demanded YouTube to remove the video
• They analyze as a cohesive whole to determine authorship
• You can't cut a movie into a thousand mini clips with each actor being author
• Copyright goes to party fixating expression or had another party fix expression
• The director fixed Garcia's performance in the tangible medium
• Garcia disavows how scene was used so does not have ownership or authorship

Joint Work

• Two+ people co-authoring together
• A “joint work" is prepared by two+ authors with intention their contributions be merged into inseparable or interdependent parts of a unitary whole
• Intent of working as joint authors

Aalmuhammed v. Lee

• Spike Lee directed Malcolm X
• Denzel Washington hired Aalmuhammed to assist him preparing for the role because of knowledge of Malcolm X and Islam
• Aulmuhammed wrote a few scenes
• Aulmuhammed claims joint authorship and profits
• Elements of joint work entail copyrightable work, intention for the work to be created by 2+ authors, intention to merge the contributions, and each author's contribution is copyrightable

Review

• Derivative work is based on preexisting works like a translation, musical arrangement, or motion picture
• Initial ownership means copyright initially rests in the author or authors of work
• Rule: Author is person who translates idea into fixed expression or the person who authorizes to fixation
• Joint authors are co-owners in the copyright
• Intent falls with joint authorship

Restated Elements of Joint Authorship

• Must be a copyrightable work
• Intent for work to be created by 2+ authors
• Intent to merge contributions into parts of unitary whole
• Each author must have creative control and authority

Ownership of Copyright v. Material Object

• Copyright ownership is distinct from owning physical object
• Transferring ownership of material object does not give rights to copyrighted wok

Copyright v. Title

• Georgia records song on cassette and gives copy to Dana
• Dana owns the tape but George still has copyright

Employees & Copyright Ownership

• Copyright is initially owned by the work author
• Two+ authors are joint owners of copyright
• Authors can transfer some or all rights to others
• There may be a license to sell digital copies
• An employee will assig