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the concept of copyright

Overview:

Copyright protection is intended to promote creative works by providing those who create original works exclusive rights in their works that can be sold or licensed.

Though legislators may amend copyright law in an attempt to keep up with modern means of enjoying creative works, it is helpful to understand the romantic notion of artistic expression that provides the historical basis of copyright law. The romantic notion that underlies copyright law is that of a craftsman whose product is the original expression of ideas: a playwright who crafts the dialogue of murder mystery, a poet who expresses national pride, a painter that creates a vision of heaven or a composer that arranges a waltz. In this romantic ideal, the creative expression of ideas is pure craft that originates in the mind of the artist and is captured on a blank page, canvas or sound recording. By protecting the artist's right to sell or license the right to copy, display, perform, modify or otherwise exploit his or her script, painting or recording, copyright law helps the artist practice his or her craft.

At the same time, the creator's exclusive rights to utilize his or her expression must be limited in time and scope to provide others the opportunity for "free" expression. According to Landes and Posner (1989): "Striking the correct balance between access and incentives is the central problem in copyright law." In this volume, you will discover how the United State has attempted to balance these interests and how the competition between access and incentives has played out in copyright lawsuits.

It is important to keep in mind that patent and trademark protection may be available where copyright protection is not available.



Notes:
    U.S. copyright law converging with international trade conventions (the Berne Convention).

    There is legislative push to supplement copyright protection through expanding the right of publicity and trademark protection. This push responds to advancing technology for producing multiple copies. Increasing concern for protecting databases is evidence of modern trend to expanded intellectual property protections.

    Major themes is the historical development of copyright law: How should benefits be allocated? What action should be required to acquire copyrght?

    Mezzotint engraving in Alfred Bell is an example of a derivative work. Issues raised by derivative works: What kind of skill does this require? Is it an original work of authorship? What differences make the reproduction unique? Is changing the mode of expression enough of a change?

    Copyright law permits multiple authors to create same work a long as they were created independently. Patent law awards priority to one author who is protected against other productions.

    Copyright protection is a collection of distinguishable rights. Consider a commissioned painting. Ownership of the original is a distinct from the right to make and distribute reproductions. This distinction important where there is a single original work (e.g. unpublished letters).


Issues:
    Why protect expression?
    • Personality Rights Theory
    • Protection of Economic Value: compensation to copyright owner measured either by public benefit or just deserts.

    What's a reasonable expected return? Breyer (1970) argues that most return to book publishers comes within 3 to 5 years. If the first to publish a work obtains an advantageous "head start," what returns need to be protected by copyright law to give authors incentive to create a diversity of works at low cost? Consider the speed of modern electronic publising. This might be in part an empirical question necessitating research and statistical analysis.

    Are copies necessarily substitute for the original? Consider the value of packaging and professional binding, printing, etc.

    Should copyright law allow publishers to maximize profits on successful books so that they may subsidize and spread the risks of publishing more risky, speculative works? Are economically risky works also artistically adventurous?

    Is high publishing output necessary for progress in the arts and sciences? Compare production to innovation; construction to deconstruction. Under what social circumstances is a high volume of publishing desirable? Under conditions of information overload, should copyright law encourage the publication of new, original works? Consider whether transitory, low-circulation, and derivative works might be more desirable in particular social conditions.

    Is there a distinction between photographs and snapshots? Sometimes the scene and camera are carefully positioned to create a specific mental conception. Other images are simple point and shoot creations. Whether copyright is reserved for high art creations relates to the protectability of clothes and commercial advertising. BLEINSTEIN

    Does Alfred Bell mean that the more exact the reproduction, the less protection available through copyright? Is a highly skilled engraver the equivalent of mechanical reproduction?

    Why might creator prefer copyright to patent protection? Copyright protection has a longer duration and a lower threshold of proof.

    Should copyright be more exclusionary? Should more imagination and style be required? Consider the availability of patent protection to objects that have a strong utilitarian function (the product design cases and the seperability of utility and aesthetics).

    Should resale profits be rewarded to artist who parted with original? On the one hand, one might argue that resale deprives the artist of new sales and windfall profits. On other hand, the artist might include resale/investment potential in the original sale. California recognizes some artist right to resale profits, but federal copyright law does not.

    Should possession create a presumption of copyright ownership? As per s202 of the 1976 Copyright Act, ownership of the material object that fixes expression in tangible form is distinct from ownership of the exclusive rights of the copyright owner. Lawful possession does allow display, resale, and renting work, s109.

    Authors do not operate in isolation. To what extent is it necessary or desirable to reward the author's publisher and surviving family?

    Is Congress more competent to balance the competing concerns of access and incentives than the courts?

    Consider the statement from Landes and Posner from the perspectives of an author, his publisher, his family, and his audience.


Illustrative Cases:
    Mazer v. Stein (U.S. 1954) (Full Text - FindLaw)
    Lamp bases designed like statuettes are copyrightable despite the fact that the lamp itself is functional and utilitartian. Incorporating expressive elements into a useful object does not eliminate copyrightability, provided the work has expressive elements that are seperable from its utilitarian function.

    Bleistein v. Donaldson Lithographing Co. (U.S. 1903) (Full Text - FindLaw)
    J. Holmes. Humble sketches of circus scenes are protected not because they are artistic creations but because there are they work of "one man alone." It is not te court's role to assess artistic merit.

    Graham v. John Deere Co. (U.S. 1965) (Full Text - FindLaw)
    The required inventiveness for patent protection does not lie in the manner in which the invention is made, but rather in the ingenuity of the invention itself. This court held no "flash of genuis" threshold for patentability.

    Alfred Bell & Co. v. Catalda Fine Arts, Inc. (2d Cir. 1951)
    Artist reproduction of master works is copyrightable because the copyist has originated a unique reproduction (no two non-mechanical reproductions will be the same). The case involves attempt to register mezzotint reproductions of master works.

    Frederick Warne & Co. v. Book Sales, Inc. (So. Dist. NY, 1979)
    The fact that children's books are in the public domain does not preclude protection of identifying cover art under trademark law "so long as it is shown to have acquired independent trademark significance, identifying in some way the source or sponsorship of the goods."

    Forward v. Thorogood (1st Cir. 1993)
    Case reveals a problem of divisible rights. There's no way to produce this studio album because Forward does not have right to make copies and Thorogood does not have the master tape.