Copyright Law - Fall 2011
Arizona State University Sandra Day O'Conner College of Law Professor Karjala
The text for this class is Gorman, Ginsburg & Reese, Copyright - Cases and Materials (8th ed. 2011, Foundation). The class meets at 8:30 a.m. on Thursday August 18 in Room 116. The assignment for the first class is to read pages 1-75 of the text.
Ideally, we would go through the entire textbook in an introductory course on copyright law. Experience shows, however, that it is not possible to develop a solid theoretical foundation for understanding this increasingly important but frustratingly inconsistent body of law if we try to cover so much in a 3-credit class. Therefore, topics like international copyright and copyright preemption of “equivalent” state law (chapters 10 & 11) are left to more advanced courses. We are also likely to have to skip much of the material on public performance rights (chapter 6.D.) and even remedies (chapter 9). Recent developments in the world of music (e.g., Napster, Grokster) have resulted in increasing need to deal with the notion of "secondary copyright liability," and an entire chapter of the text is now devoted to that topic (chapter 8). Digital technologies are also posing increasing, and increasingly interesting, problems for copyright law. We will necessarily dabble in some of that (e.g., the Google Book Project), but much will be left for advanced courses in cyberlaw or IP in cyberspace.
All that said, these reading assignments are VERY HEAVY. If you are looking for a course to coast through, this is not the right place for you. We will not be able to discuss in class all of the assigned reading material, but I will assume as we go forward that you have, in fact, read it and will make references to material that was assigned but perhaps not discussed in class. You are likely to be completely lost if you are not seriously doing the reading each day. 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 -- materials from the supplement and elsewhere. Individual statutory provisions assigned for a given day's study are linked through this Syllabus (most are in the book as well), and all such linked 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 2011 semester, will be given out in class.
The final exam will be given on Thursday December 8, 2011, at 8:30 am.
Most recent Syllabus update: October 31, 2011
Page numbers are all from the text of Gorman, Ginsburg & Reese, 8th edition. Statutory sections are from the Copyright Act, title 17 U.S.C., unless otherwise noted.
Thursday August 18: Introduction to Copyright and Intellectual Property
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)
Tuesday August 23: Copyright Originality and Fixation
Pages 76-99, §§ 102(a), 101 (definitions of "copies", "created", and "fixed"), 1101 ; 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, to be entitled to copyright; photo of the bowl is also unprotected because the bowl itself was not a protected work)
Thursday August 25: The Idea/Expression Dichotomy, Merger, Section 102(b), Blank Forms
Pages 100-111, § 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).
Tuesday August 30: Facts and Compilations
Pages 111-130, §§ 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 1: Facts and Compilations (continued), including Databases, and Maps
Tuesday September 6: Derivative Works
Additional reading: Mattel v. MGA, 201 WL 2853761 (9th Cir. 7-22-10)(BNA Summary)(discussing extent to which copyright in Bratz doll line derives from original drawings and model, done for first employer (Mattel) but successfully developed and marketed by a second (MGA))
Thursday September 8: Computer Programs
Pages 184-206, § 101 (definition of "computer program")
Tuesday September 13: Pictorial, Graphic, and Sculptural (PGS) Works
Pages 207-232, § 101 (definitions of "pictorial, graphic, and sculptural works" and "useful article"); Raustilia & Sprigman, How Copyright Law Could Kill the Fashion Industry (New Republic 2007)
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)
Thursday September 15: PGS Works (continued), Typeface, Architectural Works
Pages 232-262, § 101 (definition of "architectural work"), § 120
Additional reading: 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)
Tuesday September 20: Fictional Characters, Sound Recordings, and Government Works, Obscene Works
Pages 262-300; New York Times Op-Ed, August 10, 2007, Memo to the Dept. of Magical Copyright Enforcement
Thursday September 22: Authorship, including Works Made for Hire and Joint Authorship
Pages 301-343, § 101 (definitions of "work made for hire" and "joint work"), § 201(a)&(b); Christie Smythe, Bratz Ruling Highlights Creative Worker, IP Pitfalls, Law 360, December 4, 2008); 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 27: Transfers of Copyright Ownership
Pages 343-383, § 101 (definition of "transfer of copyright ownership"), § 201(d), § 204 , § 201(c)
Thursday September 29: Duration and the (Old) Renewal System
Pages 384-421, §§ 302, 303, 304(a)&(b)
Of additional interest: 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)
Tuesday October 4: Older Works, Copyright Restoration, Nonrenewals Involving Derivative Works and Termination of Copyright Transfers
Pages 421-454, §§ 203, 304(c); Rohter, Record Industry Braces for Artists' Battles Over Song Rights, New York Times (8-15-11)
Thursday October 6: Termination Rights (continued)
Tuesday October 11 & Thursday October 13
Fall break, no classes
Tuesday October 18: Formalities of Copyright (Notice, Registration, and Deposit); Introduction to the Reproduction Right
Pages 513-536, § 205; Torres-Negron v. J&N Records (1st Cir. 10-2-07), BNA Summary; Pages 537-561; 101 (definition of "Copies")
Of additional interest: Moberg v. 33T LLC (D. Del. 10-6-09)(BNA Summary)(posting a work on a foreign web site is not a "simultaneous publication" in the U.S., so it is not a "United States work" and suit for infringement may be brought in the U.S. courts without registration of the copyright); MIDI versions of the songs involved in Arnstein v. Porter (p.556)
Thursday October 20: Proving Infringement of the Reproduction Right
Pages 561-606, §§ 106, BNA Summary of Mag Jewelry v. Cherokee (1st Cir. 8-8-07)
Of additional interest: on access to prove copying (pp. 567-71), especially "striking similarity": Chafir v. Carey, 06 Civ. 3016 (KMW)(S.D.N.Y. 9- 17-07)(pdf)(singer Mariah Carey and others not shown to have had "access" to a song available on a web site nor was expert's conclusion that songs were "strikingly similar" sufficient to avoid summary judgment); together with Katzman (p.582): National Conference of Bar Examiners v. Multistate Legal Studies, Inc., No. 04-3282, E.D. Pa, 8-22-06(pdf)
Tuesday October 25: Proving Infringement of the Reproduction Right (continued), Infringement in the Context of Sound Recordings
Pages 606-650; §§ 101 (definition of "phonorecords"), 115(a)
Thursday October 27: Derivative Works, Moral Rights and the Visual Artists Rights Act (VARA)
Pages 650-670, 678-700; 106A
Additional reading: Eric Peipenburg, Loving the Lowbrow (It Has Its Own Hall of Fame), New York Times, September 3, 2010
Tuesday November 1: Derivative Works, Moral Rights and the Visual Artists Rights Act (VARA) (cont.)
Same assignment as for last Thursday
Thursday November 3: The Distribution and Importation Rights
Pages 704-746, §§ 106(3)-(6), 109(a)-(d), 602(a), 501(a), 101 (definitions of "perform", "display", "to perform or display a work 'publicly'", and "transmit"); John Wiley v. Kirtsaeng, No. 08 Civ. 7834 (S.D.N.Y. 10-19-09)(also holding that the first sale doctrine only applies to "roundtrip" copies and discussing the various arguments).
Tuesday November 8: Fair Use
Pages 805-859, § 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. Beiniin is shown in the lower left); 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: 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; Said Vaidhyanathan, Copyright Jungle, Columbia Journalism Review (2006)(discussing the Google project to scan all books into a giant database and copyright policy in general); Study of Fair Use's Economic Value (BNA 9-14-07); 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)
Thursday November 12: Fair Use (continued)
Pages 859-897, 902-912
Tuesday November 15: Fair Use (continued)
Thursday November 17: Secondary Liability
Tuesday November 22: Secondary Liability of Internet Service Providers (last class)
Pages 988-1019 § 512
Additional reading: Design Furnishings v. ZenPath (E.D. Cal. 10-21-10)(BNA Summary)(granting a TRO under §512(f) relating to a 512(c) notice to eBay resulting in a takedown of an auction for furniture in which ZenPath claimed a copyright, on the ground that ZenPath likely knew its furniture could not qualify for copyright protection because of its utilitarian nature); Lawrence Lessig, Make Way for Copyright Chaos (Op Ed 3-18-07); Dennis S. Karjala, Liability of Internet Service Providers under United States Law, 2006 Jurisprudencia Mokslo Darbai 5(83)(Research Papers, Mykolo Romerio University, Vilnius, Lithuania)(Word format)
Thursday November 24:
Thanksgiving holiday, no class
Tuesday November 29, operates as a Friday, no class