COPYRIGHT
LAW
FALL,
2006
Professor Susanna Fischer
Office: 412
Phone: 202-319-556
E-mail: fischerATlaw.edu
Class meets from 6:20 to 7:35 p.m. on
Monday and Wednesday evenings in Room 208
READING
LIST
Important Information:
- The Casebook ("Casebook") for this course is Robert A.
Gorman & Jane C. Ginsburg, Copyright (7th edition 2006)
(published by Foundation Press) plus the accompanying Statutory Supplement
("Supp.") (2006 edition) (published by
Foundation Press). Both the Casebook and the Supp. are available for
purchase in the CUA bookstore.
- You should read all assignments carefully unless specifically
instructed to skim.
- Sometimes assignments are listed as "recommended".
This means that you are not required to read the material, but that it may
be a helpful supplement to the required reading assignments. I
have also provided citations to many articles that you may like to read to
expand your knowledge on particular aspects of copyright law.
- For each assignment, you should also read, where cited in the
Casebook, all sections/articles of the following: 1976 Copyright
Act (Appendix A to Supp); 1909 Copyright Act (Appendix B to
Supp.); Regulations of the U.S. Copyright Office (Appendix C to
Supp.); Berne Convention (Appendix D to Supp.); Universal Copyright
Convention (Appendix E to Supp.); TRIPS Agreement (Appendix F to Supp.);
WIPO Copyright Treaty (Appendix G to Supp.); and WIPO Performances and
Phonograms Treaty (Appendix H to Supp.).
- Sometimes you may be required to read very recent case law and/or
articles which are not included in your Casebook. I will distribute any
such additional required reading in class or, if available electronically,
will provide a link on the
- Please try to answer (or at least think about) all Discussion
Questions in this
- You are not required to read the original cases which are cited or
excerpted in the Casebook, but putting in this extra effort is always
recommended.
- Click here to link to the Course
Outline, containing more information and guidelines for this
course, including information on grading, participation, office hours,
etc., will be distributed at the first class.
UNIT 1: INTRODUCTION TO COPYRIGHT LAW CONCEPTS
WEEK ONE
Class of August 21: Introductory Class
·
There is no
reading assignment for this class.
Class of August 23: Introduction
to Copyright: History and General Concepts
BIG
PICTURE FOCUS OF THIS CLASS: History and sources of
- REQUIRED
- REQUIRED WRITING EXERCISE: Please prepare a short personal
statement, which should be typed or word processed, maximum length 1 page,
which tells me a little about you so that I can get to know you
better. I am particularly interested in why you are taking copyright
law and what you hope to learn about it this semester. This should
have your name on it and is due in class.
- Strongly
recommended, although not required, is the
overview of copyright law at Casebook pp. 37-49. If you do not get a
chance to read it for this class, I strongly recommend reviewing it later
in the course, because it provides a good summary of "the big
picture" of copyright.
- Recommended: (1)
Statute of Anne available online at: http://www.yale.edu/lawweb/avalon/eurodocs/anne_1710.htm
or http://www.copyrighthistory.com/anne.html
(2) First
Citation Note: American Geophysical Union v.
Texaco, Inc. (p. 18): cert. dismissed, 516
Discussion
Questions for Class of August 23:
1. What is copyright?
Does it preclude others from using ideas?
2. To what
extent is copyright a property right? To what extent is it a personal
right of the author? To what extent is it a monopoly? Whose interests
must be balanced in determining the proper extent of copyright?
3. From what legal
system(s) does American copyright law derive?
4. What is the
Statute of Anne? Why was it enacted? What were its key
provisions? How did the stationers interpret the rights they obtained
under the Statute of Anne? Did the courts agree?
5. Did the
states have copyright laws immediately following the American
revolution?
6. Why did the
framers of the American Constitution include the Patent and Copyright Clause in
the Constitution? What does this Clause provide? Where is it found
in the Constitution? What is its purpose? Private benefit, public welfare, or
both? Or something else?
7. What did
the Copyright Act of 1790 provide?
8. What was
the issue for the Supreme Court in the case of Wheaton v. Peters?
How did the Supreme Court rule on this issue?
9. As new
federal copyright laws succeeded the 1790 Act, how (in general) did they change
the protection for copyrighted works provided under the 1790 Act? What
improvements were made by the 1909 Copyright Act? What problems and pressures
led to the enactment of the 1976 Copyright Act?
10. What are
the key provisions of the 1976 Copyright Act?
11. What is
the
12. What
amendments have been made to the 1976 Copyright Act since 1990? How
did the Family Entertainment and Copyright Act of 2005 (the “ART Act”) change
the law? How was it a compromise between different interest groups?
Additional
For a
different take on the origins of copyright law, see William Patry Blog
entry of October
31, 2005 (Contributions of Cultural Historians) at: http://williampatry.blogspot.com/2005/10/contributions-of-cultural-historians.html
Abrams, The Historic Foundations of
American Copyright Law: Exploding the Myth of Common Law Copyright, 29
Irah Donner, The Copyright Clause of the
Karl Fenning, The Origin of the Patent and Copyright
Clause of the Constitution, 17 Geo. L.J. 109 (1929)
Jane C. Ginsburg, A Tale of Two
Copyrights: Literary Property in Revolutionary
Craig Joyce & L. Ray Patterson, Essay: Copyright in 1791: An Essay, 52 Emory L.J. 909 (Spring, 2003).
Tyler T. Ochoa, Origins and Meanings of
the Public Domain, 28
Edward C. Walterscheid,
To Promote the Progress of Science and Useful Arts: The Background and Origin
of the Intellectual Property Clause of the
Elizabeth Armstrong, Before Copyright:
The French Book-Privilege System 1498-1526 (
Adrian Johns, The Making of the Book:
Print and Knowledge in the Making (
Mark Rose, Authors and Owners: The
Invention of Copyright (Harvard University Press, 1995)
Christopher Witcombe,
Copyright in the Renaissance: Prints and the Privilegio
in Sixteenth-Century
Susan P. Liemer,
How We Lost Our Moral Rights and the Door
Closed on Non-Economic Values in Copyright, 5 J. Marshall Rev. Intell. Prop. L. 1 (Fall, 2005)
Craig Joyce, A Curious Chapter in the History of Judicature:
Susanna Frederick Fischer: Dick Whittington and Creativity: From Trade
to Folklore, From Folklore to Trade, 12
Christine Haight
Farley, The Lingering Effects of
Copyright’s Response to the Invention of Photography, 65 U. Pitt. L. Rev.
385 (Spring, 2004)
Michael W.
Carroll, The Struggle for Music
Copyright, 57
Thomas F. Cotter, Gutenberg’s Legacy: Copyright, Censorship, and Religious Pluralism,
91
Shubha Ghosh, Deprivatizing Copyright, 54 Case W. Res. 387 (Winter 2003)
Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary
Ann Bartow, The Hegemony of the Copyright Treatise, 73 U. Cin.
L. Rev. 581 (Winter, 2004)
WEEK TWO
Class of
August 28: Introduction to Copyright II
BIG
PICTURE FOCUS OF THIS CLASS: What is
the underlying rationale for copyright law?
Is it a necessary economic incentive to ensure sufficient creative
output?
A. Economic
Analysis of Copyright Doctrine
- REQUIRED
B. Copyright
Compared to Other Forms of Intellectual Property\
- REQUIRED
- Recommended: Casebook pp. 61-63, 71-74
Discussion Questions for Class of
August 28:
1. "No man but a blockhead
ever wrote, except for money." Samuel Johnson, as quoted in III Boswell's
Life of Johnson 19 (Hill ed. 1934). Do you agree? Why or why
not?
2. Think about whether the
primary purpose of law is to benefit an author (by encouraging creation of
works) or to benefit the general public by making creative works available.
Do these interests conflict?
3. What kinds of rewards, if any,
are necessary to spur the creation of works of authorship?
4. Does copyright law as
presently formulated lead to excessive production of unmeritorious creative
works?
5. What alternatives to copyright
protection would be possible or preferable?
6. Do you agree with the authors
of your Casebook that the drafters of the Constitution's Patent and Copyright
Clause were engaging in a bit of economic analysis? Is economic analysis
the only way to think about copyright? If not, is it the best way?
7. What is a patent? How
does it differ from a copyright?
8. What is a trademark? How
does it differ from a copyright?
9. Can intellectual property
rights overlap?
10. Can there be a copyright in a
photograph? Is there copyright in a photograph that is a mere mechanical
reproduction?
11. Must a work be a great work
of art to be copyrightable?
12. Can a picture that is an
advertisement be copyrighted?
Additional
Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harv. L. Rev. 281 (1970)
Barry Tyerman, The Economic Rationale for Copyright Protection: A Reply to Professor Breyer, 18 UCLA L. Rev. 1100 (1971)
Stephen Breyer, Copyright: A Rejoinder, 20 UCLA L. Rev. (1972)
Wendy Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and its Predecessors, 82 Colum. L. Rev. 1600 (1982)
Julie Cohen, Lochner in Cyberspace: The New Economic Orthodoxy
of "Rights Management", 97
Thomas B. Nachbar, Monopoly, Mercantilism, and the Politics of Regulation, 91
Jane Ginsburg, Future Directions for Copyright Research in
the U.S. (text of the opening lecture of the Cambridg
Centre for Intellectual Property and Information Law, available at: http://www.law.cam.ac.uk/docs/view_doc_info.php?class=1&doc=2425
Jed Rubenfeld,
The Freedom of Imagination: Copyright’s
Constitutionality, 112 Yale L.J. 1 (Oct., 2002)
UNIT II: COPYRIGHTABLE SUBJECT MATTER
Class of August 30: Copyrightable Subject Matter I:
Original Works of Authorship
BIG PICTURE FOCUS OF THIS
CLASS – The “originality” requirement under the constitution and the Copyright
Act and the “work of authorship” requirement under the Constitution and the
Copyright Act. How original must a work
be to be protectable under copyright law?
- REQUIRED
Discussion
Questions for Class of August 30
1. Is
"originality" a constitutional requirement? Does the 1976 Copyright
Act contain a clear legal standard for "originality"? What is
the standard for originality enunciated by the
2. Can you
think of any examples of protectable works of
authorship that do not fit within the categories in s. 102 of the 1976
Copyright Act? If so, what?
3. Which of these s.
102 categories have accompanying definitions in s. 101?
4. Would
Additional
Jane C. Ginsburg, The Concept of the
Author in Comparative Copyright Law, 52 DePaul L. Rev. 1063 (Summer, 2003) (a
self-confessed “authors’ rights enthusiast” compares the concept of authorship
in various common law and civil law jurisdictions and concludes that, despite
some variation, all these systems agree that “an author is a human being who exercises
subjective judgment in composing the work and who controls its execution.”
Ginsburg argues that the basis for our copyright law is creativity, and
cautions that if this is no longer valued, the law must be changed).
F. Jay Doherty, Not a Spike Lee Joint?
Issues in the Authorship of Motion Pictures Under
Keith Aoki, Authors, Inventors and
Trademark Owners; Private Intellectual Property and the Public Domain, 18
Colum.-VLA J. L. & Arts 1 (1993)
Peter Jaszi,
Toward a Theory of Copyright: The Metamorphoses of “Authorship”, 1991 Duke L.J.
455 (deconstructionist attack on the Romantic concept of the author in
copyright law)
Jeffrey Malkan, What is a Copy?, 23 Cardozo Arts & Ent.
L.J. 419 (2005)
Randall P. Bezanson, Speaking
Through Others’ Voices: Authorship, Originality, and Free Speech, 38
WEEK THREE
September
4: No
Class: Labor Day
Class of
September 6: Copyrightable Subject Matter II: Fixation in
Tangible Form
BIG PICTURE FOCUS OF
THIS CLASS: What is the fixation requirement? Is it a constitutional requirement? A
statutory requirement? To what extent
can statutes be enacted that protect unfixed works?
·
REQUIRED
·
Recommended but not required: http://www.insidecounsel.com/issues/insidecounsel/15_164/ip/105-1.html
as well as January 6, 2006 posting on William Patry blog at: http://williampatry.blogspot.com/2006/01/now-thats-kiss.html
and also William Patry blog
posting for July 13, 2005 on oral argument before Second Circuit in Martignon at http://williampatry.blogspot.com/2005/07/bootleg-oral-argument.html
and excerpt from Lessig blog
praising Judge Baer’s decision at: http://www.lessig.org/blog/archives/002171.shtml (September,
2004)
Citation Note: Playboy Enters. v. Webbworld, Inc. (p. 88) aff'd,
168 F.3d 486 (5th Cir. 1999); United States v. Moghadam
(p. 91), reh'g and reh'g
en banc denied, 193 F.3d 525 (11th Cir. 1999), cert. denied, 120 S.Ct. 1529 (2000), KISS
Catalog v. Passport Int’l Prods., motion for reconsideration denied, 405 F.
Supp. 1169 (C.D. Cal. Dec. 21, 2005) Judge Dale Fischer’s opinon
is available online at: http://www.geocities.com/williampatry875/copyright5.pdf
Discussion
Questions for Class of September 6
1. Is
"fixation" a constitutional requirement?
2. Can you think
of examples of any unfixed works of authorship?
3. When, if
ever, will a live broadcast be fixed?
4. What kind
of works are protected under 17 U.S.C. section 1101(a)? Is this statute
constitutional? Why or why not?
5. Should the Southern District of New York’s
decision in Martignon be overruled on
appeal? Why or why not?
Additional
Lee H. Rousso, The Criminalization of Bootlegging: Unnecessary
and Unwise, 1 Buff. Intell. Prop. L.J. 169 (Fall,
2002)
Angela T. Howe, Note:
Tyler
T. Ochoa, Copyright,
Derivative Works and Fixation:
Is Galoob a Mirage, or Does the Form(Gen) of the
Alleged Derivative Work Matter?, 20 Santa Clara Computer
& High Tech. L.J. 991 (2004) (advocating the adoption of the rule that the
derivative right is dependent upon the other exclusive rights).
Matthew
D. Asbell, Comment
and Recent Development: Progress on the WIPO Broadcasting and Webcasting Treaty, 24 Cardozo Arts & Ent. L.J. 349 (2006)
Daniel
Gervais, Traditional
Knowledge & Intellectual Property: A TRIPS-Compatible Approach,
Arthur
R. Miller, Common Law Protection for
Products of the Mind: An “Idea” Whose Time Has Come, 119 Harv. L. Rev. 703 (Jan., 2006)
Gregory
S. Donat, Note,
Fixing Fixation: A Copyright with Teeth for Improvisational Performers, 97
Colum. L. Rev. 1363 (1997)
Caroline
T. Nguyen, Note: Expansive Copyright
Protection for All Time? Avoiding
Article I Horizontal Limitations Through the Treaty Power, 106 Colum. L.
Rev. 1079 (June, 2006)
Hazell Malcolmson,
Note: Copyright Infringement in the
Digital Age: The Issue of Unfixed Works, 16 Fordham Intell.
Prop. Media & Ent. L.J. 297 (Fall, 2005)
WEEK FOUR
Class of September 11:
Copyrightable Subject Matter III: Idea-Expression Dichotomy
ON CALL:
Benoit, Bennett
BIG
PICTURE FOCUS OF THIS CLASS: What is the
idea-expression dichotomy? How and to what extent does the copyright statute
and courts exclude ideas and functional matter from copyright protection?
·
REQUIRED
Citation Note: Bibbero Systems, Inc. v. Colwell Systems, Inc. (p. 106), 893 F.2d 1104 (9th
Cir. 1009), amended by, rehearing denied
by, 1990
Recent Cases: Eagle Servs. Corp. v. H20 Indus. Servs., 2005
Discussion Questions for Class of September 11:
1. To what extent
does copyright law protect ideas? Functionality?
2. How do you separate idea from expression?
3. How do you separate expressive aspects of a
work from functional aspects of that work?
4. When can a business or legal form be
copyrightable, if at all? What about a recipe?
5. What is the blank form rule? Is it a proper reading of Baker v.
6. Is Baker v.
7. What is the idea/expression dichotomy?
Additional
Hon. Jon O. Newman,
New Lyrics for an Old Melody: The Idea/Expression Dichotomy in the Computer
Age, 17 Cardozo Arts & Ent LJ 691 (1999)
Paul I. Kravitz, “Idea/Expression Dichotomy” and “Method of
Operation”: Determining Copyright Protection for Computer Programs, 8
DePaul Bus. L.J. 75 (Fall, 1995)
Alfred C. Yen, A
First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in a
Work’s “Total Concept and Feel”, 38 Emory L.J. 393 (Spring, 1989)
Jay Rubin, Television
Formats: Caught in the Abyss of the Idea/Expression Dichotomy, 16 Fordham Intell. Prop. Media & Ent.
L.J. 661 (Winter, 2006)
Amy B. Cohen, Copyright
Law and the Myth of Objectivity: The Idea-Expression Dichotomy and the
Inevitability of Artistic Value Judgments, 66
Leslie A. Kurtz, Speaking
to the Ghost: Idea and Expression in Copyright, 47 U.
Edward Samuels, The
Idea-Expression Dichotomy in Copyright Law, 56
Edward C. Wilde, Replacing
the Idea/Expression Metaphor with a Market-Based Analysis in Copyright
Infringement Actions, 16
Class of September 13:
Copyrightable Subject Matter IV: Facts
ON CALL:
Clements, DeCleene
BIG
PICTURE FOCUS OF THIS CLASS: How do courts
distinguish ideas from expression in factual works?
·
Casebook pp. 111-131 (up to 2)
Discussion Questions for Class of September 13:
1. To what extent are facts copyrightable under the current copyright
law? Should facts be copyrightable? Why or why not?
2. How is
"compilation" defined in the 1976 Copyright Act? Please think
of three examples of compilations that you own.
3. What is
required for a compilation to be copyrightable? If a compilation includes
unusual facts, will that make it copyrightable?
4. What should
be required, in your opinion, for a compilation to be
copyrightable?
Additional
Robert C. Denicola,
Copyright in Collections of Facts: A Theory for the Protection of Nonfiction
Literary Works, 81 Colum. L. Rev. 516 (1981)
Jane C. Ginsburg, Creation
and Commercial Value: Copyright Protection for Works of Information, 90
Colum. L. Rev. 1865 (1990)
Robert A. Gorman, Fact or
Fancy? The Implications for Copyright, 29 J. Copyright Soc'y 590 (1982)
Ralph D. Clifford, Random Numbers, Chaos Theory, and Cogitation: A Search for the Minimal
Creativity Standard in Copyright Law, 82 Denv.
U.L. Rev. 259 (2004)
WEEK FIVE
Class of September 18:
Copyrightable Subject Matter V: Compilations
ON CALL: Diaz, Drabik
BIG
PICTURE FOCUS OF THIS CLASS: If
copyright protection is excluded for facts and ideas, to what extent is a
compilation of facts or ideas copyrightable?
Should the law be changed to give greater protection to databases?
·
REQUIRED
·
RECOMMENDED: So far no legislation to protect databases has been enacted. For a fairly recent attempt, take a look at
Database and Collections of Information Misappropriation Act (H.R. 3261 in
108th Congress). You can access it on Thomas at: http://thomas.loc.gov/ [type
in bill number]. Also, take a look at another bill introduced in the
108th Congress, The Consumer Access to Information Act of 2004, H.R 3272 (also
available on Thomas). No new database protections legislation has been
introduced into the 109th Congress.
Also, see Collections of Information Antipiracy Act, H.R. 354, 106th Cong. (1999) (to provide
protection for certain collections of information) (placed on Union Calendar,
Calendar No. 212); Collections of Information Antipiracy
Act, Sen. 2291, 105th Cong. (1998) (to prevent the misappropriation of
collections of information) (died in Subcommittee); Collections of Information Antipiracy Act, H.R. 2652, 105th Cong. (1997) (to provide
protection for certain collections of information) (died in Senate Judiciary
Committee after passing the House); Database Investment and Intellectual
Property Antipiracy Act of 1996, H.R. 3531, 104th
Cong. (1996) (to promote investment and prevent intellectual piracy with
respect to databases) (died in Committee).
A draft
database treaty was submitted to the WIPO diplomatic conference in 1996. It can be downloaded from http://www.bitlaw.com/source/treaties/database.html It was circulated for discussion, but was
never debated.
Citation Note: CCC Information Services v. Maclean Hunter
Market Reports, Inc., (p. 140), cert.
denied, 516
Recent Cases on merger doctrine: Naghi v. Europe’s Finest, Inc. v. Charles Shaw, 114
Fed. Appx. 606 (5th Cir. 2004); Eagle Servs. Corp. v. H20 Industrial Services, Inc., 2006
Discussion
Questions for Class of September 18:
1. To what extent
are works of history copyrightable?
2. To what
extent are maps copyrightable?
3. What is the merger doctrine? How does it
relate to the idea/expression dichotomy?
4. To what
extent does the European Union protect compilations of information? How
does this differ from current
4. Should
Additional
Paula Baron, Back to the Future:
Learning from the Past in the Database Debate, 62
Paul Bender, The
Constitutionality of Proposed Federal Database Protection Legislation, 28
Jane C. Ginsburg, Copyright,
Common Law, and Sui Generis Protection of Databases in the
Dov S. Greenbaum, Commentary:
The Database Debate: In Support of an Inequitable Solution, , 13 Alb. L.J. Sci. & Tech. 431 (2003)
Stan Karas,
Privacy, Identity, Databases, 52 Am. U.L.Rev.
393 (Dec. 2002)
Jacqueline Lipton, Balancing
Private Rights and Public Policies: Reconceptionalizing
Property in Databases, 18
Arthur Miller, Copyright
Protection for Computer Programs, Databases, and Computer-Generated Works: Is
Anything New Since CONTU?, 106 Harv. L. Rev. 977
(Mar. 1993)
Malla Pollack, The Right to Know? Delimiting Database Protection at
the Juncture of the Commerce Clause, the Intellectual Property Clause, and the
First Amendment?, 17 Cardozo Arts & Ent. L.
J. 47 (1999)
Sharon K. Sandeen,
A Contract by Any Other Name is Still a
Contract: Examining the Effectiveness of Trade Secret Clauses to Protect
Databases, 25 IDEA 119 (2005)
Estelle Derclaye,
An Economic Analysis of the Contractual
Protection of Databases, 2005 U.
YiJun Tian, Reform of Existing Database Legislation and
Future Database Legislation Strategies: Towards a Better Balance in the
Database Law, 31
Sarah Duran, “A Species of Mutant Copyright Law”: An
Argument Against Using the Commerce Clause to Protect Databases, 8 Tul. J. Tech. & Intell. Prop.
87 (Spring, 2006)
Ray K. Harris and Susan Stone
Rosenfield, Symposium:
Human Genetic Sampling, Ethical, Legal, and Social Considerations: Copyright
Protection for Genetic Databases, 45 Jurimetrics J. 225 (Winter, 2005)
Class of
September 20: Copyrightable Subject Matter VI: Derivative
Works
ON CALL:
Durand, Guyton
BIG
PICTURE FOCUS OF THIS CLASS: When will a
derivative work be copyrightable? What
level of originality is required?
·
REQUIRED
Citation Note: Batlin
v. Snyder (p. 164), cert. denied, 429
Recent
Case: Glades Pharmaceuticals, LLC. V. Murphy, 2005
Discussion
Questions for Class of September 20:
1. What is a
"derivative work"?
2. Is the copyright requirement of originality different for a derivative work than for a work not based on another work? Is more sweat required? More creativity?
Additional
Steven S. Boyd, Deriving Originality in Derivative Works:
Considering the Quantum of Originality Needed to Attain Copyright Protection in
a Derivative Work, 40
Paul Goldstein, Derivative
Rights and Derivative Works in Copyright, 30 J. Copyright Soc'y
209 (1982)
Jason L. Cohn, Note, The King James Copyright: A Look at
the Originality of Derivative Translations of the King James Version of the
Bible, 12 J. Intell. Prop. L. 513 (Spring, 2005)
WEEK SIX
Class of
September 25: Copyrightable Subject Matter VII: Pictorial,
Graphic, and Sculptural Works
ON CALL:
BIG
PICTURE FOCUS OF THIS CLASS: When is a
pictorial, graphic, or sculptural work excluded from copyright protection on
the grounds of lack of originality or functionality?
·
REQUIRED
Citation Note: Pivot Point Int’l., Inc. v. Charlene Prods., Inc., 372 F.3d 913 (7th
Cir. 2004), rehearing en banc denied, 2004
Discussion
Questions for Class of September 25:
1. To what
extent does a work's utility affect its copyrightability?
2. To what extent is a photograph copyrightable?
How does the idea/expression dichotomy apply?
3. What is a
design patent? How does it differ from a copyright?
4. Has
Congress enacted design protection legislation?
5. What is a
"useful article" under the current Copyright Act?
6. What is
"conceptual separability"? How do the
courts determine conceptual separability? Is there
one definitive test?
7. Should there be greater protection for
fashion design?
Additional
Shira Perlmutter, Conceptual Separability and Copyright in the Designs of Useful
Articles, 37 J. Copyright Soc'y 339 (1990)
Raymond M.
Polakovic, Should
the Bauhaus Be in the Copyright Doghouse? Rethinking Conceptual Separability, 64 U.
John B. Fowles, The Utility
of a Bright-Line Rule in Copyright Law: Freeing Judges from Aesthetic
Controversy and Conceptual Separability in
Jacob
Bishop, Note: Stealing Beauty:
Michael S.
Oberman and Trebor Lloyd, Copyright Protection for Photographs in the
Age of New Technologies, 2 B.U. J. Sci. &
Tech. L. 10 (1996)
Photographer’s Rights: Case for Sufficient
Originality Test in Copyright, 30 J.
Christine Haight Farley, The Lingering Effects of Copyright’s Response to the Invention of Photography, 65 U. Pitt. L. Rev. 385 (Spring, 2004)
Additional
Lillian Abbott Pfohl,
Serif Wars: An Argument for the Protection of Typeface Design, (2001)
Terrence J. Carroll, Comment, Protection
for Typeface Designs: A Copyright Proposal, 10
Phillip W. Snyder, Typeface Design After
the Desktop Revolution: A New Case for Legal Protection, 16 Colum.-VLA J.L.
& Arts 97 (1991)
Typeright: http://www.typeright.org/
(lobbying group of typeface designers - lots of great links and advocacy for copyrightability of typeface)
comp.fonts page at: http://nwalsh.com/comp.fonts/ (not updated)
Class of
September 27: Copyrightable Subject Matter VIII:
Architectural Works
ON
CALL: Maron, Pagano
BIG
PICTURE FOCUS OF THIS CLASS: When is a
building or architectural plan copyrightable?
·
REQUIRED
Citation Note: Yankee Candle Co. v. New England
Candle Co. (p. 253), vacated on settlement, 29 F. Supp. 2d 44
(1998).
Recent
Cases: KB Home
v. Antares Homes, Ltd., 2005
Discussion Questions for Class of
September 27
1. Are buildings copyrightable under the current Copyright Act
even though they are useful articles?
2. Are architectural plans copyrightable under the current
Copyright Act? If so, to what extent?
3. How was copyright protection expanded for architectural works
in 1990?
4. What is an "architectural work"?
5. Are computer programs copyrightable? Should they be
copyrightable? Why or why not?
6. Should computer-authored works be copyrightable?
Additional
Melissa M. Mathis, Note:
Function, Nonfunction, and Monumental Works of
Architecture: An Interpretive Lens in Copyright Law, 22 Cardozo L. Rev. 595
(2001)
Raleigh W. Newsam, Architecture and Copyright - Separating the
Poetic from the Prosaic, 71 Tul. L. Rev. 1073
(1997)
Andrew Inesi,
Images of Public Places: Extending the Copyright
Exemption for Pictorial Representations of Architectural Works to Other
Copyrighted Works, 13 J. Intell. Prop. L. 61
(Fall, 2005)
Antoinette Vacca, Comment: The
Architectural Works Copyright Protection Act: Much
Adam T. Mow (Architect), Comment & Note: Building with Style:
Testing the Boundaries of the Architectural Works Copyright Protection Act, 2004
John B. Fowles, The Utility
of a Bright-Line Rule in Copyright Law: Freeing Judges from Aesthetic
Controversy and Conceptual Separability in
WEEK SEVEN
Class of
October 2: Copyrightable Subject Matter IX: Characters and Sound
Recordings
ON CALL:
Lee, B, Lee, H.
BIG
PICTURE FOCUS FOR THIS CLASS: When is a
character copyrightable separately from a literary, pictorial or other work in
which it appears? When is a sound recording copyrightable and what is the
difference between a sound recording and a musical work?
A. Characters:
·
REQUIRED
Citation Note: Nichols v. Universal Pictures Co.
(p. 259), cert. denied, 282
Recent
Cases: Baco v. TTMV Corp., 2006
B. Sound Recordings:
·
REQUIRED
Citation
Note:
Discussion
Questions for Class of October 2
1. To what
extent are characters copyrightable independent of the story? To what
extent should they be copyrightable?
2. What tests
do the courts apply to determine the copyrightability
of characters?
3. Does it
make any difference to their copyrightability if
characters are depicted pictorially or graphically?
4. What is a sound recording? What is the difference between a sound
recording and a phonorecord? Between a sound
recording and a musical work?
5. How is the scope of protection for a sound
recording narrower than for other categories of copyrightable works under s.
102?
6. Who are the authors of a sound recording?
Additional
Mark
Bartholomew, Protecting the Performers: Setting a New Standard for Character
Copyrightability, 41
Leslie A.
Kurtz, The Independent Legal Lives of Fictional Characters, 1986 Wis. L.
Rev. 429
Keith Poliakoff, License to Copyright: The Ongoing Dispute
Over the Ownership of James Bond, 18 Cardozo Arts & Ent.
L.J. 387 (2000)
Gregory S.
Schienke, Comment,
The Spawn of Learned Hand – A Reexamination of Copyright Protection and
Fictional Characters: How Distinctly Delineated Must the Story Be Told?, 9 Marq. Intell. Prop. L. Rev. 63 (2005)
Leslie A. Kurz, Digital Actors
and Copyright – From the Polar Express to Simone, 21 Santa Clara Computer
& High Tech L.J. 783 (May, 2005)
Dennis S. Karjala, The Investiture
of Professor Dennis S. Karjala as the Jack E. Brown
Professor of Law: Harry Potter, Tanya Grotter, and
the Copyright Derivative Work, 38 Ariz. St. L.J. 17 (Spring, 2006) See also Professor
Edmund W. Kitch’s Comment on this article at 38 Ariz. St. L.J. 41 (Spring, 2006)
Andrew E. Jakowich, Property
and Democracy in Virtual Worlds, 11 B.U.J. Sci.
& Tech. L. 173 (Summer, 2005)
Additional
Michael W.
Carroll, The Struggle for Music
Copyright, 57
John P. Strohm, Comment:
Writings in the Margin (of Error): The Authorship Status of Sound Recordings
Under United States Copyright Law, 34 Cumb. L.
Rev. 127 (2003/2004)
Scott
Franklin, Note & Comment: What is So
B-A-D about D-A-B? How High Definition
Radio Affects the Producers of Sound Recordings, 25 Loy.
Travis
R.A. Kuda, Comment:
Authorship of Sound Recordings: Why Sound Recordings Should Have Joint
Authorship, 33 Sw. U. L. Rev. 379 (2004)
Class of
October 4: Copyrightable Subject Matter X: Government Works and Public
Policy Issues
ON CALL:
Marion, Langlois
BIG
PICTURE FOCUS FOR THIS CLASS: To what extent are the
works of federal and state governments, model codes, and immoral or obscene
works excluded from copyright protection?
·
REQUIRED
Citation Note: Veeck
v. Southern Building Code Cong. Int'l, Inc (p. 280)., 293 F.3d 791 (5th Cir. en banc. 2002), cert.
denied, 2003 U.S. LEXIS 5186 (2003); Mitchell Bros. Film Group v. Cinema
Adult Theater (p. 295), cert. denied, 445 U.S. 917, 100 S.Ct. 1277, 63 L.Ed. 2d 6 01
(1980). Various Amicus Briefs of Law
Professors in Veeck v. SBCCI are
available at: http://jurist.law.pitt.edu/amicus/
(scroll down to find links to these amicus briefs)
Recent Cases: Int’l Code Council, Inc. and Building
Officials and Code Adminstrators Int’l, Inc., v.
Nat’l Fire Protection Ass’n, Inc., 2006 U.S.
Dist. LEXIS 13783 (N.D. Ill. Mar. 27, 2006) (also relevant on merger doctrine); Practice Management Information Corp. v. American
Medical Ass'n
(p. 251), cert. denied, 522
U.S. 933, 118 S.Ct. 339, 139 L.Ed.
2d 263 (1997), opinion amended,
133 F.3d 1140 (9th Cir. 1998), cert.
denied, 118 S.Ct. 2367 (1998), reh'g denied, 119 S.Ct.
285, 142 L.Ed. 2d 235 (1998);
Discussion
Questions for Class of October 4
1. To what
extent are federal government works copyrightable?
2. To what
extent are state government works copyrightable?
3. To what
extent are private legislative codes copyrightable?
4. Can
obscenity of a work amount to an affirmative defense to copyright infringement?
To what extent does a work's obscenity affect its copyrightability?
Additional
Reading on Copyrightability of Government Works and
Public Policy Issues
Malla Pollack, Intellectual Property Protection for the
Creative Chef, or How to Copyright a Cake: A Modest Proposal, 12 Cardozo L.
Rev. 1477 (1991)
Nick
Martini, Annual Review of Law and Technology:
Veeck v. Southern Building Code Congress
International, Inc., 18
Dennis S. Karjala, Distinguishing
Patent and Copyright Subject Matter, 35
Shubha Ghosh, Copyright as Privatization: The Case of Model Codes, 78 Tul. L. Rev. 653 (Feb. 2004)
Michael Ariens, The Ethics of
Copyrighting Ethics Rules, 36 U. Tol. L. Rev. 235
(Winter, 2005)
WEEK EIGHT
UNIT III: OWNERSHIP OF COPYRIGHT
October 9: No
Class: Columbus Day
Class of
October 10: Ownership I
ON CALL:
Patel, Siddiqui
BIG
PICTURE FOCUS FOR THIS CLASS: What is an author who can own a protectable copyright right; must authors be human beings?
A. Concepts of
Authorship
·
REQUIRED
B. Work Made for
Hire
·
REQUIRED
Citation Note: Estate
of Burne Hogarth v. Edgar Rice Burroughs, Inc., 342
F.3d 149 (2d Cir. 2003), cert. denied, 541
U.S. 937 (2004), sanctions allowed, 2004
U.S. Dist. LEXIS 22312 (S.D.N.Y. Nov. 3, 2004), sanctions vacated, 2005 U.S. Dist. LEXIS 13436 (S.D.N.Y. July 7,
2005); Martha Graham Sch. & Dance Found., Inc.
v. Martha Graham Center of Contemporary Dance (p. 318), 380 F.3d 624 (2d Cir. 2004), cert. denied, 161
L.Ed. 2d 1110 (2005), on remand at, findings of
fact/conclusions of law at 2005 U.S. Dist. LEXIS 12241 (S.D.N.Y. June 23,
2005); Pavlica v. Behr, (p. 323), 397 F. Supp.2d 519
(S.D.N.Y. 2005), reconsideration denied
by, reargument denied by, 2005 U.S. Dist. LEXIS
29877 (S.D.N.Y. Nov. 23, 2005), motion
granted in part, denied in part, 2006 U.S. Dist. LEXIS 38710 (S.D.N.Y. June
9, 2006); Playboy Enters., Inc. v. Dumas ( p. 329), cert.
denied, 516 U.S. 1010, 116 S.Ct. 567, 133 L.Ed. 2d 491 (1995), opinion of district court on remand,
960 F. Supp. 710, aff'd, 159 F.3d 1347 (2d
Cir. 1998); Armento v. Laser Image, Inc.
(p. 329), aff'd, 134 F.3d 362 (4th Cir. 1998);
Martha Graham Sch. & Dance Found., Inc. v.
Martha Graham Center of Contemporary Dance (p. 318), 380 F.3d 624 (2d Cir. 2004), cert. denied, 161
L.Ed. 2d 1110 (2005), on remand at, findings of
fact/conclusions of law at 2005
Recent Cases: Gilpin v. Siebert, 419 F.
Supp.2d 1288 (D.
Discussion
Questions for Class of October 10:
1. Is authorship based on
conception, execution, or something else?
2. What is a work made for hire?
Is it constitutional to protect works made for hire?
3. What are the two kinds of works
made for hire in the current copyright statute? What is the test for
each?
4. What is the "teacher
exception"?
Additional
Rochelle
Cooper Dreyfuss, The
Creative Employee and The Copyright Act of 1976, 54 U. Chi. L. Rev. 590
(1987)
Jonathan Hudis, Software "Made for Hire": Make
Sure Its Really Yours, 40 J. Copyright Soc'y 8
(1996)
Russ VerSteeg, Defining
"Author" for the Purposes of Copyright, 45 Am. U. L. Rev. 1323
(1996)
Kathleen Abitabile & Jeanette Picerno,
Dance and the Choreographer's Dilemma: A Legal and Cultural Perspective on
Copyright Protection for Choreographic Works, 27
Travis
R.A. Kuda, Comment:
Authorship of Sound Recordings: Why Sound Recordings Should Have Joint
Authorship, 33 Sw. U. L. Rev. 379 (2004)
Charles
Coker, Note & Comment: The Dissonance
of Work for Hire in Commissioned Sound Recordings: Boulez v. Commissioner
Revisited, 25 Loy. L. A. Ent. L. Rev. 435 (2005)
Seventh Annual Entertainment Law Initiative
Essay Competition: “It’s Mine! No, It’s Mine! No, It’s Mine!”
Works-Made-For-Hire, Section 203 of the Copyright Act, and Sound Recordings, 7 Vand.
J. Ent. L. & Pract. 381
(Summer, 2005)
Michael P.
Matesky, II, Whose
Song is it Anyway? When are Sound Recordings Used in Audiovisual Works Subject
to Termination Rights and When are they Works Made for Hire?, 5 Va. Sports
& Ent. L.J. 63 (Fall, 2005)
Sharon
Connelly, Authorship, Ownership, and
Control: Balancing the Economic and Artistic Issues Raised by the Martha Graham
Copyright Case, 15 Fordham Intell. Prop. Media
& Ent. L.J. 837 (Spring, 2005)
Nancy S.
Kim, Martha Graham, Professor Miller and
the “Work for Hire” Doctrine: Undoing the Judicial Bind Created by the Legislature,
13 J. Intell. Prop. L. 337 (Spring, 2006)
Anne W. Braveman, Note &
Comment: Duet of Discord: Martha Graham and Her Non-Profit Battle Over Work for
hire, 25 Loy.
Bethany M.
Forcucci, Casenote: Dancing
Around the Issues of Choreography & Copyright: Protecting Choreographers
After
Woodrow
Barfield, Intellectual Property Rights in
Virtual Environments: Considering the Rights of Owners, Programmers, and
Virtual Avatars, 29
Daniel J. Wakin, Pilobolus Suffers
Bitter Breach Over Rights to Choreography, New
York Times (July 24, 2006) at: http://www.nytimes.com/2006/07/24/arts/dance/24pilo.html?ei=5090&en=7299fea5d23b8022&ex=1311393600&partner=rssuserland&emc=rss&pagewanted=all
Class of
October 11: Ownership II -
Joint Works
ON CALL: Tadvalkar, Taylor
BIG
PICTURE FOCUS FOR THIS CLASS: How is authorship determined where more than one
person contributes to a work?
·
REQUIRED
Citation Note: Gaiman
v. McFarlane (p. 340), 360
F.3d 644, reh'g denied, 2004
Recent
Cases: Brown v. Flowers, 2006
Discussion Questions for Material for
Class of October 11
1. What is a joint work?
2. What rights does each co-author
have in a joint work?
3. How do courts determine whether a
work is a joint work?
Additional
Mary
LaFrance, Authorship, Dominance, and the
Captive Collaborator: Preserving the Rights of Joint Authors, 50 Emory L.J.
193 (2001)
Teresa
Huang, Note and Brief: Gaiman v. McFarlane: The
Right Step in Determining Joint Authorship for Copyrighted Material, 20
Keith Poliakoff, License to Copyright: The Ongoing Dispute
Over the Ownership of James Bond, 18 Cardozo Arts & Ent.
L.J. 387 (2000)
Please
also see articles on joint authorship of sound recordings listed under Class of
October 10 and William Patry blog
posting for August 2 2006 at: http://williampatry.blogspot.com/
Harry L.
Self III, Settlement of Infringement
Claims by Copyright Co-Owners, 13
WEEK NINE
Class of
October 16: Ownership III
- Transfer of Copyright Ownership
ON CALL: Yakubisin,
Benoit
BIG PICTURE FOCUS FOR THIS CLASS: How can a copyright
owner grant some or all of their rights to others? What formalities are required for an
effective transfer?
·
REQUIRED
·
RECOMMENDED: Students who have a particular interest in learning
more about copyright transactions should read the material on scope of grant at
Casebook pp. 356-375 (up to s. 201).
None of this material will be on the final examination.
Citation Note: Olan Mills, Inc. v. Eckerd
Drug of Texas, Inc. ( p. 343), available on Westlaw: 1989 WL 90605 (N.D.
Tex. 1989); Zuill v. Shanahan (p. 343),
cert. denied, 519 U.S. 1090, 117 S.Ct. 763,
136 L.Ed.2d 710 (1997); Faulkner v. Nat’l
Geographic Enterprises (p. 384), 209
F.3d 26 (2d Cir. 2005), cert. denied, 2005
U.S. Dist. LEXIS 9270 (Dec. 12, 2005); Greenberg
v. Nat’l Geographic Society (p. 384),
244 F.3d 1247 (11th Cir. 2001), cert. denied, 534 U.S. 951 (2001).
Recent
Cases: R. Miller Architecture, Inc. v. Edgington Enterprises, Inc., 2006 U.S. Dist. LEXIS 54635
(M.D. Fla. Aug. 2, 2006; NASCAR v. Scharle, 2006 U.S. App. LEXIS 15254 (3d Cir. Feb. 2,
2006); Williams v. UMG Recordings, Inc., 2006
U.S. App. LEXIS 12358 (9th Cir. 2006); Field v. Google, 412 F. Supp.2d 1106 (D. Nev. 2006); Pavlica v. Behr, 397 F. Supp.2d 519 (S.D.N.Y.
2005), reconsideration denied, 2005
U.S. Dist. LEXIS 29877 (S.D.N.Y. 2005)
Discussion Questions for Class of October
16
1. What is a "transfer of
copyright ownership" under the current Copyright Act?
2. What is a license? A non-exclusive
license? An exclusive license?
3. What is an assignment?
4. Is a transfer of copyright
ownership that is not in writing valid?
5. What is recordation?
6.
What was at issue in Tasini? Was it a pyrrhic victory for the freelancers?
Additional
Chrstopher Norgaard
and Sandra J. Garcia, The Ninth Circuit's Decisions in Foad
v. Musil Govan Azzalino and Gardner v. Nike, Inc.: The Creation,
Interpretation and Assignment of Copyright Licenses under State and Federal Law, 33 Sw.
U. L. Rev. 347 (2004)
Michael S.
Bogner, The Problem with Handshakes: An Evaluation
of Oral Agreements in the
Gabe
Bloch, Note and Brief: Transformation in
Publishing: Modeling the Effect of New Media, 20
Joel Hecker, Copyright in
the Digital Age: Reflections on Tasini and Beyond:
Contracting and the Rights of Photographers, 53 Case W. Res. 659 (Spring,
2003)
Steve
Davis, Contract Options for Individual
Artists: A Coffeehouse Debate: Artists’ Contracts in the Evolving Internet Era,
29 Colum. J. L. & Arts 323 (2006)
Lateef Mtima, Tasini and Its Progeny: The New Exclusive Right or Fair Use on the Electronic
Publishing Frontier?, 14 Fordham Intell. Prop.
Media & Ent. L.J. 369 (Winter, 2004)
Jennifer
M. Hoekstra, Faulkner v. National
Geographic Enterprises, Inc.: Conflict over Defining Revisions, 8 Tul. J. Tech. & Intell. Prop.
247 (Spring, 2006)
UNIT IV: DURATION OF COPYRIGHT
Class
October 18: Duration and Renewal
ON CALL:
Bennett, Pagano
BIG
PICTURE FOCUS FOR THIS CLASS: How long do copyright rights last? How long is it constitutional for these to
last? How did duration of copyright change from the 1909 Act to the 1976 Act?
·
REQUIRED
·
RECOMMENDED: Take a look at the Copyright Office Orphan
Works Report at: http://www.copyright.gov/orphan/
and proposed legislation, H.R. 5439, Orphan Works Act of 2006, available at: http://www.copyright.gov/legislation/
and on Thomas (search by bill number) and William Patry
blog posting for May 23 2006 at: http://williampatry.blogspot.com/2006/05/orphan-works.html
and June 13 2006 at http://williampatry.blogspot.com/2006/06/copyrights-wake.html
Citation Note: P.C. Films v. Turner
Entertainment Co. (p. 420), cert. denied, 119 S.Ct.
542, 142 L.Ed. 2d 450 (1998); Saroyan v. William
Saroyan Found. (p. 420), aff'd without
opinion, 864 F.2d 304 (2d Cir. 1988); Epoch Producing Corp. v. Killiam Shows (p. 422), cert. denied, 424
Recent
Cases: Dimensional Music Publishing, LLC v. Kersey,
2006
Discussion Questions for Class of October 18:
1. What is the term of copyright under current law
for a published work created by a single author on or after January 1, 1978?
For a joint author? For an unpublished work created on or after January 1,
1978? For a work made for hire created on or after January 1, 1978?
2. What is the term of copyright for a published work
created before 1978? For an unpublished work?
3. What is the public domain? How do works
enter the public domain? Can works ever be recaptured, for copyright
purposes, from the public domain? If so, when?
4. How long is it constitutional for a copyright to
last? Is the Sonny Bono Term Extension Act of 1998 constitutional?
Why or why not?
5. Was Eldred v. Ashcroft correctly decided?
Why or why not?6. Should the Public Domain Enhancement Act be enacted?
Why or why not?
6. What is the renewal term? What works have
renewal terms? How long is the renewal term? For what works is there
automatic renewal?
7. What is the "orphan works" problem and
how does it relate to duration? To what extent should legislation be
enacted to remedy this problem?
8. What is restoration of copyrights? Under the
analyses in Luck's Music and Golan, what, if any, difference
would it make if Congress restored copyrights in US works as opposed to foreign
works from Berne and WTO countries?
Additional
Kenneth D.
Crews, Copyright Duration and the Progressive Degeneration of a Constutional Doctrine, 55
William Patry, The Failure of
the American Copyright System: Protecting the Idle Rich, 72 Notre Dame L.
Rev. 907 (1997)
Christina Bohannan, Reclaiming
Copyright, 23 Cardozo Arts & Ent LJ 567
(2006)
WEEK TEN
Class of
October 23: Renewals and Derivative Works,
Termination of Transfers
ON CALL:
Clements, Patel
BIG
PICTURE FOCUS FOR THIS CLASS: The
tension between assignments of copyright and renewal rights and protection for
the authors and their families
A. Renewals and Derivative Works
·
REQUIRED
Citation Note: Russell v. Price
( p. 444), cert. denied, 446 U.S. 952, 100 S.Ct.
2919, 64 L.Ed.2d 809 (1980); Shoptalk, Ltd. v. Concorde-New Horizons Corp.
( p. 446), cert. denied, 119 S.Ct. 2399, 144 L.Ed. 2d 798 (1999); Batjac
Prods. v. GoodTimes Home Video Corp. (Casebook p.
446), cert. denied, 119 S.Ct. 2046, 144 L.Ed. 214 (1999)
B. Termination of Transfers
·
REQUIRED
Recent Cases: Steinbeck v.
McIntosh, 2006
Discussion
Questions for Class of October 23:
1. If the author, A, of a copyrighted work conveys to
another, B, during the initial term of the copyright the exclusive right to create
a derivative work, what happens to the derivative rights after the term of
copyright is renewed? Can A grant to C the right to produce a new
derivative work during the renewal term? Can B make a new derivative work
based on A's work? Can B continue to exploit the derivative work that he
or she already made using A's woprk? What
happens to the derivative rights if copyright in A's work is not renewed?
2. Does publication of a motion picture based on an
unpublished screenplay publish the underlying screenplay (i.e. effect a divestive publication of the underlying work)? Why or
why not?
3. What is termination of a transfer? In what
situations did Congress provide for a transfer? Who benefits from these
termination provisions in the current Copyright Act?
4. Who can terminate a grant of copyright rights?
When can a grant be terminated? How is a grant terminated? What is the
effect of termination?
5. What differences exist between the termination
provisions in section 203 of the current Copyright Act and section 304 of the
current Copyright Act?
Additional
Geoffrey
P. Hull, Termination Rights and the Real Songwriters, 7 Vand. J. Ent. L & Prac. 301 (Spring, 2005)
Seth M.
Goldstein, Note: Hitchcock’s “Rear
Window” & International Copyright Law: An Examination of Stewart v. Abend & Its Affect on international Copyright Renewal
and Exploitation, 14 Cardozo J. Int’l & Comp. L. 247 (Spring, 2006)
Ashok
Chandra, Note: Crisis of Indefinite
Consequence: How the Derivative Works Exception and the Lanham Act Undercut the
Remunerative Value of Termination of Transfers, 16 Fordham Intell. Prop. Media & Ent.
L.J. 241 (Fall, 2005)
Geoffrey
P. Hull, Termination Rights and the Real
Songwriters, 7 Vand. J. Ent.
L. & Prac. 301 (Spring, 2005)
Michael P.
Matesky, II, Whose
Song is it Anyway? When are Sound Recordings used in Audiovisual Works Subject
to Termination Rights and When are They Works Made for Hire?, 5
John Molinaro, Notes &
Comments: Who Owns Captain
UNIT V: FORMALITIES
Class of
October 25 Formalities I: Publication and
Notice
ON CALL: DeCleene
BIG
PICTURE FOCUS FOR THIS CLASS: The lesser importance of
the formalities of publication and notice over the history of copyright law,
but the practical advantages remaining to authors of copyright notice
A. Formalities pre-1976 Act
·
REQUIRED
Citation
Note: Uproar
Co. v. National Broadcasting Co. (p. 468), cert. denied, 298
Recent
Cases: Open Source Yoga Unity v. Choudhury, 2005
B. Publication
and Notice under 1976 Act
·
REQUIRED
Discussion
Questions for Class of October 25
1.
What formalities are required to obtain copyright protection?
2.
How were the formalities requirements changed when the 1976 Act was enacted?
What about when the 1976 Act was amended after the
3.
Should there be any required formalities for copyright protection? Why or
why not?
Additional
W. Russell Taber, Copyright Déjà vu: A New Definition of
“Publication” Under the Copyright Act of 1909, 58 Vand.
L. Rev. 857 (April, 2005)
Michael B. Landau, “Publication,” Musical Compositions and the
Copyright Act of 1909: Still Crazy After All these Years, 2 Vand. J. Ent. L. & Prac. 29 (Winter, 2000)
Walter A. Effross,
Owning Enlightenment: Proprietary Spritiuality in the “New Age” Marketplace, 51
Kenneth D. Hurwitz, Note, Omission of Coyright
Notice Under Section 405(a): What Kind of Oxymoron Makes a Deliberate Error?, 60
N.Y.U.L. Rev. 956 (Nov. 1985)
Douglas A. Hedenkamp, Free
Mickey Mouse: Copyright Notice, Derivative Works, and the Copyright Act of
1909, 2
Christopher Sprigman, Reform(aliz)ing Copyright, 57 Stan.
L. Rev. 485 (Nov. 2004)
WEEK ELEVEN
Class of October 30: Formalities II: Deposit and Registration
ON CALL: Diaz, King, Maron
BIG PICTURE FOCUS OF THIS CLASS: The
practical advantages of registering copyright, the two separate deposit
requirements
·
REQUIRED
·
REQUIRED EXERCISE: Please go to
the Copyright Office website at: http://www.copyright.gov/ ,
click on "How to Register a Work", print out
Recent Cases: Torres
Negro v. Rivera, 433 F. Supp.2d 204 (D. P.R. 2006); Shady Records, Inc. v. Source Enterprises, Inc., 2004
Discussion
Questions for Class of October 30
1.
What is the deposit requirement? Did the
1976 Act change it?
2.
Is registration required for copyright protection under the 1976 Act? Should it be?
3. How do you register a copyright? How much
does it cost to do this?
Additional
Douglas
Y’Barbo, On Section 411 of the Copyright Code and
Determining the Proper Scope of a Copyright Registration, 34 San Diego L.
Rev. 343 (Winter, 1997)
Steven
J. Metzlitz, Copyright Registration After Feist: New Rules and New Roles?, 17
Elise
M. Stubbe, Copyright Registration Practice for the
Non-Copyright Attorney, 52 LA Bar Jnl. 448
(April/May, 2005)
UNIT VI: RIGHTS OF THE COPYRIGHT OWNER
Class of November 1: Right of Reproduction
ON CALL: Drabik, Taylor
BIG PICTURE FOCUS OF THIS CLASS: The bundle of exclusive rights
owned by the copyright owner, the scope of the right of reproduction, and how
courts determine infringement of the right of reproduction
·
REQUIRED
Recent Cases: Flaherty v. Filardi et al., 388 F. Supp.2d 274 (S.D.N.Y. 2005); Hayes v. Ja Rule, 2005
Discussion Questions for Class of November 1
1. Other than the right of
reproduction, what are the other exclusive rights of the copyright owner in s.
106 of the Copyright Act?
2. What is a copy? What is
a phonorecord? Why does it matter?
3. What must the plaintiff prove to
prove infringement of the right of reproduction?
4. To what extent can the
plaintiff rely on expert evidence to prove his case of infringement of the
right of reproduction?
5. What is striking
similarity?
6. Can someone be liable for
copyright infringement even where copying is unintentional? Should a
defendant be liable for unintentional or unconscious copying?
7. What is the difference between
proving copying and proving infringement?
Additional
Swatee L. Mehta, Tiffany Design, Inc. v. Reno-Tahoe Speciality, Inc., 15
Sarah
Brashears-Macatee, Total Concept and Feel or
Dissection? Approaches to the
Misappropriation Test of Substantial Similarity, 69 Chi.-Kent. L. Rev. 913
(1993)
Jarrod
M. Mohler, Comment: Toward a Better Understanding
of Substantial Similarity in Copyright Infringement Cases, 68 U. Cin. L. Rev. 971 (Spring, 2000)
William A. Hall, Kohus v. Mariol: The Sixth Circuit Adopts Two-Step Test for
Substantial Similarity in Copyright Infringement, 34 U. Mem.
L. Rev. 995 (Summer, 2004)
Jeannette Rene Busek, Comment: Copyright
Infringement: A Proposal for a New Standard for Substantial Similarity Based on
the Degree of Possible Expressive Variation, 45 UCLA L. Rev. 1777 (Aug.
1998)
Robert C. Osterberg and Eric C. Osterberg, Substantial Similarity in Copyright Law (PLI
2003), reviewed at 22 Ent. & Sports Law 14
(Spring, 2004)
WEEK TWELVE
Class of November 6: Infringing Copying, Infringement
of Computer Programs, Substantial Similarity
ON CALL: Durand, Tadvalkar
BIG PICTURE FOCUS OF THIS CLASS: How courts determine substantial similarity
in the context of infringement of the right of reproduction for computer
programs and other types of copyrightable works
·
Read carefully Casebook pp. 559-588
·
Skim Casebook pp. 181 (starting at
E)-206 (cases on protectability
of computer programs under copyright law)
Citation Note: Apple Computer, Inc. v. Microsoft
Corp. (p. 558 of Casebook), aff'd 35
F.3d 1435 (9th Cir. 1994), cert. denied, 513
Discussion Questions for Class of
November 6
1. How do the
assigned cases determine substantial similarity in cases of non-literal
copying? If different tests are applied, what is the best test?
2. How do courts
determine infringement of copyright in computer programs? To what extent
is or should computer programs be treated differently than other copyrighted
works in this regard?
3. EXERCISE
Would you find copyright infringement of the Adler Santa statuette in
Photograph A on p. 494 by the World Bazaars statute? Why or why not?
Additional
Kenneth W. Dam, Some
Economic Considerations in the Intellectual Property Protection of Software, 24
J. Legal Studies 321 (1995)
Marci A. Hamilton & Ted Sabety, Computer Science Concepts in Copyright Cases:
The Path to a Coherent Law, 10 Harv. J. L. &
Tech. 239 (1997)
Dennis S. Karjala,
A Coherent Theory for the Copyright Protection of Computer Software and
Recent Judicial Interpretations, 66 U. Cin. L.
Rev. 53 (1997)
Jeffrey D. Coulter, Computers, Copyright and Substantial Similarity:
The Test Reconsidered, 14 J.
Milton R. Wessel, Whelan v. Jaslow: An Appraisal: Substantial Similarity, 2 J.L.
& Tech. 35 (Winter, 1997)
Donald F. McGahn II, Copyright
Infringement of Protected Computer Software: An Analytical Method to Determine
Substantial Similarity, 21
Tsu-Man Peter Tu, Computer Software Copyright Infringement –
Three-Step Test for Substantial Similarity, Involving Abstraction, Filtration,
and Comparison, Should Be Applied in Determining Whether Computer Software
Copyright has Been Infringed, 25 Seton Hall L. Rev. 412 (1994)
John H. Butler, Case Note, Pragmatism in Software Copyright:
Computer Associates v. Altai, 6 Harv. J. Law
& Tec 183 (Fall, 1992)
William F. Patry, Can Our Current Conception of Copyright
Law Survive the Internet Age? Copyright and Computer Programs: A Failed
Experiment and A Solution to a Dilemma, 46 N.Y.L. Sch.
L. Rev. 201 (2002/2003)
Glynn S. Lunney, Lotus v. Borland:
Copyright and Computer Programs, 70 Tul. L. Rev.
2397 (June, 1996)
Jon S. Wilkins, Note: Protecting Computer Programs as Compilations
Under Computer Associates v. Altai, 104 Yale L. J. 435 (1994)
Class of November 8: More on the Right of
Reproduction: Compulsory Licenses as a Limit on the Right of
Reproduction, Infringement of the Right of Reproduction in Sound Recording
ON CALL: Guyton, Siddiqui
BIG PICTURE FOCUS OF THIS
CLASS: The compulsory license (mechanical license) limit on the right of
reproduction for musical works, how the reproduction right in a sound recording
is infringed
·
REQUIRED
Citation Note:
Discussion
Questions for Class of November 8
1. What is a phonorecord? How does it differ from a copy?
2. What is a
compulsory license?
3. What is a
mechanical license (see s. 115 of the Copyright Act)? When is it
available? What must a person wishing to obtain a compulsory
license do to obtain one? How is the compulsory license royalty rate
determined?
4. What is the
Harry Fox Agency? What do they do?
5. To what
extent does the s. 115 compulsory license apply to on-demand digital audio
streams?
6. What is the
scope of the reproduction right of the copyright owner for a sound recording?
7. Do private
copies of sound recordings violate the Copyright Act?
8. What is the
"technological fix" provided by the Audio Home Recording Act of 1992?
9. What does
s. 1201(k) of the DMCA provide for digital audiovisual works?
10. When does
sampling constitute copyright infringement?
Additional Reading Materials on Mechanical and
Other Compulsory Licenses, Infringement of the Right of Reproduction in Sound
Recordings, Especially in the Context of Sampling,
Harry Fox Agency website at: http://www.harryfox.com/index.jsp
David Kostiner, Comment: Will Mechanicals
Break the Digital Machine?: Determining a Fair Mechanical Royalty Rate for
Permanent Digital Phonorecord Downloads, 21
Michael Botein and Edward Samuels, Compulsory
Licenses in Peer-to-Peer File Sharing: A Workable Solution?, 30
Amy Ai Dac Lam, Comment: Internet Music
Downloads: A Copyright Owner’s Protection of Royalties in the United States and
Abroad, 34 Sw. U. L. Rev. 267 (2004)
Mario F. Gonzalez, Are Musical Compositions Subject to Compulsory
Licensing for Ringtones?, 12 UCLA Ent. L. Rev. 11 (Fall, 2004)
Carlos Ruiz de la Torre, Towards the Digital Music Distribution Age:
Business Model Adjustments and Legislative Proposals to Improve Legal
Downloading Services and Counter Piracy, 3 Vand.
J. Ent. & Tech. L. 503 (Summer, 2006)
Carmen Kate Yuen, Scuffling for a Slice of the Ringtone
Pie: Evaluating Legal and Business Approaches to Copyright Clearance Issues, 3
Vand. J. Ent. & Tech.
L. 541 (Summer, 2006)
Marcy Rauer Wagman
and Rachel Ellen Kopp, The Digital Revolution is Being Downloaded: Why and
How the Copyright Act Must Change to Accommodate An Ever-Evolving Music
Industry, 13 Vill. Sports & Ent. L.J. 271 (2006)
Note:
Jazz Has Got Copyright Law and That Ain’t Good, 118 Harv. L. Rev. 1940 (Apr. 2005)
Olufunmilayo B. Arewa, From J.C. Bach to Hip Hop:
Musical Borrowing, Copyright and Cultural Context, 84 N.C.L. Rev. 547 (Jan.
2006)
Matthew R. Brodin, Bridgeport Music v.
Dimension Films: The Death of the Substantial Similarity Test in Digital
Sampling Copyright Infringement Cases: The Sixth Circuit’s Flawed Attempt at a
Bright-Line Rule, 6 Minn. J.L. Sci. & Tech.
825 (2005)
M. Leah Somoano, Note: Bridgeport Music,
Inc. v. Dimension Films: Has Unlicensed Digital Samplinig
of Copyrighted Sound Recordings Come to an End?, 21
John Schietinger, Note and Comment,
Bridgeport Music, Inc. v. Dimension Films: How the Sixth Circuit Missed a Beat
on Digital Music, 55 DePaul L. Rev. 209 (Fall, 2005) Ryan C. Grelecki, Can
Law and Economics Bring the Funk . . . or Efficiency? A Law and Economics
Analysis of Digital Sampling,
Melissa Hahn, Note: Digital Music Sampling and Copyright Policy – a
Bittersweet Symphony? Asssessing the Continued Legality of Music Sampling in the
United Kingdom, the Netherlands, and the United States, 34 Ga. J. Int’l
& Comp. L. 713 (Spring, 2006)
Fredrich N. Lim, Grey
Tuesday Lead to Blue Monday? Digital Sampling of Sound Recordings After the
Grey Album, 2004 U.
Jennifer R. R. Mueller, Note: All Mixed Up:
Jeremy Scott Sykes, Note: Copyright –The De Minimis
Defense in Copyright Infringement Actions Involving Music Sampling, 36 U. Mem. L. Rev. 749 (Spring, 2006)
Jeremy Beck, Music Composition, Sound Recordings and Digital
Sampling in the 21st Century: A Legislative and Legal Framework to
Balance Competing Interests, 13 UCLA Ent. L. Rev.
1 (2005)
Carlos Ruiz de la Torre, Digital Music Sampling and Copyright Law:
Can The Interests of Copyright Owners and Sampling Artists Be Reconciled?, 7
Vand. J. Ent. L. & Prac. 401 (Summer, 2005)
Steven D. Kim, Taking De Minimis Out of
the Mix: The Sixth Circuit Threatens to Pull the Plug on Digital Sampling in
WEEK THIRTEEN
Class of
November 13: Infringing Derivative Works, Moral Rights
ON CALL: Hamilton, Lee, B.
BIG PICTURE FOCUS FOR THIS CLASS:
Scope of the right of adaption, scope of moral
rights
A. Derivative Works
·
REQUIRED
·
RECOMMENDED: see also William Patry
copyright blog posting July 2006 at: http://williampatry.blogspot.com/2006/07/as-dirty-as-we-wanna-be.html
and Freedom to Tinker blog posting on case at: http://www.freedom-to-tinker.com/?p=1039
As a result of this ruling, Clean Flicks is going out of business. See their website at: http://www.cleanflicks.com/sale.php and Wikipedia on
Clean Flicks at: http://en.wikipedia.org/wiki/CleanFlicks
Citation
Note: Lewis
Galoob Toys, Inc. v. Nintendo of Am., Inc. [CB p.
615], cert. denied, 507 U.S. 985 (1993); Mirage Editions, Inc. v.
Albuquerque A.R.T. Co. [CB p. 613], cert. denied, 489
B.
Moral Rights
·
REQUIRED
Citation Note: Carter v. Helmsley-Spear,
Inc. [CB p. 629], cert. denied, 517 U.S. 1208 (1996); English v.
CFC&R East 11th Street LLC [CB p. 634], also reported in Westlaw at
1997 WL 746444, aff'd, 198 F.3d 233 (2d
Cir. 1999); Phillips v. Pembroke Real
Estate, inc., 288 F. Supp.2d 89 (D. Mass. 2003), certified question answered by 443 Mass. 110 (2004); Williams v. UMG, 281 F. Supp.2d 1177 (C.D.Cal. 2003) [p. 641], subsequent appeal at 2005 U.S. App. LXIS 12358 (9th Cir.
May 12, 2006); Keane v. Fox, 297 F.
Supp.2d 921 [p. 642] affirmed, 129
Fed. Appx. 874 (5th Cir. 2005), cert. denied, 126 S.Ct.
426 (2005)
Recent
Cases: Berrios Nogueras v. Home
Depot, 330 F.Sup.2d 48 (D.P.R. 2004); Scott
v.
Discussion
Questions for Class of November 13
1. How is
infringement of the derivative works right determined? To what extent does
it differ from infringement of the right of reproduction?
2. To what
extent does a work need to be original to constitute an infringing derivative
work?
3. To what
extent were moral rights already recognized in
4. To what
extent was the 1976 Copyright Act amended after accession to
5. What types
of copyrightable works do these moral rights apply to?
6. Can the
moral rights in the
7. Does
Derivative Works
Dennis S. Karjala, The Investiture of Professor Dennis S. Karjala
as the Jack E. Brown Professor of Law: Harry Potter, Tanya Grotter,
and the Copyright Derivative Work, 38 Ariz. St. L.J. 17 (Spring, 2006)
Michael
K. Erickson, Comment: Emphasizing the Copy in Copyright: Why Noncopying Alterations Do Not Prepare Infringing Derivative
Works, 2005 B.Y.U.L. Rev. 1261 (2005)
Kelly
M. Slavitt, Fixation of Derivative Works in a
Tangible Medium: Technology Forces a Reexamination, 46 IDEA 37 (2005)
Erin
E. Gallagher, Note: On the Fair Use Fence Between Derivative Works and
Allegedly Infringing Creations: A Proposal for a Middle Ground, 80 Notre
Dame L. Rev. 759 (Jan. 2005)
Aaron
Clark, Not All Edits Are Created Equal: The Edited Movie Industry’s Impact
on Moral Rights and Derivative Works Doctrine, 22 Santa Clara Computer
& High Tech. L.J. 51 (Nov. 2005)
Emilio
B. Nicolas, Why The Ninth Circuit Added Too Much to Subtract Add-on Software
from the Scope of Derivative Works Under 17 U.S.C. § 106(2): A Textual
Argument, 2004
Patrick
W. Ogilvy, Frozen in Time? New Technologies, Fixation, and the Derivative
Work Right, 3 Vand. J. Ent.
& Tech. L. 687 (Summer, 2006)
Rob
Sanders, Note: The Second Circuit Denies Music Publishers the Benefits of
the Derivative Works Exception: Fred Ahlert Music
Corp. v. Warner/Chappell Music, Inc., 29 Sw. U.L.
Rev. 655 (2000)
Mitchell
L. Stoltz, Note: The Penguin Paradox: How The
Scope of Derivative Works in Copyright Affects the Effectiveness of the GNU
GPL, 85 B.U.K. Rev. 1439 (Dec. 2005)
Note: “Recoding” and the
Derivative Works Entitlement: Addressing the First Amendment Challenge, 119 Harv. L. Rev. 1488 (Mar. 2006)
Gregory
C. Lisby, Web Site Framing: Copyright Infringement
through the Creation of an Unauthorized Derivative Work, 6 Comm. L. & Pol’y 541 (Autumn 2001)
Gerald
O. Sweeney, Jr. & John T. Williams, Mortal Kombat:
The Impact of Digital Technology on the Rights of Studios and Actors to Images
and Derivative Works, 3
Tyler
Ochoa, Copyright, Derivative Works and Fixation: Is Galoob
a Mirage, Or Does the Form(Gen) of the Alleged Derivative Work Matter?, 20
Moral
Rights
Patricia
Alexander, Comment: Moral Rights in the VARA Era, 36
Jane
C. Ginsburg, Have Moral Rights Come of (Digital) Age in the United Stats?, 19
Cardozo Arts & Ent. L.J. 11 (2001)
Edward
J. Damich, The Visual Artists Rights Act of 1990:
Toward a Federal System of Moral Rights Protection for Visual Art, 39 Cath. U. L. Rev. 945 (1990)
David
Nimmer, The Moral Imperative Against Academic
Plagiarism (Without a Moral Right Against Reverse Passing Off), 54 DePaul
L. Rev. 1 (Fall, 2004)
RayMing Chang, Revisiting the Visual Artists Rights Act
of 1990: A Follow-up Survey About Awareness and Waiver, 13
Kristina
Mucinskas, Moral Rights and Digital Art:
Revitalizing the Visual Artists’ Rights Act, 2005 U.
Natalia Thurston, Note and Brief: Buyer Beware: The
Unexpected Consequences of the Visual Artists Rights Act, 20
Carrie
Jones, Comment: Site-Specific Art Parks on Moral Ground: Distilling Old
Whine in New Battles over the Visual Artists Rights Act, 9 Comp. L. Rev.
& Tech. J. 355 (Winter, 2005)
Brooke
Davidson, Case Note and Comment: A Thousand Words: Pollara
v.
Graeme
W. Austin, The
Michael
Landau, Dastar v. Twentieth Century Fox:
The Need for Stronger Protection of Attribution Rights in the
Class of November 15: Right of Distribution, First
ON CALL: Lee, H., Yakubisin
A. Right to Distribute under Section
106(3)
·
Casebook pp.
647-657 (to 3)
Citation Note: Playboy Enters., Inc. v. Webbworld, Inc. [CB p. 650], aff'd,
168 F.3d 486 (1999)
B. Right of Public Performance
Casebook pp. 664-669, 673 (starting at
3)-681
Citation Note: Associated Music Pubs., Inc. v.
Debs Mem. Radio Fund, Inc. [CB p. 560], cert.
denied, 323
C. Right of
Public Display,
·
Casebook pp. 681-686
D.Digital Performance Right in Sound Recordings
·
Casebook pp.
686-693
E. Limitations on the Rights of Public
Performance and Display
·
Casebook pp.
693-700, skim 700 (starting at b)-714)
Citation Note: Cablevision Co. v. Motion Picture
Ass'n of Am. [CB p. 706], cert. denied, 487
Discussion
Questions for Class of November 15
1. What is the
First
2. What exceptions,
if any, to the First Sale doctrine, exist in current
3. What is the
meaning of "public" for the public performance and display rights?
4. What are
performing rights societies? What function do they serve?
5. What are
"grand" and "small" rights?
6. What
exceptions exist for the rights of public performance and display?
7. What is droit de
suite? The public lending right? Do these exist in the
Additional
Materials on Rights of Distribution, Public Performance, Public Display
Generally
BMI website at: http://www.bmi.com/
ASCAP website at: http://www.ascap.com/index.html
SESAC website at: http://www.sesac.com/
Sound Exchange
website at: http://www.soundexchange.com/
Proposed WIPO
Broadcasting Treaty (CP Tech) at: http://www.cptech.org/ip/wipo/bt/
EFF Page on WIPO
Broadcasting Treaty at: http://www.eff.org/IP/WIPO/broadcasting_treaty/
WIPO Copyright and
Related Rights page: http://www.wipo.int/copyright/en/
Additional
R. Anthony Reese, The First
John A. Rothchild, The Incredible
Shrinking First-Sale Rule: Are Software Resale Limits Lawful?, 57
Michael N. Lang, Comment:
The Regulation of Shrink-Wrapped Radio: Implications of Copyright on Podcasting, 14 CommLaw
Conspectus 463 (2006)
Benjamin Aitken, Download, Stream, or Somewhere in Between: The
Potential for Legal Music Use in Podcasting, 2006
Duke L. & Tech. Rev. 12 (2006)
Matthew J. Astle, Will Congress Kill the Podcasting
Star?, 19 Harv. J. Law & Tec 161 (Fall, 2005)
Edward L. Carter
& Scott Lunt, Podcasting and Copyright:
The Impact of Regulation on New Communication Technologies, 22
Laura
Jeanne Monique Silvey, Cutting out the “Good”
Parts: The Copyright Controversy over Creating Sanitized Versions of VHS/DVD
Movies, 33 Sw. U. L. Rev. 419 (2004)
Eurie Hayes Smith IV, Digital First
Victor
F. Calaba, Quibbles ‘n Bits: Making a Digital
First
Lothar Determann & Aaron
Xavier Fellmeth, Don’t Judge a
Justin
Graham, Preserving the Aftermarket in Copyrighted Works: Adapting the First
Brian
Mencher, Digital Transmissions: To Boldly Go Where
No First
Additional
Jennifer
M. Schneck, Note: Closing the Book on the Public
Lending Right, 63 N.Y.U. L. Rev. 878 (Oct. 1988)
Council Directive 92/100/EEC of 19 November
1992 on rental right and lending right and on certain rights related to
copyright in the field of intellectual property [European Rental Right
Directive], [1992] OJ L 346/61 as
amended
Additional
William
A. Carleton, Note: Copyright Royalties for Visual Artists: A Display-Based Alternative
to the Droit de Suite, 76 Cornell L. Rev. 510
(Jan. 1991)
Jennifer
B. Pfeffer, Comment: The Costs and
Impracticalities Facing Implementation of the European Union’s Droit de Suite Directive in the United Kingdom, 24 N.W.
J. Int’l L. & Bus. 533 (Winter, 2004)
Michael
B. Reddy, The Droit de Suite: Why American Fine
Artists Should Have the Right to a Resale Royalty, 15 Loy.
Jay B. Johnson, Copyright: Droit de Suite:
An Artists Is Entitled to Royalties Even After He’s Sold His Soul to the Devil,
45 Okla. L. Rev. 493 (Fall, 1992)
Shira Perlmutter, Resale Royalties for Artists: An Analysis of
the Register fo Copyrights’ Report, 16 Colum.-VLA
J. L. & Arts 395 (1993)
European Union Resale Rights Directive, Directive
2001/84/EC at http://ec.europa.eu/internal_market/copyright/documents/documents_en.htm
(scroll down) .
Joanna Cave, An overview of the European Artist's Resale
Right Directive 2001/84/EC and its implementation in the UK via the Artist's
Resale Right Regulations 2005,
Additional
Amanda Scales, Sola, Perduta, Abbandonata: Are the Copyright Act and Performing Rights
Societies Killing Classical Music?, 7 Vand. J. Ent. L. & Prac. 281 (Spring,
2005)
Additional
R. Anthony Reese, Intellectual Property Challenges in the Next
Century: The Public Display Right: The Copyright Act’s Neglected Solution to
the Controversy Over RAM “Copies”, 2001 U. Ill. L. Rev. 83 (2001)
Additional
Jonathan S. Lawson, Note: Eight Million Performances Later,
Still Not a Dime: Why It is Time to Comprehensively Protect Sound Recording
Public Performances, 81 Notre Dame L. Rev. 693 (Jan. 2006)
Kara M. Wolke,
Some Catching Up to Do: How The United
States, in Refusing to Fully Sign on to the WPPT’s
Public Performance Right in Sound Recordings, Fell Behiind
the Protections of Artists’ Rights Recognized Elsewhere in this Increasingly
Global Music Community, 7 Vand. J. Ent. L. & Prac. 411 (Summer,
2005)
Matthew S. DelNero, Long
Overdue? An Exploration of the Status and Merit of a General Public Performance
Right in Sound Recordings, 6 Vand. J. Ent. L. & Prac. 181 (Spring,
2004)
Joseph E. Magri,
The Digital Performance Right and
Streaming Music over the Internet, 6 Vand. J. Ent. L. & Prac. 55 (Fall,
2003)
Tomomi Harkey, Note and
Brief: Bonneville Int’l Corp. v. Peters: Considering Copyright Rules to
Facilitate Licensing for Webcasting, 20
Matthew D. Asbell, Comment and
Recent Development: Progress on the WIPO Broadcasting and Webcasting
Treaty, 24 Cardozo Arts & Ent. LJ 349 (2006)
Jeremy Delibero,
Copyright Arbitration Royalty Panels and
the Webcasting Controversy, 5 Pepp.
Disp. Resol. L.J. 83 (2005)
Additional
Tomas A.
Lipinski, Legal Reform in an Electronic
Age: Analysis and Critique of the Construction and Operation of S. 487, The
TEACH Act of 2001, 2003 BYU Educ. & L. J. 95
(2003)
Brendan T.
Kehoe, Note: The TEACH Act’s Eligibility
Requirements: Good Policy or a Bad Compromise, 71
Kristine H.
Hutchinson, Note: The TEACH Act:
Copyright Law and Online Education, 78 N.Y.U. L. Rev. 2204 (2003)
Gretchen Stoeltje, Comment:
Light in Custody: Documentary Films, The TEACH Act, and the DMCA, 20
Charles Leininger, The
Business Exemption of 110(5) of the Copyright Act Violates International Treaty
Obligations under TRIPS: Will Congress Honor Its Commitments?, 25 J. NAALJ
622 (Fall, 2005)
Alain J. Lapter, The WTO’s Dispute Resolution Mechanism: Does the
Thomas F.
Cotter, Accommodating the Unauthorized Use
of Copyrighted Works for Religious Purposes Under the Fair Use Doctrine and
Copyright Act 110(3), 22 Cardozo Arts & Ent
LJ 43 (2004)
WEEK FOURTEEN
Class of November 20: The Digital Millennium
Copyright Act
Langlois, Marion
BIG PICTURE FOCUS OF THIS CLASS:
What new protections were introduced by the DMCA for technological measures and
copyright management information? Why are these so controversial?
·
REQUIRED
Citation Note: Lexmark v. Static
Control Components, 387 F.3d 522 (6th Cir. 2004) (p. 958), rehearing en banc denied, 2005
Recent Cases: Coxcom, Inc. v. Chaffee Int’l, 2006
Discussion Questions for Class of
November 20:
1. What threats, if any, do new digital
technologies pose to copyright owners of audiovisual and other works?
2. What new rights do copyright owners
of digital works have under the DMCA?
3. What exceptions exist for these
rights?
4. Is the DMCA necessary? Is it
constitutional?
Additional Reading Materials on the DMCA
and Technological Protection Measures
Michael J. Madison, Rights of Access and the Shape of the
Internet, 44 B.C.L. Rev. 433 (Mar. 2003)
Cathy Nowlen, Edelman v. N2H2: Copyright Infringement? Reverse Engineering of
Filtering Software Under the Digital Millennium Copyright Act, 10 J. Intell. Prop. L. 409 (Spring, 2003)
Peter Eckersley, Virtual Markets for Virtual Goods: The Mirror Image of Digital
Copyright, 18 HArv. J. Law & Tec 85 (Fall,
2004)
Jane C. Ginsburg, Legal
Protection of Technological Measures Protecting Works of Authorship:
International Obligations and the
June M. Besak, Anti-Circumvention Laws and Copyright: A Report from the
Marcus Howell, Note: The
Misapplication of the DMCA to the Aftermarket, 11 B.U. J. Sci. & Tech. L. 128 (Winter, 2005)
Diane M. Barker, Notes:
Defining the Contours of the Digital Millennium Copyright Act: The Growing Body
of Case Law Surrounding the DMCA, 20
David Brett Kinitsky,
Comment and Recent Development: Software
Copyright Law and the DMCA Under the Microscope: Blizzard v. BNetd as the Lens, 24 Cardozo Arts & Ent LJ 367 (2006)
Anupam Chander, Cyberpersons, Propertization, and Contract in the Information Culture:
Exporting DMCA Lockouts, 54 Clev. St. L. Rev. 205
(2006)
Zohar
Efroni, A
Momentary Lapse of Reason: Digital Copyright, the DMCA and a Dose of Common
Sense, 28 Colum. J.L. & Arts 249 (Spring, 2005)
YiJun
Tian, Problems
of Anti-Circumvention Rules in the DMCA & More Heterogenous
Solutions, 15 Fordham Intell. Prop. Media & Ent. L.J. 749 (Spring, 2005)
Gregory Laurence Clinton, Casenote and Comment: Why a DVD Is Like A Garage
Door Opener: The Federal Circuit Tackles the DMCA in Chamberlain, 13 Geo.
Mason L. Rev. 1115 (Fall, 2005)
Jacqueline
D. Lipton, Solving the Digital Piracy
Puzzle: Disaggregating Fair use from the DMCA’s
Anti-Device Provisions, 19 Harv. J. Law & Tec
111 (Fall, 2005)
Zohar Efroni, Towards a Doctrine of “Fair Access” in Copyright: The Federal Circuit[s
Accord, 46 IDEA 99 (2005)
Joshua
Schwartz, Essay: Thinking Outside the
Pandora’s Box: Why the DMCA Is Unconstitutional Under Article I, § 8 of the
U.S. Constitution, 10 J. Tech. L. & Pol’y 93
(June, 2005)
Donna
L. Lee, Reverse Engineering of Computer
Programs Under the DMCA: Recognizing a “Fair Access” Defense, 10 Marq. Intell. Prop. L. Rev. 537
(Summer, 2006)
James
Gibson, Once and Future Copyright, 81
Notre Dame L. Rev. 167 (Nov. 2005)
John
A. Rothchild, Economic
Analysis of Technological Protection Measures, 84 Or. L. Rev. 489 (2005)
Jacqueline
Lipton, The Law of Unintended
Consequences: The Digital Millennium Copyright Act and Interoperability, 62
Woodrow
Neal Hartzog, Falling
on Deaf Ears: Is the “Fail-Safe” Trienniel Exemption
Provision in the Digital Millennium Copyright Act Effective in Protecting Fair
Use?, 12 J. Intell. Prop. L. 309 (Spring, 2005)
EFF
DMCA page at: http://www.eff.org/IP/DRM/DMCA/ (see article on the
Unintended Consequences of the DMCA)
MPAA sites at: http://www.mpaa.org/ _ See especially
Anti-piracy page at http://www.mpaa.org/piracy.asp
November 22: No class - Thanksgiving
WEEK FIFTEEN
Class of November 27: Fair Use
BIG PICTURE FOCUS OF THIS CLASS: Limitations on all the rights of a
copyright owner imposed by the defense of fair use; the relationship between
copyright and the First Amendment
·
REQUIRED
Discussion Questions for Class of
November 27
1. The defense of fair use is an affirmative
defense. What does this mean?
2. How do courts determine when
the fair use defense is applicable?
3. Should the defense of fair use
be changed in any way?
Additional
Michael
J. Madison, A Pattern-Oriented Approach to Fair Use, 45 Wm & Mary L.
Rev, 1525 (Mar. 2004)
Rebecca
Tushnet, Copy this Essay: How Fair Use Doctrine
Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535 (December,
2004)
Preet K. Tummala, Note: The
Seinfeld Aptitude Test: An Analysis Under Substantial Similarity and the Fair
use Defense, 33 U.C. Davis L. Rev. 289 (Fall, 1999)
Michael
J. Meurer, Too Many Markets or Too Few? Copyright
Policy Toward Shared Works, 77
John
C. Knapp, Laugh and the Whole World . . . Scowls at You? A Defense of the
Justin
Hughes, Introduction to David Nimmer’s Modest
Proposal, 24 Cardozo Arts & Ent LJ 1 (2006)
David
Nimmer, A Modest Proposal to Streamline Fair Use
Determinations, 24 Cardozo Arts & Ent L.J. 11
(2006)
Jonathan L. Schwartz, Making the Consumer Watchdog’s Bark as Strong
as Its Gripe: Complaint Sites and the Changing Dynamic of the Fair Use Defense,
16 Alb. L.J. Sci. & Tech. 59 (2006)
Daniel E. Abrams, Personal Video Recorders, Emerging Technology and
the Threat to Antiquate the Fair Use Doctrine, 15 Alb. L.J. Sci. & Tech. 127 (2004)
Nicholas B. Lewis, Comment: Shades of Grey: Can the Copyright Fair
Use Defense Adapt to New Recontextualized Forms of
Music and Art?, 55 Am. U.L. Rev. 267 (2005)
Alison R. Watkins, Note: Surgical Safe Harbors: The Family Movie Act
and the Future of Fair Use Legislation, 21
Llewellyn Joseph Gibbons, Entrepreneurial Copyright Fair Use: Let
the Independent Contractor Stand in the Shoes of the User, 57
Laura R. Bradford, Parody and Perception: Using Cognitive Research
to Expand Fair Use in Copyright, 46 B.C.L. Rev. 705 (2005)
Annie
R. Lin, Note: Who owns the Cow When We Give Away the Milk for Free? Fair Use
and the Protection of Web-Posted Materials, 3 Buff. Intell.
Prop. L.J. 46 (Fall, 2005)
William
F. Patry and Richard A. Posner, Fair Use and
Statutory Reform in the Wake of Eldred, 92
Michael
J. Madison, Rewriting Fair Use and the Future of Copyright Reform, 23
Cardozo Arts & Ent LJ 391 (2005)
Stacey
L. Dogan, Comment: Sony, Fair use, and File
Sharing, 55 Case W. Res. 971 (Summer, 2005)
Wendy
J. Gordon, Fair Use: Threat or Threatened?, 55 Case W. Res. 903 (Summer,
2005)
Elisabeth
Hanratty, Google Library: Beyond Fair Use?, 2005
Duke L. & Tech. Rev. 10 (2005).
Jisuk Woo, Redefining
the “Transformative Use” of Copyrighted Works: Towards a Fair Use Standard in
the Digital Environment, 27
Jonathan M. Fox, The Fair Use Commercial Parody Defense and How to
Improve It, 46 IDEA 619 (2006)
Holger Postel and Jean-Luc Piotraut, The Fair Use Doctrine in the U.S. American
Copyright Act and Similar Regulations in the German Law, 5 Chi.-Kent J. Intell. Prop. 142 (Spring, 2006)
Ashley Kerns, Modified to Fit Your Screen: DVD Playback technology:
Copyright Infringement or Fair use?, 24 Loy.
Matthew Sag, God in the Machine: A New Structural Analysis of
Copyright’s Fair use Doctrine, 11
Davida H. Isaacs, The
Highest Form of Flattery? Application of the Fair Use Defense against Copyright
Claims for Unauthorized Appropriation of Litigation Documents, 71 Mo. L.
Rev. 391 (Spring, 2006)
Evans C. Anyuanwu, Note and Comment: Let’s
Keep It On the Download: Why the Educational use Factor of the Fair Use
Exception Should Shield Rap Music from Infringement Claims, 30 Rutgers
Computer & Tech. L.J. 179 (2004)
Jonathan
Kerry-Tyerman, No Analog Analogue: Searchable
Digital Archives and Amazon’s Unprecedented Search Inside the Book Program as
Fair use, 2006 Stan. Tech. L. Rev 1 (2006)
Gregory M. Duhl, Old Lyrics, Knock-Off
Videos, and Copycat Comic Books: The Fourth Fair Use Factor in
Stephen E. Blythe, The
John Tehranian, Et Tu,
Fair Use? The Triumph of Natural-Law Copyright, 38 U.C. Davis L. Rev. 465
(Feb. 2005)
Aaron Power, The Mouse That Roared: Addressing the Post-Modern Quandary of Mash-ups
through Traditional Fair use Analysis, 3 Vand. J.
Ent. & Tech. L. 531 (Summer, 2006)
Katherine M. Lieb, Note: Can the
Television and Movie Industries Avoid the Copyright Battles of the Recording
Industry? Fair use and Visual Works on the
Internet, 17
Class of November 29: Secondary Infringement, the Problem of P2P (Napster, Grokster, etc…), and the Future of Copyright
BIG PICTURE FOCUS OF THIS
CLASS: The scope of secondary liability;
how courts have recently attempted to balance the social benefit and threats of
new technologies in recent cases; the future of copyright law
·
REQUIRED
·
RECOMMENDED :
Skim CB 883-907
Discussion
Questions for Class of November 29
1.
What are the two types of secondary liability recognized by copyright law and
what is required for such liability?
2.
Have the courts been successful in balancing the social benefit and threats of
the new generation of P2P technology? If not, how could they do a better job
within the confines of the copyright law?
3.
Should copyright law change as a result of new technologies or to encourage the
development of new technologies?
Additional
Lawrence Lessig,
A Rotten Ruling, Wired (September 2005)
at: http://www.wired.com/wired/archive/13.09/posts.html?pg=7
(on Supreme Court’s Grokster decision)
Jessica Litman,
Sharing and Stealing, 27
Peter K. Yu, P2P and the Future of Private Copying, 76
U.
Alexander Peukert,
A Bipolar Copyright System for the
Digital Network Environment, 28
David L. Wardle, Broken Record: Revisiting the Flaws in
Sony’s Fair Use Analysis in Light of the Grokster
Decision, 26 Loy.
Matthew Sag, Piracy: Twelve Year-Olds, Grandmothers, and Other
Good Targets for the Recording Industry’s File Sharing Litigation, 4 Nw. J. Tech. & Intell. Prop.
133 (Spring, 2006)
Galen
Hancock, Intellectual Property Note:
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.:
Inducing Infringement and Secondary Copyright Liability, 21
Andrew J.
Lee, MGM Studios, Inc. v. Grokster, Ltd. & In re Aimster
Litigation: A Study of Secondary Copyright Liability in the Peer-to-Peer
Context, 2005
Craig A.
Grossman, From Sony to Grokster: The Failure of the Copyright Doctrines of
Contributory Infringement and Vicarious Liability to Resolve the War Between
Content and Destructive Technologies, 53
Kelly M.
Maxwell, Note: Software Doesn’t Infringe:
Users do? A Critical Look at MGM v. Grokster and the
Recommendation of Appropriate P2P Copyright Infringement Standards, 13 CommLaw Conspectus 335 (2005)
Michael Suppappola, The End of the World as we Know It? The
State of Decentralized Peer-to-Peer Technologies in the Wake of
Metro-Goldwyn-Mayer Studios v. Grokster, 4
John Lobato, Recent Development: The Supreme Court of the United States 2004 Term:
Paying for the Sins of Their Users: Liability and Growing Uncertainty in a
Digital Age, 29 Harv. J. L. & Pub. Pol’y 357 (Fall, 2005)
Bryan H. Choi,
The Grokster
Dead-End, 19 Harv. J. Law & Tec 393 (Spring,
2006)
Heather S. Hall, Chalk Talk: The Day the Music Died: The
Supreme Court’s Reversal of MGM Studios, Inc. v. Grokster
and Its Impact on Secondary Liability for Copyright Infringement, 35 J.L.
& Educ. 387 (July 2006)
Diane Leenheer
Zimmerman, Daddy, Are We There Yet? Lost
in Grokster-Land, 9 N.Y.U. J. Legis.
& Pub. Pol’y 75 (2005/2006)
Jay Dratler,
Common-Sense (Federal) Common Law Adrift
in a Statutory Sea, Or Why Grokster Was a Unanimous
Decision, 22 Santa Clara Computer & High Tech. L.J. 413 (Mar. 2006)
Graeme Austin, Importing Kazaa –
Exporting Grokster, 22 Santa Clara Computer &
High Tech. L.J. 577 (Mar. 2006)
Seth Robert Belzley, Grokster and
Efficiency in Music, 10
Raymond Shih Ray Ku, Grokking Grokster, 2005
Wis. L. Rev. 1217 (2005)
Malla Pollack, Rebalancing Section 512 to Protect Users from herds of Mice – Trampling
Elephants, Or a Little Due Process is
not such a dangerous thing, 22 Santa Clara Computer & High Tech. L.J.
547 (Mar. 2006)
Jennifer M. Urban & Laura
Quilter, Efficient Process or “Chilling
Effects”? Takedown Notices Under Section 512 of the Digital Millennium
Copyright Act, 22
Lawrence F. Rozsnyai, Easy Come,
Easy Go: Copyright Infringement and the DMCA’s Notice
and Takedown Provision in Light of Rossi v. MPAA, 2 Shidler
J. L. Com. & Tech. 15 (Spring, 2006)
Sven Eric Skillrud,
Comment: An Umbrella or a Canopy? Why the
17 U.S.C. Section 512(a) Safe Harbor Should be Read Broadly, 9 Marq. Intell. Prop. L. Rev. 91
(2005)
Todd E. Reese, Comment: Wading Through the Muddy Waters: The
Courts’ Misapplication of Section 512(c) of the Digital Millennium Copyright
Act, 34 Sw. U.L. Rev. 287 (2004)
Jeffrey M. Levinsohn,
Comment: Protecting Copyright at the
Expense of Internet Anonymity: The Constitutionality of Forced Identity
Disclosure under 512(h) of the Digital Millennium Copyright Act, 23 Temp. Envtl. L. & Tech. J. 243 (Fall, 2004)
© 2006 Susanna
Fischer. All Rights Reserved. Last Revised Thursday, April 27, 2006 06:25:49 PM