Conceptual Separability - Copyright Law - Lecture Slides, Slides of Law

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CLASS OUTLINE

• Goals for this class:
  • A. To understand the different tests for conceptual separability
  • B. To be able to analyze the copyrightability of architectural works

WRAP UP POINTS: TESTS FOR

CONCEPTUAL SEPARABILITY

• There is some disagreement as to the proper standard to be applied in determining whether conceptual separability exists
• You should be familiar with the tests set out in the Judge Newman’s dissent in Carol Barnhardt and the Denicola test in Brandir

WRAP UP POINTS: TESTS FOR

CONCEPTUAL SEPARABILITY

• Carol Barnhart majority: is decorative feature inextricably intertwined with utilitarian aspects? Is artistic design necessary to perform utilitarian function?
• Newman (dissenting in Carol Barnhart ) - test is mind’s eye of ordinary beholder: can he or she separate utilitarian and non-utilitarian concepts?
• Which of these tests are subjective? Which are objective?
• Do you like any of these tests? Can you think of a better test?

SURREALIST FUR-LINED TEACUP

• Is the Oppenheim furlined teacup copyrightable? Why or why not?

EXTENT OF PROTECTION FOR USEFUL

ARTICLES

• What does Copyright Act s. 113 provide?
• In the case of a work lawfully reproduced in useful articles that have been offered for sale or distribution to the public, copyright does not include any right to prevent the making, distribution, or display or pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or connection with news reports.

EXTENT OF PROTECTION FOR USEFUL

ARTICLES

• Section 113 means that a 2-D ad or publicity reproduction of a pictorial, graphic or sculptural work work contained in or on a 3-D useful article won’t infringe the reproduction right
• Of course this is subject to the limitation that the 3-D work was lawfully reproduced.

COPYRIGHTABILITY OF TYPEFACE

DESIGNS

• Copyright protection for typeface designs was deferred. The House Committee Report did not deny that typeface designs were writings”.
• See CB p. 221
• Eltra v. Ringer - typeface not a copyrightable “work of art” under the 1909 Act.
• Are typeface designs nonetheless Docsity.com

COPYRIGHTABILITY OF TYPEFACE

DESIGNS

• One objection: House Report assumes that typeface design constitutes the design of a “useful article” But if it just conveys information, it can’t be a useful article and should the House Report is thus based on a faulty premise.

ARCHITECTURAL WORKS

• Before 1990, to what extent was architecture protected under the 1976 Copyright Act?
• Only as “pictorial, graphic or sculptural works” This meant that technical drawings, plans, models, diagrams were protectable (if sufficiently original) but buildings were mostly excluded from protection as useful articles (unless met the conceptual separability test).
• Why weren’t plans “useful articles”?

ARCHITECTURAL WORKS

• Why weren’t plans “useful articles”? Because their purpose was to convey the appearance of the building (see section 101)

BLUEPRINTS PRE-

• Were they useful

articles?

• Would copying a

plan infringe?

What about

constructing a 3-

D building based

on plans?

Demetriades v. Kaufman

• What were the relevant facts?
• What is the holding of this case?
• What is the court’s reasoning?

ARCHITECTURAL WORKS

COPYRIGHT PROTECTION ACT OF

• Why was the law amended? U.S. ratification of Berne Convention - Art. 2.1includes “works of architecture” as copyrightable subject matter
• What buildings does the amended law apply to? Architectural works created on or after Dec. 1, 1990. And work that is on that date unconstructed and embodied in plans or drawings if constructed by Dec 31, 2002

What’s an “Architectural Work”

• Definition in s. 101?