Copyright Attack Sheet
Prerequisite of copyright: 17 USC 102(a)
1. Fixation ~ 17 USC §102(a) and Const. “writing”
a. Tangible medium for more than transient time WITH authorization of CR owner; can be perceived
2. Originality ~ 17 USC 102(a)
a. Low threshold, original work of authorship (independent creation)
3. Modicum creativity ~ (Feist)
4. Subject matter ~ 17 USC 102(a)(1) o (1) literary works, including software o NOT facts, slogans, fonts, stock characters o exempts performance by nonprofit or govt. §110(2) o (2) musical works, including lyrics o exempts performance by nonprofit or govt. §110(2) o (3) dramatic works, including music o (4) pantomimes and choreography o requires fixation o (5) pictorial, graphic, and sculptural works o 2D – problem of originality o 3D – problem of funcationality o (6) motion picture and audiovisual works o (7) sound recordings o limited by §112 ephemeral recordings o (8) architectural works o original + not dictated by functional concerns o can make/distribute pictorial representation of buildings if not 3D model and in public space §120 o Derivative works and compilation §103 o Originality + fixation + use of preexisting material o Collective works §201(c) o Exclusions: o idea, procedure, process, method of operation §102(b)
• Baker v. Selden o government works §105 o Issues: idea/expression dichotomy, merger, functionality
Ownership and Transfer
• Ownership ~ §201
• Transfer ~ §201 o Written instrument req. except if non-exclusive right
• Works made for hire ~ §201(d), §202-205
• Joint works ~ §201(a)
• Duration ~ §302-304
• Formalities o Notice ~ §401-406 o Deposit ~ §407 o Registration ~ §408-412
WMFH Common law agency test:
Option A (a) Test to decide whether there existed an employment relationship: adopted - common-law agency law test
• (1) Level of skill
• (2) Source of instrumentalities and tools
• (3) location of work – where was it performed?
• (4) duration of the relationship
1. Fixation ~ 17 USC §102(a) and Const. “writing”
a. Tangible medium for more than transient time WITH authorization of CR owner; can be perceived
2. Originality ~ 17 USC 102(a)
a. Low threshold, original work of authorship (independent creation)
3. Modicum creativity ~ (Feist)
4. Subject matter ~ 17 USC 102(a)(1) o (1) literary works, including software o NOT facts, slogans, fonts, stock characters o exempts performance by nonprofit or govt. §110(2) o (2) musical works, including lyrics o exempts performance by nonprofit or govt. §110(2) o (3) dramatic works, including music o (4) pantomimes and choreography o requires fixation o (5) pictorial, graphic, and sculptural works o 2D – problem of originality o 3D – problem of funcationality o (6) motion picture and audiovisual works o (7) sound recordings o limited by §112 ephemeral recordings o (8) architectural works o original + not dictated by functional concerns o can make/distribute pictorial representation of buildings if not 3D model and in public space §120 o Derivative works and compilation §103 o Originality + fixation + use of preexisting material o Collective works §201(c) o Exclusions: o idea, procedure, process, method of operation §102(b)
• Baker v. Selden o government works §105 o Issues: idea/expression dichotomy, merger, functionality
Ownership and Transfer
• Ownership ~ §201
• Transfer ~ §201 o Written instrument req. except if non-exclusive right
• Works made for hire ~ §201(d), §202-205
• Joint works ~ §201(a)
• Duration ~ §302-304
• Formalities o Notice ~ §401-406 o Deposit ~ §407 o Registration ~ §408-412
WMFH Common law agency test:
Option A (a) Test to decide whether there existed an employment relationship: adopted - common-law agency law test
• (1) Level of skill
• (2) Source of instrumentalities and tools
• (3) location of work – where was it performed?
• (4) duration of the relationship