Copyright IICopyright II

Class 4 NotesClass 4 Notes

Law 507 | Intellectual Property | Spring Law 507 | Intellectual Property | Spring 20042004

Professor WagnerProfessor Wagner

Copyright © R. Polk WagnerCopyright © R. Polk WagnerLast updated: 04/21/23 07:14 AM

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Today’s AgendaToday’s Agenda

1. The Idea/Expression Distinction

2. The Merger Doctrine

3. The “Useful Articles” Doctrine

4. Types of Works

5. Some Thoughts on Duration

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Idea versus ExpressionIdea versus Expression

1.1. Why restrict copyrights to Why restrict copyrights to expressionexpression??

2.2. Distinguishing between ideas and Distinguishing between ideas and expression:expression:Baker v Selden (1879)

o Are accounting forms really uncopyrightable? Always?

o Are cookbooks copyrightable?o What if Selden had a patent on his system?

Would this change the copyright analysis?

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Idea versus ExpressionIdea versus Expression

Key analysis: distinguishing idea from Key analysis: distinguishing idea from expressionexpression

What in particular was uncopyrightable about Selden’s work?

Consider the scope of protection (under ©) for:1. The Selden Accounting System2. Selden’s book explaining the accounting system3. Selden’s forms for use with the accounting

system

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Idea versus ExpressionIdea versus Expression

Key analysis: distinguishing idea from Key analysis: distinguishing idea from expressionexpression

What in particular was uncopyrightable about Selden’s work?

3 categories of unprotected ideas:1. Animating concepts2. Principles or solutions3. Building blocks of expression

Consider why each of the above is on the list

Consider Problem 4-3, p. 349: Are the forms copyrightable? Parts of them?

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The Merger DoctrineThe Merger Doctrine

Trigger: Limited way of Expressing FactsTrigger: Limited way of Expressing Facts

Morrissey v Procter & Gamble (1st Cir. 1967)Morrissey v Procter & Gamble (1st Cir. 1967)• Could P&G have written Rule 1 differently?

(or . . . used the ideas, but not the precise phrases?)

• Of what relevance was P&G’s argument (accepted below) that it didn’t have access to M’s Rule 1?

Is it Is it truetrue that there are limited ways of that there are limited ways of expressing facts?expressing facts?

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The Merger DoctrineThe Merger Doctrine

What should be done about historical What should be done about historical research?research?• How should historians protect their work?• Is this a policy problem?

The Scenes à Faire doctrine:The Scenes à Faire doctrine:• Why avoid protecting ‘standard

treatments’?o Are they similarly necessary to expression?

• If Friends has become the industry standard for showing relationships between young adults, has it lost its copyright?

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The Useful Articles DoctrineThe Useful Articles Doctrine

Brandir Int’l v Cascade Pacific (2d Cir Brandir Int’l v Cascade Pacific (2d Cir 1987)1987)

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The Useful Articles DoctrineThe Useful Articles Doctrine

Brandir Int’l v Cascade Pacific (2d Cir Brandir Int’l v Cascade Pacific (2d Cir 1987)1987)

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The Useful Articles DoctrineThe Useful Articles DoctrineAnalysis of Useful Article DoctrineAnalysis of Useful Article Doctrine

1.1. Physical separability testPhysical separability test

2.2. Conceptual separability testConceptual separability test• ‘temporal displacement’• primary use test• Brandir majority: unifying functional and asthetic• Brandir dissent: independent asthetic concept

3.3. Note on design patentsNote on design patents

4.4. Note: applies only to “pictoral, graphic, and Note: applies only to “pictoral, graphic, and sculptural works”sculptural works”

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Types of WorksTypes of Works

1.1. Literary worksLiterary works

2.2. Pictorial, graphic, sculptural worksPictorial, graphic, sculptural works

3.3. Architectural worksArchitectural works

4.4. Dramatic, Pantomime, and Coreographic Dramatic, Pantomime, and Coreographic WorksWorks

5.5. Musical Works and Sound RecordingsMusical Works and Sound Recordings

6.6. Motion Pictures and A/V WorksMotion Pictures and A/V Works

7.7. Derivative works and compilationsDerivative works and compilations• Roth Greeting Cards (1970)

o Artwork: ©, but not infringedo Text: not ©

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Duration of CopyrightDuration of Copyright• 1909 Act: 56 total years (renewal at 28)1909 Act: 56 total years (renewal at 28)• 1976 Act: Life of the author + 50 years; 1976 Act: Life of the author + 50 years;

75/100 for entity authors75/100 for entity authors• 1998 Sonny Bono CTEA: Life of the author 1998 Sonny Bono CTEA: Life of the author

+ 70 years; 95/120 for entity authors+ 70 years; 95/120 for entity authors

Eldred v RenoEldred v Reno: challenge of 1998 CTEA: challenge of 1998 CTEA• “limited times” as a limit on Congress

o History & text suggests “limited” is interpreted by Congress

• 1st Amendment as requiring heightened scrutinyo Not unless “traditional” boundaries of © are altered

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