COPYRIGHT LAW 2002: CLASS 10

PROFESSOR FISCHER

THE CATHOLIC UNIVERSITY OF AMERICA

FEBRUARY 13, 2002

GOALS FOR CLASS

• B. To finish learning about copyrightability of architectural works

• C. To learn about copyrightability of characters

WRAP UP POINT: COPYRIGHTABILITY OF

TYPEFACE DESIGNS• Copyright protection for typeface designs

was deferred. The House Committee Report did not deny that typeface designs were writings”. Denied they were pictorial, graphic, sculptural works; argued they were useful articles

• Typeface designs are thus only copyrightable if they are not useful articles.

WRAP-UP POINTS: COPYRIGHTABILITY OF

ARCHITECTURAL WORKS• Before 1990 amendments to the 1976

Copyright Act, architectural plans and architectural structures were copyrightable works, but architectural structures were viewed as useful articles.

WRAP-UP POINT: LIMITED PROTECTION FOR ARCH.

WORKS PRE-1990

• Thus architectural structures were only protectable if they met conceptual separability requirements. Result: only limited protection for most architectural structures - usually only protection for separable decorative elements

WRAP-UP POINT: Demetriades v. Kaufmann

• Under the copyright law pre-1990 amendments, copying architectural plans amounted to infringement, but the construction of a building based on the plans did not, as a result of 113(b) which froze the law as of 1977 with respect to making useful articles depicted in drawings.

• Note that many courts have ruled that where there is unlawful copying of copyrighted plans, an injunction can be granted to halt the use of the plans for construction purposes.

WRAP-UP POINT: 1990 AMENDMENT

• The Architectural Works Copyright Protection Act was enacted on December 1, 1990 to bring the US into full compliance with multilateral treaty obligations under the Berne Convention

• Applies to architectural works created (“substantially constructed”) on, or after, the date of enactment

• Also applies to unconstructed works embodied in plans as of 12/1/90 up to 12/31/02 (unless constructed by then)

WRAP UP POINT: COPYRIGHTABILITY OF

POST-1990 ARCHITECTURAL WORKS

• Architectural works covered by the amendment are subject to the same standards that apply to other copyrightable works (originality requirement, duration etc.)

WRAP-UP POINT: 2 STEP TEST FOR

COPYRIGHTABILITY• (of architectural works)

• 1. Are there original design elements present - including overall shape, interior architecture?

• 2. If such elements present, are these functionally required? If not, then protectable.

Is a church copyrightable?

Is a bridge copyrightable?

WHAT STRUCTURES ARE COVERED?

• Houses, office buildings, malls (not individual units in malls: must be free-standing)

• Habitable structures, garden structures, churches, garden pavilions

• NOT pedestrian walkways, interstate highway bridges bridges, canals, dams

Limits on copyright for architectural works

• Copyright Act s. 120

Limits on copyright for architectural works

• Copyright Act s. 120(a) - copyright in architectural works doesn’t include “right to prevent making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.”

Limits on copyright for architectural works

• Copyright Act s. 120(b) - owner of a building embodying an architectural work does not require owner’s consent to make alterations to the building or destroy or authorize the destruction of the building.

COPYRIGHTABILITY OF CHARACTERS

• Are characters copyrightable separate from a story?

• If so, when?

• Should characters be copyrightable?

• If so, when

• REMEMBER - Characters may also be trademarked!

Nicholls Test

• According to Learned Hand, are any/all characters copyrightable?

• NOTE: Application of the idea-expression dichotomy

Nicholls Test

• According to Learned Hand, are any/all characters copyrightable? Yes, characters can be protected independent of the plot, but “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”

• PREVAILING VIEW- characters copyrightable independent of story

9th Circuit Sam Spade Test

• What rule for character copyrightability is set out in Warner Brothers v. Columbia Broadcasting System?

• Is this more or less restrictive than Learned Hand’s test in Nicholls?

• Which is the better test?

• Can you think of an even better test?

9th Circuit Sam Spade Test

• What rule for character copyrightability is set out in Warner Brothers v. Columbia Broadcasting System? The story being told test - no character is protectable unless “the character really constitutes the story being told.”

• Since this seems to require a story without plot, it would apparently effectively exclude virtually all characters from copyright protection.

• Is this more or less restrictive than Learned Hand’s test in Nicholls?

• Which is the better test?• Can you think of an even better test?

Anderson v. Stallone (C.D.Cal. 1989)

• What are the facts of this case?

• What is the issue?

• What test for copyrightability of characters does the court use?

• Are the Rocky characters copyrightable?

MGM v. American Honda (C.D.Cal. 1995)

• Is James Bond copyrightable?

• Would any tuxedo-clad Brit infringe?