Transcript Intellectual Property Boston College Law School January 12, 2007 Copyright – Fixation, Exclusions.

Intellectual Property
Boston College Law School
January 12, 2007
Copyright – Fixation, Exclusions
17 U.S.C. § 102
• (a) Copyright protection subsists,… in original works of
authorship fixed in a tangible medium of expression, ….
Works of authorship include the following categories:
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(1) literary works;
(2) musical works, …;
(3) dramatic works;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audio visual works;
(7) sound recordings; and
(8) architectural works
Originality
• Elements
– 1. Independent creation
– 2. Some modicum of creativity
• Not original
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Short words and phrases
Works dictated purely by function
Literal reproductions of public domain works
Some databases
Fixation
• 17 U.S.C. § 102(a):
– “Copyright protection subsists,… in original works of authorship
fixed in any tangible medium of expression, now known or later
developed, from which they can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a
machine or device.”
• 17 U.S.C. § 101:
– “A work is ‘fixed’ in a tangible medium expression when its
embodiment in a copy … by or under the authority of the author, is
sufficiently permanent or stable to permit it to be perceived …
for a period of more than transitory duration.”
Fixation
• Possible justifications
– Constitutionally required
– Defines scope of the entitlement
• Avoids unreasonable liability
• Evidentiary value in infringement action
– Evidence of commercial importance of work
Formalities
Notice
Publication
Registration
Deposit
1909 Act
Required. Must
provide date,
author, copyright
symbol.
Required.
Not required. But
prerequisite for bringing
claim.
Not required. But
may be fined.
1976 PreBerne
Still required. But Not required. But Not required, but:
more lenient if fail triggers notice
i. Prima facie validity
to provide notice. requirement.
ii. Required before claim
iii. Statutory damages
and fees
Same.
Not required. But Not required.
if notice, then no
innocent
infringement.
Same
(1978-89)
1976 PostBerne
(1989- )
Same, except that for
foreign works,
registration not
necessary before suit
Idea/Expression Dichotomy
• 17 U.S.C. § 102: Subject Matter
– (a) Copyright protection subsists,… in original works
of authorship fixed in a tangible medium of expression,
….
– “(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.”
Baker v. Selden
Copyright, Patent, Trademark
Idea / Expression
& Useful Article
Doctrines
Patent
Copyright
Trademark
Baker v. Selden
• Idea/expression doctrine
– Copyright law protects expression, not ideas
– Ideas, methods, etc. are subject to patent
• Merger doctrine
– Where only one or a few ways to express an
idea, not copyrightable
– Otherwise, effectively grants protection to idea
Cookbook Hypo
• Elements of cookbook
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Recipes
List of ingredients
Description of specific steps
Pictures illustrating techniques
Pictures of finished dishes
Description of history of dishes
What is the idea?
• What is the idea?
– Story about wizarding
school
– Story about wizarding
school with orphan hero
– Story about wizarding
school with orphan hero and
spunky group of friends
– Story about wizarding
school with orphan hero and
spunky group of friends and
friendly headmaster,
fighting evil wizard
When is there merger?
• Morrissey
– Entrants should print name,
address and social security
number on boxtop, or a
plain paper.
– Entries must be
accompanied by … boxtop
or by plain paper on which
the name … is copied from
any source.
• P&G
– Entrants should print name,
address and Social Security
number on a Tide boxtop,
or on plain paper.
– Entries must be
accompanied by Tide
boxtop (any size) or by
plain paper on which the
name “Tide” is copied from
any source.
Video Game Hypo
• What is the idea?
– Hand to hand combat game
– Hand to hand martial arts
combat game
– Hand to hand martial arts
combat game with side view
– Hand to hand martial arts
combat game with side view
and changing backgrounds
– Hand to hand martial arts
combat game with side view,
changing backgrounds,
power bars, special moves,
...
Bee Pin Hypo
• What is the idea?
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Insect pin
Bee pin
Bee pin made of gold
Bee pin made of gold and jewels
Bee pin made of gold and
white/blue jewels
– Bee pin made of gold and
white/blue jewels in a certain
arrangement
Assignment for Next Class
• Read II.C.2 – Types of Works