Copyright Law - Fall 2013


Arizona State University Sandra Day O'Conner College of Law Professor Karjala

The text for this class is Yen & Liu, Copyright Law Essential Cases and Materials (2nd ed. 2011, West).  The  class meets Tuesday/Thursday at 3:30 p.m. in Room 116.  The assignment for the first class on Thursday August 22 is to read pages 1-20 of the text.

This year I am trying a new approach to teaching copyright.  The traditional texts have become simply too packed with cases and notes for students to absorb.  The text for this semester limits itself to what its authors deem "essential."  I expect to supplement fairly heavily as we go along, however, so the reading will still likely be heavy.  If you are looking for a course to coast through, this is not the right place for you.  My goal is to go through the entire book, and I have made up this Syllabus with that goal in mind.  As we get into the material, we may have to do some cutting, but only actual experience can tell what and when.  I have also had to guess at how much reading to assign for a given day's class.  There may therefore be some slippage as we go along.  As a general rule, and subject to contrary instructions in class, please try to read roughly 30-35 pages ahead of wherever we have left off in the last class.

Copyright law today is a strange combination of vague basic but important principles (the idea/expression distinction, substantial similarity for infringement, fair use as a defense) coupled with a statute some of whose provisions are nearly mind-boggingly complex (e.g., termination rights).  As lawyers we need to be intimate with BOTH aspects.  While we will not get into  complexities like the cable and satellite television provisions, we definitely will be reading carefully much of the Copyright Act.  It will not always be fun, but you should remember that lawyers are not paid to have fun.  You do need to know what the statute says if you come anywhere near copyright in practice.

You are responsible for all the reading assignments on this Syllabus, whether we actually cover any given topic or case in class, except for items labeled "Additional reading," which are optional and will not be directly the subject of any examination question.  During the semester, I am likely to post new cases or other items on this Syllabus as either suggested or assigned reading, or at least as items of interest.  This Syllabus should therefore be thought of as tentative and is subject to amendment as we go along.   IF YOU RUN OFF A HARD COPY, BE SURE TO CHECK BACK PERIODICALLY TO MAKE SURE YOUR COPY IS UP TO DATE.

I have not assigned a statutory supplement, because the provisions of the Copyright Act are on line.  I will link to more recent materials from this Syllabus.  Individual statutory provisions assigned for a given day's study are linked through this Syllabus, and all such linked statutory provisions are assigned reading.   A more general set of intellectual property materials, including the Copyright Act, is at the Course Materials page.  Past examinations, with model answers, in this course can be found here.  Click here for announcements relevant to the class.

The Georgetown University Law Center maintains a copyright database that contains pictures and recordings of some of the works that appear in copyright cases.  Student usernames and passwords, good for the fall 2013 semester, will be given out in class.

The final exam will be given on Monday December 16, 2013, at 1:00 p.m.

Most recent Syllabus update:  Nov. 21, 2013

Reading Assignments

Page numbers are all from the text of Yen & Liu, 2nd edition.  Statutory sections are from the Copyright Act, title 17 U.S.C., unless otherwise noted.

Thursday August 22: Introduction to Copyright and Intellectual Property

Pages 1-20; Weiser, Birthday Song's Copyright Leads to a Lawsuit for the Ages, New York Times, June 13, 2013

Additional Reading:  Frank Thadeusz, No Copyright Law - The Real Reason for Germany's Expansion?, Spiegel Online, August 23, 2010 (arguing that the absence of copyright protection in Germany in the 19th century may have been a key factor in that country's overtaking the U.K. in technological progress); How Does Copyright Work in Space?, The Economist, May 22,  2013; Bartlett, Adding Insult to Plagiary?, Chronicle of Higher Education, Apr. 4, 2013

Tuesday August 27:  (No class - jury duty)

Thursday August 29: Copyright Originality

Pages 20-40; 102(a), 101 (definition of "pictorial, graphic, and sculptural works"); Lil' Joe Wein Music v. Jackson pka 50 Cent, 11th Cir. 8-9-07 (BNA summary)

Additional reading:  Kim Seng v. J&A Importers (C.D. Cal. 8-30-11)(bowl filled with ingredients of Vietnamese culinary dish not sufficiently original nor fixed, under Kelley (see p. 117-18), to be entitled to copyright; photo of the bowl is also unprotected because the bowl itself was not a protected work)

Tuesday September 3: Fact Works

Pages 40-58; 101 (definition of "compilation"), 103

Additional Reading:  On the problems Feist's creativity requirement has caused, see Dennis S. Karjala, Copyright and Creativity, 15 UCLA Ent. L. Rev. 169 (2008)

Thursday September 5: The Idea/Expression Dichotomy

Pages 59-78; 102(b)

Additional reading:  Situation Management Systems, Inc. v. ASP Consulting LLC, 560 F.3d 53 (1st Cir. 2009)(description of an unprotected process may be copyright protected; originality in copyright does not depend on subjective evaluation of the work's quality)(pdf); Utopia Provider Systems, Inc. v. Pro-Med Clinical Systems, L.L.C. (S.D. Fla. 2-2-09)(blank forms for physician recording of patient medical information not copyright protected)

Friday September 6 (make-up class, 1:30 - 3, room 115): Scope of Protection in Computer Programs

Pages 78-98; 101 (definition of "computer program"); audio recording of this session is available here.

Tuesday September 10: Useful Articles, Fixation, Government Works

Pages 98-118; 101 (definitions of "copies", "created", "fixed", "pictorial, graphic, and sculptural works" and "useful article"); Raustilia & Sprigman, How Copyright Law Could Kill the Fashion Industry (New Republic 2007); 101 (definition of "architectural work"), 120

Additional reading:  Universal Furniture International, Inc. v. Collezione Europa USA, Inc., 4th Cir. No. 07-2180, Aug 20, 2010 (BNA summary)(finding conceptual separability for nonfunctional decorative carvings on wooden furniture); Intervest Construction, Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914 (11th Cir. 2008)(scope of protection for architectural works, like that for compilations, is very narrow)

Thursday September 12: Initial Ownership, Works Made for Hire

Pages 119-148; 101 (definition of "work made for hire"); 201(a)&(b); Gaylord v. United States (Fed. Cir. 2010)(BNA summary)(Postage stamp showing Korean War Memorial not the product of joint authorship, not a WMFH, and not a fair use)

Additional reading:  Randy Kennedy, Artist Sues The A.P. Over Obama Image, New York Times, Feb. 10, 2009 (the major issue here is fair use, but note that there is also an important work-made-for-hire issue)

Tuesday September 17: Joint Authorship, Assignment of Copyrights

Pages 148-178; 101 (definition of "joint work", "transfer of copyright ownership" and "collective work"), 201(c), 201(d), & 204; 103(b); 205

Thursday September 19: Formalities, Duration

Pages 179-206; 407(a), 411(a), 412, 302, 303, 304(a)&(b)

Tuesday September 24:  Renewal and Termination Rights

Pages 206-226; 203, 304(c); Larry Rohter, A Copyright Victory, 35 Years Later, New York Times, September 10, 2013 (termination of rights to lyrics of well known song "YMCA")

Additional reading: Copyright Term and the Public Domain in the United States, 1 January 2007 (detailed chart showing what works have entered the public domain and what works have not, based on dates and countries of publication)

Thursday September 26: Infringement

Pages 227-259; 106; BNA Summary of Mag Jewelry v. Cherokee (1st Cir. 8-8-07)

Tuesday October 1: Infringement (Computer Programs and Sound Recordings)

Pages 260-283; 101 (definition of  "phonorecords"), 114(a)-(c), 115(a)

Thursday October 3: Derivative Works

Pages 283-292; Schrock v. Learning Curve, 586 F.3d 513 (7th Cir. 2009); US Auto Parts v. Parts Geek (9th Cir. 2012)(BNA Summary); 101 (definition of  "derivative work"), 106(2)

Tuesday October 8: Public Distribution and and First Sale, PublicDisplay

Pages 292-298, 304-305;   106(3)-(4), 109(a)-(d), 602(a), 501(a), 101 (definitions of  "perform",  "display", "to perform or display a work 'publicly'", and "transmit"); Kirtsaeng v. John Wiley (SCOTUS 2013); Capitol Records v. ReDigi (SDNY 2013)

Thursday October 10: Public Performance

Pages 305-319; BMI v. McDade & Sons (D. Az. 2013); 115(a)

Tuesday October 15 & Thursday October 17

Fall break,  no classes

Tuesday October 22: Copyright and Digital Technologies

Pages 320-341; 101 (definitions of  "copies", "fixed" and "to perform or display a work 'publicly'"), 117

Additional reading:  Dennis S. Karjala, "Copying" and "Piracy" in the Digital Age," 52 Washburn L.J. 245 (2013)

Thursday October 24: Moral Rights

Pages 341-356; 106A

Additional reading: Eric Peipenburg, Loving the Lowbrow (It Has Its Own Hall of Fame), New York Times, September 3, 2010

Tuesday October 29: Fair Use

Pages 357-378; 107; Gravois, Stanford Professor Sues David Horowitz Over Use of His Photo, Chronicle of Higher Education, May 12, 2006 (here is the book cover in question - Prof. Beinin is shown in the lower left)

Additional Reading:  D.T. Max, The Injustice Collector, The New Yorker, June 19, 2006 (discussing the relations between the estate of James Joyce and scholars of the famous writer); Andrea L. Foster, James Joyce Scholar, in Deal with Author's Estate, Wins Right to Use Copyrighted Works, Chronicle of Higher Education, March 26, 2007

Thursday October 31: Fair Use (continued)

Pages 378-408; Randy Kennedy, Artist Sues The A.P. Over Obama Image, New York Times, Feb. 10, 2009.  The Manny Garcia photo and various Fairey images based there on are here, but the PowerPoint file is large (30Meg).

Additional Reading: The Cat Not in the Hat - A Parody by Dr. Juice (O.J. Simpson trial after the style of Dr. Seuss)(PowerPoint slides, 20 MB)

Tuesday November 5: Fair Use (continued)

Pages 408-428; Authors Guild v. Hathitrust, 902 F. Supp. 2d 445 (SDNY 2012)

Additional Reading:  Authors Guild v. Google (S.D.N.Y. 11-14-13)(Google's copying of books pursuant to the Google Book Project is a fair use)

Thursday November 7: Fair Use and Other Defenses

Pages 428-443

Tuesday November 12: Secondary Liability

Pages 444-475

Thursday November 14: Secondary Liability (continued)

Pages 475-507

Tuesday November 19: Liability of Internet Service Providers

Pages 508-530; Viacom v. YouTube (2nd Cir. 2012)

Additional reading:  Dennis S. Karjala, International Convergence on the Need for Third Parties to Become Internet Copyright Police (But Why?), 12 Richmond J. Global L. & Bus.189 (2013)

Thursday November 21: The DMCA

Pages 538-575; 1201

Tuesday November 26: Remedies

Pages 576-604