Understanding Copyright Law: Derivative Works, Historical Facts, and Originality, Slides of Law

An in-depth analysis of various court cases related to copyright law, focusing on derivative works, historical facts, and originality. Topics include the feist decision, copyright protection of factual narratives, and the test for originality for derivative works. Students and researchers will find valuable insights into the legal framework surrounding copyright law.

Typology: Slides

2012/2013

Uploaded on 01/26/2013

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WRAP-UP POINTS:
COMPILATIONS
The 1992 decision of the U.S. Supreme
Court in Feist made clear that the sweat of
the brow doctrine was not good law.
According to Feist, to be copyrightable as
an original work of authorship, a
compilation required a sufficiently original
selection, arrangement, or coordination.
Feist made clear that originality was a low
standard, requiring only some “minimal
level of creativity”.
Even if copyrightable, a compilation’s
copyright protection was thin.
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WRAP-UP POINTS:

COMPILATIONS

  • The 1992 decision of the U.S. Supreme Court in Feist made clear that the sweat of the brow doctrine was not good law. According to Feist, to be copyrightable as an original work of authorship, a compilation required a sufficiently original selection, arrangement, or coordination.
  • Feist made clear that originality was a low standard, requiring only some “minimal level of creativity”.
  • Even if copyrightable, a compilation’s copyright protection was thin. Docsity.com

COPYRIGHT IN FACTUAL

NARRATIVES

  • To what extent are historical facts

copyrightable?

Wainwright Securities CB p. 133

  • Copyright protection of news events?
  • Overprotection?

DERIVATIVE WORKS

  • What is a “derivative work”?

103(b)

  • (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

VIEWED BROADLY, ALMOST ALL

WORKS ARE DERIVATIVE!

  • Mr. Justice Story in Emerson v. Davies
  • “In truth, in literature, in science and in art,

there are, and can be, few, if any, things which, in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows and must necessarily borrow, and use much which was well known and used before.”

TEST FOR ORIGINALITY FOR

DERIVATIVE WORK

  • According to the Batlin majority, what is

the proper test for originality for a

derivative work?

TEST FOR ORIGINALITY FOR

DERIVATIVE WORK

  • Is Batlin really distinguishable from Alva

Studios v. Winninger (the “Hand of God”

case)?

Durham v. Tomy (2d Cir. 1980)

CB p. 171

  • What is a more than trivial variation? Did the 2d Circuit find that the Tomy authorized reproductions of Mickey Mouse were original?
  • Why or why not? (Hint: Harrassment)

INCONSISTENT

APPLICATION OF BATLIN IN

THE SECOND CIRCUIT?

  • Is TOMY consistent with the EDEN TOYS case, the SHERRY case, or the ERG case?
  • How can we reconcile these cases?

GRACEN COURT

  • “[I]f the difference between the original

and A’s reproduction is slight, the

difference between A’s and B’s

reproduction will also be slight, so that

if B had access to A’s reproductions,

the trier of fact will be hard-pressed to

decide whether B was copying A or

copying the Mona Lisa itself.”

Mona Lisa Reproductions

Ets-Hokin v. Skyy Spirits, 323 F.3d

763

  • Did the first photographer’s photograph have enough originality to be copyrightable? (see photos on p. 16 of Supp)
  • Did the second photograph infringe?

Schiffer Pub. V. Chronicle Books

(E.D.Pa. 2004)

  • Photographs of fabric designs sufficiently

original to be copyrightable?

  • Is the purpose relevant?