Copyright 101
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Copyright 101 Presented to the County Attorney Affiliate of the New Mexico Association of Counties, Santa Fe, N.M., January 22, 2020 By Michael Eshleman Tell ‘Em What You’re Going to Tell ‘Em Types of intellectual property. What is copyrightable? What is not copyrightable? How to get a copyright. Work-for-hire doctrine. Playing music in your business. ▲ Ben Stein is dying to tell you Fair use doctrine. about the Smoot-Hawley Tariff, Pub. L. 71-361, 46 Stat. 59 (1930) Part One: Intellectual Property Betteridge’s Law When a headline is written in the form of a yes or no question, the answer is always “no.” ►Screenshot from The Guardian website. Not Trademarkable Either ►Screenshot from The Guardian website. Article I, Section 8, Clause 8 “The Congress shall have Power . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” ►Noah Webster, painted by John Herring. National Portrait Gallery, Washington, D.C. Patents Protect Ideas “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor . .” 35 U.S.C. §101. ◄Henry Fonda (Thomas Watson) and Don Ameche (Alexander Graham Bell) working on the first telephone in The Story of Alexander Graham Bell (20th Century Fox 1939). ►Thomas Edison and the phonograph. Thomas Alva Edison (1890) by Abraham Archibald Anderson. National Portrait Gallery, Washington, D.C. Processes and Methods ▲ U.S. Patent 1, granted 1790 to Samuel Hopkins for a new process to make potash. It is signed by President George Washington and Attorney General Edmund Randolph. ◄Crystals of potash. Business Method Patent Priceline’s “Name Your Own Price” System is Patent 5,794,207, Method and apparatus for a cryptographically assisted commercial network system designed to facilitate buyer- driven conditional purchase offers. Business method patents were allowed by State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998). See also Bilski v. Kappos, 561 U.S. 593 ▲James Tiberius Kirk and Penny (2010) (modifying rules for these patents). Hofstadter, your Priceline Negotiators. Trademarks • Both Federal and State governments issue trademarks. • Federal government’s power from the Commerce Clause of the Constitution. • Trademark symbol (™) means mark is claimed by user, but not secured by Federal trademark. • Registered trademark symbol (®) means mark has been registered at the U.S. Patent and Trademark Office. • Trademarks protect against unfair business competition, not intended to squelch free speech. Word Marks Word Marks This Sick Beat U.S. Trademark Registration No. 8,6434,783: “Paper products, namely, notebooks, notepads, blank journals, blank writing journals; Stickers; Stationery.” Design of Word Marks Logos Logos Colors: Owens-Corning Pink In re Owens-Corning Fiberglass Corp., 774 F.2d 1116 (Fed. Cir. 1985), rev’g 221 U.S.P.Q. 1195 (T.T.A.B. 1984). Colors: Tiffany Robin’s Egg Blue U.S. Trademark No. 2,359,351 (boxes), No. 2,416,795 (bags). Colors: Louboutin Chinese Red U.S. Trademark No. 3,361,597. See Christian Louboutin, S.A. v. Yves Saint Laurent America Holding, Inc., 696 F. 3d 206 (2d Cir. 2012). Trade Secrets • Typically not eligible for patent, trademark, or copyright protection. • Examples are customer lists, marketing plans, manufacturing processes, and chemical formulas. • Governed by contracts (e.g., employment contracts, non- disclosure agreements) and state statute or tort law. Part Two: What’s Copyrightable Copyrightable “Copyright protection subsists . in original works of authorship.” 17 U.S.C. §102. “Authorship” Works must be man-made. So the monkey-selfie is uncopyrightable because the monkey took the photograph. Naruto ex rel. People for the Ethical Treatment of Animals, Inc. v. Slater, 888 F.3d 418 (9th Cir. 2018). But . In Urantia Foundation v. Maaherra, 114 F. 3d 955 (9th Cir. 1997), a religious text “‘authored’ by non-human spiritual beings described in terms such as the Divine Counselor, the Chief of the Corps of Superuniverse Personalities, and the Chief of the Archangels of Nebadon” was copyrightable because humans asked the questions of the beings and arranged the answers. “Fixed in a Tangible Medium of Expression” ▼ King v. Mister Maestro, Inc., 224 F. Supp. 101 (S.D.N.Y. 1963). Dance! Dance! Dance! (Far left) Rudolf Laban. (Left) Examples of Labanotation. (Above) Benesh notation. (Right) Beauchamp-Feuillet notation. (Clockwise from bottom left) Michael Kidd in It’s Always Fair Weather (MGM, 1955), George Chakiris in West Side Story (United Artists, 1961) Gene Kelly & Jerry the Mouse in Anchors Aweigh (MGM, 1945), Fred Astaire in Royal Wedding (MGM, 1951), Twyla Tharp, Mena Suvari in American Beauty (DreamWorks, 1999), “Take Off With Us” from All That Jazz (20th Century Fox, 1979). Books Charles Dickens and Sir Walter Scott were very popular in 19th Century America. Partly because they were ineligible for American copyright and pirated by American publishers who paid no royalties. ▲Sir Walter Scott by Henry Raeburn, Scottish National Gallery, Edinburgh. ◄Charles Dickens, photographed by Jeremiah Gurney, circa 1867. Plays Laurence Olivier as Hamlet; Marlon Brando, Kim Hunter & Jessica Tandy in the original Broadway production of A Streetcar Named Desire; playbill for Our American Cousin, the play attended by President Lincoln when he was shot. Poems “If by some magic a man who had never known it were to compose anew Keats's ‘Ode on a Grecian Urn,’ he would be an ‘author,’ and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats’s.” Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir. 1936) (Learned Hand, J.). ▲John Keats by William Hilton, National Portrait Gallery, London. Computer Programs Maps Fine Art This sculpture by Picasso in Chicago would be eligible for copyright but it was placed in the public domain by failure to follow formalities. Letter Edged in Black Press, Inc. v. Public Bldg. Com'n of Chicago, 320 F. Supp. 1303 (N.D. Ill. 1970). Musical Compositions Musical Recordings Photographs The photo of Oscar Wilde at issue in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), where the Supreme Court said Congress could make photographs copyrightable. Films The first film copyrighted in the United States, Fred Ott’s Sneeze (1894). The Edison Manufacturing Company’s William K.L. Dickson registered it by depositing a contact sheet containing all the frames of the five-second film. Music Videos (clockwise from above) Sara Bareilles’s “King of Anything”; Kacey Musgraves’s “Follow Your Arrow”; and Haim’s “Forever.” Advertising One of the circus posters at issue in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903), where the Supreme Court held advertising was copyrightable. Architectural Works • Created by Architectural Works Protection Act of 1990, codified as 17 U.S.C. §102(a)(8). • Protects buildings completed after 1990. • Applies only to copying the building— photographing, sketching building not infringement. • Does not protect “individual standard features.” ▲ Walt Disney Concert Hall, Los Angeles, • See Yankee Candle Co. v. New designed by Frank O. England Candle Co., 14 F. Supp. 2d Gehry. ►Gary Cooper 154 (D. Mass. 1998); Charles W. Ross as Howard Roark in The Builder, Inc., v. Olsen Fine Home Bldg., Fountainhead (Warner Bros. 1949) with his L.L.C., 827 F. Supp. 2d 607 (E.D. Va. Cortlandt Homes. 2011). Part Three: What’s Not Copyrightable Uncopyrightable “That there can be no valid copyright in facts is universally understood. The most fundamental axiom of copyright law is that no author may copyright his ideas or the facts he narrates.” Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 34 (1991). “You can use facts to prove anything that’s remotely true.” —Homer J. Simpson. Original works of authorship The Howard Hughes case: Rosemont Enterprises, Inc. v. Random House, “You didn't Inc., 366 F. 2d 303 build that.” (2d Cir.1966). Copyright in news “But the news element—the information respecting current events contained in the literary production—is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day. It is not to be supposed that the framers of the Constitution . intended to confer upon one who might happen to be the first to report a historic event the exclusive right for any period to spread the knowledge of it.” International News Service v. Associated Press, 248 U.S. 215 (1918). Made Up Facts Not Copyrightable See Nester's Map & Guide Corp. v. Hagstrom Map Co., 796 F. Supp. 729 (S.D.N.Y. 1992), Alexandria Drafting Co. v. Amsterdam, 43 U.S.P.Q.2d 1247 (E.D. Pa. 1997). Cf. Rockford Map Pubs., Inc. v. Directory Service Co. of Colo., 768 F. 2d 145 (7th Cir. 1985). ►Cara Delevingne in Paper Towns (Fox 2000 Pictures, 2015) who runs away to a paper town, Agloe, New York, shown on a 1950’s highway map. "You have not experienced Shakespeare until you have read him in the original Klingon." The creators of constructed languages (e.g., Esperanto, Klingon) cannot keep people from using them to write their own works. Idea vs. Expression Dichotomy The forms at issue in Baker v. Selden, 101 U.S. 99 (1879). So There Was This Girl . Or this guy. What can you say about a twenty-five-year-old girl who died? That she was beautiful and brilliant? That she loved Mozart and Bach, the Beatles? And me? Tommy Lee Jones’s first screen credit was the Harvard roommate of Oliver Barrett, III (Ryan O’Neal) in Love Story (Paramount, 1970).