ideas, concepts under 102(b) - like facts, ideas are in the public domain (baker v. selden)
forms themselves might be the ideas, or forms of the idea that can be protectable because the idea is susceptible to so few forums (morrissey v. proctor and gamble) such that the idea and the item merge.
channeling rights: channel rights of intellectual effort from one system to another (brandir). why?
to avoid issues where a useful invention could have super long 70+ patent gained through copy right. we dont' want that.
brandir: what do we do with something like this??? it's both artistic and useful.
copyright protects original expression. how does the understanding of copyright play into our understanding of how we deal with something like this?
- we take the creator's intention into consideration, and we take the public perception into consideration.
what are we using copyright to achieve? if the reward is the subject of the inquiry, then we should ask the creator and determine if that's the type of conduct that the copyright is right to take for whther an article is a useful article.
if we're looking to whether something is copyrightable or not, what state of mind will be sufficient to put the item into the copyright system and how sufficient to put it towards utility.
how else may we satisfy the issue between the creativity and the usefulness? does judge winter's suggestion help?
distinguishing between pictoral, graphic, literal work and useful article: conceptual separability...
"if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separble from the utilitarian elements. conversely, where design elements can be identified as reflecting the deigner's artistic judgment exercised independently of functional influences, conceptual separability exists."
looks at the subjective intention of the designer during creation. winter says that we should think of it only by the public view and idea of how to use it.
Rights of Copyright Owners: 17 USC s.106
"the owner of copyright... has the exclusive rights to do and to authorize any of the following:
1. to reproduce the copyrighted work...
2. to prepare derivative works based on the work;
Reproduction Right: Arnstein v. Porter
independent creation can be a defense in copyright, unlike in patent law where it's not. however, in
steps of analysis
1. copying
2. unlawful appropriation
difficulty of proof: tin pan alley music will likely have some quantum of similarity, and so it may be difficult to blur the first and second elements of the test
what would constitute proof of copying?
porter saying i copied.
what proves that there wasn't copying?
- proof of access: if there was no way that porter could hear the song, he couldn't have copied it
- proof of similarity: if there's no similarity, then there's no copying even if there's access
- it's a sliding scale: where both of the elements may be present, there's a question of fact of whether one or both of these were present, and how comprehensive the elements were.
once something is made publicly available then there's public access. arnstein had published. so there's then a different level of proof of access. so would the level of similarity displayed ever justify a finding of infringment?
who's point of view are we looking at? the creator, the public, the expert of the field, the audience, people generally??
dangers with infringment doctrines that are based on less than wholesale literal copying...
maybe the issue is that both creativity and copying work in subtle ways.
maybe the public's opinion and interpretation shouldn't be the issue of copyright law. there's a concern for the autonomy of the process of creation for the underlying policies of how we want our copyright system to work.
so what's improper appropriation?
we're thinking from the ears of the lay person who might be a consumer of the work, where there's a particular member of a particular audience
distinctions between the prongs: the copying test
improper appropriation has to do with what is the needs and interests of the market place and society, and the innovation that feeds into the market.
Test for Copyright Infringement
Is there actual copying?
Direct evidence (admission) or
Circumstantial evidence
Was there access to the work?
Was there an opportunity to copy?
If evidence of access is absent, are the similarities so striking as to preclude possibility that ∏ and ∆ independently arrived at same result?
Is there enough similarity b/w works to infer that there might have been access?
If there are no similarities, no amount of evidence of access will suffice to prove copying.
Is there improper appropriation?
"Ordinary lay hearer test": What we care about is whether the person who bought the original record bought the replacement instead.
is the thing copied something that we as the public are concerned about?
an idea--discretion dichotomy: see baker v. selden. exclusive rights to the "useful art" is only available by patent; the description or expression itself is protectable by copyright. once we say that there's something that can be copyrighted, there's a scope of ideas.
creation from a 30,000 foot view of the structural issues isn't engaging a scope of ideas, but instead just increasing the distance between the specific and the archetype. it's just a new perspective on stock characters.
copyright is of the expressions and not of an abstract idea.... there's certain archetypes that allowing copyright would foreclose the whole point of property protection of ideas, because they're so much a part of our social conscious and lexicon that they are essentially public domain.
how do we know what that level is, at which there is a distinction?
there's not really an opportunity for a bright line rule...
what is the law of this area of copyright? is there any?
-- a possible solution could be evidence of how the market is impressed by the plaintiff and defendant's works comparatively
but still, what would this prove towards a level of abstraction?
-- the virtual identity test: the stronger the archtype/ the more broad the concept/ the more basic the structure, we'll require more proof that the idea was literally taken by the defendant
the takeaway: how slippery the infringement analysis is....
right to prepare derivative works
- 17 USC s.101: a work based on one of more pre-existing works.- 17 USC s.103(a): protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully
anderson v. stallone: a preparation of a derivative rocky movie is under the copyright of the original. stallone has the exclusive right to prepare derivative works of rocky. anderson created a derivative work based on the characters and storyline of rocky.
17 USC 103(a): anderson can't recover if it's found he was infringing in the first place...
see p.505 -- difference between derivative works and compilations
gives the right for not only the work but also for anyone who wants to build on that work.
and another new problem that there's derivatives and arrangements/compilations....
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