Copyright Law –Ronald W. Staudt

Class 4September 10, 2013

Plan for today

Recap of “Fixation” Definitions of copy, phonorecord,

fixation RAM fixation & questions on p. 93 Sect 1101- unauthorized fixation

Idea/Expression Dichotomy

Dish Told To Answer Fox's En Banc Request In DVR RowIP Law360 news-alt@law360.com Sept 4, 2013

Dish Network LLC was ordered by the Ninth Circuit on Friday to reply to Fox Broadcasting Co. Inc.'s petition for an en banc review of a ruling that Dish's Hopper service likely does not infringe the TV network’s copyrights.

Photog Takes Prince Fair Use Ruling To Supreme CourtIP Law360 news-alt@law360.com Sept 4, 2013

Photographer Patrick Cariou asked the U.S. Supreme Court last week to overturn a ruling that artist Richard prince was mostly protected by the fair use doctrine when he used Cariou’s images, arguing the decision relied too heavily on the subjective artistic tastes of the judges involved.

Copies & Phonorecords''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'' 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.

Fixed

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.

Sec. 1101. Unauthorized fixation and trafficking in sound recordings and music videos

(a) Unauthorized Acts. - Anyone who, without the consent of the performer or performers involved - (1) fixes the sounds or sounds and images of a live musical

performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation,

(2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or

(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States, shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright.

Is 1101 Constitutional?

Moghadam and KISS Catalog and Martignon–Congress has power under the Commerce Clause to protect “unfixed” works.

KISS’s earlier, now withdrawn opinion, and Martignon below, now overruled, to the contrary.

Idea/Expression Dichotomy

102(b) In no case does copyright protection for

an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Idea/Expression Dichotomy

Baker v. Selden Facts P’s claim and proof at trial Explain v. use

Merger“And where the art it teaches cannot be used without

employing the methods and diagrams used to illustrate the book…such methods and diagrams are to be considered as necessary incidents to the art and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.”

Idea/Expression Dichotomy

Baker v. Selden Holding?

“The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself.”

“The copyright of a book on bookkeeping cannot secure the exclusive right to make, sell and use account books prepared upon the plan set forth in such book.”

“Blank account books are not the subject of copyright…”

Idea/Expression DichotomySMS v. ASP (1st Cir. 2009)

Description of process (office comm. manual) can be expressive, even if pedantic. Possibly in.

Morrissey v. Procter & GambleThin v. Merger

Continental CasualtyLegal form thin

Publications International v. MeredithRecipes without expressive elaboration out

Bibbero Systems & Utopia Provider Systems —forms must communicate information, not collect information based on CFR Title 37, Sect. 202.1 which omits “blank forms…designed for recording information and do not in themselves convey information.”

Blank Form Cases

Baker v. SeldenAccount books out

MorrisseyContest rules out

Continental CasualtyLegal form thin

Bibbero SystemsSuperbill out

Utopia Provider SystemsMedical examination forms out