COPYRIGHT LAW FALL 2006

PROFESSOR FISCHER

THE CATHOLIC UNIVERSITY OF AMERICA

Class 5 September 4 2006

WRAP-UP

• ORIGINALITY REQUIREMENT

Fixation Requirement

• A Constitutional Requirement

17 U.S.C. § 102(a)

• Copyright protection subsists. . . In original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

MATERIAL OBJECTS IN WHICH WORKS CAN BE FIXED

• What are the 2 categories of material objects in which works can be fixed?

2 CATEGORIES OF MATERIAL OBJECTS IN WHICH WORKS CAN BE

FIXED

• COPIES (see definition in s. 101)

• PHONORECORDS (see definition in s. 101)

COPIES

• 17 U.S.C. § 101: “Copies” are material objects, other than phonorecords, in which a work is fixed, by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

PHONORECORDS

• 17 U.S.C. § 101: “Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

COPYRIGHT LINGO

• What would a copyright lawyer call a DVD of the film “Pride and Prejudice”

DEFINITION OF FIXATION

See also 17 U.S.C. § 101: “A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission”

Definition requires

• Sufficiently stable form http://www.icehotel-canada.com/en/index2.en.php

TATTOOS: Fixed?

Video Game/Audiovisual Displays

• Fixed? Even if there is player participation? Is an attract mode required?

RAM

• Is a work that is temporarily stored in a Computer’s RAM a copy? Is that contrary to the House Report?

SPORTING AND OTHER EVENTS

• Can a tennis match be copyrighted?

SPORTING AND OTHER EVENTS

• How about the Macys Thanksgiving Day parade?

SPORTING AND OTHER EVENTS

• How about a live broadcast of the Superbowl?

Definition of Fixation

• 17 U.S.C. § 101: A work consisting of sounds, images, or both that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

• Separate definition of “transmission”

• Is this constitutional?

FIXATION OF BROADCASTS

• See 17 U.S.C. § 101 “transmit”: To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.”

FIXATION OF BROADCASTS

• See 17 U.S.C. § 101: A “device”, “machine,” or “process” is one now known or later developed.

IS THE BROADCAST PART OF THE FIXATION DEFINITION

CONSTITUTIONAL?

• 17 U.S.C. § 101: A work consisting of sounds, images, or both that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

The Nightclub Performer

• Eve performs dramatic improvisations. • If Adam videotapes Eve’s live performance

of improvised drama,can Eve argue that her live performance is copyrightable?

• Does it make a difference if Eve simultaneously records her performance? If she simultaneously records and broadcasts it?

SPECIAL TREATMENT FOR MUSICAL PERFORMANCES: THE

ANTI-BOOTLEGGING PROVISIONS• Title 17 s. 1101, 18 USC 2319A• Grew out of the Agreement on Trade

Related Aspects of Intellectual Property (TRIPS) and became law by operation of the 1994 Uruguay Round Agreements Act

• What types of works does it cover? What rights does it give?

• Is it constitutional?

Kiss Catalog

• KISS Catalog v. Passport Int’l Prods., motion for reconsideration denied, 405 F. Supp. 1169 (C.D. Cal. Dec. 21, 2005) Judge Dale Fischer’s opinon is available online at: http://www.geocities.com/williampatry875/copyright5.pdf

U.S. v. Martignon (CB p. 92)

• Should this decision be overturned on appeal by the Second Circuit? Why or why not?