Copyrights - August Notes


August 17, 1999


Tom Schatzel - practicing attorney




Final - comprehensive; will cover everything in the book; no trick questions, just make sure you prepare a lot. Use the books a lot.


Does not call on people. Asks for volunteer. But will skip case if no one volunteers and stress it on final.


Five P rules - Prepare Preparations Prevents Poor Performance


Need a copy of the copyright statutes - Title 17 of USC Code; will also be used for Unfair Competition and Patents


Intellectual property - law relating to intellect


Different sets of law for intellectual law for different things:

1.      patent

2.      trade secrets (unfair competition class)

3.      trademarks

4.      copyrights - does not provide user with any rights in information, only provides one with rights in regard to way information is expressed; only protects the way information is expressed, does not protect the way information was express


Copyright is a big field that is worldwide because we are in the information age. Very important for business field.


Venture capital money comes from pension funds, 401K, retirement funds


Copyright - rights to preclude copying of expression

Who has interested in copyright laws? (owners, public, congress, courts)

1.      Owners of copyright

2.      Public - wants people to develop new information for their own benefit; want to make sure people don't make unauthorized use of work

3.      Congress - often is requested to update copyright laws to protect unauthorized exportation of protectable information as new tools advance (Internet)

a.      encrypting information

b.      advertising products - might violate laws in some states and then we don't know where to sue; minimum contacts

c.      new technologies

4.      Courts - new laws must be interpreted and applied


Copyrights cover: Art, books, plays, theatrical an TV plays, recordings, software, any other forms of expression which are in a tangible medium

a.       benefactors - authors, musicians, painters, society, people that buy the work


Photocopying machines, tape duplicating, CD duplicators, VCR, MP3


More demand on lawyers to protect information. Intellectual property lawyers are on a huge demand.


Need to stay current with copyright laws because they change so fast.


Nature of copyrights

A.     set of exclusive limited rights

1.      in literary, musical, choreographic, dramatic, literary

B.     rights relate to

1.      reproduction

2.      adaptation

3.      public distribution

4.      public display

5.      public performance


Constitution of the US of A

Article I, Section 8, Clause.8 (Article I, 8 provides for patent laws and copyright laws ON FINAL)

The Congress shall have the power to promote the progress of science and useful art by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries

Inventors, discoveries - respond to patents

Writings - correspond to copyrights


Who has the authority to establish copyright laws? (NOT constitution)

-         Congress has the authority and the authority comes from the Constitution


Congress has enacted Title 17 of the USC - this is where the copyright laws are

Title 35 - this is where the patent laws are


Origination of copyright laws:

1.      England - 1590 - Statute of Anne

A.    wanted to protect people's creativity and what they put down on paper

B.     Stationary Company - English company that protected rights in reprinting the material

2.      United States

A.    colonies - each one had their own independent copyright laws

B.     after revolution - laws to protect the rights of authors AND to protect the rights as the information was conveyed from state to state (Europe did not have laws that protected information that goes from country to country probably because they all speak different languages); here each state speak same language so copyright law was needed between states

C.    1791 - copyright statutes where enacted

1.      maps, charts, books - these were all that were originally copyrightable

2.      limited time - was set at 14 years

a.       Congress set up procedures for getting a copyright - record it in a district court, have to give SOS copies of materials for a period of times, had an option to renew copyright for 14 years (published works)

b.      Unpublished works - original owner kept exclusive control


Benefits of Copyrights

1.      gets people to share ideas and be paid for it without fear that people will copy it

2.      if information is shared that makes synergy which will help people come up with better ideas

3.      "exclusive rights for limited times" (copyright) - this is the incentive for authors


When technology began to improve further Congress had to keep updating statutes.

I. 1909 Act.

a.       Finally Congress got tired of continually updating statutes and tried to figure out some way to define statute to include all copyrightable material. So under 1909 act they said: "writings" was in effect until January 1978. This was "writings" of an author - came from constitution.

b.      The period of protection was 28 years starting with date of publication with notice.

c.       Had to be registered in Library of Congress

1.      gives rights to sue

2.      certificate of registration gives presumption of validity and correctness of copyright

d.      only protected works that were manufactured in USA


II.                 More historical development

a.       1802 - had to be amended to include prints

b.      1831 - amended to include writing of songs and music

1.      problem was that music would be performed publicly by others and money would be made by others through the performance; law was changed then to relate to public performance rights (1891)

c.       - plays were copyrighted and included public performance

d.      1865 - photographs were included

e.       USA took an isolationist view for a long time, but finally in 1976

1.      must comply with very strict formalities in order to protect works (changed in 1976); had to be registered in Library of Congress; notice had to be made

2.      most countries said if you created it, you control it

3.      but then USA said if you created it, you must also comply with strict copyright laws

f.        1955 - USA entered international copyright laws - said that anyone who came into the USA, if you have a copyrightable subject matter in the USA you will be treated equally (same copyright treatment in USA) and same when USA residents would go to other countries (get treated same as people in the other countries)

g.       Federal laws covered published works, state laws covered unpublished works; In 1976 (under new act) Federal government took exclusive jurisdiction over published and unpublished works KNOW THIS.

-         Also updated the copyright definition: any form of original expression reduced to a tangible medium. KNOW THIS

-         Term changed - life of the author plus 70 years; unless it is a work for hire and the author is not know or uses a different name, then the term is 95 years from publication or 120 years from ______ whichever is sooner

-         Made it flexible as to where the notice could be placed and when you could register

-         Citizens of USA still have to register and put notice on works in order to get coverage; foreigners did not have to register promptly but if they do there will be extra remedies


Berne Convention 1886

A.     Many countries joined (originally 10)

B.     As of January 1999, there were 133 members (USA joined 1986)


Arguments against copyrights:

1.      fair use laws -

2.      compulsory licensing - you can only use work if you pay certain fee; beneficial for society to use info as long as they are willing to pay for it, so certain info that is subject to copyright laws is subject to compulsory licensing


1990 changes

1992 changes


1995 changes


1998 changes




August 24, 1999


"The Congress shall have the power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusory rights to their respective writings and discoveries." Article I, Section 8, Clause 8


Right to grant copyright protection comes from: CONGRESS (not Constitution Congress gets that authority from the Constitution)

What are copyrights granted to? Authors and their writings

ON FINAL multiple choice


17 USCA 102

(a)    copyright protection subsists, , in original works of authorship fixed on many tangible medium of expression, now known, or later developed (this was to prepare for the future), from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device (computer, tapes, internet, software).


8 different categories of copyrightable subject matter: (this is not inclusive, statute says includes)

1.      literary works

2.      musical works, including any accompanying words

3.      dramatic works, including any accompanying music

4.      pantomines and choreographic works

5.      pictoral, graphic, and sculptural works

6.      motion pictures and other audiovisual works

7.      architectural works


"original" in statute comes from the word "their rights" in Constitution

purpose of copyright statute: promote creativity, science, and other ideas


Magic Marketing

-         not copyrightable material. Markings that tell what is inside the envelope is not original. Just informational.


Novelty is different than originality


Not copyrightable:

(b)   in no case doescopyright protection for an original work of authorship extend to any:

1.      idea

2.      procedure

3.      process

4.      system

5.      method of operation

6.      concept

7.      principle or discovery


NEED TO KNOW: definitions in section 101 (four definitions)

Sound recording - aggregate of musical, other sounds that have been fixed in a tangible medium


Tangible medium - only get copyrightable if in tangible material; like at football broadcasts the broadcast is being recorded at the same time and therefore gets copyright protection.


In order to get a copyright rights of a live performance, the producers of the performance must put it down on a tangible medium such as video or audio cassette


What happens when copyrightable material and non-copyrightable material merge? What if something combines both?

-         is it too simple?

-         Or is it some original expression?

-         When do they merge?

-         Merger doctrine - when the non-copyrightable material has merged to copyrightable material. Original expression cannot be segmented apart from the expression as a whole.

-         Computer programs -




August 25, 1999




Apparent authority - intended to protect third party


Undisclosed principle - third party does not know there is a principle; the mere forming of a principle and agent relationship has within it the inherit power for the agent to bind the principle, even though the third party does not know the principle exists

-         come into law as matter of policy because we want to hold principle liable


When there is a conflict between cases and clients you need to inform clients that there is a potential conflict of interest.


Partnership Material


What happens if you form a partnership and then something happens where a bunch of liability is incurred? Are you liable personally?

-         yes there is joint and several liability

-         16306. (a) Except as otherwise provided in subdivisions (b) and (c), all partners are liable jointly and severally for all obligations of the partnership unless otherwise agreed by the claimant or provided by law.



Uniform Partnership Act of 1994 - this is the controlling legislation in California (this is section 16000 and following in CA code). The old act is in the 15000 and follows.




August 26, 1999


Insurance industry wants forms that are uniform.


Registration is merely a presumption of validity. Swings the burden of proof on who has to prove the copyright.


Standard for proof is "clear and convincing" evidence. Same standard as in patents.


FACTS - the arrangement of facts is what makes them copyrightable.


Fictional works are much easier to copyright than facts. This is because fiction is all original expression while non-fiction is just a compilation of facts.


What matters is how the author perceives it, not how the public perceives it (nonfiction v. fiction).


In selling cards as individuals, where they are originally bundled as a group, is this a copyright violation? No because the copyright was on the compilation, not the individual. Selling and reproducing an individual part is not an infringement of the compilation.




August 31, 1999


The way you frame your case and the cause of action you plead will most likely be picked based on remedies desired.


When intellectual property laws come in conflict with trust laws, the intellectual property laws must give way.


Such as in the West case - they tried to monopolize everything. We have seen a lot of consolidation recently.


Information published by government is not copyrightable. However, when the government adopts, or incorporates a private, copyrightable subject matter, things are different. The private subject matter does NOT lose its copyright protection.


Two issues in every copyright infringement case:

1.      was the work copyrightable? (102)

even if it was copyrightable, what the defendant took, did they take original expression that was in that copyrightable subject matter?


Thin copyright - a very narrow scope of protection


Databases are not protectable under copyright laws; maybe under unfair competition laws


Derivitive work - work that is based on preexisting works. Defined in USC 101 KNOW THIS DEFINITION