Transcript Basic copyright law - Chicago

Basic Copyright Law
Richard Warner
Copyright: A Bundle of Rights
 The right to make copies: The right to
reproduce the photo
For example, scanning it, or photocopying it.
 The distribution right: The right to distribute
copies
For example, selling them or giving them away.
 The public display right: The right to display
the photograph in public by,
For example, hanging a copy of in an art show.
A Bundle of Rights
 The right to make a derivative work: The
right to use the photo in creative another
work.
Creating a video which displays images take from
the photo as the song plays in the background.
 The public performance right:
You hold the copy right in a song you have
written. The public performance right is the right
to perform the song in public.
 17 U. S. C. §106.
How A Copyright Is Created
 A copyright comes into being whenever
someone creates an original work of
authorship fixed in a tangible medium. 17 U.
S. C. §102(a). The author holds the
copyright.
 Note: there is no requirement that the
copyright be registered, nor is there any
requirement that the work contain a notice
(like the symbol “©”) that it is copyrighted.
Three Questions
 The way to understand “the original work of
authorship fixed in a tangible medium” rule is
to ask:

What is a work of authorship?

What counts as original?

What counts as fixed in a tangible
medium?
Work of Authorship
 When you read the phrase “a work of
authorship,” it is natural to think of works with
some artistic, intellectual, or other sort of
creative merit.
 This is not required. A “work of authorship”
need not have any creative merit.
Smith’s Novel
 Suppose, for example, Smith has just
completed his first novel, Smith Hero. The
novel is terrible. It has no artistic merit at all.
 The fact that Smith’s novel is terrible does not
prevent it from being a “work of authorship”
for purposes of copyright law.
Courts Are Not Art Critics
 A work of authorship need not have any
creative merit.
 But the purpose is to “promote the Progress
of Science and useful Arts, by securing for
limited Times to Authors and Inventors the
exclusive Right to their respective Writings
and Discoveries.” U. S. Const. art. I, §8.
 Wouldn’t it better “promote the Progress of
Science and useful Arts” to provide copyright
protection only to works of creative merit?
Too Short?
 Sally writes a short story for children which
also helps them learn to add and subtract.
Combining the words, “education” and
“entertainment,” Sally calls her approach
“edutainment.”
 Suppose Sally holds the copyright in the
word, “edutainment.” Then no one could use
the word “edutainment” without potentially
violating Sally’s copyright.
Too Short Is Too Restrictive
 To use the word, one has to produce a copy of it—a
spoken copy, or a written, printed, digitized, or
otherwise reproduced copy.
 This would greatly restrict the ability of others to
refer to Sally’s approach to education in
commentary, criticism, or in the planning of their own
educational works. This would be an undesirable
result. By restricting the ability of others to talk
about Sally’s approach, it would not “promote the
Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries.”
Too Short To Be Copyrighted
 Copyright law avoids this undesirable result
by holding that words and short phrases are
not “works of authorship” for the purposes of
copyright law; hence, they cannot be
copyrighted.
 Copyright law takes a similar approach to the
things we say in ordinary conversation.
Casual Conversation
 Sally and Roger having a casual conversation about
Sally’s “edutainment” approach to education; in the
course of this conversation, Sally says, “Everyone
should entertain giving their kids and educational
edge with edutainment.” Sally is so pleased with the
sentence that she wants to claim a copyright in it.
 Is the sentence, “Everyone should entertain giving
their kids and educational edge with edutainment,” a
“work of authorship” for purposes of copyright law?
The answer is “no.”
 Allowing people to copyright what they say in
ordinary conversation would greatly inhibit
people’s ability to report those conversations
to others (as in, “Sally had an interesting idea
yesterday; she said, . . .”), and would in this
way not “promote the Progress of Science
and useful Arts, by securing for limited Times
to Authors and Inventors the exclusive Right
to their respective Writings and Discoveries.”
U. S. Const. art. I, §8.
Work Of Authorship
 This treatment of conversational items,
illustrates the use the “work of authorship”
requirement to limit the scope of copyright;
copyright law will impose this requirement to
limit copyright from extending, for example, to
gestures we make in a conversation, the
movements a professional basketball player
makes in driving to the basket, and so on.
Created By A Human Being
 A work of authorship must be created by a
human being.
 Suppose Mason records the sounds bees
make in their hive. Mason distributes the
recording under the title, Bee Song.Is Bee
Song—that is, the sequence of sounds
Mason recorded—a work of authorship for
the purposes of copyright law?
No Copyright in the Sounds
 The sounds were created by the bees, not by
a human being. Mason may, however, have
a copyright in the recording, which he did
create.
Summary of Work of Authorship
 A creation can be a work of authorship
without having any creative merit, but it must
be created by a human being, and it cannot
consist of just a word or two, some part of an
everyday conversation.
 Thus, “work of authorship” is a broad
category, including, for example, e-mails,
student notes, bad poetry, and this tutorial.
Originality
 A copyright comes into being whenever
someone—referred to as “the author”-creates an original work of authorship fixed in
a tangible medium.
 There are two basic requirements:
independent creation; and, minimal creativity.
Independent Creation
 To be original a work must be the
independent creation of its author.
 You discover a fact that no one else was
aware of—for example, that Shakespeare
had a twin brother. You publish your
discovery. Your discovery is original in the
sense you were the first to discover it.
The fact that Shakespeare had a twin
brother is not “original” in the sense
required by copyright law.
You Did Not Create the Fact
 The fact that Shakespeare had a twin brother
is not your independent creation, and
consequently you have no copyright on this
fact, although you may have a copyright on
other aspects of your scholarly article.
Minimal Creativity
 A work of authorship must exhibit some minimal
creativity to qualify for a copyright.
 The landmark case is Feist Publications v. Rural
Telephone Service, 499 U. S. 340 (1991). Rural
published a telephone book containing names,
telephone numbers, and addresses listed in
alphabetical order.
 The information is factual and not created by Rural
Telephone; however, Rural Telephone did choose
the alphabetical order for presenting the names.
Feist v. Rural Telephone
 Feist specialized in providing region-wide
telephone books covering more areas than
any one local telephone book.
 It got the content for its book through license
agreements with the local telephone
companies.
 It requested a license from Rural, but Rural
refused. Feist used its content any.
 Rural sued for violation of copyright.
The Holding in Feist
 Feist denied copyright protection: an
alphabetical ordering of names and
addresses lacks the required originality.
 Originality requires independent creation and
minimum creativity.
“The fruits of intellectual labor”
“All facts—scientific, historical, biographical, and
news of the day” are not copyrightable.
A compilation of facts may be copyrightable. But
the facts in the compilation are not.
At Least Some Creative Choices
 Does Rural Telephone have a copyright on
arranging those names, telephone numbers,
and addresses in alphabetical order?
 The court held that the arrangement was not
sufficiently original. The arrangement had
been in use for a long time in telephone
books and elsewhere.
 To satisfy the originality requirement, an
author must make at least some creative
choices in producing the work.
Dixon’s Notes
 Suppose Dixon is listening to a lecture on
property law. She thinks the professor is
presenting things in a rather confusing way,
so, when she takes her notes, she
rearranges the presentation in way that
makes more sense to her.
(a) Dixon made creative choices in organizing her
notes.
(b) Dixon did not make creative choices in
organizing her notes.
Not Much Creative Is Required
 When Dixon rearranges the presentation in a
way that makes more sense to her, she
makes creative choices about how to
organize the material.
 Dixon’s creativity is most likely enough to
satisfy the originality requirement. Only a
minimal amount of creative choice is
required.
Need Not Be New
 The creativity requirement can be fulfilled even if the
author creates something which has already been
created before.
 Suppose Dixon is not the first student to find the
professor’s presentation confusing. George had the
same reaction a year before Dixon, and like her,
reorganized the presentation in his notes in exactly
the way Dixon would do a one year later.
 Dixon’s notes still satisfy the creativity requirement
because she did not copy them; they result from her
own creative choices.
Fixation
 To be copyrighted, an original work of authorship
must be fixed in a tangible medium of expression.
Under 17 U. S. C. §101,
 A work is “fixed” in a tangible medium of expression
when its embodiment in a copy or phonorecord, by
and under the authority of the author, is sufficiently
permanent or stable to permit its to be perceived,
reproduced, or otherwise communicated for a period
of more than transitory duration.
Dixon’s Notes
 Dixon’s notes are an original work of
authorship. Suppose that she handwrites her
notes on paper. When she handwrites the
notes,
(a) she fixes them in a tangible medium of
expression.
(b) she does not fix them in a tangible medium of
expression.
Fixation For the Notes
 The handwritten notes are a copy “sufficiently
permanent or stable to permit its to be
perceived, reproduced, or otherwise
communicated for a period of more than
transitory duration,” and the notes are
“embodied” in this copy “by and under the
authority of the author.”
Digital Fixation
 The result would be the same if Dixon had
taken her notes on a computer and saved
them on the hard drive. She would still
create a copy “sufficiently permanent or
stable to permit its to be perceived,
reproduced, or otherwise communicated for a
period of more than transitory duration,” and
the copye would be produced “by and under
the authority of the author.”
Ideas Cannot Be Copyrighted
 Ideas cannot be copyrighted. Only the
expression of an idea fixed in an original work
of authorship can be copyrighted.
 The point of copyright as expressed in Art. I,
§8 of the Constitution. The purpose is to
promote the Progress of Science and useful
Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their
respective Writings and Discoveries.
Not Copyright in Ideas
 Allowing people to copyright ideas would not
“promote the Progress of Science and useful
Arts.” It would make progress more difficult
by inhibiting the free flow and discussion of
ideas. Every time someone expressed a
copyrighted idea, they would be potentially
violating copyright.
Fair Use
 Another important limitation on copyright is
fair use. The doctrine of fair use allows
someone to use a copyrighted work without
violating the copyright even though the
person did not get permission for the use
from the copyright holder. 17 U. S. C. §107.
 Typical examples: quoting from a
copyrighted work in a scholarly article or
newspaper story; and, using copies of a
copyrighted work for an educational purpose.
Fair Use
 The rationale is the same as the rationale for
not allowing copyright in ideas: namely,
allowing “fair use” promotes “the Progress of
Science and useful Arts.”
DJ Earworm’s Mashup
 “The United State of Pop” by DJ Earworm,
http://djearworm.com/united-state-of-pop.htm,
is a mashup of the 25 top pop hits of 2007.
 Did DJ Earworm violate copyright?
Fair Use: Factor One
 The purpose and character of the use,
 Commercial versus nonprofit/educational
 Spontaneity
 Transformative.
Fair Use: Factor Two
 The nature of the copyrighted work
Previously published.
Informational or creative.
Fair Use: Factor Three
 The amount and substantiality of the use.
Quantity: how much is used?
Quality: How important to the work is the part
used?
Factor Four
 The effect of the use upon the potential
market for or value of the copyrighted work.
 Music mashups have an effect on a potential
market:
the market in which copyright holders license use
of pieces of music to makers of mashups.
Music Mashups
 Music mashups have an effect on a potential
market: the market in which copyright
holders license use of pieces of music to
makers of mashups.
 Should copyright holders be able to collect
fees?
 Answer “Yes,” and you should hold that DJ
Earworm violated copyright. Answer “No,”
and you should hold the opposite.
What Should Happen?
 Should copyright holders be able to collect
fees?
 Answer “Yes,” and you should hold that DJ
Earworm violated copyright. Answer “No,”
and you should hold the opposite.
 Copyright law does not tell us what the
answer is.
Two Markets
 The business mashup affects both and actual
and a potential market.
 Actual: the market served by the site from
which the information was copied.
 Potential: The market in which copyright
holders license the use of the information to
makers of mashups.
A Business “Mashup”
 You are a furniture retailer in Chicago. Many
of your clients are Polish interior decorators
with many Polish clients. To attract the
decorators to your web site, you send
automated search programs over the web to
locate news and articles of potential interest.
The search program copies the stories and
sends the copy to your site, which you then
post.
 Do you violate copyright?
Two Questions
 Actual market: Should copyright holders be
receive legal protection against such mashup
copying?
 Potential market: Should copyright holders
be able to collect fees?
Princeton University Press v. Michigan
Document Services
 Michigan Document Services copied parts of
books to make coursepacks for students.
 The coursepacks
Allowed professors to select just the materials
they wanted to use, and
Saved students money.
But the materials were copyrighted.
 Fair use?
 Are the copyright holders entitled to fees for
the copying?
Three Points
 (1) A “copyright holder can always assert
some degree of adverse [e]ffect on its
potential licensing revenues as a
consequence of [the defendant's use] simply
because the copyright holder has not been
paid a fee to permit that particular use.”
 (2) “But such an assertion will not carry much
weight if the defendant has “filled a market
niche that the [copyright owner] simply had
no interest in occupying.””
Comment Continued
 (3) “Where, the copyright holder clearly does
have an interest in exploiting a licensing
market—and especially where the copyright
holder has actually succeeded in doing so—
”it is appropriate that potential licensing
revenues for photocopying be considered in a
fair use analysis.””