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“[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).


“[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).


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)


“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).


“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).


© Valery Milgrom, 1997 - 2012

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