Copyright Law Handout

Copyright Law
Law School Legends

Professor Roger Schechter
I. Justifications for a Copyright System
A. You might wonder at the outset why society needs copyright laws at all
B. Usually two alternative reasons identified
1. The continental theory – a moral entitlement
2. The Anglo-American justification – an economic incentive
C. Countervailing considerations – why there should be limits on copyright
1. To enable subsequent authors to build on the work of their

predecessors
2. To promote the free exchange of ideas
D. We didn’t see copyright hundreds of years ago because copying was very
difficult
1. Authors had exclusive rights to their works as a practical matter.
2. As copying technologies have gotten more sophisticated, copyright law

has gotten more complex to continue to preserve the economic
incentive of authors.
3. The history of copyright law can be seen as a legal response to ever more
effective copying technologies.
Page 2 COPYRIGHT LAW LAW SCHOOL LEGENDS
II. The Constitutional and Statutory Framework
A. The Subject Matter of Copyright
1. Specifies certain general prerequisites
2. Provides us with a non-exclusive list of specific categories of subject

matter
B. First Prerequisite for protection – Fixation
1. Fixed means “memorialized,” “captured,” or “made permanent.”
2. There are two types of objects in which a work can be fixed:
a. Phonorecords are “material objects in which sounds are fixed.”
b. Copies are any other type of object in which a work could be

fixed.
c. To be “fixed” it must be permanently or stably embodied in

either a “copy” or “phonorecord.”
d. In other words, it must be written down, taped, painted, or

filmed.
3. Thus, there is no federal protection for non-fixed works.
4. EXCEPTION – Under §1101, making an unauthorized copy of a live

musical performance is equivalent to copyright infringement.
5. Historically, there was some ambiguity about what constituted the

proper types of copies into which a work could be fixed.
6. The present statute defines copies as: Material objects in which a work is
fixed and from which the work can be perceived, reproduced, or
communicated either directly or with the aid of a machine.
7. Don’t forget that there is also the requirement of permanence.
8. Finally, note that copyright protection attaches the minute the work is
fixed.
C. Second Prerequisite for Protection – Originality
1. A compound requirement – encompasses two separate notions
2. Not copied
a. One must create the work through independent effort.
i. No copyright if you copy verbatim from a preexisting

work.
b. Parallel independent creation can yield multiple copyrights.
3. Minimally Creative
a. Not every expressive work created from scratch is eligible for

copyright.
b. You need some creativity.
c. The amount of creativity required is very low.
d. There is no requirement of artistic merit.
III. Idea/Expression Distinction
A. Protection extends only to literal expression and not to underlying ideas of the
work.
B. The principle dates back at least as far as the 19th century case of Baker v. Selden.
C. Closely related to the “no protection for ideas” rule is the Merger Doctrine.
1. If there is only one way to express an idea, the idea and the expression
merge.
2. Protecting such expression would prevent others from using the idea.
3. So the expression is deemed unprotected.
D. Determining which parts of a work are protected expression and which parts
are unprotected ideas is quite different.
IV. Specific Types of Protected Works
A. The statute lists 8 categories.
1. The list is non-exclusive.
2. Some items in the list are not particularly important.
B. Literary Works
1. Anything in words or symbols – including fiction and non-fiction

works, prose and poetry, and even computer programs.
2. Historical research or factual discoveries are not protected by

copyright.
3. Pictorial fictional characters are protected.
4. Literary characters are more troublesome
a. Many are nothing more than mere ideas and thus

unprotectable.
b. Those drawn with great enough specificity become “expressive”

and eligible for protection.
5. Computer software
a. Computer code is protectable expression under the statute.
b. Courts continue to struggle with the “non-literal” elements of

the program.
c. Organizational structure of the program is only narrowly

protected.
d. The “user interface” of a program is only narrowly protected.
C. Pictorial Graphic and Sculptural Work
1. Includes painting, sculpture, advertisements, maps, and technical

diagrams
2. Protection does not extend to those aspects of a work that are

“utilitarian.”
3. If the work overall is a “useful article” there can only be protection for
design features if they can be identified separately from and can exist
independently of the utilitarian aspects.
4. Some courts extend protection to the aesthetic components of a useful

object when there is no “physical separability” if there is “conceptual
separability.”
5. Toys are NOT “useful” articles, and are thus copyrightable.
D. Musical Works and Sound Recordings
1. These are actually two separate categories.
2. Musical works is notes and lyrics – on sheet music or in a phonorecord
3. Sound recording is a collection of sounds embodied in a phonorecord.
a. A sound recording need not be of music.
b. Could be a comedy album, a recording of bird songs, or a

foreign language instruction tape.
4. With recorded music note that there are two separate copyrightable
works:
a. The composer of the music owns the copyright in the music.
b. The record producer has a separate copyright in the sound

recording.
E. Compilations
1. Collection of either data or already existing work
a. Could be a poetry anthology or law review issue
b. Could be a book of stock quotations
c. Could be a computer database

2. If the compilation consists of previous work not in the public domain,

the compilation-author needs permission from the copyright holders to
use it.
3. Compiler is entitled to a separate copyright.
a. Originality is deemed to lie in the selection and organization of

the work.
b. The owners of the copyrights in each individual work included

in the compilation retain those copyrights.
4. Some collections of information may be so banal and obvious that they

lack the requisite creativity, and thus are not copyrightable.
F. Derivative Works
1. These are works based on an earlier work that transform it in some way.
2. A derivative work is entitled to its own, separate copyright.
a. Of course, the author of the derivative work needs permission of

the copyright owner of the underlying work, unless it is in the
public domain.
b. If you do not get permission, your derivative work is an

infringement of the earlier work and will not itself be eligible for
copyright.
3. To qualify for new copyright, there must be a “non-trivial” difference

between the underlying work and the derivative work.
4. Finally – works prepared by government officers, such as judicial

opinions, regulations, and government reports, do not have copyright
protection.
V. Ownership
A. General rule is easy: the author of a work is the copyright owner
B. Note, however, that ownership of copyright is different from ownership of the

object in which the work may be embodied.
C. Multiple authors
1. The question is whether the parties intend to produce “joint work.”
2. To make that determination, you look for two things:
a. First, each party must contribute copyrightable expression to

the final product.
b. Second, the parties must each have the requisite intent at the
time
3. Each co-author owns an undivided share in a joint work.
a. Each can exploit it without getting permission of co-authors.
b. Each can make derivative works based on it without permission

of co-authors.
c. There is a duty to account to co-authors for profits earned.
D. Authors who work for others
1. The hiring party, rather than the actual author, is the owner of the
copyright IF the work is a work for hire.
2. It is a work for hire if the author was an employee acting within the
scope of his or her employment, determined under the law of agency.
3. If the author is not an employee, consider the type of work.
a. Only 9 types of work can be works for hire:
i. contribution to collective works;
ii. part of a motion picture;
iii. translation;
iv. supplementary work;
v. compilation;
vi. instructional text;

vii. test;
viii. answer material for a test; or
ix. an atlas
b. There must also be a written agreement specifying “work for

hire” status.
i. If yes, it is a work for hire
ii. Without the writing, it is NOT a work for hire.
VI. Duration and Renewal
A. Copyright lasts for the life of the author, plus 70 years after death.
B. For joint work, copyright lasts for the life + 70 years of the last surviving author.
C. Special duration rules for works for hire and for anonymous works: copyright
lasts 95 years from publication or 120 years from creation, whichever comes
first.
D. These rules only apply to works created after 1/1/1978. For older works, look
to the 1909 Act.
E. Basic scheme under 1909 Act:
1. Federal protection began upon publication with proper notice.
2. Unpublished works were protected under state “common law

copyright” which lasted indefinitely until publication.
3. On publication, you got 28-year term, plus 28-year renewal for a total of
56 years.
4. Renewal was not automatic – you had to apply for it, and, if you didn’t,
your copyright expired in the 28th year.
F. In 1978, there were three categories of pre-existing works:
1. Those unpublished and protected under state law

2. Those published in 1950 or later and still in their first term of

copyright.
3. Those published before 1950, renewed, and in their second term of

copyright.
G. Works unpublished on 1/1/1978.
1. These get the life plus 70 term,
2. But with a minimum guarantee that copyright lasts until 12/31/2002
3. With a further extension through 2047, if the work is published before

2002.
H. Works in the renewal term on 1/1/1978.
1. Copyright expires 95 years from the date the work was first published
2. If the work was in the public domain before 1998, it stays there.
3. Bright line tests
i. All works published before 1923 are in the public domain.
ii. No new works will enter the public domain until 2018.
I. Works in the first term on 1/1/1978
1. These works can be renewed in their 28th year and get a second term of
67 years to make a total of 95 years.
2. Prior to 1992, you had to affirmatively file for renewal.
3. After 1992, the renewal is automatic.
4. There is still optional renewal, however, with various statutory

incentives.
VII. Transfers and Termination of Transfers
A. Copyrights are fully transferable, like any other property.

B. However, transfer of a physical object does not transfer copyright.
C. Moreover, you can transfer various sub-parts of your ownership interest.
D. Technicalities surrounding transfers:
1. For anything other than a non-exclusive license, the transfer must be in

writing.
2. The instrument of transfer may, but need not, be recorded.
3. There are priority rules in the event of conflicting transfers.
E. Transfer of renewal interests
1. Transfers of renewal interests are like transfers of a contingency in real

estate.
a. If the author survived until the renewal date, the contingency

would vest, the transfer would be valid, and the transferee gets
the renewal term.
b. If the author died before the renewal date, there is no vesting

and, thus, the author’s surviving heirs get the renewal term
rather than the transferee.
2. There is a presumption that if the contract does not mention the

renewal term, then it is not transferred – it must be referred to
specifically.
F. Renewal transfers and derivative works.
1. Assume author transferred both original and renewal term to assignee.
2. Assume assignee prepared derivative works during the first term.
3. Assume author died before the end of that term, so that the assignment
of the renewal did not vest in the assignee, but instead belongs to the
author’s heirs.
4. The heirs can stop the assignee from using the derivative work.
G. Termination of Transfer
1. The 1976 statute has provisions to “terminate” a transfer.
2. These do not apply to works for hire.
3. For transfers made after 1/1/1978:
a. Applies only if the grant was made by the author.
b. Can be done in the time from 35 years after the grant to 40

years after the grant.
c. Termination can be effected by the author or by majority vote of

spouse and children the author has died.
d. Advance notice of termination must be served at least two, but

no more than ten, years before the selected termination date.
e. The original transferee may continue to exploit any derivative

works made during the period prior to termination.
4. For transfers made before 1/1/1978:
a. Only applies to transfers of the renewal term
b. Doesn’t matter who made the grant – could have been the
author himself or a family member
c. Termination can be done from 56 to 61 years after publication.
d. Notice, again, must be served from two to ten years before

termination.
e. Same rule regarding transferee’s right to continue using

derivative works
f. The practical effect here is to allow the author or his heirs to

recover the 39 year extension in copyright when the old 56 year
period is compared with the new 95 year period.
VIII. Publication and Formalities
A. Under current law, federal copyright attaches the minute the work is “fixed” so
publication is not as significant as formerly, but it still retains some importance.
1. Many statutory time periods are measured from the date of publication.
2. Publication without notice still has some remedial significance.
B. Definition of publication: Distribution of copies or phonorecords to the public

by sale, other transfer of ownership, or by rental lease or lending
C. It is not a publication to perform a work publicly, even to a very large crowd.
D. Second, limited distribution of copies is not considered to be a publication.
1. This concept was confusingly called “limited publication.”
2. It was the distribution of copies to a limited audience for a limited

purpose.
3. For example, giving out copies of a play to friends for their comments.
E. General publication required the unrestricted distribution of copies to the

public.
F. Notice
1. Form of Notice
a. The word copyright or the symbol
b. Name of the copyright owner
c. Year date of first publication
2. Significance of omitting notice depends on the date of the first

publication of the work
3. Pre-1978 – publication without notice injected work into the public

domain.
4. From 1978-1989 – what Nimmer calls “decennial works” – publication

without notice placed copyright in jeopardy, but was subject to “cure”
5. Publication after March 1989

a. Notice is entirely optional
b. Thus, absence of notice has no effect on validity of copyright
c. Use of notice is advisable, however, because it cuts off an

infringer’s ability to argue innocent infringement as a mitigation
of damages.
G. Registration
1. Registration of a copyright claim with the Copyright Office is optional
2. It is, however, a prerequisite to suing for infringement of domestic

works.
3. To encourage prompt registration, however, there are carrots and sticks.
4. Registration requires submission of an application, a fee, and a deposit

of the work – either one copy if unpublished or two copies if published.
H. Archival Deposit
1. In a separate provision, the law requires that copies of all published

works must be submitted to the Library of Congress.
2. This requirement is not a condition of copyright protection.
3. Instead, it is enforced by a system of fines.
I. Special Treatment for Foreign Works
1. Under the formalities of the 1909 Act, it is possible that works

published abroad by foreign authors might have lost their protection
under US law.
2. In 1994, the US adopted legislation in response to a new international

treaty known as the TRIPS agreement to deal with the issue.
3. Section104A automatically restores copyright in any foreign work

effective on 1/1/1996, if it was still protected in its home country but
had fallen in the public domain in the US due to failure to comply with
formalities.
4. The law has certain protections for parties – called “reliance parties” –
who were exploiting the work in the US prior to the key date.
IX. The Rights of the Copyright Holder
A. Section 106 originally listed five different “exclusive” rights of copyright

owners.
1. Not every work has all five rights.
2. Several of the rights are significantly limited by other provisions of the

law.
3. In recent years, a number of highly specialized rights have been added

to the statute, largely in response to digital technologies.
B. The Reproduction Right
1. This is the right to make copies or phonorecords.
2. It is violated whenever anyone makes a copy without permission.
3. One limitation on this right permits libraries to make copies for

preservation purposes or to provide users excerpts of works or works
that are out of print.
4. Three limitations on the reproduction right apply in the music industry:
a. Once a musical composition has been recorded under the

authority of the copyright owner, anyone else may also make
recordings of it – an activity known as “covering” the record –
without asking permission.
i. But, you still have to pay a fee for use of the song.
ii. This is known as a compulsory license – found in section

115.
b. Second, in the case of sound recordings, the reproduction right

is limited to so called “mechanical reproductions – creating a
“sound-alike” recording does not violate the copyright in the
first sound recording.
c. Third, the non-commercial use of audio equipment by a

consumer to make musical recordings is exempted from liability
under the Audio Home Recording Act, (see § 1008 of the
copyright statute).
5. There are numerous other specialized limitations on the reproduction

right:
a. It is permissible to make back-up copies of computer software

and copies of software in connection with computer
maintenance and repair.
b. It is permissible to take photographs of protected architectural

works provided they are visible from a public place.
c. Certain authorized parties are allowed to reproduce copies of

published works in specialized formats for blind people or
people with disabilities.
C. Adaptation
1. This is the right to make a derivative work.
2. It overlaps with the reproduction right since most derivatives contain

elements of the underlying work, and, in that sense, there has been a
reproduction.
3. If one is licensed to produce a certain type of derivative work and goes

beyond the terms of the license, it violates this right and is copyright
infringement.
D. Distribution
1. This is the right to disseminate copies to the public.
2. This is necessary because if an unknown party makes multiple illegal

copies of a work and then turns them over to a bookstore or record
store, the copyright owner needs some basis to enjoin the bookstore or
record store.
3. There is one major limitation on this right known as the “first sale
doctrine.”
a. The owner of a LAWFULLY made copy is entitled to sell,

dispose of, or rent that copy without incurring any liability.
b. So, you can sell your used paperback books or CDs without
worry.
c. Note, however, that if you sell a bootleg video you bought on

the street corner, you are not protected by the first sale doctrine
because the copy was not legally made.
d. There are two important exceptions to the first sale rule:
i. You cannot rent phonorecords.
ii. You cannot rent computer software.
4. The first sale doctrine does not apply, however, if the copyright owner
exports copies or phonorecords.
E. Performance and Display
1. To perform a work is to recite, render, play, dance, or act it, either

directly or by means of a device.
2. To display a work is to show a copy of it, either directly or by means of a

film, slide, television image, or any other devices or process.
3. Both of these rights are limited to “public” performance or display.
a. When you read a book aloud to a few friends or pop a video in

the VCR you are performing it, but that is not public, so no
infringement.
b. When you hang a painting in your living room, you are

displaying it, but that is not public, so no infringement.
4. Two alternative definitions of “public:”
a. To perform or display it at a place open to the public or at any

place where a substantial number of persons outside of a normal
circle of a family and its social acquaintances is gathered
b. To transmit to a place specified above, or to the public, whether

the members of the public are in the same place or in separate
places.
5. Sound Recordings
a. Sound recordings are not granted a performance right.
b. That means that when you “publicly perform” a sound

recording, you do not need permission.
c. Of course, if the sound recording also contains music not in the

public domain, you do need permission from the holder of the
music copyright.
6. Exceptions to the performance right include the following:
a. Face to face teaching and educational broadcasting
b. Performances in the course of religious worship services
c. Nonprofit performances with no fee to performers and no

charge to audience, or net proceeds given to charity
d. Playing a single radio or TV in a public place like a store or a

restaurant
e. Certain performances for the blind and deaf
7. Performing Rights Societies – the practical side of these rules
a. ASCAP & BMI
b. They grant licenses to those who wish to publicly perform

music.
c. They monitor outlets to determine frequency of play of various

works.
d. They distribute the royalties they collect to the copyright owners.

X. Newer, Exotic Rights Contained in The Copyright Statute
A. Moral Rights
1. Only granted to "works of visual art" produced in either a one of a kind

edition or in a limited edition of less that two hundred.
2. The rights are independent of the ownership of the copyright.
a. Belongs to the artist
b. Cannot be transferred, but can be waived
3. Right of attribution
a. Claim authorship of your own work
b. Prevent use of name on works which he did not create
c. Prevent use of name as author in the event of a distortion,

mutilation, or other modification of the work which would be
"prejudicial to his honor"
4. Right of Integrity
a. Prevent intentional distortion, mutilation, or other modification

which would be prejudicial to his honor
b. Prevent destruction of a work of recognized statute
c. You have the right
5. Digital Performance Right
a. As we noted, there is no public performance right for sound

recording.
b. However, in 1995, Congress granted sound recording copyright

owners the exclusive right to perform the work publicly by
means of a digital audio transmission.
c. They also adopted numerous, technical limits on this new right.
d. All the gory details can be found in Section 114(d).

6. Protection Against Circumvention of Technological Measures
a. In 1998, Congress enacted a very elaborate and significant new

provision called the Digital Millennium Copyright Act or
DMCA.
b. In the years leading up to the DMCA, many copyright owners

had begun to use technological measures to make it impossible
for non-paying parties to gain access to their works, or to make
copies of their works.
c. DMCA is designed to make it illegal to defeat these kinds of

technological measures in certain circumstances.
d. It makes it impermissible to:
i. Circumvent a technological measure that controls access

to a copyrighted
work
ii. Manufacture or sell devices that are primarily designed

to circumvent either access controls or copy controls
iii. Note that the law does not forbid circumventing

technological copy control measures – in order to avoid
conflict with the fair use privilege
e. There are several exceptions to these anti-circumvention

provisions:
i. Law enforcement authorities
ii. Good faith encryption research
iii. Reverse Engineering
f. Copyright Management Information (CMI)
i. To facilitate licensing, copyright owners, especially in the

digital environment, often embed information about
their name, address, phone number, or e-mail address in
their works.
ii. DMCA prohibits tampering with or removing this CMI

and imposes liability for anyone who provides or
distributes false CMI.
iii. Liability is only imposed if the violator knows or has

reasonable grounds to know that tinkering with the
information will facilitate infringement.
XI. Infringement -- Really a matter of proof
A. The owner of any exclusive right under a copyright can sue for infringement.
1. Federal District Courts have exclusive jurisdiction.
2. Registration is a prerequisite for bring suit.
B. There is no intent requirement for infringement
C. You need not copy every word, or image, or line in order to be an infringer.
1. Many infringement cases involve non-identical copies.
2. And of course, plaintiffs rarely have an eyewitness to the infringement.
3. So infringement is usually proved by circumstantial evidence.
D. First, plaintiff must prove "copying"
1. To do this, plaintiff must show "access"
a. Proof that defendant possessed a copy of the work,
b. Or proof that it would have been easy for the defendant to get
the work
2. In addition, plaintiff must show some resemblance between the two

works.
a. The resemblance can be as to any element of the work,
b. Including unprotectable elements like common ideas or factual

material,
c. Because at this point all we are trying to establish is copying
E. The second element is "substantial similarity."
1. Plaintiff must show that defendant took a sufficient amount of protected

expression so that an ordinary observer would view the works as being
similar.
2. Inquiry here is confined to protectable elements of the works.
3. Thus, the fact that defendant took plaintiff's "idea" does not show
infringement.
4. Difficult problems of infringement analysis often occur with works that

have similar plots but different words and different details.
F. Vicarious Liability for Infringement
1. Requirements:
a. Must be a right to supervise
b. Must be a financial interest
2. So a bar owner is liable for the infringements of a band who plays there.
3. A TV station is liable for infringing uses carried out over its facilities.
G. Contributory Infringement
1. This is kind of like “aiding and abetting.”
a. You have knowledge of another party’s infringement.
b. You either induce the infringement or materially assist in it.
2. For instance, if you supply a machine to another, with knowledge that it

will be used for infringement, you too can be held liable.
3. The knowledge in question will be inferred if the machine has no

substantial non-infringing uses.
4. However if the machine has some legitimate uses -- like a photocopy

machine, making and selling it is not an infringement.
H. Internet Service Providers (ISPs)
1. These two doctrines suggest some difficulties for ISPs.
2. They have millions of users who send e-mail and post material to web
images.
3. Much of this material might be infringing, but the ISPs are in a poor
position to police these activities and prevent the infringements in
advance.
4. Section 512 of the statute that provides certain “safe harbors” for ISPs.
5. There are two general requirement to qualify:
a. ISP must adopt and inform subscribers of a policy providing for

termination of users who are repeat infringers, and
b. ISP must adopt standard technical measures used by copyright

owners to identify and protect copyrighted works.
6. There are a number of different rules depending on what type of

Internet activity is involved.
a. Under most provisions, if a copyright owner informs the ISP of

alleged infringement, the ISP must remove the material or block
access to it.
b. The affected subscriber may then send a counter-notice.
c. Unless the copyright owner then informs the ISP that it has
filed a court action, the ISP must unblock or restore the
material.
XII. Fair use
A. A completely airtight copyright scheme would be suffocating.
B. So, perhaps the most important limit on copyright is the fair use doctrine –
originally judge made, but now codified by statute.
1. Statute begins with a non-exhaustive list of examples of fair uses.

2. It then lists four analytical factors.
C. Purpose and Character of the Use
1. Here, nonprofit uses are arguably more "fair" that profit making uses.
2. Transformative uses are arguably more “fair” that merely reproductive

ones.
3. The Supreme Court has indicated that parody should be given

somewhat greater latitude under the fair use doctrine because it is
usually transformative.
D. Nature of the work
1. Certain works are said to have "thin" copyright, and thus uses of them
are more likely to be "fair."
2. Factual works and data compilations might fall into this category.
3. The fact that the nature of the work is "unpublished" makes it more
likely that an unauthorized use is UNFAIR, but recently added statutory
language makes it plain that this is not dispositive.
E. Amount and substantiality of the portion used
1. This is obviously: the more you take, the less likely the use is fair.
2. But even if you take very little, taking the heart of the work, can be
unfair.
F. Effect of the use upon the potential market for the work
1. This is the factor that the Supreme Court has labeled "most important."
XIII. Remedies
A. Injunctive relief is available.
B. Impoundment of the infringing materials while the case is pending and

destruction after judgment can be ordered.
C. Monetary remedies
1. Two alternatives
2. Either actual damages suffered plus any profits of the infringer in excess
of those damages; OR
3. Statutory damages
a. Minimum of $750 and max of $30,000, as the court deems just,

for each infringement.
b. If the infringement is willful, the maximum statutory damages

can be $150,000.
c. If the defendant can prove he was an innocent infringer, the

court may reduce the statutory damages as low as $200, but you
can effectively cut off that argument by including notice on your
work.
d. Remember that you can only get statutory damages if you

registered the work prior to the infringement or within three
months of publication.
4. The prevailing party may recover costs and attorney's fees at the
discretion of the court, but again, that is only available if you registered
D. Criminal sanctions can be imposed if a party “infringes a copyright willfully,

and for purpose of commercial advantage or private financial gain, or by the
reproduction of 1 or more copies or phonorecords with total retail value of
more that $1,000."
XIV. State Claims and Preemption
A. States often protect various types of intellectual property.
B. These doctrines raise the question of possible conflict with federal law.
1. If there is a conflict, of course, the state law must give way.
2. That's the Supremacy Clause of the Constitution.
C. Fortunately, the 1976 Act addresses pre-emption directly.

1. Section 301 says state laws are preempted if they meet a two-part test:
a. They deal with subject matter of copyright, and
b. They confer rights equivalent to those conferred by the

copyright law.
2. Thus, a state statute that expanded the copyright term from life-plus-70
to life-plus-100 would be preempted.
3. But a statute that prevents the unauthorized taping of extemporaneous

speeches would be fine because those speeches are not fixed, and thus
not within the subject matter of copyright.

Copyright Law Handout

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Copyright Law Handout

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Copyright Law

Law School Legends

I. Justifications for a Copyright System

B. Usually two alternative reasons identified

1. The continental theory – a moral entitlement

2. The Anglo-American justification – an economic incentive

C. Countervailing considerations – why there should be limits on copyright

1. To enable subsequent authors to build on the work of their

2. To promote the free exchange of ideas

1. Authors had exclusive rights to their works as a practical matter.

2. As copying technologies have gotten more sophisticated, copyright law

II. The Constitutional and Statutory Framework

A. The Subject Matter of Copyright

1. Specifies certain general prerequisites

2. Provides us with a non-exclusive list of specific categories of subject

B. First Prerequisite for protection – Fixation

1. Fixed means “memorialized,” “captured,” or “made permanent.”

2. There are two types of objects in which a work can be fixed:

a. Phonorecords are “material objects in which sounds are fixed.”

b. Copies are any other type of object in which a work could be

c. To be “fixed” it must be permanently or stably embodied in

d. In other words, it must be written down, taped, painted, or

3. Thus, there is no federal protection for non-fixed works.

4. EXCEPTION – Under §1101, making an unauthorized copy of a live

5. Historically, there was some ambiguity about what constituted the

7. Don’t forget that there is also the requirement of permanence.

C. Second Prerequisite for Protection – Originality

1. A compound requirement – encompasses two separate notions

a. One must create the work through independent effort.

i. No copyright if you copy verbatim from a preexisting

b. Parallel independent creation can yield multiple copyrights.

a. Not every expressive work created from scratch is eligible for

b. You need some creativity.

c. The amount of creativity required is very low.

d. There is no requirement of artistic merit.

III. Idea/Expression Distinction

3. So the expression is deemed unprotected.

IV. Specific Types of Protected Works

A. The statute lists 8 categories.

1. The list is non-exclusive.

2. Some items in the list are not particularly important.

1. Anything in words or symbols – including fiction and non-fiction

2. Historical research or factual discoveries are not protected by

3. Pictorial fictional characters are protected.

4. Literary characters are more troublesome

a. Many are nothing more than mere ideas and thus

b. Those drawn with great enough specificity become “expressive”

a. Computer code is protectable expression under the statute.

b. Courts continue to struggle with the “non-literal” elements of

c. Organizational structure of the program is only narrowly

d. The “user interface” of a program is only narrowly protected.

C. Pictorial Graphic and Sculptural Work

1. Includes painting, sculpture, advertisements, maps, and technical

2. Protection does not extend to those aspects of a work that are

4. Some courts extend protection to the aesthetic components of a useful

5. Toys are NOT “useful” articles, and are thus copyrightable.

D. Musical Works and Sound Recordings

1. These are actually two separate categories.

2. Musical works is notes and lyrics – on sheet music or in a phonorecord

3. Sound recording is a collection of sounds embodied in a phonorecord.

a. A sound recording need not be of music.

b. Could be a comedy album, a recording of bird songs, or a

a. The composer of the music owns the copyright in the music.