Copyright Law - Fall 2014
Arizona State University
Sandra Day O'Conner College of Law
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 105. The assignment for the first class on Thursday August 21 is indicated below and is fairly heavy.
Copyright law is deceptive. It deals with subject matter with which everyone is familiar, causing many (including, unfortunately, most federal judges) to believe that the law too can be dealt with intuitively. Nothing could be further from the truthi. Copyright 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 far 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.
Because so many judges take an intuitive approach to copyright, entire lines of cases exist that go in opposite directions on nearly every important issue. These lines of cases either cursorily and ineffectively distinguish their opposing counterparts or ignore them entirely. As a result, traditional copyright texts have become too packed with cases and notes for students to absorb. Our text therefore limits itself to what its authors deem "essential." I will supplement the text heavily as we go along, however, so the reading will still 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. 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.
You are all adults, and I expect to treat you as such. I will answer every question to the best of my ability, but I will not be hounding you on the reading assignments or reminding you of where we are. I will simply assume (past experience to the contrary notwithstanding) that you are keeping up. 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 certain to post new cases or other items on this Syllabus as either optional 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 Wednesday December 10, 2014, at 8:30 a.m.
Most recent Syllabus update: October 15, 2014
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.
August 21: Introduction to Copyright and Intellectual Property
Pages 1-20; Petrella v. MGM, (SCOTUS 5-19-14)(majority opinion); §§ 106; 507(b); 504(b); 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 26: 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)
Thursday August 28: 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)
Tuesday September 2: 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)
Thursday September 4: Scope of Protection in Computer Programs
Pages 78-98; § 101 (definition of "computer program").
Tuesday September 9: Useful Articles, Fixation, Government Works
Pages 98-118; Home Legend v. Mannington Mills (N.D. Ga. 7-3-14); § 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 11: Initial Ownership, Works Made for Hire
Who owns this monkey’s selfie? (MNS News 8-6-14); CO Compendium Clarifies Monkey Selfie (BNA summary 8-29-14); 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 16: 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
Additional reading: Michael Landau, Joint Works under United States Copyright Law: Judicial Legislation Through Statutory Misinterpretation, 54 IDEA 157 (2014)(criticizing both the independently copyright-protectable contribution requirement and the need for mutual intent to be joint authors as inconsistent with the statutory language)
Thursday September 18: Formalities, Duration
Pages 179-206; §§ 407(a), 411(a), 412, 302, 303, 304(a)&(b)
Tuesday September 23: 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 25: Infringement
Pages 227-259; § 106; BNA Summary of Mag Jewelry v. Cherokee (1st Cir. 8-8-07)
Tuesday September 30: Infringement (Computer Programs and Sound Recordings)
Pages 260-283; §§ 101 (definition of "phonorecords"), 114(a)-(c), 115(a)
Additional reading:Prior v. Jean (C.D. Cal. 2014)(sampling from remastered recording does not infringe sound recording copyright in original recording)
Thursday October 2: 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 7 & Thursday October 9
Fall break, no classes
Tuesday October 14: 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 16: Public Performance
Pages 305-319; BMI v. McDade & Sons (D. Az. 2013); § 115(a)
Additional reading:ABC v.. Aereo, Inc. (SCOTUS 6-25-14)(holding that receiving over-the-air television signals on separate antennas for each customer and fowarding those signals over the internet to each customer is a public performance, by analogy to cable providers and Congress's decision overturn the Court's pre-1976 Act decisions holding that cable companies did not publicly perform the content they forwarded)
Tuesday October 21: 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 23: 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 28: 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 30: 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 thereon 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 4: 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 6: Fair Use and Other Defenses
Tuesday November 11
Veteran's Day, no classes
Thursday November 13: Secondary Liability
Tuesday November 18: Secondary Liability (continued)
Pages 475-507; Routt v. Amazon.com (9th Cir. 8-29-14)
Thursday November 20: 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)
Tuesday November 25: The DMCA
Pages 538-575; §
Thursday November 27
Thanksgiving, no classes
Tuesday December 2: Remedies