Copyright-Law-Reese-Sp07

Copyright-Law-Reese-Sp07 - Copyright Outline Prof. Reese...

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Prof. Reese – Spring 2007 I. Introduction A. The Policy Rationales Underlying Copyright 1) U.S. Approach: Copyright is designed to encourage the creation of works of authorship. (a) The fundamental tension this creates is between maximizing the incentives while maintain the public’s right to access and use the works. 2) European: Authors have a natural right to control and profit from their works. B. Key Concepts II. A. Constitutional Limitations (a) Protection must be to promote “ the progress of science and the useful arts.” (b) Must be “for limited times” (c) Rights can be secured only to the “writings” of “authors” B. “Writings” of “Authors” 1) Originality (a) The constitutional requirement (i) Burrow-Giles Lithographic v. Sarony (U.S. 1884) 29 → Famous photograph of Oscar Wilde was protectable as a work of authorship because Sarony’s choices in composition were sufficiently original. B-G was arguing that Congress’ choice to include photographs in the most recent copyright act was unconstitutional b/c a photo could not by the writing of an author. 1. Their reasons A photo is simply a mechanical representation of reality, rather than an authorial creation. i. The court holds that Sarony’s photo, at least, could be the writing of an author because of the originality shown in his choices in posing Wilde, choosing his costume, setting up the lighting etc. Writings only cover words. i. This fails miserably, because the original copyright act, passed by the first Congress and including many of the framers, included non-literary works like maps and charts. The court also sets out very broad definitions of “writing” and “author” 1. Author: He to whom a thing owes its origin. 2. Writing: This is very broad, covering “the ideas of an author made tangibly visible.” Goldstein v. California (U.S. 1973) → Seems to drop the “visible” requirement, saying that “writing” may be interpreted to include “any physical rendering of the fruits of creative intellectual or aesthetic labor.” (ii) Bleistein v. Donaldson Lithographing (U.S. 1903) 33 → Drawing of performers in ad for circus was constitutionally protectable. Key points this case stands for 1. The standard for originality is very low, and covers even direct renderings of reality. Holmes reasons that the an artistic representation of reality by necessity contains an element of the author’s personality in the form of his reaction to the thing already existing. This addition of the author’s personality is copyrightable. BUT, the copyright in such a work can cover only the representation of the subject matter, not the subject matter itself . 1
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Copyright-Law-Reese-Sp07 - Copyright Outline Prof. Reese...

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