Intellectual Property CLASS ONE: May 29, 2013 Class Notes I. Why IP Law? a.

Purpose: In order to promote useful arts b. Congress gets authority to give exclusive rights and trademarks: Interstate commerce clause (TM is only one of three categories where Congress coregulates with the states) c. Copyright & Patent Law: purpose is to not allow people from copying, and therefore acts as an incentive to create a work d. Ensure that you are able to sell your works but not necessarily receive a profit from it II. (WHY IP) Policy Perspectives (stemming from purpose of IP Law): (SEE PAGE 18 of written notes) a. Utilitarian b. Personal Autonomy: Kant Theory c. Labor Desert: (Lockean proviso) III. Problem with these theories: do we really need an IP system? History tells us that the stuff gets produced anyway, so whats the point it going through all this trouble of seeking protection a. Democratized system: We need incentives b. With IP system we can find it faster with a reward system c. IP is not a cost free good (Ex. A pill: not only will people get access to it, only one person will win the race) IV. Types of IP Protection: a. Patent: New and useful processes b. Copyright: Work of authorship c. Trademark: Logo V. Sources: a. Federal Law i. Article 1 sec. 8 (8) 1. Patent Act (35 USC 1-376) 2. Copyright Act (17 USC 101-810 1101) ii. Article 1, Sect 8 (3) 1. Lanham Act (15 USC 1051-1129) b. State Law i. Unfair Comp. ii. Misappropriation VI. Why TM protection: a. To prevent competitors from diverting a producers trade by deceiving customers about source i. Unfair Competition b. Modern Economic Theory: i. TMs reduce search costs by acting as consistent quality guarantee; allow consumers to police quality

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ii. TM protection creates incentives to invest in unobservable qualities Policy considerations: a. Incentives to express: Protection for good society** More important b. Dissemination: protection bad for society Concerns about IP protection: a. Objects of IP are non-rivalrous and inexhaustible: But uses may not be economically non-rivalrous b. Protection creates a quasi-monopoly rights for owner, which may result in under-utilization: amount of market power depends on number of substitutes c. Rights that are too strong to interfere with sequential (or downstream) innovation i. Non-Rivalrous: 1. A book can only be read by one person at a time. (a book is a rivalrous good) 2. Many people benefitting without interfering with others pleasure getting same info ii. Inexhaustible: 1. (once disclosed) extremely difficult to exclude others from using info. (ex. Music companies and file sharing) d. Too much incentive to advertise? e. Does it amount to (inefficient) protection of status symbols? f. What if TM law protects the subjects of patent/copyright law? Subject Matter of Copyright: a. Original Works of Authorship fixed in a tangible medium of expression b. What is an author: someone who creates. The maker/the source, the originator. i. He to whom anything owes its origin; originator; maker; one who completes a science ii. Work of authorship vs. physical object c. Why copyright protection? i. Incentive effects: 1. Creation 2. Distribution 3. Re-Creation/derivative works d. Originality Requirement: i. Entered copyright law by judicial interpretation of authors in the intellectual property clause. e. Statutory Works of Authorship: i. 102(a) Copyright protection subsistsan original works of authorshipinclude[ing] the following: Not an exclusive list 1. Literary 2. Musical, with accompanying words 3. Dramatic 4. Pantomimes and choreographic works

5. Pictorial, graphic and sculptoral 6. Sound recordings (different musical interpretations) 7. Architectural works X. ORIGINALITY: a. Bleistein v. Donaldson Lithographic Co., 188 U.S. 239 (1903) 1. Defense is he took pictures of real people, and did not create people, therefore no authorship. 2. Lower courts agreed with the defendant, stating chromolithographs are photographs. 3. Sup. Ct., says no. Just because something is a representation of a real world it is not creating the events, he should get copyright protection because it is still an expression of a view. 4. 1st Argument: (Just pictures): The act of portrayal reflects the person individual reaction to life 5. The outside world is free to everyone to use, everyone can paint, photograph, describe but just because you were the first one to photograph doesnt mean I cant do the same thing. 6. A representation of the outside world is copyrightable 7. one can copy the original, one cannot copy a copy. 8. A copy is the actual representation of the original outside world. 9. 2nd Argument: (Too base, just an ad, just a commercial) It is not up to a judge to define what is fine art it is not of high value vs. little value. The real difference between art and industrial articles of manufacture 10. Fine art does not negate art of little merit, but the opposite of fine art is what is designed to be used for articles of manufacture. (Non-discrimination principle Consistent with First Am.) b. Copyrightable Works of Authorship: i. What type of copyrightable subject matter were the lithographs in Bleistein? 1. Limitation connected? Nothing of industrial purposes ii. Did it matter if the prints were drawn from life? Depends on which ones the copy and which ones the copy of the copy iii. Scope of rights may be limited when it was decided re: advertisement purposes iv. We dont let courts determine the value of a particular art Originality and Facts: a. Feist Publins Inc. v. Rurual Tel. Serv. Co. i. Rural required by law to provide telephone directories ii. Feist published a competing phonebook. iii. Def. willing to pay rural for license to publish data iv. Facts are not copyrightable. Facts are what actually happened

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v. The compilation of facts are copyrightable vi. Court says: If by some magic a man who had never known it were to compose anew Keats Ode on a Grecian Urn, he would be an author and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats. Both can get copyright on both poems. vii. Independent creation is sufficient grounds to obtain your own copyright. viii. Something can be original only by an author ix. Facts cannot be created 1. The copyright extends only to your original contribution b. Originality Requirement: i. Not novelty (novelty is required by patents) c. Works of Authorship: i. Protection extends to the original authorship ii. But the subsequent authors can use it iii. Ideas may not be copyrighted but expression may be. 1. Ex. Star crossed lovers idea vs. Romero and Juliet, Tristan and Isold. Romero and Juliet can be copyrighted because these are expressions iv. Courts clearly reject the notion that we protect efforts invested. 1. We dont protect efforts 2. We protect copyright for a work of authorship d. Bleistein (protection is fairly low) i. Recitation is not enough e. What is creative? i. Whether there is an incentive to create data ii. Selection of data iii. Creation of how they publish that selection f. Usc 102(a) i. Selected in a creative way; ii. Arranged in a creative way; iii. Coordinated in a creative way. COMMENTS OF ORIGINALITY: a. Lines are still hard to draw: i. Facts vs. Expression 1. Facts and ideas are not copyrightable but expression is. 2. Labor doesnt count if it the compilation of facts are systematic ii. Must be original iii. Must have authorship FIXATION REQUIREMENT: a. A work is fixed in a tangible medium of expression when the embodiment in a copy or phonorecord by or under the authority of the author is sufficiently stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration. A work

consisting of words, images, or both that are being transmitted is fixed for purposes of this title if a fixation of the works being made simultaneously with its transmission. (anti-bootlegging purposes) b. Serves as promoting progress of the arts c. Williams Elecs., Inc. v. Artic Intl, Inc. 685 F.2d 8701 (3d. Cir. 1982) i. Procedural History: 1. D appeals from dist. Cts entry of a final injunction order permanently restraining and enjoining it from infringing Ps copyright on audiovisual works & a cop. Program relating to electronic video game ii. Factual Background: iii. Issue: D appeals and challenges conclusions of the dist. Court with respect to copyright infringement and the validity and scope of Ps copyrights. iv. Rule: 17 USC 101 (1976): Act defines copies as material objects in which a work is fixed by any method now known OR later developed and form which work can be perceived, reproduced, communicated directly or with a machine/deviceAND 1. A work is fixed when its embodiment in a copy is permanent or stable to permit it to be perceived, reproducedfor a period of more than transitory durationAND a. The audiovisual work is permanently embodied in a material object, the memory devices from which its perceived with help of the game v. Analysis: 1. Ds Argument 1: Images are transient and cannot be fixed. Video game generates new images are identical to earlier ones. a. Court Rejects this because: Fixation requirement is met whenever work is sufficiently permanent/stable to permit it to be reproduced, or communicated for more than a transitory period. (Images are repeated). 2. Ds argument 2: Players participation withdraws the games audiovisual work from copyright eligibility because there is no set or fixed performance and player is co-author of whats on the screen. a. Court Rejects this because: Theres always a repetitive sequence of a substantial portion of the sights and sounds of the game and many aspects of display remain constant from game to game, regardless of players control. 3. Fixation as Physical Stability: 4. Fixation as Temporal Stability: a. Work of authorship is static over time.

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b. In audiovisual work, each time player encounters game, the actual sequence of images changes c. Each game mode consists of a static and copyrighted images/sounds, which are fixed in games computer memory 5. Identical input generates identical output: Temporal Fixation 6. Live performances are not fixed and therefore no copyright infringement. a. HOWEVER: 17 USC 1101: cannot record live concerts even though they are not fixed IDEA/EXPRESSION: a. Expression is the authors creative output. b. 102(b) in no case does copyright protectionextend to any idea, procedure, process, system, method of operation, concept principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work. c. Thinness: of Copyright protection: i. Only for original expression (more originality, more scope of expression) 1. Blank Forms 2. d. Baker v. Selden 101 US 99 (1880) i. Procedural Background: ii. Factual Background: iii. Issue: Whether the exclusive property in a system of book-keeping can be claimed under law/copyright law by means of a book in which the system is explained? iv. Rule: (1831) Specified only books, maps, charts, musical compositions, prints and engravings. An acct. book consisting of ruled lines and blank columns do not qualify. v. Analysis: 1. Book is copyrightable when it is explanatory (conveys info on old/new systems of book-keeping) 2. Clear distinction between book v. art it illustrates 3. To give author exclusive property in art described without examination of novelty is fraud (never been done) 4. This claim of art or discovery of art in a book which are reproduced in practice in application of art makes no difference 5. *The use of art is totally different vs. a publication of a book explaining it 6. Since art was not patented, it is opent and free to the public 7. Confusion of ideas produced by peculiar nature of art described in the books

8. *The description of the art in a book, (though entitled to copyright benefit) claims to lay no foundation for an exclusive art itself 9. The object of the one is explanation; the object of the other is use; the use = copyright 10. The latter can only be patented 11. Copyright is valid regarding the novelty in the way its described 12. One may freely practice the art described in the book. 13. Distinction does not apply to ornamental designs 14. Theres no separation between anything described by the ornamental object. The object is the end, theres no reason other than aesthetical appeal. 15. The system (although novel and useful) is still a basic scientific true. 16. The explanation is not copyrightable vi. Holding: Blank account books are not subject to copyright laws and Ps copyright did not confer upon him exclusive rights. Circuit Court decree reversed and remanded with instructions to dismiss. e. COMMENTS: i. The Idea-Expression Distinction ii. Blank Forms Rule: Forms are not copyrightable since they are designed to only receive information, and not provide it. (Ex. Time cards, graph paper, account books, etc.) iii. Merger Doctrine: There are sometimes concepts where ideas can only be expressed in only one way or a very limited variation. Even though the person who is the first person to describe it, the expression merges into an idea, and therefore is not copyrightable. iv. Copyright, Patent and Functionality: f. Nash v. CBS, Inc. 899 F.2d 1537 (7th Cir. 1990) i. Procedural Background: 1. Nash filed infringement suit seeking damages 2. Dist. Ct. found Ps books copyrighted material = Ps presentation and exposition. Not facts. 3. D moved for SJ, court granted motion ii. Issue: Did the copier use matter that copyrighted law protects and if so, did it take too much (more than whats allowed by fair use doctrine in 17 USC 101) iii. Analysis: 1. Abstraction Test (Learned Hand) a. What an ordinary observer would think are the essential parts of two works aesthetic appeal b. IP progress is possible only if each author builds on another authors work c. Transaction Costs*

d. Have to compensate another author 2. Hand: whether authors market would be diminished excessively by a rule allowing similar appropriations in regular course 3. Knowledge is expanded when work is build off of predecessors 4. No one gets dibs on history 5. No characters from CBS ever appeared in Nashs book. 6. Ps rights lie in his expression/words, arrangement of facts, but not naked truth 7. Rule 17 USC 102 (b): copyright protection for an original work does not extend to an idea, or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work 8. Ps books are expositions of facts looked up in other peoples books 9. D added their own overlay to others sources of facts and ideas a. Facts would exist irrespective of Nashs analysis 10. Plagiarist is not a plagiarist because he added on top of another authors expression his own expression 11. Appropriating plot lines and characters can be copyright infringement 12. In order to promote broad analysis of sciences, no copyright protection when reliance on same historical documents. iv. Holding: CBS did no more than what 17 USC 102(b) permits. (only used Ps analysis of history but none of his expression). Judgment affirmed. 1. *If you present facts in a certain way and you do it well, you can get copyright protection 2. Should theories be protected under copyright law? a. Theories are not, but the expression of the theory is. 3. A fact does not originate with the author, it is the discoverer who finds and records, but does not provide protection v. COMMENTS: 1. Substantial Similarity: 2. The Abstractions Test & Traditional Literary Works: 3. The Abstractions Test and Other Works 4. Competitive Concerns: vi. Problem 6.3: Ruths Sculpture v. Pauls Sculpture: 1. Putting a life form in a glass bowl is not copyrightable. 2. She may get copyright for the particular form of how she produced such sculptures.

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a. Giving her protection for a jellyfish in a glass bowl for her life + 70 years is too much protection b. Ruths original contribution beyond the idea itself is very minimal g. CLASS TWO SUMMARY OF FIRST HOUR: i. In order to be protected, a work must be fixed, and fixation means it something that permits it to be perceived, produced, or communicated for a transitory duration 1. AND such fixation must be done on the authority of an author 2. Ex. A recording without getting advanced permission is infringement because the author did not allow it. ii. Copyright protects only expression of ideas but not the fundamental truth of ideas iii. Does not grant anyone a particular right of that work, just the particular expression from the author 1. Ex. Romeo and Juliet & Tristan and Isold iv. Facts are not copyrightable, but particular characters, plots, storyline may be. 1. True irrespective of the time, labor, and efforts it took to compile facts. v. Line is not clear, and involves balancing giving too many or too few authors copyright protection. CLASSIFYING COPYRIGHTABLE WORKS: (need to be within categories of copyrightable works of authorship) a. Protects the work of authorship vs. the tangible object b. Distinguishing the work of Authorship from the copy: i. Statute: Ownership of copyright as Distinct from ownership of material object (17 USC 202) ii. Pagination is an artifact of reproduction of the work in a physical medium (vs a product of creativity) iii. Intangible work of authorship = copyrightable but tangible is not c. The Statutory Categories: i. Statute: Subject matter of copyright: in General [17 USC 102(a)] ii. Statute: Definitions: - Architectural Works, Audiovisual Works, Literary Works, Sound recordings 17 USC 101 iii. Pictorial, graphic, and sculptural works: Definition of and scope of protection afforded to PGS works iv. Two Questions for Consideration: 1. Whether congress is empowered to authorize copyright in these works in the first place? 2. How to distinguish between d. Brandir Intl Inc v. Cascade Pac. Lumber Co. 834 F.2d 1142 (2d Cir. 1987) i. Procedural Background: ii. Factual Background:

iii. Issue: To what extent of which it was free of utilitarian concerns was the work designed? iv. Analysis: 1. PGS works are protected only if they have identifiable features that are separate from utilitarian 2. Useful Article Doctrine: a. 101A Useful article is an article having an intrinsic function that is not merely to portray the appearance of the article or to convey information b. 101 (Definition of PGS works): The design of a useful articleshall be considered a PGS work only if, and only to the extent that, with design incorporates pictorial graphic, or sculpture features that can be identified separately from and are capable of existing independently of the utilitarian aspects of the article. 3. Even if it is aesthetically pleasing, it does not get copyright protection if it is not separate from its utilitarian function 4. The design of the copyrightable work of art must not be not dictated by its utilitarian function 5. Conceptual separation: (i.e. a belt buckle welded to the belt), you can still separate its aesthetic features vs. its utilitarian function. 6. Conversely: Design of the object is dictated by its utilitarian needs, and do not get copyright protection 7. Dominant characteristics of an industrial design is the influence of the utilitarian purpose 8. D must present evidence of his design as to which concept came first (utilitarian or aesthetic?) 9. Design of the bike rack loops began with the utilitarian concern, and then became aesthetic. 10. If you can physically/conceptually separate the utility of the work, and it functions as an aesthetic work, then it can be copyrighted 11. Where primary concerns are utilitarian, and then it became aesthetically pleasing, it is not copyrightable. 12. Denicola Test: (statutory directive requires a distinction between works of industrial design and works whose origins lie outside the design process despite the utilitarian environment they appear in). 13. Majority opinion says we are focusing on what drove the creation of the work (utilitarian or aesthetic reasons) 14. Art is not useful as that term is defined in the law. a. The utility function is important for patents. b. Patents must be useful 15. Are aesthetic and utilitarian features intertwined?

v. Holding: vi. COMMENTS: 1. Halloween comments are copyrightable, but masks are not. 2. Congress says industrial articles are not subject to copyrightable protection vs. artistic objects because: a. Industrial works: want to sell a great amount b. Art: Value of its rarity (at least for some). Business model differs from industrial because works of art are unique. e. Problem 6.4: Is the mannequin copyrightable? i. Artistic choices: 1. Copyrightability in facial features: Eyebrow shape, eye color, etc. (not driven by utilitarian concerns) 2. Not in the hair f. Useful Article Doctrine: i. Applied Art vs. Industrial Design CLASS THREE: JUNE 5, 2013 (Discussed last part of Derivative works from 2nd class) XVI. DERIVATIVE WORKS: a. Exclusive Right: Author can produce derivative works, even though they are not the author themselves b. Variety of justifications for not allowing others to produce derivative work i. Limits the progress of art c. Derivative works: (1st copyright for book, 2nd for the storyline for the movie) i. Rights are limited to what you have added from the original work to the derivative ii. The originality requirement is not lowered 1. 17 USC 103: Subject matter of copyright includes a variety of works, but protection for a work of preexisting material, in which copyright exists, does not accept any kind of material where it is obtained/used unlawfully. (Antitheft provision) 2. Extends only to the material contributed by the author of such work a. Ex.: Collection of great American short stories, you get copyright of the arrangement, but not of the underlying stories themselves. b. Only get copy of your added value c. New copyright does not affect any scope, duration, and ownership of any other matters of the preexisting work. i. Romeo & Juliet (by Shakespeare) is public domain and can be copied and republished 1. But cannot copy Romeo + Juliet (movie) d. Schrock v. Learning Curve International, Inc.:

i. Factual Background: 1. Plaintiff agreed to photograph toys, but not to copyright them, but K was silent as to who owned the copyright of the photographs. 2. Defendant kept using old photos, even though not working with plaintiff 3. P filed copyright and sued D for infringement 4. Must prove two elements: a. Own a valid copyright of whatever alleged was copied i. If you dont own a valid copyright, no infringement b. Copying by defendant by constituent elements, those elements were original by your own work (and not in a public domain, or otherwise unoriginal) ii. Issue: Does Plaintiff own the Copyright? 1. Must show that he had permission to create derivative work (was derivation done by the permission of the author?) iii. Application: 1. Argument: a. Learning Curve states they did not authorize him for copyright, they authorized him to take pictures. i. Court says derivative works must have originality b. May be a situation where the Court says that the copy may be a Slavish copy no originality: there can be no originality, and no copyright i. The relevant inquiry is whether the original work had a non-trivial variation from the original? 1. Although no heightened standard of originality, but you only get what youve added (may be very thin) 2. Although these pictures were used for advertising purposes this does not matter (as long as the art is not utilitarian and can be admired as art Bleistein case) 3. Nothing in the opinion that the parties should have negotiated differently a. Copyright by operation of law, not by operation of Copyright b. Absent a contractual agreement, statutory law governs i. He who creates, he is the one who gets rights in his works 4. (Learning Curve was advised by pretty bad lawyers)

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iv. 17 USC 101: Derivative Work: A derivative work is a work based on one or more preexisting works, such as a translation musical arrangement, dramatization fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship is a derivative work v. 103(a) Subject matter of copyrightincludes compilations and derivative works, but protection for a work employing preexisting materials in which copyright subsists does not extend to any part vi. 103(b): e. Gracen v. Bradford Exchange, 698 F.2d 300 (7th Cir. 1983) i. A derivative work must be substantially different from the underlying work to be copyrightable ii. The author as a statutory and const. matter has to contribute substantial not merely trivial originality above and beyond preexisting work. f. Depending on nature of work, different rights of copyright (and distribution) i. Derivative works: only copyright on incremental addition not on the entirety of work as a whole g. Copyright protects intangible authorship, not intangible object (protected by reg. law of property) i. Copyright and right to tangible property can be separated by the right of protection h. Copyright protects artistic creative expression not on industrial utilitarian designs i. Problem: difficult to figure out that line 1. Courts look at conceptual or physical severability 2. Artistic or Industrial considerations 3. What is the sequence of design? Industrial first or artistic? a. Courts dont have a definitive test i. Holder of copy. On original work has authorization to create derivative works or allow others to do so j. Derivative works are allowed to be copyrighted, but only whats been added k. Originality requirement must be met for derivative works l. Must be eligible for copyright protection i. I.e. how the work was obtained m. Copyright arises by operation of law, not by any agreement by parties n. But ownership must be agreed to by the parties. OWNERSHIP:

a. 201: Ownership of Copyright: (a) Initial ownership: Copyright in a work protected under this title vests initially in the author or authors of the work i. Copyrights are similar to the Patent Law (Copyrights go to the originator/inventor ii. Who gets the copyright? How do they do it? How do they share their rights iii. (Contracts are with Patent Law) iv. Special Categories of Works: 1. Joint Works a. 101: A Joint Work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole b. A work is joint: if the authors collaborated with each other or if each of the authors prepared his or her contribution with the knowledge and intention that it would be merged with the contributions of other authors as inseparable or interdependent parts of a unitary whole. The touchstone here is the intention at the time the writing is done, that the parts be absorbed or combined into an integrated unitHouse Report at 129 c. Joint Ownership: Control and Duties: i. Joint Owners Tenants in Common 1. Rights: each joint owner may: a. Exercise the exclusive rights to the copyright works without permission of coowners b. Licenses the work to others i. Non-exclusive licenses: no consent required ii. Assignment/Exclusive Licenses: Consent required c. Duty to account to other joint owners for profit* d. Aalmuhammed v. Lee, 202 F2d 1227 (9th Cir. 2000) i. Facts: 1. Malcom X film directed by Ds 2. P joined D. Washingon on set and heavily involved with movie 3. Created 2 new scenes, translated, negotiated, conferred facts, etc.

4. Received 2 checks 5. Movie was wildly successful, and P wanted to claim more profits 6. Tries to list himself as co-author of project, and therefore would have copyright 7. Applied for copyright as co-creator, co-writer, and co-director 8. Although unable to distribute, he wouldnt need to, just wanted some sort of share from the movie 9. Time Warner Studios was not trying to give him profits. ii. Issue: Did the authors (each of whom) makes a copyrightable contribution? iii. Analysis: 1. Act has all sorts of definitions, but does not define what an author is. 2. Follows guidance from an old supreme court: author is an originator, etc. 3. Tries to apply statute 4. Three requirements: a. Final product must be a copyrightable work b. Must have two or more authors; each of whom contributed a separated copyrightable contribution (makes sense re: what defines an authoreach must contribute something original and something copyrightable) c. Authors must intend the merger of the contribution into a single whole. 5. Re: the three requirements, theres no dispute that Malcom X is a final copyrightable product 6. The copyright does not cover the biography of Malcom X because these are FACTS 7. Contributions from P were not enough because negotiations with Mosque keepers was not enough because:

a. Likelihood that this was not original b. Not fixed 8. Re-writing script: a. Fixed b. Sufficiently original? Yes 9. But the court says the test gets progressively harder, the more people during the production a. There are people who design sets, people who apply makeup, people who write music, people who perform the music, all making contributions. b. The more people, the higher transaction costs, and difficulty of court untangling as to who gets what. 10. Re: Photographs, its the person who arranges the scenery 11. Author is the one who is at the top of their credits, has the most control of the movie. Director, screenplay writer, and/or maybe the star. 12. A person who has little or no control of the work, and no decision making authority is not the author 13. Several Factors to consider: a. Who superintends the work? i. Who has control? b. How is the work presented to the world? (title, etc.) c. Does the audience appeal turn on the contributions? 14. Courts application of cases facts: a. Up to Spike Lee to reject Ps contributions b. If we were to give P authorship rights, Ds would never consult experts, because if authorship rights were given directly after their contribution, they would not confer with P

i. Result would slow progress of arts, and would attract less authors 15. Should it also be the producer who gets copyrights? Or should it just be the director? a. Sometimes it is the producer in complete control of the movie. 16. What if P wanted to work for a share of the profits? a. He must have a contract negotiation iv. Decision and Holding: By an operation of law, P was not an author. 2. Works Made for Hire: a. 201. Ownership of Copyright (b)Works Made for Hire: The employer or other person for whom the work was prepared is considered the author for purposes of this title, and unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. i. A work made for hire is: 1. A work prepared by an employee within the scope of his or her employment; OR a. A work specially ordered or comissionsed for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation as a supplementary work, as a compilation, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire b. Cmty for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) i. Factual Background:

ii. P wanted to have a sculpture created for them iii. Hired D, a known sculpture in Maryland iv. During creation of sculpture, P gave D some direction for the sculpture (changes demanded by CCNV) v. Everything done by Ps liking vi. Wanted to take the sculpture on tour although D objected vii. P and D disagree as to ownership rights and copyright of the statute viii. P argues this as a Work made for hire c. Procedural Background: Goes to Sup. Ct. d. Analysis: i. Not for usable contribution as a collective work ii. No expressed agreement iii. The only way this is a work made for hire is if this is a work prepared by an employee of the employer who directed for the sculpture 1. Problem here is the sculptor is not a typical employee 2. What is an employee? a. Several Factors which contribute to whether or not P is an employee i. Right to control the product ii. Control over the creative process iii. Established a common law agent principle iv. The actual formal employer/employee relationship. b. The Sup.Ct. says it is the agency relationship. Look beyond the formalism, and look at what the true relationship is c. Right to control the product would make the statute superfluous. (Wouldnt need section two)

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d. The goal of the work for hire provision, to allow parties of the contract to have settled provisions: where the rights sit between both, and if neither, the K must be adjusted. 1978 Act Regime: Multi-Factor Test: a. (1) employee (Agency relationship- multi-factor test): i. right to control work being performed ii. skill required iii. source of instrumentalities and tools iv. location of work v. duration of relationship vi. right to assign additional projects vii. Hired partys discretion viii. Method of payment ix. Regular course of employers business x. Payment of employee benefits, taxes xi. Role in hiring and paying assistants Court says P exercised no control over D besides the deadlines, and some demands. Beyond that, it was all Ds work: a. Decided when to work b. If he hired assistants c. What tools to use d. Sculptures is not of regular business If this was a work made for hire, CCNV would have the initial copyright In this particular relationship, the copyright belonged to Reid.

a. Is there a need for additional K agreements to transfer additional ownership? e. Copyright is available to owners, to whomever files f. Copyright and authorship can be available indivicually by an operation of law g. A creator is someone who creates something himself, or contributes something to the work i. Contribution should be copyrightable ii. Amount of contributed work is important iii. Ultimately it is a balancing test the court engages 1. Incentivize people to create vs. giving people too much rights (blockage and not enough production) iv. Joint work is work created by multiple authors who combine each work to make one product v. Joint authorship is permitted, giving each author a profit from the whole vi. Joint authorship is a defense to a charge of infringement because you yourself are the holder of the copyright vii. A work for hire creates the author out of the principle relationship viii. In figuring out what essential relationship exists, look at principle relationship from common law ix. Work for hire roles can be contracted in either direction 1. Applicable in transfer 3. Collective Works (authors by several people, all of which did not write each section together, but designated individual sections to each author)