Copyright Law Ronald W. Staudt

Class 3September 3, 2013

Copyright © 2001, 2002,2007, 2009 , 2010, 2013 Ronald W. Staudt

Assignments

Today—Pp. 75-100Supp. pp. 1-2.

•Original Works of AuthorshipFixation Performers' Right to Fix

Tuesday—Sept. 10—Pp. 100-110

Idea Expression Dichotomy

Publishers Lose Copyright Suit Over Articles In Patent AppsIP Law360 <news-alt@law360.com> 9/3/2013

A Minnesota federal judge on Friday overruled two academic publishers’ objections to a magistrate judge's finding that it is fair use for Schwegman Lundberg & Woessner PA and other firms to use copyrighted scientific journal articles in patent applications, calling the report well-reasoned.

Original Works of AuthorshipSect. 102

Authorship and Originality• Kelley, Feist, Acuff-Rose v. Jostens & Kim Seng

Magic MarketingSebastian Int’lQuestions p. 90-91

FixationCopies and PhonorecordsPerformer’s Right of Fixation

• Kiss and Martignon

Sec. 102. Subject matter of copyright: In general

Copyright protection subsists, in accordance with this title, 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. Works of authorship include the following categories:

(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works;

(7) sound recordings; and (8) architectural works.

AuthorshipMachines and authors

Sorony & Catalda

Human authorship v. forces of nature Kelley and Puppy Food

Questions p. 82-83 Google Translate Blow up Supplement p. 1- food sculpture- Kim Seng case

Puppy in

Wildflower Works out

Feist on Originality

The sine qua non of copyright is originality..Originality means that the work was independently created by the author (as opposed to copied from some other works) and it possesses some minimal degree of creativity…the requisite level of creativity is extremely low…Originality does not signify novelty… Originality is a constitutional requirement.

PRIORITY MESSAGE: CONTENTS REQUIRE IMMEDIATE ATTENTION

TELEGRAM

Magic Marketing v. Mailing Services of Pittsburgh

© Ins & Outs

"fragmentary words and phrases"

forms of expression dictated solely by functional considerations

Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents

CFR Title 37, Sect. 202.1

© Ins & Outs

label was copyrightable when it contained such phrases as "Cut to desired length. . . . Will not run. . . .

cliched language and expressions communicating an idea which may only be conveyed in a more or less stereotyped manner

more colorful descriptions, such as advertising slogans-"most personal sort of deodorant"

serving directions on a frozen dessert package

© Ins & Outs

Hair stays wet-looking as long as you like. Brushes out to full-bodied dry look. WET 4 is one step-four choice (finishing) in Sebastian's four step program for a healthy scalp and head of hair. WET is not oily, won't flake and keeps hair wet-looking for hours, allowing you to sculpture, contour, wave or curl. It stays looking wet until it's brushed out. When brushed, hair looks and feels thicker, extra full. Try brushing partly, leaving some

parts wet for a different look

direction or instruction for use

serving directions on a frozen dessert package

expressions such as "hang in there"

© Ins & Outs

Hugga-hugga, brrr

Uh-oh x 4

Swirsky v. Carey

Solid black stripes

listing of the contents of an envelope or package

© Ins & Outs

Arrows???? Pp. 90- 91

Fixed in any tangible medium of expression

Copy or phonorecord

RAM “fixation”Questions p. 93

Section 1101

Copies & Phonorecords''Copies'' are material objects, other than phonorecords, in

which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ''copies'' includes the material object, other than a phonorecord, in which the work is first fixed.

''Phonorecords'' are material objects in which sounds, other than those accompanying a motion picture or other audiovisual

work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ''phonorecords'' includes the material object in which the sounds are first fixed.

Fixed

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. A work consisting of sounds, images, or both, that are being transmitted, is ''fixed'' for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

Sec. 1101. Unauthorized fixation and trafficking in sound recordings and music videos

(a) Unauthorized Acts. - Anyone who, without the consent of the performer or performers involved - (1) fixes the sounds or sounds and images of a live musical

performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation,

(2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or

(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States, shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright.

Is 1101 Constitutional?

Moghadam and KISS Catalog and Martignon–Congress has power under the Commerce Clause to protect “unfixed” works.

KISS’s earlier, now withdrawn opinion, and Martignon below, now overruled, to the contrary.