Class 4 Copyright, Autumn, 2016 PowerPoint Presentation, PPT - DocSlides

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Facts and Compilations. Randal C. Picker. James Parker Hall Distinguished Service Professor of Law. Ludwig & Hilde Wolfe Teaching Scholar. The Law School. The University of Chicago. October 3, 2016. ID: 682204

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Slide1

Class 4Copyright, Autumn, 2016Facts and Compilations

Randal C. Picker

James Parker Hall Distinguished Service Professor of Law

Ludwig & Hilde Wolfe Teaching Scholar

The Law School

The University of Chicago

Slide2

October 3, 2016

2

Feist

Rural Telephone Service

the local phone company in northwest Kansas

Provide service, assign phone numbers, get all of the info as a byproduct of those activities

Required by law to issue phone book

Slide3

October 3, 2016

3

Feist

Distribute phone books: free to consumers, charge companies to be in Yellow Pages

Feist Publications

Entrant into area-wide phone book market

Struck deal with 10 of 11 to license listings; Rural refused

Feist got names from phone book; sought to verify listings; did most not all

Slide4

October 3, 2016

4

Legal “Facts” in

Feist

“Two Well-Established Propositions”

Facts are not copyrightable

Compilations of facts are copyrightable

Slide5

October 3, 2016

5

Copyright’s Incentives

Do we need to give Rural a copyright in the phone listings to incentive it to issue the phone book?

Slide6

October 3, 2016

6

Facts and Copyright

Single Facts

Start with Sec. 102(b):

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Slide7

October 3, 2016

7

Facts as Discoveries

Putting the language to one side

Authors as discovering facts, not creating them

Facts as existing independent of the author, hence no origination

Slide8

October 3, 2016

8

Groups of Facts: Compilations

The definition of compilation in Sec. 101:

A “compilation” is a work formed by the collection and assembling of

preexisting materials or of data

that are

selected, coordinated, or arranged

in such a way that the resulting work as a whole

constitutes an original work of authorship

.

Slide9

October 3, 2016

9

Groups of Facts: Compilations

Sec. 103(a)

The subject matter of copyright as specified by section 102

includes compilations and derivative works

, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

Slide10

October 3, 2016

10

Groups of Facts: Compilations

Sec. 103(b)

The copyright in a compilation or derivative work

extends only to the material contributed by the author of such work

, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.

Slide11

October 3, 2016

11

Groups of Facts: Compilations

The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

Slide12

October 3, 2016

12

What is Copyrightable in a Compilation?

S/C/A

Selection

Coordination

Arrangement

Slide13

October 3, 2016

13

The Heart of Copyright

Hard work (“sweat of the brow”) v. originality

Feist

finds originality to be a constitutional requirement for copyright protection by Congress

Raises difficult issues about the ability of Congress to protect merely hard work creations, even under, say, the Commerce Clause

Slide14

Feist and Compilation OriginalitySays the Court:“As discussed earlier, however, the originality requirement is not particularly stringent. A compiler may settle upon a selection or arrangement that others have used; novelty is not required. Originality requires only that the author make the selection or arrangement

independently

October 3, 2016

14

Slide15

Feist and Compilation Originality“(i.e., without copying that selection or arrangement from another work), and that it display some minimal level of creativity.

Presumably,

the vast majority of compilations will pass this test, but not all will. There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”October 3, 201615

Slide16

Facts and CopyrightTwo Paths to PursueI want to copyright a “fact” or something fact-like. Can I do that?

What compilations will suffice?

October 3, 2016

16

Slide17

Understanding “Facts”Three SituationsMarket InformationThe SAT

The “real” story of John Dillinger

October 3, 2016

17

Slide18

3.95Is the number 3.95 copyrightable?

October 3, 2016

18

Slide19

Price Determination on ExchangesHypo?Company, call it the New York Mercantile Exchange, runs a market on which contracts are traded

It is required pursuant to CFTC regulations (see 17 CFR 16.01) to determine daily settlement prices for contracts

October 3, 2016

19

Slide20

Price Determination on ExchangesDepending on trading volume, this is not a purely mechanical exercise and so, at least in some circumstances, Company uses its independent judgment in recording the closing price

Are those prices copyrightable? Does Company author those prices or does it just discover prices?

October 3, 2016

20

Slide21

Market SurveysHypo?Bankco surveys banks across the country to calculate an average interest rate for particular terms

Second firm, call it Costco, quotes one of those rates in its own ads

Copyright infringement?

October 3, 201621

Slide22

Market SurveysDoes it matter how Bankco

does the survey?

How it calculates the average?

October 3, 201622

Slide23

Market PredictionsHypo?Corp publishes a guide to used car prices. Although Corp surveys actual market transactions, it doesn’t report mere averages but instead offers forecasts (predictions) of what prices will be like over the next six weeks

October 3, 2016

23

Slide24

Market Predictions“We predict that a 2008 Red Honda Accord with 70,000 miles on it will sell for $19,500 over the 6 weeks.”Copyrightable? Does it matter if the predictions match exactly the market averages calculated from market surveys?

October 3, 2016

24

Slide25

Answers1. Market Exchange PriceNo2. Interest Rate Average

No

3. Used Car Value Forecast

YesOctober 3, 201625

Slide26

Cases: Price Determination on ExchangesNew York Mercantile Exchange Inc. v. IntercontinentalExchange, Inc.,

497 F.3d 109

(2

nd Cir. 2007)“The question then, is one of characterization: does the Committee create the settlement prices, or is it more accurate to view the Committee’s task as like that of a census taker, copying the market's valuation of futures contracts?”October 3, 201626

Slide27

Cases: Price Determination on Exchanges“While the line between creation and discovery is often clear-cut, we recognize that it is a difficult line to draw in this case.

For reasons we explain below, we believe there is a strong argument that, like the census taker, NYMEX does not

‘author’

the settlement prices as the term is used in copyright law.”October 3, 201627

Slide28

Cases: Market SurveysBanxcorp v. Costco Wholesale Corp., 978 F.Supp.2d 280

(

SDNY 2013)“… [T]he Court determines that, even drawing all reasonable inferences from the evidence in Plaintiff's favor, the averages are unprotectable because they are uncopyrightable facts, because they are too short to be copyrighted, and because the so-called merger doctrine … bars copyright protection.”October 3, 201628

Slide29

Cases: Market PredictionsCCC Information Services, Inc. v. Maclean Hunter Market Reports, Inc., 44 F.3d 61

(2

nd

Cir. 1994)“The district court was simply mistaken in its conclusion that the Red Book valuations were, like the telephone numbers in Feist, pre-existing facts that had merely been discovered by the Red Book editors.”October 3, 201629

Slide30

Cases: Market Predictions“To the contrary, Maclean’s evidence demonstrated without rebuttal that its valuations were neither reports of historical prices nor mechanical derivations of historical prices or other data. Rather, they represented predictions by the Red Book editors of future prices estimated to cover specified geographic regions

. …

The valuations themselves are original creations of Maclean

.”October 3, 201630

Slide31

Cases: Market Predictions“The balancing of interests … leads to the conclusion that we should reject

CCC’s

argument seeking the benefit of the merger

doctrine. Because the ideas contained in the Red Book are of the weaker, suggestion-opinion category, a withholding of the merger doctrine would not seriously impair the policy of the copyright law that seeks to preserve free public access to ideas.”October 3, 201631

Slide32

October 3, 2016

32

The SAT: Cultural Facts?

The Seinfeld Aptitude Test: Level 1

To impress a woman, George passes himself off as:

(a) a

doctor

(b) a geologist

(c) a marine biologist

(d) a

meteorologist

Slide33

Cases: Cultural FactsCastle Rock Entertainment v. Carol Publishing Group, Inc., 150 F.3d 132

(2

nd

Cir. 1998)“We conclude that The SAT unlawfully copies from Seinfeld and that its copying does not constitute fair use and thus is an actionable infringement.”October 3, 201633

Slide34

Cases: Cultural Facts… [E]ach SAT trivia question is based directly upon original protectable expression in

Seinfeld

. …

The SAT did not copy from Seinfeld unprotected facts, but, rather, creative expression.”October 3, 201634

Slide35

October 3, 2016

35

The Fictional Dillinger

Hypo

Nash writes a novel setting forth an alternative fictional account of the notorious John Dillinger’s life

CBS makes TV episode of that

Nash alleges copyright infringement: does he win?

Slide36

AnswerYes

October 3, 2016

36

Slide37

October 3, 2016

37

Nash v. CBS (7

th

Cir. 1990)

Core Facts

Nash publishes books describing what he believes actually happened to John Dillinger

Claims this to be “fact;” “the truth”

CBS broadcasts an episode of

Simon and Simon

that incorporates some of Nash’s facts

Nash claims a copyright violation: does he win?

Slide38

October 3, 2016

38

Answer

No

“The producers of

Simon and Simon

used Nash’s work as Nash has used others’: as a source of facts and ideas, to which they added their distinctive overlay. As the district court found, CBS did no more than § 102(b) permits. Because

The Dillinger Print

uses Nash's analysis of history but none of his expression, the judgment is AFFIRMED.”

Slide39

October 3, 2016

39

U.S. Copyright Office Compendium (3

rd ed, 22 Dec 2014)

Slide40

October 3, 2016

40

Compendium (3

rd ed)

Slide41

October 3, 2016

41

Compendium (3

rd ed)

Slide42

Pantomimes and Choreographic Works102(a)(4)Works of authorship include the following categories:

(4) pantomimes and choreographic works

;

October 3, 201642

Slide43

Pantomimes and Choreographic Works106(4)Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following

:

(

4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;October 3, 201643

Slide44

Pantomimes and Choreographic Works106(5)(5) in the case of literary, musical, dramatic, and

choreographic works

, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work,

to display the copyrighted work publicly;October 3, 201644

Slide45

New Poem IHypo: “An Ode to Copyright”

A 26-word poem about copyright

Copyrightable?

Compilation?October 3, 201645

Slide46

AnswerYesOrdinary original work of authorshipNot created from preexisting material, there not a compilation

I

ndividual words shouldn’t could qualify as preexisting material

October 3, 201646

Slide47

New Poem IIHypo: “An Ode to Copyright”

A 26-word poem about copyright

I claim reading the poem will help you achieve a state of inner peace

fMRI test shows physical response in brain to reading poemDoes that change anything?October 3, 201647

Slide48

AnswerDon’t know for sure butWe should expect engagement with copyrighted works to produce physical reactions

The point of the work is to induce something (laughter, tears, etc.)

If existence of physical response bars copyright, copyright won’t be very meaningful

October 3, 201648

Slide49

AnswerDon’t know for sure butWhat we should worry about is the ability to monopolize function through copyright

The fact that my poem induces a physical reaction won’t block you from producing the same physical reaction with a different poem

Poem should remain within copyright

October 3, 201649

Slide50

New Book IHypo: “The 26 Facts Every Law Student Must Know”“John Roberts is the chief justice of the U.S. Supreme Court.”

Plus 25 more.

Copyrightable?

Compilation?October 3, 201650

Slide51

AnswerYesThis is a compilation of preexisting materialsThe key issue for copyrightability is selection, coordination and arrangement

This should qualify as an original copyrighted work

October 3, 2016

51

Slide52

New Book IIHypo: “The 26 Facts Every Law Student Must Know”Book as before.My claim: “Knowing these facts will help you achieve an inner calm. And I have the blood pressure measurements to prove it.”

Still copyrightable?

October 3, 2016

52

Slide53

AnswerSame as the poem before; shouldn’t change anything

October 3, 2016

53

Slide54

New Dance IHypo: “Searching for Copyright”

Twenty six dance steps, repeated

.

Interpretive dance, not a social danceCopyrightable? Compilation?October 3, 201654

Slide55

AnswerConsult the Compendium?Section 805 on Choreographic Works14.5 pages of analysis

Section 806 on Pantomimes

6.5 pages of analysis

October 3, 201655

Slide56

October 3, 2016

56

Compendium (3

rd ed)

Slide57

October 3, 2016

57

Compendium (3

rd ed)

Slide58

AnswerDone CorrectlyCovered by 102(a)(4)Enjoys the rights set out in 106(4), 106(5

)

Treat individual dance steps as equivalent to words in poem, so not a compilation

October 3, 201658

Slide59

New Dance IIHypo: “Searching for Copyright”Twenty six dance steps, repeated, as before.

My claim:

“Doing this dance will be good for your cardiovascular system. And

I have the blood pressure measurements to prove it.”Still copyrightable?October 3, 201659

Slide60

AnswerReplay of beforeExistence of physical response to work shouldn’t block copyright if the work would otherwise qualify

Again, not concerned here about grabbing unique control over functionality

October 3, 2016

60

Slide61

October 3, 2016

61

Compendium (3

rd ed)

Slide62

So You Want to Become a Bikram Teacher?Go herehttps://www.bikramyoga.com/teacher-training-fees

/

October 3, 201662

Slide63

October 3, 2016

63

Bikram Teacher Training Agreement

Slide64

October 3, 2016

64

Bikram Teacher Training Agreement

Slide65

October 3, 2016

65

Bikram Teacher Training Agreement

Slide66

October 3, 2016

66

Bikram Teacher Training Agreement

Slide67

October 3, 2016

67

Bikram Teacher Training Agreement

Slide68

October 3, 2016

68

Bikram Teacher Training Agreement

Slide69

October 3, 2016

69

Bikram Teacher Training Agreement

Slide70

New Yoga IHypo: The Picker Yoga Method

A sequence of twenty six yoga poses.

Copyrightable?

Compilaton?October 3, 201670

Slide71

New Yoga IHypo: The Picker Yoga Method

A sequence of twenty six yoga poses.

I claim health benefits from doing it

Does that change anything?October 3, 201671


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