Introduction

Copyright is a legal device that gives the creator of a work of art, literature, or other creative endeavors the right to control how their work is used. Art refers to any recorded created expression, a novel, movie, video game, a video etc. Rules applied in this class are on a case-by-case basis to make analogies to the referred case. Copyright law is meant to encourage creative expression by giving authors ownership over their works. If there would be no copyright laws, people would be discouraged to create.

Article 1, Section 8, Clause 8

Congress has the power 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.

Scientific pursuits like vaccines and computers are generally given patents, while artistic creations like novels are covered by copyright law.

The Copyright Act covers the following type of art:

• literary works;

• musical works, including any accompanying words;

• dramatic works, including any accompanying music;

• pantomimes and choreographic works;

• pictorial, graphic and sculptural works;

• motion pictures and other audiovisual works;

• sound recordings;

• architectural works;

The Copyright Act does not cover the following:

• ideas, procedures, processes, systems, methods of operation, concepts, principles, discoveries

• facts (names in a phone book, name of an animal)

• words, titles and short phrases

• unfixed works (like live performances)

• works in the public domain

• useful articles (like squiggly bike rack)

• works by non-humans (like Nando the monkey who took his own picture)

Together copyright, patents and trademarks are generally referred to as intellectual property. Intellectual property in general is an area of the law that deals with the legal rights to creative works and inventions, things that people create.

Locke

“People have a right to the fruits of their labor”

The Founders were highly influenced by Locke (Nature Rights Theory) and John Stuart Mill (Utilitarianism).

Differences

Trademark

A trademark is a word, symbol or a phrase used to identify a particular manufacturer or seller’s product and distinguish them from the products of another.

Law of trademarks is found at 15 USC § 1127, Lanham Act

The Lanham Act is the primary federal trademark statute of law in the United States. The Act prohibits a number of activities, including trademark infringement, trademark dilution and false advertising. The purpose of trademarks is to make it easier for consumers to identify the source of a product or service. Trademarks are all about consumer protection, protect them from confusion and allow them to differ products and services. Phrases, packaging and other aspects of packaging might quality for trademark protection if it helps consumers distinguish between different products. Trademarks can also identify services that a company provides, it doesn’t have to be a physical good or a brand itself. A service mark is similar to a trademark in that it’s used to distinguish different services not necessarily trader goods. To obtain a trademark, you must be able to show that you use the trademark in commerce. Domain names are also protected under the Lanham Act & Anticybersquatting Consumer Protection Act (ACPA). A trademark can theoretically last forever; as long as it’s used in commerce and defended by the company that owns it against infringement.

Patents

Patent law is the primary means by which the government promotes investment in new technologies and inventions, it encompasses many different industries and scientific fields, from healthcare, to finance, to semiconductors and even to information technology.

Section 101 from Title 35 of the U.S. Code: Patentability of Inventions

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent thereof, subject to the conditions and requirements of this title.

The patent system gives a limited property right to the patent holder, the patent holder has the rights to exclude others from using or making the invention that they have discovered or created. The holder also has positive rights to sell or license that invention. The system encourages inventors to create by giving that person the exclusive rights to their invention.

In contrast to copyright, patent holders can patent a tangible idea and useful inventions and obtain legal protection that stops anyone from using that idea. However that idea must be novel, innovative and it must not be too abstract.

There are 4 main categories of patentable objects:

• Machines

• Objects of manufacture

• Processes

• Composition of chemicals (such as medicines)

Patent disputes are almost exclusively heard in federal courts, patent holders can also file a case with the International Trade Commission which can then prevent the import of infringing products from overseas. Unlike copyrights, patents are not given nearly as long protection as utility patents are granted for 20 years whereas design patents only last for just 14 years.

Copyright

Article 1, Section 8, U.S. Code from 17 USC Section 101 onward

Copyright subsists in the original work of authorship fixed in any tangible medium of expression. Under the Copyright Act, the protection is inherent within the act of creation (it applies as soon as you create a work and put it down in a tangible semi-permanent form). When something is written on a computer, or paper, or painted on a canvas, or recorded with a camera, copyright ownership vests in the author. No government permission is needed nor does the author need to register his work in order to obtain copyright protection in comparison to obtaining trademark protection where the work must be used in commerce and patent can only be granted by the government. Copyrights only protect the actual creative expression, not the underlying ideas themselves.

Although a person can register their copyrighted work with the government, that person does not need to register in order to have legal rights to their work. Copyright protections often last for a very long time, usually the life of the author plus 70 years.

Rights Copyright Law Confer

The first federal copyright law was enacted in 1790 and it is still the template for American copyright law today. Copyright law continually has to adapt to new technology that leads to new modes of expression.

Copyright Act, 17 U.S.C. Section 106: Copyright holders have exclusive right to

1. to reproduce the copyrighted work in copies or phonorecords;

2. to prepare derivative works based upon the copyrighted work;

3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending;

4. in the case of literary, musical, dramatic and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly.

5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Because copyright is provided for in the Constitution, it is an exclusively federal law. Most of what will be discussed ahead will be either the Copyright Act at 17 U.S.C. 101 & 102 et seq, federal case law, fair use at 17 U.S.C. 107, or the DMCA at 17 U.S.C. 512.

Court Acronyms

“CDCA” refers to federal trial court in Los Angeles: the Central District of California.

”SDNY” refers to federal trial court in New York City: the Southern District of New York.

Because copyright is a federal law, almost all these cases get litigated in federal court. Only the federal courts have jurisdiction over copyright. State courts usually have overlapping jurisdiction with a federal court, but not when it comes to copyright.

Obtaining Copyright & it’s Protection

An innovative part of the American copyright law is that an author actually doesn’t need to do anything to establish copyright in their work other than recording it in a tangible medium. Copyright protection is attached to everything you create from the moment of creation as long as you meet certain requirements. If you have a blog post or a YouTube video, this means you own the copyright to that blog post or that YouTube video even if you don’t put that copyright notice ©️ on it. By registering your work with the copyright office, you get the ability to sue people for infringement and the ability to recover attorneys fees in some circumstances so if you’re going to file a lawsuit, you should think really strongly about registering your work with the Copyright Office.

17 U.S.C. Section 102(a) of the Copyright Act

Copyright protection subsists… in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

So there are two requirements you need to keep in mind.

• First, the work must be an original work of authorship.

• Second, it must be fixed in a tangible medium of expression.

For example, a literary work which is anything expressed in letters, numbers, or symbols. The source code for a computer program is also considered a literary work under this section. When the work is one of fiction, it’s plot, characters and other aspects of the book can be copyrighted in addition to the actual text itself. Original musical compositions and dramatic compositions like plays are both covered as a literary work. Sound recordings are covered by a separate copyright. Artwork like sculptures, paintings and graphic arts are given copyright protection as are audio visual works like film, television, and material that combines both video and sound components such as a YouTube video. Choreography is covered by copyright law as long as the choreography is fixed through recording or some form of notation that allows it to be viewed or read in some tangible way.

Original Work of Authorship

All the works listed in the Copyright Act are considered original works of authorship. The word original is not defined in the Copyright Act, instead we have to look to the courts to determine when a work has enough originality. Courts themselves have created all kinds of test and factors to determine whether something is considered an original work of authorship.

There are two big factors that are required in order to meet the originality test for copyright, whether the work was an independent creation and whether it contained a “quantum/modicum of creativity”.

What is “original”

FEIST PUBLICATIONS v. RURAL TELEPHONE SERVICE COMPANY. INC 499 U.S. 340 (1991)

FEIST Publications was a company that specialized in publishing the white pages all over the region of Kansas. [DEL, What region?] Rural refused to license its pages to FEIST, so FEIST simply copied all of the white pages without Rural’s permission. Now some of the listings were altered, they were fake listings so Rural could know if anyone actually copied all of the names and numbers in the phone book because they purposely put them there to test to make sure that if anyone put that in their own white or yellow pages they would know.

So the Supreme Court had to decide whether the copyright in a telephone company’s directory protected the names, towns, and telephone numbers copied by another telephone directory company. The justices decided that the information in Rural’s directory was not copyrightable, it lacked originality. The information just didn’t show originality because the company didn’t organize or display the information in any original way. It was just the white pages, a list of names and phone numbers hence a list of facts.

The Court defined originality as requiring only that the work be independently created by the author and that is possess “at least some minimal degree of creativity.” often this is called a Modicum of creativity. The Court also mentioned that this was a very, very low bar, a work need only “possess some creative spark no matter how crude, humble or obvious it might be”.

MAGIC MARKETING v. AMERICAN PAPER 634 F. Supp. 769 (W.D. Pa. 1986)

In this case the court had to decide whether envelopes, forms and letters showed sufficient originality to be protected by Copyright Law. Magic Marketing created envelopes with the word, Telegram, Gift check enclosed and priority message contents require immediate attention and put them on a envelope. American Paper, a different company that sold the same items to their customers, prompting Magic Marketing to sue for copyright infringement over those specific words and phrases on an envelope.

Now in this case, the court ruled that Magic Marketing, because the envelopes and form letters did not exhibit a minimal form of creativity were not copyrightable. The forms using phrases like Telegram, Gift check enclosed were simply common stock phrases or words and listing the contents of an envelope on a package like a listing of ingredients is not protected by copyright regulations. Envelopes are not considered pictorial, graphic or sculptural if they fail to embody a minimal level of creativity.

The court held that short phrases and basic shapes (black stripe on a form letter) that do not exhibit minimal creativity are simply not protected by the law.

JOHN MULLER CO v. NEW YORK ARROWS SOCCER TEAM 802 F.2d 989 (8th Cir. 1986)

A designer tried to copyright a logo that he created for the New York Arrows Soccer Team. The logo consisted of four angled lines which form an arrow and the word arrows in cursive scripts below the arrow.

The appeals court affirmed a lower court ruling that the design did not show sufficient creativity to be protected. In essence the problem was that the logo compromised of basic shapes, and that wasn’t enough to be copyrightable under the law.

ETS-HOKIN v. SKYY SPIRITS 225 F.3d 1068 (9th Cir. 2000)

The court dealt with whether the very basic shape of a Skyy Vodka bottle could be copyrightable. In that case, a photographer was hired to do promotional shots of vodka bottles. After he took the photos of the Skyy Vodka, the blue bottle, he retained the rights to those photos. Skyy was unhappy with those photos so they hired a new photographer who took some very similar photos. When the original photographer saw the new photos, that Skyy used his promotional materials, he said that they were almost identical to his own photos.

The court held that the photographer’s original shots of the vodka bottle were in fact original works of authorship entitled to copyright protection. The three photos here that met the FEIST threshold for copyrightablity because the author created them and there was at least some minimal degree of creativity in selecting the composition but this wasn’t the end for this case.

The case was appealed again, and this time it tested whether the shots used by Skyy Vodka actually infringed on the photographer’s copyright. The court explained that although photographs are copyrightable, in cases like this, the copyright protection is weak and limited by the doctrines of merge and scenes a faire. This is sometimes called a “thin copyright”.

Under the merger doctrine courts will not protect a copyrighted work from infringement if the idea underlying the work can only be expressed in one way. In such an instance, it’s said that the idea and expression merge and the shots used by Skyy Vodka did in fact look very similar to the photographer’s three original promotional shots because there’s only so many ways you an take a photograph of a vodka bottle and as the court pointed out these two sets of photos were as different as they could actually be given that the subject matter is going to be the same.

The lighting was different, the angles were different, the shadows and highlights were different as were the reflections in the background. The only constant was the bottle itself, so the original photographer couldn’t get a copyright on every time you took a photo of a Skyy Vodka bottle hence the court held that Skyy’s secondary photographs were not infringing of the first.

Independent Creation

The other part required for originality under the copyright law. Original authorship requires that you independently create the work in question, which means that you’re not taking the expression of somebody else and using it in your own work. Independent creation is also a defense to copyright infringement, if you happened to happenstance to create the same work as somebody else, that can be a defense to copyright infringement.

It’s up to the person who is accusing you of copyright infringement to prove that you had the access to the work that was supposedly copied and that you did intend to take elements from the one work and put them in a new work. It is both an affirmative defense and also a requirement that you independently by yourself, come up with this new expression that’s going to get copyright protection.

Imagine you took a photograph of a lighthouse and unknown to you, another photographer is just a few feet away, hiding in the bushes, and takes the exact same photograph at the exact same time. Then you both go to publish the photo. Who owns the copyright and who is infringing on the copyright?

The answer is that each photographer owns the copyright in their respective photos because they independently created them. Neither infringed copyright because they didn’t copy each other, they just happened to be coincidentally be very close to together and took what looks like the same exact photograph at the same exact time. Besides that, how many different ways are there to photograph a lighthouse, there’s only so many.

To Summarize

Originality requires both:

1. Independent creation (i.e not copied) and

2. At least some minimal degree of creativity (i.e a modicum of creativity)

The Copyright Act originally referred only to “fine art” but that was taken out in 1909 so now almost anything in art. Your own selfies for example are art for the purposes of copyright.

Fixation in a Tangible Medium

This is the second requirement for most things to get copyright protection. Compared to originality, fixation in a tangible medium is actually pretty easy. U.S Copyright Law is unique because it only protects things which are fixed in a tangible medium. There is no fixation requirements in many European countries which protect fixed and unfixed material.

A work is fixed in a tangible medium of expression “when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration”.

In contrast, simply saying something in public does not grant copyright protection. Imagine someone giving a speech on a sidewalk without notes, they aren’t eligible for copyright protection but if someone recorded that with a cell phone, copyright does attach to that recording. A song is fixed in a tangible medium when it is recorded. A computer program is fixed once it is put on a computer and stored in memory and most importantly, videos recorded and uploaded to YouTube or any platform also count including uploads to SoundCloud as well.

Limitations on Copyright

Copyright doesn’t protect everything nor do copyright protections last forever. The law imposes limitations on what can be copyrighted and for how long. Under modern law, most copyrighted material created after 1978 is copyrighted for the life of the author plus 70 years

WILLIAMS v. GAYE No. 15-56880 (9th Cir. 2018)

Marvin Gaye vs Robin Thicke was a case over the song Blurred Lines, where even though Marvin Gaye had passed away years ago, his family was still able to prosecute his copyrighted songs against Robin Thicke.

For corporate authorship, the expiration date is 95 years after publication or 120 years from the date of creation. However, once a copyright expires it falls into what’s called the public domain. Works in the public domain are not subject to copyright limitation which means that anyone can use the theme or the expression itself like the language, the words, the melody for a song or a movie or a novel that’s in the public domain for whatever purpose you want.

You might think that copyright protection for the life of the author plus 70 years is a is a long time and you definitely would be right about that. The copyright duration has been successively lengthened in the 20th century largely because of one company, Disney.

In the Copyright Act of 1790, the CR protected works for 14-years and was renewable for one additional 14-year term, if the author was alive at the end of the first 14 years. By 1831 it was changed to 28 years with a 14-year renewal and in 1909, copyright duration became 28 years with a 28-year renewal period. But for the last 70 years, Disney has been lobbying hard to continually extend the copyright term, mainly to protect the copyright protection of Mickey Mouse which has culminated in the current law that came by the way of the Sonny Bono Copyright Term Extension Act of 1998. Disney now has until 2023 to extend the copyright protection term once again. [DEL, update current]

Public Domain

When a copyright expires, it enters into the public domain, which means that anyone can use it. Being “public” and being in the public domain ARE NOT THE SAME THING. The public domain includes things that are out of copyright and never had copyright protection only. Anything made before 1923 is in the public domain but because of all the complicated copyright extensions (thanks Disney). If something was published after 1923 then it is a complicated question as to whether something is in the public domain or not. Now any works by the US Government are in the public domain, they cannot hold a copyright however they are allowed to commission works and license those works to others.

Facts & Ideas

Facts and ideas themselves are not covered by copyright law, generally you cannot copyright an idea, you can only copyright a tangible expression of that idea. For example, Charles Darwin who published his famous book on the Origin of Species that detailed his thoughts about evolution. Now his book itself was given copyright protection, but the scientific theory itself that life on Earth has evolved during the history of the world is not protected by copyright as it would’ve hindered scientific investigation and discoveries, that’s why facts and ideas are off-limits for copyright protection. Darwin would have received copyright protection over the actual words in a sequence that he strung together into the book on the Origin of Species so the underlying ideas themselves were not protected by copyright, but the actual expression contained in the book itself was copyright protected.

A person who invents something might get a patent on their idea but patents are a subject of a whole other area of law apart from copyright and the rights guaranteed are very different.

Stealing an Idea

One of the biggest copyright myths is that you can sue someone for stealing their idea. There’s a general rule of copyright law that not all legal copyright is actionable. In other words, just because you’ve copied something doesn’t necessarily means that you have committed copyright infringement. It depends on whether the thing you’ve copied received copyright protection itself.

SAHUC v. TUCKER 300 F. Supp 2d 461 (E.D. La. 2004)

A court had to decide whether two similar photos in a park was an example of copyright infringement or just an example of two different ways of expressing the same idea. The original photographer, Lewis Sahuc took a picture of the New Orleans St. Louis Cathedral, framed by the Decatur Street Gate and shrouded in mist.

Another artist, Lee Tucker was an experienced painter who admired Sahuc’s photograph. Tucker took his own picture of the same subject matter, the New Orleans St. Louis Cathedral, framed by the Decatur Street Gate but when Tucker released his photograph, Sahuc sued Tucker for copyright infringement because the photographs looked very similar.

The court however sided with Tucker stating “It is obvious to the Court that the two photographs depict similar ideas. Ideas, however, are never copyrightable. Only the original expression of the those ideas is protected by Copyright Law”. Although the photos were of the same subject matter, both the photos expressed two different kinds of artistic expression such as one was black and white while the other was colored, they were both taken at different times, one was taken at dusk and the other at dawn and one had the cathedral shrouded in mist while the other didn’t.

However it would’ve been copyright infringement if instead of Tucker taking his own photo of the cathedral, he found the photo that Hook took and then took a photo or made a copy of that photo. That in fact would be copyright infringement because he is copying someone else’s work and he’s not making his own work of a similar subject.

Generally speaking, there’s no such thing as stealing someone’s idea, there is a limited scope however but it’s such a rare exception that it’s not even worth talking about.

Ideas v. Character

NICHOLS v. UNIVERSAL PICTURES 45 F.2d 119 (2d Cir. 1930)

The first case to flesh out the copyright ability of characters where the famous Judge Learned Hand, declined to give copyright protection to insufficiently developed stock characters. Anne Nichols was a playwright who came up with the screenplay about a classic Romeo & Juliet tale, where a Jewish man marries an Irish Catholic woman going against their family’s wishes. Universal did a similar theme where an Irish Catholic boy fell for a Jewish girl and both the screenplay and movie were comedies.

Nichols sued Universal for copyright infringement, suggesting that the film utilize similar story elements as the play that she created herself. Judge Hand ruled against Nichols, stating that her characters weren’t well developed other than being Jewish & Catholic. The ideas that the movie allegedly copied were universal concepts rather than specific characters.

However, a California court reached the opposite conclusion in 1976 when the estate of Edgar Rice Burroughs sued Mann Theaters because they produced a film using the Tarzan character created by Burroughs in addition to other characters from his books like Jane, Boy & Cheetah. The court held that these Tarzan characters were flushed out in the copyrighted works and were therefore protected by the copyrights in those works.

Tarzan, for example, had distinctive traits that were seen across many different stories and the production company even used his name shortening it to Tarz in the motion picture but no one was fooled here.

When weighing whether someone’s character is worthy of copyright protection, some courts also consider whether a character itself is somehow “the story being told.”

WARNER BROS. v. COLUMBIA BROADCASTING SYSTEM 102 F. Supp 141 (S.D. Cal. 1951)

The Ninth Circuit Court of Appeals came up with this test where the court actually held that Sam Spade of the famous Maltese Falcon story wasn’t that well-developed since he was just a vehicle for carrying the story forward. The Court denied copyrightablity since Spade was a “mere chessman in the game of storytelling.”

Many decades later, California District Court suggested that it was possible that the Ninth Circuit actually got the Sam Spade case wrong.

ANDERSON v. STALLONE 11 U.S.P.Q. 2d 1161 (C.D. Cal. 1989)

In this case the court had to decide whether Sylvester Stallone had stolen someone else’s idea for the plot of Rocky IV. Stallone was the writer and director of the original Rocky movie and the characters had always been his. However in the early 1980s, a screenwriter named James Anderson wrote an unsolicited 32-page treatment for the next Rocky movie. He met with MGM & Stallone himself, sharing the ideas.

Fast forward to 1984 when Stallone goes on the Today show to describe his ideas for his version of Rocky IV, Anderson watched the interview and thought it was obvious that Stallone had in essence stolen his ideas for the Rocky IV sequel. But Stallone wrote the script for Rocky for himself and did not credit Anderson or pay him any money. Anderson then sued for copyright infringement.

If Anderson had only described his idea for the movie to Stallone, there would be no case, because the idea has to be translated into a fixed, tangible format. Anderson’s 32-page treatment could be considered copyrightable, that’s almost certainly enough to meet the threshold for copyright protection as long as it was an original work. But that is where the rubber meets the road this case because the Court revisited the old Sam Spade case and held that all of the characters in the script were clearly delineated in extreme detail in the first three Rocky movies. They were all delineated by Stallone and Stallone himself had the copyright in the Rocky characters. The court wrote that the interrelationships and development of Rocky, Adrian, Apollo Creed, Clubber Lang and Paulie are all central to the three first Rocky movies.

Rocky Balboa is such a highly delineated character that his name is the title of all four of the Rocky movies and his character has become identified with specific character traits ranging from his speaking mannerisms to his physical characteristics. Anderson couldn’t copyright the story about the characters because they weren’t his to begin with.

The court also held that Anderson’s treatment which he pitched without being asked or hired essentially violated Stallone’s right to make derivative work from his existing characters. If you think this has implications for Fan Art, you are absolutely right which we’ll cover later.

You might also be wondering how Ryan Coogler was able to pitch a new Rocky movie called Creed to Stallone without running into the same problems. Coogler actually came up with a spin-off of Rocky that involved Apollo Creed’s son. He spent 2 years trying to convince Stallone to make what became the seventh film in the Rocky franchise.

Expression v. Ideas, Processes & Inventions

Figuring out the difference between ideas and expression is not always as clear as one might consider.

BAKER v. SELDEN 212 F.3d 1210 (11th Cir. 2000)

In this case, Charles Selden wrote a book called Selden’s Condensed Ledger or Bookkeeping Simplified. The book describes Selden’s System of bookkeeping and included illustrated examples of the system. The book was mostly illustrations containing just 650 words of text. Selden attempted to sell his book and his method of accounting to the US Treasury, but was never able to get much traction on his ideas. After Selden’s death, Baker published a book dealing with bookkeeping methods which was very similar to Selden’s. His book was successful and sold in 40 countries.

The Selden Estate sued for copyright infringement. But the Supreme Court held that there was no copyright infringement because copyright only covers an author’s unique explanation of a system or method not the actual method itself. It also doesn’t prevent others from using or reproducing forms. Because if protection was extended in these cases, then it would too similar to a patent. Here the plaintiff could now show that Baker copied his original expression of his idea. That is the copying of the 650 words or the actual forms in the book itself.

Baker versus Selden has been very influential in software copyright cases, for example back in the 1980s, almost every computer had Lotus, a spreadsheet program that enabled users to perform accounting on a computer. Lotus had a menu of commands and it would also let users write macros to create shortcuts or systems of using those different menu systems. After Lotus was released, a company called Borland released its own spreadsheet program called Quattro and Quattro Pro in which it also included programs that were virtually identical to Lotus’s entire menu tree.

The idea here was that you would be able to transfer the same skills from Borland if you had used that previously. But the Supreme Court held that the menus commands were not copyrightable because they were a method of operation. The commands were merely the method by which the user operates the program. The commands were merely the method by which the users operated the program. The court reasoned that you can’t copyright the buttons of a VCR like play or pause so it wouldn’t make sense to allow you to copyright the menu hierarchy or menus and marcos in a certain piece of software.

When To Sue A Thief for an Idea

There is one very limited exception to the general rule that you can’t sue someone for stealing an idea. In California at least, there’s is something called a Desny claim. It stems from the case of Desny v. Wilder. Now you can’t copyright an idea, but sometimes you can get contract protection for an idea, sometimes you can give someone an idea under the circumstances that give rise to a contract such that if they use your idea without paying you, they have breached a contract. This is a very rare circumstance, it was basically invented to protect the thing that only happens in Hollywood, like you making a pitch to a director or a studio and instead of them hiring you and paying for your idea, the studio goes out and makes the idea themselves.

Derivative Works

A copyright means that only the author has the right to copy the work but one of the other important rights the author also has, is the right to create what are called derivatives. A derivative work is something that was created using a substantial part of a preexisting work also known as the adaptation right. The US Copyright office has a handy list of things that are often considered derivative works, which are fully protected by copyright law.

• a motion picture based on a play or novel

• a translation of a novel written in English into another language

• revision of a previously published book

• sculpture based on a drawing

• a drawing based on a photograph

• a lithograph based on a painting

• a drama about John Doe based on the letters and journal entries of John Doe

• musical arrangement of a preexisting musical work

• new version of an existing computer program

• an adaptation of a dramatic work

• a revision of a website

A new copyright can be claimed for the additional material added to the preexisting copyrighted material, but the new copyright will not affect the copyright status, scope or duration of the underlying copyrighted work on which it’s based. The original copyright author is given exclusive rights to “prepare derivative works based upon the copyrighted work”. It is considered copyright infringement to make or sell derivative works without the permission from the original owner, changing the pitch or adding effects to a copyrighted music to play it on YouTube is still copyright infringement, playing it yourself is also still copyright infringement.

The standard for derivatives states that a derivative work is a work based upon one or more preexisting works. If the new work has recast, transformed, or adapted the original, it is entitled to its own copyright protection. You can also create a derivative based on a work that is in the public domain, the law will not give the person copyright in the thing that is now in public domain, the new work based upon the thing in the public domain is only protected to the extent that the derivative work added new material that appears for the first time with that new work. They get a thin copyright over the new portions that were added.

Copyright Infringement

Generally speaking you infringe copyright by violating one of the exclusive rights that are guaranteed by the Copyright Act. You can infringe by making an exact copy or by making something that is similar to and based on the original work. You can infringe copyright by making a derivative that isn’t exactly the same but relies on the original work. You can violate copyright by simply taking a small amount of very large work.

To prove copyright infringement, a plaintiff has to show “substantial similarity” between the original work and the infringing work. But on the internet generally, that’s not the big issue. The normal use case is that someone literally copies portions of someone else’s work. There is usually no need to talk about the complicated test of “substantial similarity” because they are literally the same.

When works of art share the same idea, they’ll often be similar in the layman’s sense of the term. The key question always is, are the work substantially similar beyond the fact they they depict the same idea or same subject matter as referenced before.

Creative Commons

If you want to steer clear of copyright infringement issues, there are a number of places on the internet where you can go to find copyrighted works that you can actually use for free. This is known as a Creative Commons license, which is a public copyright license that can allow for the free use of an otherwise copyrighted work. Creative Commons gives authors 5 options on how their work can be used by others. Not all CC’s are necessarily “free” in all contexts for all purposes.

The first is the attribution license, most CC licenses generally require that you give the original author attribution. This means the following things,

• if the copyright owner has incorporated a copyright notice then you must use that notice or symbol
• you have to cite that person’s name, internet handle and if possible a link to their public page
• you have to cite the license that the work is under
• if you create a derivative work, you should state he name of the original work upon which it is based

The second is the non-commercial license, it gives you the right to use the work but only for non-commercial purposes. This generally means that you cannot sell the original work or sell your own work that includes the original material.

Third is the no derivative works license, it allows you to copy, distribute and display on the work verbatim but does not allow you to remix or create derivative works of the original material.

Fourth, the share alike license which allows you to distribute derivative works under a license that is identical to the one governing the original work.

The fifth is the Creative Commons Zero also known as CC0, it stands for “no rights reserved.” According to creative commons, this “enables scientists, educators, artists and other creators and owners of copyright- or database-protected content to waive those interests in their works and thereby place them as completely as possible in the public domain.”

Fair Use

Fair Use is undoubtedly the biggest limitation on what materials are given copyright protection, it’s also one of the most misunderstood things on the internet as well. Fair use is only a defense in the U.S., Canada and the UK who have a concept called “fair dealing” but it is defined differently.

“Fair Use” it not a verb. You can’t “Fair Use” something. Unfortunately, whether something qualifies as Fair Use always takes careful and thoughtful analysis. The case law is a set of guidelines.

Section 107 of the Copyright Act

Makes fair use of a copyrighted work to create something new perfectly legal.

In other words, if you work qualifies as fair use you have a right to make that art. When something is fair use, it is legal to use copyrighted material if it is done for a limited and “transformative” purpose such as to create a parody of something, to criticize something, or to comment about a copyrighted work.

The fair use exception recognizes that there are certain times when you would probably never be able to get permission for using that work. Without the fair use exception, anything a person wanted to use a portion of a copyrighted work, they would need to negotiate a license with the copyright owner.

Fair Use is not a defense to copyright infringement - it is a right given to people to allow them to make speech. You have as much right to engage in Fair Use as the original artist did to make their original art. An example of Fair Use would be The Church of Scientology versus Washington Post in which the Post used short excerpts from some books of Scientology where a court ruled that the Post had a First Amendment right to report on Scientology. The short excerpts were protected by fair use because the quotes were brief and the purpose was commentary on those religious texts.

Fair Use Under the Copyright Act

There are three sections of the Copyright Act that apply the fair use of a copyrighted work.

17 U.S.C. 106

Which recites the rights of the copyright holder;

17 U.S.C. 107

Which lists the four factors that are used to determine whether a person may claim fair use of a copyrighted work;

17 U.S.C. 109

Which involves the “first-sale” doctrine.

Required Vocabulary

“Underlying Work” refers to the original, pre-existing work - the thing that is being borrowed or sampled.

“Derivative Work” refers the work that is based upon one or more underlying works but not one protected by fair use. A work that is protected by fair use also borrows from other pre-existing works and would be a derivative in the absence of the fair use doctrine.

”Rights holder” or “Copyright holder” refers to the person or entity that owns the rights to the underlying work. Often this is the author but sometimes it’s someone the author licensed their work to.

”License” refers to a legal agreement that dictates the usage rights of a copyrighted work.

Copyright Act 17 U.S.C. 107 Four Factors to Judge Fair Use

1. the purpose and character of the use, whether it is transformative, including whether it is being used for commercial purpose or for non-profit educational purposes.

2. the nature of the copyrighted work.

3. the amount and substantiality of the portion of the original work which has been used.

4. the effect of the use on the potential market or the value of the original work.

The fact that a work is unpublished does not automatically mean fair use does not apply if the first three factors suggests that such use is acceptable under the law. These factors are not a checklist; you cannot go down the line and think that your work is protected by fair use. There is no singular formula that applies in all cases.

Under the law, a "factor" is something that is meant to be weighed. The four factors also aren't equally weighted. Some factors are crucial while others are not nearly as important. The weight given to each factor changes depending on the circumstances. The four factors are not exhaustive, judges have the freedom to develop additional factors depending on the nature of the case before them.

Factor I: The Purpose & Character of the Use

“Purpose and character” factor is by far the most important. It focuses on why you are using the portion of the underlying work, and what you did with it.

• Is the new work for commercial or educational purposes?

• What is the purpose and character of the work, has the work transformed the original work?

To be transformational, the new work must add new insights, aesthetics, expression, and meaning that were not found in the underlying work. The most common transformation work is creating a parody which is a critical critique of a copyrighted work. However if the new work seems too much like the underlying work, with few alterations to justify the verbatim copyright, it won’t be enough to be a parody.

Under current jurisprudence, the central question of fair use is the “transformative” question. That means, that you’re not using the underlying art for its inherent entertainment value, but instead you are commenting or criticizing that art. In some ways, this analysis overlaps with the fourth factor on the effect of your use on the market for the original work. If your use supplants the market or poaches the audience from the original work, that’s a sign that your work is not transformative.

CAMPBELL v. ACUFF-ROSE MUSIC 510 U.S. 59 (1994)

A music publisher which owned the copyrights to Roy Orbison’s song “Oh Pretty Woman” sued the rap group 2 Live Crew for using samples of the Orbison song on their album. The crew in reality wasn’t just using small samples but the entire song, the entire melodies, and just changing out the lyrics but in the case 2 Live Crew raised the parody exception.

Pretty Women from 2 Live Crew starts with pretty similar lyrics to Orbison’s song, lyrics that seemed to praise women and then the group turns to humor, addressing a quote ‘big hair woman’, then the group moves on to bald headed woman and lastly address two timing woman.

“2 Live Crew” tried to license the opening bars of the song, but Acuff-Rose music did not want Orbison’s song to be used by a rap group. The Supreme Court later found that the 2 Live Crew’s “Pretty Woman” is a parody of the original song because it imitates the characteristic style of an author or a work for comic effect or ridicule. The Court recognized that parody can play the same cultural role as criticism by exploring the meaning of an earlier work, and in the process, creating something entirely new.

ROGERS v. KOONS 960 F.2d 301 (2d Cir. 1992)

Art Rogers, a professional photographer, took a black-and-white photo of a man and a woman with their arms full of puppies. The photograph was simply entitled, Puppies, and was used on greeting cards and other generic merchandise. Jeff Koons, an internationally known artist, found the picture on a postcard and wanted to make a sculpture based on the photograph for an art show on the theme of banality of everyday items.

After Koons removed the copyright label from the postcard, he gave it to his assistants with instructions on how to model the sculpture based on the photograph itself. He also requested that as much detail be copied as possible though the puppies were to be made blue, their noses exaggerated, and flowers to be added to the hair of the man and woman.

The sculpture, entitled, String of Puppies, became a success. Koons sold three of them for a total of $367,000. Upon discovering that his picture had been copied, Rogers sued Koons and the Sonnabend Gallery for copyright infringement by creating a derivative of a copyrighted work. Koons admitted to having copied the image intentionally, but attempted to claim fair use by parody. The court found both “substantial similarity” and that Koons had access to the picture. The similarity was so close that the average lay person would recognize the copying, a measure for evaluation. Koons was not commenting on Rogers’ work specifically, and so his copying of that work did not fall under the fair use exception.

BLANCH v. KOONS, 467 F.3d 244 (2d Cir. 2006)

In this case, the Guggenheim Museum commissioned Koons to make a commentary about advertising. Koons made a collage using several photographs, including one taken by Andrea Blanch, a fashion photographer which shows a woman’s legs propped up on a man’s lap in the cabinet of an airplane. Koon manipulated the photo by cropping it and placing it in a painted collage showing many other pairs of women’s legs. Blanch sued for copyright infringement because he had simply cut them out of a magazine and added them to a collage.

This time around, an appeals court found in favor of Koons. The collage was made for a specific purpose - to critique modern media and advertising. Blanch’s photograph was published in a fashion magazine, which is why Koons selected it for his critique. The collage used the underlying work to create something entirely new, that had a new message and a different character.

Photos, Sculpture & Videos

GAYLORD v. UNITED STATES 595 F.3d 1364 (Fed. Cir. 2010)

Frank Gaylord hand sculptured 19 sculptures for the Korean War Memorial in Washington DC. Sometime later, the US post-office decided to use the photographs of the sculpture on a stamp commemorating the Korean War but they didn’t ask Gaylord for his permission. When the post-office ran the stamps with a photo of his sculpture, he sued for copyright infringement alleging that the stamps were an illegal derivative works. (Reverse of the ROGERS v. KOONS case, here we have someone making a photo of a copyrighted sculpture than the other way around).

The Court ruled for Gaylord. The stamp used a photograph and altered the Memorial by putting snow around the sculptures and changing the colors, but the work was not transformative because it was made for the same purpose as the original sculpture: to honor the people who served in the Korean War. Just because you took the picture, doesn’t meant you have the right to the contents.

SELTZER v. GREEN DAY 725 F.3d 1170 (9th Cir 2013)

The band Green Day was sued by Derek Seltzer after the band used a version of Seltzer’s street art as the backdrop for their concert tour. The art known as scream icon was a drawing of a screaming person, a contorted face that was painted in various locations around Los Angeles and other cities.

Photographer and video designer Roger Stab, photographed the scream icon on a brick wall in Los Angeles and modified it slightly so that it could be a large backdrop during the band Green Days concerts. The Ninth Circuit held that Green Days use of screen icon was fair use since it was transformative.

The case piggybacks on Blacks v. Koons because the court found that the band used the underlying work as raw material to make a video backdrop that was a collage. Koons also used women’s legs to create a collage that was distinct from the original, in both cases the new work was part of an extended piece with a distinct meaning. Green Days video backdrop ran for four minutes and the court found that Seltzers wide dissemination of the underlying work, which appeared as street art in several locations weighed against a finding of infringement.

MATTEL BARBIE v. THOMAS FORSYTHE (DEL, REFER?)

Thomas Forsythe decided to use photographs of Barbie dolls to make a point about the beauty myth - that the ideal woman is white, blonde and thin - that is represented by the doll. Forsythe pose the doll in many different creative poses, many of which were sexualized. He depicted Barbie being attacked by several kitchen appliances or covered in food. The photos did not attract much attention and only sold for just $3,600, but Mattel still filed suit.

The Ninth Circuit Court of Appeals affirmed a lower court ruling that the photographs were transformative. There were a parody of Barbie’s status as an icon of American womanhood. They showed Barbie in a new light, one that Barbie never intended hence why Mattel lost the case.

CARIOU v. PRINCE (DEL: REFER?)

Richard Prince was an artist who made art that relies on other people’s photographs. Patrick Cariou is a photographer who took a series of Rastafarians living in Jamaica. Cariou stated that he wanted to have a classical look and avoid any pop culture references. Cariou eventually published his photographs in a book.

Afterwards, Richard Prince buys the book and proceeds to cut up all of the images, blow them up so they are large scale and add embellishments like guitars or hats. In some instances, Prince puts the heads of the subjects from Cariou’s photographs onto bodies taken from other photographs. Cariou then sued for copyright infringement asserting that Prince had essentially made derivative works of his original photos, the underlying work in this case. Prince’s defense was that he had created a transformational work.

The Second Circuit agreed with Prince, ruling that some of “Prince’s artworks manifest an entirely different aesthetic from Cariou’s photographs…“. The Court then pointed out some of the differences where Cariou is serene and deliberately composed portraits and landscape photographs depict the natural beauty of the Rastafarians and their surrounding environs. Prince’s crude and jarring works on the other hand, are hectic are provocative. Cariou’s black and white photographs where printed on a 9.5 x 12 book, Prince has created collages on canvas that incorporate color, feature distorted humans, and other forms and settings and measure between 10 and nearly a 100 times the size of the photographs.

Some of Prince’s artwork was fair use as a matter of law, but some was sent back to the trial court for further determination.

BILL GRAHAM ARCHIVES v. DORLING KINDERSLEY, Ltd (DEL: WHEN? REFER?)

Courts have held that if a person downsizes or de-emphasizes a whole photo, it might be fair use rather than copyright infringement. Bill Graham Archives, LLC owned the copyright in images on Grateful Dad event posters and tickets. Dorling Kindersley Ltd. published seven of the images in reduced size in a book on the history of the Grateful Dead. Bill Graham Archives sued for copyright infringement.

Essentially, someone had created a reference book about Grateful Dead, chronicling the history of the band and in one of the pages they put a sampling of the event posters that the band used to advertise their live performances. Each of the seven images was used in its entirety, but the Court found that reproducing them as a whole is sometimes necessary. The Court considered that the visual impact of the photographs is limited by their reduced size. This transformed the purpose of the photographs, causing the reader to view them as historical artifacts from the Grateful Dead’s famous concert experiences, rather than just viewing them for the posters inherent beauty.

WARNER BROS. ENTERTAINMENT INC v. RDR BOOKS 575 F.Supp.2d 513 (SDNY 2008)

In 2008, RDR Books published an encyclopedic guide to the world of Harry Potter. The book was called The Lexicon, an unauthorized guide to the Harry Potter fiction and related materials. It was described as an “A-to-Z guide to the creatures, characters, objects, events, and places that exist in the world of Harry Potter.”

The author of the book, Steven Vander Ark even created his own website called the Harry Potter Lexicon website, where he compiled lists of people, places, and things from Harry Potter working from his notes, the books and posts by users of the website. The site also contained lots of other things related to the Harry Potter universe. J.K Rowling authored the Harry Potter books and Warner Brothers produced the films based upon her work. RDR and Van Ark did not ask for a license from either parties. Vander Ark used Rowling’s seven Harry Potter novels and two companion books that expanded the mythology of the world that she created to form his encyclopedia.

Eventually, Warner Brothers and Rowling sued for copyright infringement. The Court had to decide if it was fair use for RDR Books to use part of the book series to create a guide to the original books. The Court considered the fair use factors and found it was not fair use. The Court emphasized the first factor, the nature and purpose of the use finding that it weighed against a finding of fair use because “Although The Lexicon had a transformative purpose, it’s actual use of the copyrighted works is not consistently transformative. The book used Rowling’s terminology, mythology, and regurgitated it, sometimes using more of the copyrighted works than was reasonably necessary in relation to its purpose as a reference guide.

According to the court’s analysis, “most of the Lexicon’s 2,437 entries contain direct quotations or paraphrases, plot details, or summaries of scenes from’ one or more of the Harry Potter novels.” Vander Ark, fair use claim was hurt by the fact the book, quote “Makes clear that the only source of its content was the work of J.K. Rowling. Moreover at the trial, an expert witness who analyzed the Lexicon found that there was a lot of verbatim copying of language from Harry Potter works. The book repeatedly used the specific very colorful idiosyncratic nouns and phrases of Ms. Rowling to describe spells, plot twist, creatures, places and sometimes Vander Ark used quotations when pulling from Rowling’s texts, but at other times he did not.

Although the Court agreed that “reference guides to works of literature should generally be encouraged by copyright law,” ultimately, it ruled that “They should not be permitted to ‘plunder’ the works of the original authors… ‘without paying the customary price’… lest original authors lose incentive to create new works that will also benefit the public interest.” this opinion was not all bad news for proponents of fair use. The decision recognized that generally authors do not have the right to stop the publication of reference guides and companion books about literary works.