Intellectual Property (Class #2) notes
Jun. 25th, 2009 11:44 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
hermionesviolinTitles and short phrases cannot be copyrighted.
Series is protected by copyright because people might be deceived (protecting the marketplace from fraud). So "The Best Game Ever" is fine, "Harry Potter and the Best Game Ever" not so much.
Prof isn't sure that Salinger should be allowed to own Holden Caulfield -- "cultural icon." You can write books about nonfictional people... I can write a work of literary criticism about Holden Caulfield...
"If you wanted to write a book about Harry Potter at age 76, you couldn't do it in a way that suggests you're writing a book in the Harry Potter series. But if you titled your book, The Hogwarts Reunion: Harry Potter at Age 76, as imagined by me, then at least you're telling the public that this isn't J. K. Rowling."
He then talked about the Harry Potter Encyclopedia (i.e., the Lexicon -- which was what I had suspected when on Monday he mentioned a recent Harry Potter copyright case).
"Copyright is, as we said on Monday, attempt by the law to draw the line between giving people incentive to create by denoting their creation as property and giving them certain property rights and on the other hand, not restricting the free flow of ideas, argument, etc. which advance society."
The Idea-Expression Dichotomy
(Copyright protects the expression, not the idea.)
[Could also be called the "Fact-Expression Dichotomy"]
Baker v. Seldon (1879)
Mr. Baker, bookkeeper extraordinaire, comes up with double-entry bookkeeping
Mr. Seldon [my first thought was "Hari Seldon"; I am weird] improves Baker's system
Sidenote: had Mr. Baker been able to patent his bookkeeping system, that would have been an entirely different matter.
Morrissey v. Proctor & Gamble (1967)
sweepstakes rules
"doctrine of merger" (idea and expression merge)
1791, originally: 14 years and can renew once but after 28 years it goes into public domain
prof: recall approximate life expectancy at that time
1906: first term is 28 years, can renew for another 28 years
1976: Congress gets in step with European tradition (life of the author), life of the author plus 50 years (retroactive for anything currently under copyright at the time the law went into effect)
1998: life plus 70 years [Moby Dick would still be under copyright if we applied this retroactively, for example, or Mark Twain ... Disney... non-human entity gets 70 years straight-term, '98 changes it to 95 years]
prof: does this increase in duration really increase incentive any?
Supreme Court said Congress had not exceeded their authority (life plus seventy is still "limited")
A copyright is an "asset" of a corporation -- just like its real estate, its cash, etc.
"orphan works" -- when nobody owns the copyright anymore (company goes out of business, etc.)
By law, the U.S. Government is not allowed to copyright its works. (This doesn't apply to states or foreign governments.)
When someone dies without a will etc., copyright goes through same channels as any other property would.
Spike Lee case
Mr. Aalmuhammed, consultant on Islam matters when Spike Lee was making his Malcolm X movie
Mr. Aalmuhammed argues he's joint copyright holder (and thus entitled to a share in the royalties -- on top of what he already got paid for his services) because joint creator
Europe: artist retains "moral rights" (droit moral) to keep someone from destroying the created art (regardless of whether someone else now owns the copyright). Prof not sure how far down it extends, but it definitely applies to public art.
MassMoCA commissioned an installation from a European artist, halfway through there was a dispute, museum said we've paid for what's there and we want to stop and put something else in, artist said it's an incomplete work so you can't do that
***
purchase of unique items (e.g., art) does not automatically transfer copyright (have to buy/sell/transfer that separately)
[before 1976, 48 states said they're packaged together, but CA and NY said no you have to do it seprately]
non-literal infringement
scenes à faire -- stock elements
Nichols v. Motion Picture
Abie's Irish Rose --> The Cohens and the Kellys
Funky Films
Six Feet Under
-- in order to copy, must have access to original
the court compared: plot, theme, characters, dialogue, pace, sequence, mood
Steinberg v. Columbia Pictures
New Yorker cover v. Moscow on the Hudson poster
map of world w/ "egocentrically myopic perspective"
prof thinks judge was wrong to say Steinberg owns this style
Fair Use (Section 107)
1960s and 70s: photocopy machine, academia
in revising the Copyright Act, Congress defines Fair Use:
"Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."
But then it goes on to say "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:" (and here I paraphrase)
1. purpose and character of use
2. nature of the copyrighted work
3. amount and portion reproduced
4. effect of the use upon the potential market for or value of
The prof said that this list has been used to water down the first paragraph.
Harper & Row v. Nation Enterprises (1985)
Gerald Ford's memoirs
The Nation scoops TIME (manuscript in trash)
substantiality is key
first Supreme Court case decided post- 1976 rewrite
(Prof said that if The Nation had printed those 6 pages 2 weeks after the book came out, it wouldn't have been copyright infringement. This feels instinctively wrong to me, since it's clearly still copying, but a bunch of times during the evening there was stuff that I instinctively felt like should be considered a copyright violation but which probably with a different set of details I would have defended as fair use.)
Sony videocassette recorder (VCR) case
Universal argued that Sony was a "contributory infringer."
The court said the primary use is timeshifting.
The prof thinks the court was stretching, not wanting to outlaw this technology.
irony: VCR (and offspring) ultimately revitalized the movie industry
irony: Sony BetaMax lost out to VHS
Series is protected by copyright because people might be deceived (protecting the marketplace from fraud). So "The Best Game Ever" is fine, "Harry Potter and the Best Game Ever" not so much.
Prof isn't sure that Salinger should be allowed to own Holden Caulfield -- "cultural icon." You can write books about nonfictional people... I can write a work of literary criticism about Holden Caulfield...
"If you wanted to write a book about Harry Potter at age 76, you couldn't do it in a way that suggests you're writing a book in the Harry Potter series. But if you titled your book, The Hogwarts Reunion: Harry Potter at Age 76, as imagined by me, then at least you're telling the public that this isn't J. K. Rowling."
He then talked about the Harry Potter Encyclopedia (i.e., the Lexicon -- which was what I had suspected when on Monday he mentioned a recent Harry Potter copyright case).
"Copyright is, as we said on Monday, attempt by the law to draw the line between giving people incentive to create by denoting their creation as property and giving them certain property rights and on the other hand, not restricting the free flow of ideas, argument, etc. which advance society."
The Idea-Expression Dichotomy
(Copyright protects the expression, not the idea.)
[Could also be called the "Fact-Expression Dichotomy"]
Baker v. Seldon (1879)
Mr. Baker, bookkeeper extraordinaire, comes up with double-entry bookkeeping
Mr. Seldon [my first thought was "Hari Seldon"; I am weird] improves Baker's system
Sidenote: had Mr. Baker been able to patent his bookkeeping system, that would have been an entirely different matter.
Morrissey v. Proctor & Gamble (1967)
sweepstakes rules
"doctrine of merger" (idea and expression merge)
1791, originally: 14 years and can renew once but after 28 years it goes into public domain
prof: recall approximate life expectancy at that time
1906: first term is 28 years, can renew for another 28 years
1976: Congress gets in step with European tradition (life of the author), life of the author plus 50 years (retroactive for anything currently under copyright at the time the law went into effect)
1998: life plus 70 years [Moby Dick would still be under copyright if we applied this retroactively, for example, or Mark Twain ... Disney... non-human entity gets 70 years straight-term, '98 changes it to 95 years]
prof: does this increase in duration really increase incentive any?
Supreme Court said Congress had not exceeded their authority (life plus seventy is still "limited")
A copyright is an "asset" of a corporation -- just like its real estate, its cash, etc.
"orphan works" -- when nobody owns the copyright anymore (company goes out of business, etc.)
By law, the U.S. Government is not allowed to copyright its works. (This doesn't apply to states or foreign governments.)
When someone dies without a will etc., copyright goes through same channels as any other property would.
Spike Lee case
Mr. Aalmuhammed, consultant on Islam matters when Spike Lee was making his Malcolm X movie
Mr. Aalmuhammed argues he's joint copyright holder (and thus entitled to a share in the royalties -- on top of what he already got paid for his services) because joint creator
Europe: artist retains "moral rights" (droit moral) to keep someone from destroying the created art (regardless of whether someone else now owns the copyright). Prof not sure how far down it extends, but it definitely applies to public art.
MassMoCA commissioned an installation from a European artist, halfway through there was a dispute, museum said we've paid for what's there and we want to stop and put something else in, artist said it's an incomplete work so you can't do that
***
purchase of unique items (e.g., art) does not automatically transfer copyright (have to buy/sell/transfer that separately)
[before 1976, 48 states said they're packaged together, but CA and NY said no you have to do it seprately]
non-literal infringement
scenes à faire -- stock elements
Nichols v. Motion Picture
Abie's Irish Rose --> The Cohens and the Kellys
Funky Films
Six Feet Under
-- in order to copy, must have access to original
the court compared: plot, theme, characters, dialogue, pace, sequence, mood
Steinberg v. Columbia Pictures
New Yorker cover v. Moscow on the Hudson poster
map of world w/ "egocentrically myopic perspective"
prof thinks judge was wrong to say Steinberg owns this style
Fair Use (Section 107)
1960s and 70s: photocopy machine, academia
in revising the Copyright Act, Congress defines Fair Use:
"Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."
But then it goes on to say "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:" (and here I paraphrase)
1. purpose and character of use
2. nature of the copyrighted work
3. amount and portion reproduced
4. effect of the use upon the potential market for or value of
The prof said that this list has been used to water down the first paragraph.
Harper & Row v. Nation Enterprises (1985)
Gerald Ford's memoirs
The Nation scoops TIME (manuscript in trash)
substantiality is key
first Supreme Court case decided post- 1976 rewrite
(Prof said that if The Nation had printed those 6 pages 2 weeks after the book came out, it wouldn't have been copyright infringement. This feels instinctively wrong to me, since it's clearly still copying, but a bunch of times during the evening there was stuff that I instinctively felt like should be considered a copyright violation but which probably with a different set of details I would have defended as fair use.)
Sony videocassette recorder (VCR) case
Universal argued that Sony was a "contributory infringer."
The court said the primary use is timeshifting.
The prof thinks the court was stretching, not wanting to outlaw this technology.
irony: VCR (and offspring) ultimately revitalized the movie industry
irony: Sony BetaMax lost out to VHS