Copyright

Wheaton v. Peter

No common law property right to published works; no common law during settlement in English common law & authors are treated the same as inventors

Copyright Theories

utilitarian or consequential, not one based on natural rights but still important to the development of the body of law 

Trademark Cases

Connect the writing of the IP Clause to originality concept

Burrow-Giles

Included photographs as a protectable form

Bleistein v. Donaldson

Protection should not be reserved for works deemed to have a particular important or quality

Alfred Bell v. Catalda

Original means that it owes its origin to the author NOT a large measure of novelty 

Feist v. Rural Telephone Service

Facts & ideas are NOT copyrightable — original expression is but only require modicum of creativity

What is creativity NOT?

An obvious mechanical process of ordering, an older expression into new formal constraints, things dictated by the external environment

Is a AI prompt copyrightable?

NO — distance between expression and idea does not exist

Test for complex AI prompts?

If result reflects original intellectual conception; see Burrow-Giles

Why aren’t ideas copyrightable?

Want to freely circulate, not judge’s job to differentiate between good and bad

Nichols v. Universal

Scenes a faire; plot was too different for infringement to apply despite some similarities 

Satava v. Lowry

Glass jellyfish — not protected as any combination of unprotectable elements does not automatically qualify for protection 

Baker v. Selden

Exclusion of facts, ideas, functions, and processes — idea-expression distinction but also the uncopyrightability of functional processes

Merger Doctrine

Where there is a virtually complete overlap between original expression and unprotectable facts, ideas, or methods → Courts must choose and the freedom of facts, ideas, functions, and methods wins

Bikram Yoga

Because copyright protection is limited to the expression of ideas, and does not extend to the ideas themselves, the sequence is not a proper subject of copyright protection

Compilation copyrightability

Must meet Section 102 requirements and represent an original work of authorship and does not apply to idea, procedure, etc

Merger Doctrine Expression

If there is only one feasible way of expressing an idea, the expression is NOT protected

Scenes a Faire

Stock or standard literary devices are not considered protectable, even if they are expressive

Lexmark v. Static Control

Plaintiff may establish a claim of copyright infringement by showing (1) ownership of a valid copyright in the computer program and (2) that the defendant copied protectable elements of the work

Computer Program Merger Doctrine

“if the patentable process is embodied inextricably in the line-by-line instructions of the computer program, [] then the process merges with the expression and precludes copyright protection.”

Computer Program Scènes à faire

elements of a program dictated by practical realities — e.g., by hardware standards and mechanical specifications, software standards and compatibility requirements, computer manufacturer design standards, target industry practices, and standard computer programming practices — may not obtain protection

Is the law copyrightable?

NO -- see Georgia v. PublicResource.org

Georgia v. PublicResource.Org

Georgia’s annotations authored by an arm of the legislature in the course of its duties and government edicts doctrine APPLIES — Not copyrightable

American Society for Testing & Materials v. PublicResource.org

Externally developed standards that are incorporated into law by reference are NOT copyrightable 

Words, titles, and short phrases

NOT copyrightable; Haikus are the limit

Taxonomies

Not copyrightable generally — but see American Dental Assoc (MS: Wrong)

17 U.S. Code § 106

Exclusive rights to reproduce under a valid copyright

Arnstein Test

Owner must show (1) work was actually copied via causal connection (Copying-in-fact) & (2) work is too similar to be permissible (Wrongful copying)

Arnstein Second-Prong Test

Whether ordinary/lay consumer would regard the works as basically the same unless they set out to really pick apart the differences

Establishing Copying in Fact

Actual copying can be deliberate, unintended, OR subconscious

Wrongful Copying

Assuming that a sufficient causal connection is established, look to substantial similarity

Rentmeester v. Nike

Ninth Circuit extrinsic/intrinsic test — determining whether works are substantially similar involves a two-part analysis of the “extrinsic test” and the “intrinsic test”

Extraordinary Ordinary Observer

District court judge may grant def’s motion for summary judgment on basis of no wrongful copying ONLY if no reasonable jury would conclude ordinary observer would think that the works were sufficiently alike to warrant infringement finding

“Total Concept & Feel”

One test form of infringement for determining substantial similarity

Abstraction, Filtration, and Comparison Test

For computer programs; break down into structural parts and then sort out creative expression then compare to the structure of the allegedly infringing program

Public Performance Right for Sound Recordings

No general protection but more limited right for public performance by a “digital audio transmission”

Section 114(b)

Limits scope of the reproduction right in sound recordings to the reproduction of “the actual sounds fixed in the sound recording.” — Sound alike intended to mimic will not infringe

Section 115

Compulsory license which allows any performer to record a new version of a musical work, provided that the song has already been commercially recorded

Williams v. Gaye

Vocal qualities, instrumentation, and syncopated cowbell and similarities are aspects of performance and not part of the underlying musical work

Music protection

The underlying composition is protected not the sheet music itself — Registered document does not indicate fuller, protected work

Harrison

Primary contribution is the idea of subconscious copying

Skidmore v. Zeppelin

A specific chromatic scale or arpeggio cannot be copyrighted by any particular composer

Sid & Marty Kroffy v. McDonald’s

Removed requirement of finding of copying in fact — only require access + substantial similarity with the extrinsic/intrinsic test — REVERSED

De Minimis Copying

Solid Oak Sketches v. 2K Games; infringer must demonstrate copying of the protected material is so trivial as to fall below the quantitative threshold of substantial similarity

Quantitative Component of De Minimis Analysis

(i) “the amount of the copyrighted work that is copied,” (ii) “the observability of the copied work — the length of time the copied work is observable in the allegedly infringing work,” and (iii) factors such as “focus, lighting, camera angles, and prominence.”

17 USC 106 (2)

Exclusive right in making/preparing derivative works

Lee v. Art

Not an art reproduction, bonded to ceramic but not changed and therefore not a transformation — requires permission

Derivative & Reproduction

These rights often go hand in hand and rarely are implicated without the other

Limiting Principles of Derivative Work

Necessitates recasting a qualitatively and quantitatively significant amount of the primary work’s original expression into a new form or a new version — same similarity threshold for reproduction infringement

Warner Bros v. RDR Books

A work is not derivative simply because it is “based upon” the preexisting work — does NOT simply recast the pre-existing material in another medium

Castle Rock v. Carol Publishing

Sought to repackage Seingeld in a way to entertain Seinfeld viewers

Penguin Random House v. Colting

Shortened children’s versions of classic novels — the question of fair use is whether the work produces new insights and understandings

17 U.S. Code § 103(a)

The subject matter of copyright as specified by section 102 includes compilations and derivative works, ...

... but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

17 U.S. Code §103(b)

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

Keelin gv. Hars

If the creator of an unauthorized work stays within the bounds of fair use and adds originality, she may claim protection under 17 USC 103 for those contributions

Fair Use by Courts

Quoting a large part of the work for criticism, illustration, comment, or clarification, parody of a work, and copying part of the work in the course of teaching

Section 107

Limitations on Exclusive Rights: Fair Use

Campbell v. Acuff-Rose

“Transformative" use” framework — both in content and purpose but what constitute enough to be a change

Campbell Factors

1. Whether new work merely supersedes the objects of the original creation or instead adds something new… altering the first with new expression meaning

2. Necessary context of the other three factors

3. Quantity and value of the materials and are reasonable in relation to the purpose of the copying

4. It requires courts to consider not only the extent of market harm caused by the particular actions of the infringer — market harm

Mattel v. Walking Mountain

Barbie in blender — You can change the meaning by putting the original work in a different context; can be 100% of the work

Wind Done Gone

Author could have copied a lot less but it was a parody/criticism and therefore needed to copy substantial amounts to comment on the work — must just be consistently transformative

Blanch v., Koons

Fair use — whether it merely supersedes the objects of the original creation rather than something new w/ a purpose or different character

Cariou v. Prince

Prince’s artworks manifest an entirely different aesthetic from the photographs — seems like a generally low bar

Kienitz v. Sconnie Nation

Transformative use = fair use and not much of the original work was left

Dr. Seuss v. Penguin

The Cat not in the Hat was satire rather than parody, did NOT need to use the original work to comment on what it was commenting on

Dr. Seuss v. ComicMix

Oh the Places You’ll Boldly go — Lacks Campbell signs of transformative use & same market 

Google v. Oracle

Fair Use because enables new creativity, copying necessary here to avoid wasting time, evidence that shared interfaces were necessary, reuse of APIs common in the industry

Andy Warhol Foundation v. Lynn Goldsmith

Degree of transformation must go beyond what is required to qualify as a derivative — purple of image is substantially the same; refocuses attention on whether the use is a purpose distinct from the original or it simply superseded its objects

Fair Use Factors

Purpose & Character of the Use (Transformative & Commercial), Nature of the original work, Portion used, and Effect of the use on the market

Sony Corp v. Universal

Courts apply Sony more broadly than just VCR/VHS — stands for broad proposition that noncommercial consumer time-shifting of broadcast television is fair use
allows people to do something they were allowed to do, just more conveniently

RIAA v. Diamond

MP3 players space-shift, fair use

Fox v. Dish

Ad-skipping DVR fair use bc Fox did NOT demonstrate likelihood of harm and harm resulting from skipped commercial did NOT implicate copyright interest

American Geophysical Union v. Texaco

Majority found that publishers had created a “workable market for institutional users to obtain licenses for the right to produce their own copies of individual articles via photocopying”

A&M Records v. Napster

Napster users infringe on reproduction right and distribution right — personal file-sharing commercial is a wrong interpretation by the court — commerical/noncommercial is NOT the primary thrust of the case analysis 

Authors Guild v. HathiTrust

“Clearly preferred” use — providing prints to print-disabled individuals is not transformative but a valid purpose

Basic Books v. Kinko’s

Court rejected fair use of student course materials copies by commercial copy shop

Princeton University Press v. Michigan Document Services

A commercial copy shop was not entitled to a fair use defense when ti produced substantial portions of copyright academic

Cambridge Univ. Press v. Albert

Fair use is not a checklist — Courts look at licensing markets carefully but won’t allow publishers to “sell right rights to criticize their works” 

General Non-expressive Use as Fair Use

Always consider FU factors in light of the likelihood to substitute for the original work

Non-Expressive Use

Courts have held that the technical acts of copying which do not communicate an author’s original expression to a new audience are fair use

Non-expressive Fair Use Factors

Apply the factors in light of the likelihood to substitute for the original work

Non-expressive uses

Acts of copying that do not communicate an author’s original expression to a new audience

Reverse engineering

Non-expressive use; copying software to extract uncopyrightable facts and interoperability keys

Non-expressive Use Unique Trait

Mostly does not result in a human being ever reading or seeing the thing that was actually copied

Sega v. Accolade

Disassemble a copyrighted computer program to gain an understanding of the unprotected functional elements — such disassembly is fair use when no other means of access and legitimate reason

Vanderhye v. iParadigms

The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price — Transformative does not fall on whether the use perfectly achieves the intended purpose

Low-Resolution Thumbnail Images

Kelly & Perfect10; displaying these as a part of a menu of search results is transformative

Authors Guild v. HachiTrust

Fourth factor requires us to assess the impact of the use on the traditional market for the copyrighted work

Authors Guild v. Google

Non-expressive use to drive the search engine meta data with more traditional transformative use on top

LLM and AI as Non-Expressive

Purpose of AI output is not the same as the input — Argue market displacement OR not transformative 

17 USC 102

Subject Matter of Copyright

Subject Matter of Copyright:

Literary works, musical works, dramatic works, pantomimes & choreographic, PGS, motion pictures & AV, sound recordings, and architectural works

Changing Subject Matter

Literary works has flexibility to allow notions to expand and adjust over time

Words & Shortphrases

NOT allowed under 202.1(a) & originality requirement

Fixation

Must be fixed in a material form — “tangible medium of expression…” & “by or under the authority of the author” and it must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration”

Originality

Feist modicum of creativity standard

Garcia v. Google

Five-second acting performance used in inflammatory Islamophobic video; Acting was never fixed — public’s conception of what the work is will almost always determine the boundaries of the work

Casa Duse v. Merkin

Contributor to a creative work have interest in her contributions alone? — No, collective work copyright contributions but ONLY when contributions constitute “separate and independent works” and no joint authorship

Quantum Theory of Copyright

Things we understand as copyrighted works are merely the largest recognizable manifestation of the work and that all such “grand works” are simply collections of an almost infinite number of smaller copyrighted works limited by the Feist standard