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Originality + Creativity Feist Publications v. Rural Telephone Service (phonebook database copying) NOT protected b/c facts are not original - Work must be original to the author o independently created by the author + modicum of creativity  CONSTITUTIONAL REQUIREMENT, but low standard - Work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying - Facts are NOT copyrightable o BUT compilations of facts are  Originality -> Author choose which facts, order, how to arrange - Infringement IF: o Ownership of valid copyright -> copying of constituent elements of the original work - Owners of databases and other factual compilations have turned increasingly to contract law to protect their “sweat of the brow” investments Exception to Fixation Baker v. Selden (books with figures explaining bookkeeping) illustrations NOT copyrightable §102(b) - The copyright protection for a book explaining an art or system extends only to the author’s unique explanation of it and does not prevent others from using the system or the forms incidentally used. - Blank account books are NOT the subject of copyright, and that the mere copyright of Selden’s book did NOT confer upon him the exclusive right to make and use account-books, ruled and arranged as designated by him and described and illustrated in said book - Description of the art -> NO foundation for exclusive claim to art o Can copyright book, BUT NOT “universal” ideas within Subject Matter Exclusion Morrissey v. Procter & Gamble (SSN promotional contest) - Substance of the contest was NOT copyrightable - Substance was relatively simple o P’s rule spring directly from substance and contains NO original creative authorship - There is more than 1 way of expressing simple substance - If narrow subject matter (small handful of forms) -> exhaust all possibilities of future use of substance - No access -> independently arrived at -> no copyright protection - A rule incidental to the operation of a noncopyrightable contest cannot itself be copyrighted if the information it conveys is so simple that there are only a number of ways in which it can be expressed

Separability and Independence Test (Useful Articles) Star Athletica v. Varsity Brands (cheerleading chevron designs) - Feature incorporated into the design of a useful article is eligible for copyright protection ONLY if the feature o Can be perceived as a (2-3)-dimensional work of art separate from useful article o Would qualify as a protectable pictorial, graphic, or sculptural work  Either on its own or fixed in some other tangible medium of expression - Decorations are therefore separable from the uniforms and eligible for copyright protection - Reject view that useful article MUST remain after the artistic feature has been imaginatively separated from the article WMFH Community for Creative Non-Violence (CCNV) v. Reid (WMFH -> file for own copyright) NOT employee - Use Congress’s conventional master-servant relationship from common-law agency doctrine - Language and structure of §101 do NOT support either the right to control the product or the actual control approaches - Facts considered o Skill required o Source of instruments o Location of work o Duration of relationship o Ability to assign additional projects o Extent of when to work o Method of payment o Hired party’s role in hiring/paying assistants o Whether work is part of regular business o Whether hiring party is in business o Provision of employee benefits o Tax treatment Joint Authorship Aalmuhammed v. Lee (subtitles + revisions for Malcolm X) - Authorship is required under the statutory definition of joint work o Not the same thing as making valuable and copyrightable contribution - A person claiming to be a co-owner of a joint work must prove that both parties intended the work to be a joint work - Author o Needs more than minimal creative/original contribution to the work

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Person to whom the work owes its origin and who superintended the whole work  MASTERMIND

Right to Reproduce Arnstein v. Porter (“copied” songs) ARNSTEIN TEST - Copying o Look to admission of copying o Circumstantial evidence to infer copying (evidence of access)  If evidence of access is absent, the similarities must be so striking as to preclude the possibility that P and D independently arrived the same result  2nd circuit (no proof of access) o P need not cite evidence of access if strikingly similar  7th circuit (require proof of access) o P required to present sufficient evidence to support reasonable possibility of access b/c the jury cannot draw an inference of access based upon speculation and conjecture alone o No similarities -> no evidence will suffice to prove copying o If similar but no evidence -> similar enough to preclude possibility that P and D independently arrived  There are similarities but do NOT compel the inference that D copied o Sufficient so that if there is enough evidence of access to permit the case to go to jury and infer not coincidence - Illicit Copying (unlawful appropriation) o Whether, in the eyes or ears of the trier of fact, the D’s work reproduces so much of the P’s protected expression as to infringe the copyright - Subconscious Copying o Not deliberate, but still infringement - Deliberate Error or Common Mistake o Helps aid establish copying - Techniques for reducing risk o Don’t open unsolicited scripts o Work in clean rooms Improper Appropriation Nichols v. Universal Pictures Corporation (no infringement b/c did not take more than law allowed) - Two plays may be similar enough in plot for a finding of infringement - Theme = idea, characters = stock figures -> public domain b/c used for many decades

Derivative Work Anderson v. Stallone (wrote Rocky 4 -> used) NO protection under § 103 - Learned Hand Test: o Copyright protection granted to a character if it is developed with enough specificity so as to constitute protectable expression th - 9 Circuit Test: o Character is NOT copyrightable unless it constituted the story being told  Disney characters copyrighted  Comic book characters distinguishable from literary characters - 17 USC § 106(2)cam o Holder of copyright has exclusive right to prepare derivative works based on copyrighted work  Derivative ONLY if it would be considered an infringing work if the material which it had derived from a prior work had been taken without the consent of the copyright proprietor of the prior work - Case law -> no part of an infringing derivative work should be granted copyright protection - Goldstein: o Protecting derivative necessary to ensure adequate incentive to develop new work Right to Perform American Broadcasting Companies, Inc. v. Aereo, Inc. (subscribers allowed to watch TV on Internet) INFRINGE - Congress enacted Transmit Clause o Entity performs publicly when it transmits a performance to the public - Congress set out system of compulsory licensing and fees for cable companies' public performances of copyrighted works

Fair Use Defense Sony Corp. of America v. Universal City Studios, Inc. (Betamax) OK - Factor 1: commercial or nonprofit character of an activity o Home use -> noncommercial, nonprofit activity Harper & Row, Publisher, Inc. v. Nation Enterprises (President autobiography -> stolen) NOT OK - Extensive prepublication quotations from an unreleased manuscript without the copyright owner’s consent poses substantial and potential for damage to the marketability of first serialization rights in general - Copyright owner has right to control the first public distribution of work

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The fact that a work is unpublished shall NOT itself bar a finding of fair use if such finding is made upon consideration of all the §107 factors Fact v. fiction o Fact less protection

Campbell v. Acuff-Rose Music, Inc. (Pretty Woman Parody) OK - 1: whether new work merely supercedes original or instead transforms its purpose o Transformative NOT necessary, but follow goal of promoting science/arts o Parody is obviously transformative o Good or bad taste parody does NOT matter for fair use o Language of statute makes clear that commercial or non-profit educational purpose of a work is ONLY one element of the first factor enquiry into its purpose and character - 2: nature of the copyrighted works o Fair use more difficult to establish when former works are copied o Orbison’s original creative expression for public dissemination falls within the core of the copyright’s protective purposes o Parodies invariably copy publicly known, expressive works - 3: amount and substantiality of the portion used in relation to the copyrighted work as a whole o Taking the heart of the original and making it the heart of a new work was to purloin a substantial portion of the essence of the original  Required for parodies to allude to original through distorted imitation  AC: insufficiently appreciative of parody’s need for the recognizable sight or sound o Copying NOT excessive in relation merely b/c portion taken was original’s heart o What did D do besides take heart?  Departed from lyrics + new distinctive sounds + altered beats o NO MORE was taken than necessary  Remand to permit evaluation of amount taken  In light of parody purpose - 4: effect of the use upon the potential market for or value of the copyrighted works o When transformative, market substitution is less certain  Market harm CANNOT be readily inferred o Can still harm market by legitimately aiming at garroting the original, destroying it commercially as well as artistically o Parody doesn’t fit into derivative work market b/c artist unlikely to parody own work o Parody does NOT substitute original work

American Geophysical Union v. Texaco (photocopy scientific articles from journals) NOT OK - The photocopying of copyrighted material to convert scholarly articles into a useful format is not a transformative use of the material and therefore not a fair use

Blanch v. Koons (used photograph of feet in painting) NOT OK - An artist"s appropriation of a copyrighted image in a collage painting is a protected "fair use" under the copyright law where the other statutory fair use factors favors the artist. Authors Guild v. Google, Inc. (Book search project) OK - If an infringer sells copyrighted works for profit without the copyright holder’s consent, it is not fair use. - Digital copy is transformative - Look to unreasonable risk of copyright value loss - Look to public benefits Online Service Provider Safe Harbors Viacom Int’l, Inc. v. YouTube (infringing videos online) OK - The § 512 safe harbor of the Digital Millennium Copyright Act (DMCA) requires knowledge or awareness of specific infringing activity. - The common law willful blindness doctrine may be used to show knowledge or awareness of specific instances of infringement under the DMCA - A service provider has the “right and ability to control” infringing activity under & sect ; 512(c)(1)(B) of the DMCA whether or not an item-specific knowledge of infringing activity exists. - Red Flag knowledge provision -> use objective reasonableness standard o Unreasonable to not know - Actual knowledge -> subjective - Safe harbor provides that an eligible SP must NOT receive a financial benefit directly attributable to the infringing activity, in a case in which the SP has the right and ability to control such activity

Damages Sheldon v. MGM (“Dishonored Lady” -> “Letty Lynton”) NO damages, but infringement exists -

Cannot award damages for profits made by infringer that CANNOT be attributed to infringement o Only award damages to prevent unjust enrichment

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Judge dismissed b/c D only used general themes, motives, or ideas

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NO copyright protection  A plot is NEVER copyrightable...