Copyright Law

I. COPYRIGHT BASICS

1. What Copyright Is (17 U.S.C. § 102)

  • Definition: A form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression.

  • Protected Works:

    • Literary works

    • Musical works (including lyrics)

    • Dramatic works (including music)

    • Pantomimes and choreographic works

    • Pictorial, graphic, and sculptural works

    • Motion pictures and other audiovisual works

    • Sound recordings

    • Architectural works

2. What Copyright Is NOT

  • Unprotected Elements:

    • Ideas, procedures, methods, systems (17 U.S.C. § 102(b))

    • Facts, concepts, discoveries

    • Titles, names, short phrases (covered under trademark law if at all)

    • Government works (17 U.S.C. § 105)

Case: Baker v. Selden (1879): A book about an accounting system is protected, but not the system itself.

3. What is Expression?

  • Expression: The specific way an author presents ideas.

  • Includes choice of words, structure, sequencing, and creative presentation.

4. Differentiating Expression from Ideas

  • Idea-Expression Dichotomy: Ideas are free to use; protection only applies to how those ideas are expressed.

  • Test: Is the work a mere idea or has it been expressed in a fixed, concrete manner?

Example: A story idea of a dystopian future isn’t protected, but the detailed narrative, setting, and character development are.

5. The Merger Doctrine

  • Principle: If there are only a few ways to express an idea, the expression merges with the idea and loses protection.

  • Prevents monopoly over ideas through copyright.

Case: Morrissey v. Procter & Gamble Co. – Sweepstakes rules were unprotectable because they were functional and had limited expressive forms.

6. Expression Does Not Extend to Facts

  • Facts: Always in the public domain.

  • Original compilations of facts: Protected only if the selection and arrangement show minimal creativity.

Case: Feist Publications, Inc. v. Rural Telephone Service Co. (1991): White pages not protected as they lacked originality.

II. REQUIREMENTS FOR COPYRIGHT PROTECTION

7. Originality

  • Test: Work must be independently created and possess a modicum of creativity.

  • Does NOT require: Novelty or uniqueness (unlike patents).

Feist v. Rural emphasized originality as a constitutional requirement.

8. Creative Spark

  • Standard: Extremely low threshold.

  • Examples: A simple photograph, abstract painting, or poem can meet the requirement if it shows personal judgment.

9. Authorship

  • Author: The person who creates the work.

  • Work for Hire: Employer is the legal author if work is prepared by an employee within the scope of employment (17 U.S.C. § 101).

  • Non-human authors: Not eligible. See Monkey Selfie Case (Naruto v. Slater).

III. COPYRIGHT'S BASIC STRUCTURE (17 U.S.C. § 106)

Exclusive Rights Granted:

  1. Reproduction

  2. Distribution

  3. Preparation of Derivative Works (Adaptation)

  4. Public Performance

  5. Public Display

  6. Digital Audio Transmission (for sound recordings)

IV. THE REPRODUCTION RIGHT

10. Actual Copying

  • Proof Required: Must show the defendant copied the work, either directly or indirectly.

  • Means of Proof:

    • Direct evidence (e.g., admission)

    • Circumstantial evidence (access + similarity)

11. Substantial Similarity

  • Test: Would an ordinary observer recognize the alleged copy as having been appropriated from the original?

  • Filtration Test (esp. in software): Filter out unprotectable elements (ideas, facts), then compare expression.

12. Software Reproduction Right

  • Software = literary work

  • Protection covers:

    • Source code

    • Object code

    • Screen displays (if original)

    • RAM copies can constitute infringement

Case: MAI Systems Corp. v. Peak Computer, Inc. – Loading software into RAM without authorization infringes the reproduction right.

V. THE DISTRIBUTION RIGHT

13. Basics

  • Right to sell, rent, lease, or transfer copies to the public.

  • Includes digital and physical dissemination.

14. Distribution on the Internet

  • Uploading to a server or file sharing constitutes distribution.

15. First Sale Doctrine (17 U.S.C. § 109)

  • After a lawful sale, the buyer can resell the work without further permission.

  • Applies to physical goods, not digital downloads.

Case: Kirtsaeng v. John Wiley & Sons, Inc. – Lawfully made foreign editions of textbooks could be imported and resold in the U.S.

VI. THE ADAPTATION RIGHT

16. Derivative Works

  • Includes translations, musical arrangements, dramatizations, fictionalizations, film versions, art reproductions.

  • Must borrow protected expression and add new, original content.

  • Unauthorized derivative works infringe even if transformative.

VII. PUBLIC PERFORMANCE & DISPLAY RIGHTS

17. Public Performance

  • Applies to literary, musical, dramatic, choreographic works, films.

  • Definition of public: At a place open to the public or transmitted to the public.

Case: ABC, Inc. v. Aereo, Inc. – Streaming copyrighted TV through user-specific antennas held to be a public performance.

18. Public Display

  • Showing a copy of the work to the public by any means.

  • Includes digital transmission.

VIII. MORAL RIGHTS (17 U.S.C. § 106A)

19. Visual Artists Rights Act (VARA)

  • Applies to visual artworks: paintings, drawings, prints, sculptures, and photographs (single copies or limited editions < 200 copies).

20. Right of Integrity

  • Prevents intentional distortion, mutilation, or modification.

  • Also applies to destruction of works of recognized stature.

21. Attribution Rights

  • Right to claim authorship or to prevent false attribution.

22. U.S. vs. Europe

  • U.S.: Limited to VARA; waivable.

  • Europe (France, Germany): Inalienable and perpetual.

IX. FAIR USE (17 U.S.C. § 107)

23. Four-Factor Test

  1. Purpose and character of the use (transformative? commercial?)

  2. Nature of the work (fictional? unpublished?)

  3. Amount and substantiality used (qualitative + quantitative)

  4. Effect on the market (is the use substitutive?)

24. Transformative Fair Use

  • Adds new expression, meaning, or message.

Case: Campbell v. Acuff-Rose Music, Inc. – Parody by 2 Live Crew considered transformative even though commercial.

25. Technological Fair Use

  • Fair use may be limited by DMCA anti-circumvention laws (17 U.S.C. § 1201)

  • Even legal use may violate DMCA if digital locks are circumvented.

X. CASE STUDIES

26. Harney v. Sony & A&E

  • Photographer sued over unauthorized use of a photo in a fictional TV show.

  • Holding: Expression not substantially similar; no infringement.

  • Significance: Clarified distinction between factual scenes and expressive elements.

27. Aereo Case

  • Aereo allowed users to stream broadcast TV via individual antennas.

  • Holding: Functionally similar to cable TV, thus a public performance.

  • Significance: Court prioritized function over technological form.

XI. CONCLUSION

  • Copyright balances two constitutional goals:

    1. Incentivizing creativity

    2. Promoting the public good through access to knowledge

  • Must navigate complex doctrines of rights, limits, and exceptions, particularly in the digital age.