INTRODUCTION TO

COPYRIGHT
SUMESH REDDY
 What is copyright ?
• The right to:
– To make copies
– To distribute copies
– To prepare derivative works
– To perform the copyrighted work publicly
– To display the copyrighted work publicly
 Idea/expression dichotomy
• Ideas are not protected unless fixed in a
tangible medium
• Difference between an idea and the
expression of an idea
• The case of the script writer
• Baker v Selden
 Baker v Selden

• Selden's copyright over the textbook in

which he explained his new way to do
accounting did not grant him a monopoly on
the use of his accounting system
• Double-entry bookkeeping is the now
almost-universal T-accounts system
 The ghost in the machine
• Fixation-In a tangible medium
• Loading of a copy into RAM is fixation for
the purposes of copyright- MAI Systems
Corp. v. Peak Computer, Inc
What is protected by Copyright ?
• Original literary, dramatic, musical and
artistic works
– Computer software.
– Architectural works
– Pictorial, graphic, and sculptural works
• Cinematograph films
• Sound recordings
• Databases
 Copyright in Music
• What is not protected
• Music Styles
• New ways of generating sounds
• Public performance
 MUSIC
• The copyright in sound recording is a
separate and distinct right from the
copyright in the underlying musical
composition.
• Does a recording represent a "copy" of the
composition?
Mazer v. Stein: copyright protection
to statuettes used as lamp bases
 Nichols v. Universal Pictures
Corporation:
• The problem of characterizations in films
and plays
• http://www.youtube.com/results?search_qu
ery=Abie%27s+Irish+Rose&search_type=
Burrow-Giles Lithographic Co. v.
Sarony: photographs
 Elements of Copyright
• Originality & authorship
• Creativity –Only a minimum amount
• Justice Holmes in Bleistein v. Donaldson
Lithographing Co., 188 U. S. 239, 251 (1903) "it
would be a dangerous undertaking for persons
trained only to the law to constitute themselves
final judges of the worth of a work, outside of the
narrowest and most obvious limits. (circus posters
have copyright protection)
 Databases
• Feist Publications v Rural Telephone
Service
• Key Publications v Chinatown Today
Publishing enterprises
• Eckes v Card Prices Update.
• Skinder-Strauss Associates v Massachusetts
Continuing Legal Education
 Doctrine of merger
• When the possible ways to express an idea
are limited, the expression "merges" with
the idea and is therefore uncopyrightable
• Can you think of any examples?
 Lotus V. Borland

• Allegation: Borland copied the Lotus 1-2-3

menu command hierarchy into its Quattro
and Quattro Pro computer spreadsheet
programs
• Lotus 1-2-3 has 469 commands arranged
into more than 50 menus and submenus
with typical commands such as "Copy,"
"Print," and "Quit."
• District court held that there was infringement to
“the extent which the copied elements of the menu
commands contain expressive aspects separable
from the functions of the commands
• Alternate expressions could be used- ‘Exit’ for
‘Quit’, `Clone,' `Ditto,' `Duplicate,' `Imitate,'
`Mimic,' `Replicate,' and ‘Reproduce’ for ‘copy’
• Because so many variations were possible, the
court concluded that copyrightable expression
existed
 Section 102(b)

• In no case does copyright protection for an

original work of authorship extend to any
idea, procedure, process, system, method of
operation, concept, principle, or discovery,
regardless of the form in which it is
described, explained, illustrated, or
embodied in such work."
 Other aspects of the software
• Long prompts are not necessary to the operation of
the program; users could operate Lotus 1-2-3 even
if there were no long prompts
• Lotus screen displays; users need not "use" any
expressive aspects of the screen displays in order
to operate Lotus 1-2-3; because the way the
screens look has little bearing on how users
control the program
• Lotus menu command hierarchy is a method of
operation
• Menu command hierarchy provides the means by
which users control and operate Lotus 1-2-3
• Does not merely explain and present Lotus 1-2-3's
functional capabilities to the user; it also serves as
the method by which the program is operated and
controlled
 Infringement
• To establish copyright infringement, a plaintiff
must prove "(1) ownership of a valid copyright,
and (2) copying of constituent elements of the
work that are original."
• Proof- direct evidence of factual copying
• Evidence that the alleged infringer had access to
the copyrighted work and that the offending and
copyrighted works are so similar that the court
may infer that there was factual copying
 A hypothetical case
• Navigator & Microsoft Internet Explorer
• Reload\Refresh, Bookmarks\Favorites,
Preferences\Internet options
• What would be copyrightable?
 A few other things about
Copyright
• When does an author acquire Copyright
protection
• Do I need to indicate that my work is
protected © copyright copr.
• How long does it last ?
• When does a work enter the public domain
• Crown copyright
My employer stole my Copyright
• Who does it belong to
• Work for hire
• Independent consultant\contractor
 The fair use defense
• Four criteria
• The purpose and character of the use,
• The nature of the copyrighted work
• The amount and substantiality of the
portion
• The effect of the use upon the market
 Pretty Woman" by Roy Orbison
and William Dees
Pretty Woman, walking down the street,
Pretty Woman, the kind I like to meet,
Pretty Woman, I don't believe you,
you're not the truth,
No one could look as good as you
Pretty Woman, won't you pardon me,
Pretty Woman, I couldn't help but see,
Pretty Woman, that you look lovely as can be
Are you lonely just like me?
Pretty Woman, stop a while,
 Pretty Woman by Roy Orbison
and William Dees
Pretty Woman, talk a while,
Pretty Woman give your smile to me
Pretty woman, yeah, yeah, yeah
Pretty Woman, look my way,
Pretty Woman, say you'll stay with me
`Cause I need you, I'll treat you right
Come to me baby, Be mine tonight
Pretty Woman, don't walk on by,
Pretty Woman, don't make me cry,
 Pretty Woman as Recorded by 2
Live Crew
Pretty woman walkin' down the street
Pretty woman girl you look so sweet
Oh, pretty woman
Big hairy woman you need to shave that stuff
Big hairy woman you know I bet it's tough
Big hairy woman all that hair it ain't legit
`Cause you look like `Cousin It'
Big hairy woman
Bald headed woman girl your hair won't grow
Bald headed woman you got a teeny weeny afro
 Campbell v. Acuff-Rose Music
• Background
• Parody- definition
• Applying the four factors
• Transformative value
• Value as criticism
• Evaluating its quality- Not the job of courts
 Campbell v. Acuff-Rose Music
• The nature of the copyrighted work
• Some works are closer to the core of
intended copyright protection than others
• The amount and substantiality of the portion
used
• Parody justifies taking the “heart of the
matter”
 Campbell v. Acuff-Rose Music
• The effect of the use upon the potential market for
or value of the copyrighted work
• No presumption about the effect of commercial
use
• When use is transformative, market substitution is
at least less certain
• Criticism which kills demand does not produce a
harm cognizable under the Copyright Act.
• Harm to the market for potential derivative uses
• How would you evaluate these four factors
in Harper & Row v. Nation Enterprises
 Types of infringement
• Direct infringement
• Vicarious infringement
• Contributory infringement
• Vicarious infringement- “dance hall cases”
(Dreamland Ballroom, Inc. v. Shapiro, Bernstein
& Co.)- right and ability to supervise or control the actions of the
primary infringer, but also had a direct financial interest in the exploitation
of the copyrighted material
• Landlord-tenant cases

• Fonovisa, Inc. v. Cherry Auction, Inc

 Contributory infringement
• Sony Corp. of America v. Universal
Studios, Inc
• A&M Records, Inc. v. Napster, Inc