1. THE STANDARDS OF COPYRIGHTABILITY
“[T]he requisite level of creativity is extremely low; even
a slight amount will suffice. The vast
majority of works make the grade quite easily…” Feist
Publications, Inc. v. Rural Telephone Service Company, Inc., 499 U.S.
340 (1991).
“Where
the truths of a science or the methods of an art are the common property of the
whole world, any author has the right to express the one, or explain and use
the other, in his own way. … The
difference between … letters-patent and copyright, may
be illustrated by reference to the subjects ... Take the case of medicines. Certain mixtures
are found to be of great value in the healing art. If the discoverer writes and publishes a book
on the subject (as regular physicians generally do), he gains no exclusive
right to the manufacture and sale of the medicine; he gives that to the public.
If he desires to acquire such exclusive
right, he must obtain a patent for the mixture as a new art, manufacture, or
composition of matter. He may copyright
his book, if he pleases; but that only secures to him the exclusive right of printing
and publishing his book.” Baker v. Selden, 101 U.S.
99 (Mem.) (1879).
2. COPYRIGHTABLE SUBJECT MATTER
“[a]n historical interpretation … is not protected by …
copyright and can be freely used by subsequent authors.” Hoehling
v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980).
3. OWNERSHIP
The sculpture in question is not a "work made
for hire" within the meaning of §101. Reid was an independent contractor, rather
than a § 101(1) "employee," since, although CCNV members directed
enough of the work to ensure that the statue met their specifications, all
other relevant circumstances weigh heavily against finding an employment
relationship. Reid engages in a skilled
occupation; supplied his own tools; worked in Baltimore
without daily supervision from Washington;
was retained for a relatively short period of time; had absolute freedom to
decide when and how long to work in order to meet his deadline; and had total
discretion in hiring and paying assistants.”
Community for Non-Violence v. Reid, 490 U.S. 730 (1989)
4. INFRINGEMENT
“It is of course essential to any protection of literary
property, whether at common-law or under the statute, that the right cannot be
limited literally to the text, else a plagiarist would escape by immaterial
variations. That has never been the law, but, as soon as literal appropriation
ceases to be the test, the whole matter is necessarily at large, so that, as
was recently well said by a distinguished judge, the decisions cannot help much
in a new case. … When plays are concerned, the plagiarist may excise a separate
scene; … or he may appropriate part of the dialogue …. Then the question is
whether the part so taken is “substantial,” and therefore not a “fair use” of
the copyrighted work; it is the same question as arises in the case of any
other copyrighted work. ….
But when the plagiarist does not take out a block in situ, but
an abstract of the whole, decision is more troublesome. Upon any work, and
especially upon a play, a great number of patterns of increasing generality
will fit equally well, as more and more of the incident is left out. The last
may perhaps be no more than the most general statement of what the play is
about, and at times might consist only of its title; but there is a point in
this series of abstractions where they are no longer protected, since otherwise
the playwright could prevent the use of his “ideas,” to which, apart from their
expression, his property is never extended. …. Nobody has ever been able to fix
that boundary, and nobody ever can.” Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930).
5. FAIR USE
“In our haste to disseminate news,
it should not be forgotten that the Framers intended copyright itself to be the
engine of free expression. By establishing a marketable right to the use of
one's expression, copyright supplies the economic incentive to create and
disseminate ideas. … Fair use was traditionally defined as "a privilege in
others than the owner of the copyright to use the copyrighted material in a
reasonable manner without his consent." … The fact that a work is
unpublished is a critical element of its "nature." … [T]he scope of
fair use is narrower with respect to unpublished works. While even substantial quotations might
qualify as fair use in a review of a published work or a news account of a
speech that had been delivered to the public or disseminated to the press … the author's right
to control the first public appearance of his expression weighs against such
use of the work before its release. The right of first publication encompasses
not only the choice whether to publish at all, but also the choices of when,
where, and in what form first to publish a work.
In the case of Mr. Ford's
manuscript, the copyright holders' interest in confidentiality is irrefutable;
the copyright holders had entered into a contractual undertaking to "keep
the manuscript confidential" and required that all those to whom the
manuscript was shown also "sign an agreement to keep the manuscript
confidential." ... While the copyright holders' contract with Time required Time to submit its proposed article seven days before publication, The Nation's clandestine publication
afforded no such opportunity for creative or quality control. ... It was
hastily patched together and contained "a number of inaccuracies." ... A use that so clearly infringes the copyright
holder's interests in confidentiality and creative control is difficult to
characterize as ‘fair.’” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471
U.S.
539 (1985).
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