Copyright Law - Spring 2017
Arizona State University
Sandra Day O'Conner College of Law
Professors Karjala & Kappes
The text for this class is Yen & Liu, Copyright Law Essential Cases and Materials (3rd ed. 2016, West). The class meets Monday/Wednesdayat 10:35 a.m.. in Room 450. The assignment for the first class on Monday January 9 is indicated below. Please come prepared for active discussion.
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 truth. Copyright today is a strange combination of vague basic but important principles (creativity, the idea/expression distinction, substantial similarity for infringement, fair use as a defense) coupled with a statute some of whose provisions are nearly mind-bogglingly complex (e.g., termination rights). As lawyers we need to be intimate with BOTH aspects. While we will not have time to explore all such complexities like the cable and satellite television provisions, we will be covering and discussing much of the Copyright Act. You will need to know what the statute says if you encounter copyright issues in practice.
Because many judges take an intuitive approach to copyright, entire lines of cases exist on both sides of nearly every important issue. These lines of cases either cursorily and ineffectively distinguish their opposing counterparts or ignore them entirely. As a result, many copyright texts have become packed with extensive notes and cases thereby distracting focus from core principles. Our text limits itself to what its authors deem "essential," and we will supplement the text as we go along where needed. As a general rule, plan to read about 30-35 pages ahead of wherever we have left off in the last class.
Students are responsible for the reading assignments on this Syllabus, whether or not we cover the 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, we will likely post new cases or other items on this Syllabus (or on Blackboard) as either optional or assigned reading, or at least as items of interest. We will likely update this Syllabus as we go along. IF YOU PRINT A HARD COPY, BE SURE TO CHECK BACK PERIODICALLY TO MAKE SURE YOUR COPY IS UP TO DATE.
The provisions of the Copyright Act are on line. Individual statutory provisions assigned for a given day's study are linked through this Syllabus, and the linked statutory provisions are assigned reading. A broader set of intellectual property materials, including the Copyright Act, is available 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 spring 2017 semester, will be given out in class.
We will also be doing periodic in-class quizzes using the free service available at http://kahoot.it. Students are required to bring an electronic device (e.g., laptop, tablet, or smartphone) to class to participate in the quizzes.
Fifteen percent (15%) of each student’s overall grade will be allocated to active participation in the course, such as participation in the Kahoot quizzes, participation in class discussions, and attendance. As part of that score, each student will be required to post to Blackboard no later than close of business on 1/16/2017 a personal statement of at least 300 words describing the student’s background as well as interests and reasons for taking this course.
The final exam will be given on Monday May 1 at 9:00 a.m.
Most recent Syllabus update: January 4, 2017
Page numbers are all from the text of Yen & Liu, 3rd edition. Statutory sections are from the Copyright Act, title 17 U.S.C., unless otherwise noted.
Monday January 9: Introduction to Copyright and Intellectual Property
Pages 1-20; §§ 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: Petrella v. MGM, (SCOTUS 5-19-14)(majority opinion); 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
Wednesday January 11: 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). Garcia v. Google (9th Cir. 2015)(an actor's performance for a movie is not an independent copyright-protectable "work.)
Monday January 16: MLK birthday, no class
Wednesday January 18: Fact Works
Pages 40-59; §§ 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)
Monday January 23: 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)
Wednesday January 25: Scope of Protection in Computer Programs
Pages 79-99; § 101 (definition of "computer program").
Monday January 30: Useful Articles, Fixation, Government Works
Pages 99-119; 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)
Wednesday February 1: Initial Ownership, Works Made for Hire
Pages 120-149; Who owns this monkey’s selfie? (MNS News 8-6-14); CO Compendium Clarifies Monkey Selfie (BNA summary 8-29-14); § 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)
Monday February 6: Joint Authorship, Assignment of Copyrights
Pages 149-178; §§ 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). Garcia v. Google (does an actor have a copyright interest in the character played?).
Wednesday February 8: Formalities, Duration
Pages 179-206; §§ 407(a), 411(a), 412, 302, 303, 304(a)&(b)
Monday February 13: Renewal and Termination Rights
Pages 206-227; §§ 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)
Wednesday February 15: Infringement
Pages 228-260; § 106; BNA Summary of Mag Jewelry v. Cherokee (1st Cir. 8-8-07)
Monday February 20: Infringement (Computer Programs and Sound Recordings)
Pages 261-283; §§ 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)
Wednesday February 22: Derivative Works
Pages 283-295; 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)
Monday February 27: Public Distribution and and First Sale, PublicDisplay
Pages 295-307; §§ 106(3)-(4), 109(a)-(d), 602(a), 501(a), 101 (definitions of "perform", "display", "to perform or display a work 'publicly'", and "transmit"); Capitol Records v. ReDigi (SDNY 2013)
Wednesday March 1: Public Performance
Pages 305-323; 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)
Monday March 6 & Wednesday March 8
Fall break, no classes
Monday March 13: Copyright and Digital Technologies
Pages 323-353; §§ 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)
Wednesday March 15: Moral Rights
Pages 353-369; § 106A
Additional reading: Eric Peipenburg, Loving the Lowbrow (It Has Its Own Hall of Fame), New York Times, September 3, 2010
Monday March 20: Fair Use
Pages 370-391; § 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: 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
Wednesday March 22: 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)
Monday March 27: Fair Use (continued)
Wednesday March 29: Fair Use and Other Defenses
Monday April 3: Secondary Liability
Wednesday April 5: Secondary Liability (continued)
Pages 472-503; Routt v. Amazon.com (9th Cir. 8-29-14)
Monday April 10: Liability of Internet Service Providers
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)
Wednesday April 12: The DMCA
Pages 535-572; §
Monday April 17: The DMCA (cont.), Remedies
Pages 572-591; 592-618