Copyright Law T, Th 9:00 – 10:15

Sherri Thomas

I. Generally
Broad Copyright Protections:
 §102(a) of the Copyright Act does not extend protection to unfixed works,
 §1101 extends protection only to a limited class of unfixed works,
 State enacted statutes and common law.

Elements of Infringement:
 Must show:
o Ownership of valid CR,
o Copying of constituent elements of the work that are original.
 Show actual copying of CR work, and
 Infringer’s work is substantially similar to protectable elements of CR
work.
 Requires the infringing copy to meet the fixation element.

Elements of a valid copyright:

I. Originality
II. Fixation
III. Tangible medium
IV. Ability to perceive, reproduce, communicate

II. Elements of a valid Copyright:

a. Fixation - (1) easing problems of proof of creation and infringement, and (2)
providing the dividing line between state common law protection and protection
under the federal Copyright Act, since works that are not fixed are ineligible for
federal protection but may be protected under state law.

i. Statute – 17 USC § 102(a)

1. “by or under the authority of the author” and
2. the work must be “sufficiently permanent or stable to permit it to be
perceived, reproduced, or otherwise communicated for a period of
more than transitory duration.”
ii. Case
1. Kelley v. Chicago Park District – Integrity issue.
a. Kelley sues for right of integrity of wildflower works. Argues
city did not have right to change the work to make it easier to
maintain.
b. No CR because not “original.”
c. Installation is not the same as a garden plan from a landscape
designer.
d. Court reserved possibility of copyright for non-static works.
 e. How could have Kelley prepared himself:
i. Should have put Plan for where plants are fixed and
specific OR
ii. That the piece is meant to change or evolve.
1. Fixation and integrity should be documented in
BALANCE.
f. City negotiating with artist for public structure:
g. Put in term limit and option to change/remove at any time.

2. Cartoon Network LLLP v. CSC Holdings, Inc. – DVRs contain copies?

a. Holding: no fixation occurred when cable television co stored
transitory buffer copies of television programs for up to 1.2
seconds in order to enable customers to record the programs.
b. Fixtion reqs duration and embodiment element.

c. the court distinguished earlier cases that had found fixation

where copyrighted material remained in a computer’s RAM
until the computer was turned off.

iii. If unfixed:
1. Look to either §1101 for certain unfixed categories that might be
protected pursuant to the TRIP agreement, or
2. Look to state laws for potential protection.

iv. Video games/ Multimedia fixation

1. Courts hold fixation if,
a. “there is always a repetitive sequence of a substantial portion
of the sights and sounds of the game,” and
b. many aspects of the display remain constant from game to
game regardless of how the player operates the control.

b. Originality
i. Elements:
1. Independent Creation – must be made from scratch.
2. Modicum of creativity – Extremely low threshold.
a. can be even a slight amount.

ii. Bleistein v. Donaldson Lithographing Co. – Creativity: Circus poster

reproduction creative enough?
1. Public Policy of CR: Benefit the public, NOT reward artists/authors
for good work.
a. Otherwise would stifle all creativity bc no one would invest
time to learn and develop if their works can be ripped off
through copies.
b. Bad art is subjective to the person and the era. Art might be
labeled bad that is before its time.
 c. Speech and expression is tempered with obscenity and other
laws that do not have protection.
2. Creativity is a low bar so that the level of skill or creativity is not what
determines what is to be CR’able.
3. E.g. vacation pictures.

iii. Prunte v. Universal Music Group – Independent creation: Individual words or

themes be CR’able?
1. Court holds π phrases of “that’s what’s up,” song titles, and sex,
violence, and drugs theme are not CR materials that π can protect.
2. CR Infringement reqs:
a. Ownership of valid CR,
b. Copying of constituent elements of the work that are original.
i. Show actual copying of CR work, and
ii. Infringer’s work is substantially similar to protectable
elements of CR work.

III. Protectable elements of photograph

a. Originality depends on independent creation
i. Selection of film and camera,
ii. Lens and filter selection
iii. Decisions of kind of camera, the kind of film, kind of lens…
b. Mannion - ∆ argues no CR over Kevin Garnett, originality in a cloudy sky backdrop,
clothing and jewelry not selected by photographer.
i. Orchestration does not mean controlling every detail.

c. Originality of Rendition (rendition - how it was created)

i. SHL Imaging
1. Mirrored picture frames,
2. Reproduced in catalogs,
3. Infringement: Selection of elements (“Composition”).

d. Originality and timing

i. Pagano - Being at the right place at the right time.
1. New York Public Library photo.

e. Originality in Creation of the Subject

i. Rogers v. Koons - “puppies” picture to sculpture found to be infringing.
ii. Gross v. Seligman – Grace of Youth originally created then creator infringed
on his own work (that he sold rights to) with Cherry Ripe.