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Copyright Law – Spring 2023

This is the home page for LAW 5328 – Copyright Law for the Spring 2023 edition of the course.

The course will meet on Mondays and Wednesdays from 9:00 am to 10:20 am. The class will meet on Zoom rather than face to face. Class meetings will be recorded, and the class recordings will be posted afterward to YouTube.

How to Read the Syllabus and Find the Reading Assignments

One assignment per class. Except as noted below, each assignment below corresponds tentatively to one class period, though the amount of material to be covered in class, the order of the assignments, and/or the contents of a particular assignment may be changed by prior announcement. Note, for example, that there will be more class meetings than there are assignments. Every effort will be made to incorporate new developments in copyright law into the Syllabus, where appropriate.

The casebook is online. All of the assigned and optional readings for the course are available online, for free. You can read them online. You can download them to your own device(s). You can print them out. You can even combine them, and have them printed and bound, as your own “book” copy. And, of course, you can edit them, annotate them, and cut them and paste them (or parts of them) in other things, such as course outlines.

Extras. For some assignments, additional materials have been posted online. These are separately identified in each assignment.  They can be downloaded below and at the Important Course Information page.  In some instances the supplemental materials may be posted to the TWEN page for this course, on Westlaw.

Many of the assignments include, in the right column below, links to optional (but possibly entertaining and useful) supplemental material.  Some provides historical context for the assigned cases. Some consists of clips from motion pictures and television shows that illustrate related copyright themes.  In some cases, these, too, illustrate the assigned readings.  In some cases, they are (one hopes) funny takes on relevant legal points.  Some of the film clips contain spicy [NSFW] language, sounds, and/or images.

Look up the statute. Within each assignment, the Syllabus notes the required reading, including the principal case(s) covered in the text. In addition to the assigned readings, where a case or other material refers to the Copyright Act (Title 17 of the United States Code), students are responsible for locating and reading the section(s) of the Act to which the text refers.  At least three free online resources are available for that purpose:  One is this free, online version of the Copyright Act hosted at Cornell University. Two is this free online publication of the United States Copyright Office.  Two is Intellectual Property: Law & The Information Society / Selected Statutes & Treaties / 2019 Edition (James Boyle & Jennifer Jenkins, eds.). 

Have some theory! On the Course Information page, optional readings are included. Some of these are relatively short. Some are quite long. On the whole, they are readable introductions to key theoretical and public policy debates surrounding copyright. Reading some or all of them will give students a deeper picture of the current state of copyright law and policy than students will get by focusing on appellate cases and the statute alone.

Why the optional materials? Learning and knowing the law is difficult, but it is never enough. Great lawyers need to learn and know context. Copyright conflicts and copyright negotiations exist in companies, in markets, and among human beings. Copyright law exists to solve social problems (as a solution, it may not work terribly well, and it may create additional problems, but we start by talking about the problems that copyright evolved to solve). History matters. Culture matters. Economics and business matter. Systems matter. Other bodies of law matter, beyond copyright and beyond intellectual property. Great lawyers need to learn how to investigate those things and how they relate to their clients and the problems that their clients are trying to solve. In many respects the study and practice of copyright law requires lawyers to “toggle” between “law” and “culture.” Exploring the optional materials will help you learn to do just that.

Day by Day Syllabus and Reading Assignments

1: The Problems That Copyright Solves (or Doesn’t)

Class 1 (the first day of class): An Introduction to Copyright’s Institutional Settings

Required Readings

Optional Materials

Class 2: Why Copyright? Historical Context and Contemporary Challenges

Required Readings

Optional Materials

  • For those students with deeper interests in copyright history and theory, much of which is quite relevant today: Boyle, The Public Domain, Ch. 1 and Ch. 2.  Both are available on the Copyright Law – Spring 2023 page on TWEN, under “Course Materials.”
  • Pamela Samuelson, Mapping the Digital Public Domain: Threats and Opportunities (2003)
  • WATCH: The greatest Star Trek film or TV show of all time: Galaxy Quest (2000)
  • WATCH: The classic film Rear Window (1954) (you can find it on Google Play, Amazon Prime, YouTube, and Apple TV )
  • WATCH: The modern mediocrity based on Rear Window, Disturbia (2007) (you can find it online, per the above services)

2: The Purposes of Copyright, as Measured by Limitations: Fair Use

Class 3: Fair Use Basics – Cultural Interchange

Required Readings

Class 4: Fair Use Basics – Market Failure or “Productive Consumption”?

Class 5: The Cutting Edge of Fair Use: What is Art? What is Function?

3: The Subject Matter of Copyright

Class 6: Fixation

Required Readings

Class 7: Originality

Required Readings

  • Section 102(a) of the Copyright Act and relevant selections from Section 101
  • Feist Publications, Inc. v. Rural Telephone Service Co. [pdf] [docx]
  • Burrow-Giles Lithographic Co. v. Sarony [pdf] [docx]
  • Bleistein v. Donaldson Lithographing Co. [pdf] [docx]
  • Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc. [pdf] [docx]
  • Mannion v. Coors Brewing Co. [pdf] [docx]
  • Lanard Toys Limited v. Dolgencorp LLC [pdf] [docx]
  • Slides
  • Recording of the class

Assignment Number One will be distributed around this time. The assignment will be due on Friday, February 24, 2023.

Class 8: The Idea/Expression Distinction

Required Readings

  • Section 102(b) of the Copyright Act and relevant selections from Section 101
  • Baker v. Selden [pdf] [docx]
  • Bikram’s Yoga College of India v. Evolation Yoga, LLC [pdf] [docx]
  • Corbello v. Valli [pdf] [docx]
  • Slides
  • Recording of the class [Alas, the 2023 edition of this class was not recorded. The link goes to the 2022 edition, which is substantially the same.]

Class 9: Authorship and Ownership

Required Readings

  • Sections 201 and 202 of the Copyright Act and relevant selections from Section 101
  • Lindsay v. The Wrecked and Abandoned Vessel R.M.S. Titanic [pdf] [docx]
  • Erickson v. Trinity Theatre, Inc. [pdf] [docx]
  • Aalmuhammed v. Lee [pdf] [docx]
  • Community for Creative Non-Violence v. Reid [pdf] [docx]
  • Aymes v. Bonelli [pdf] [docx]
  • Roeslin v. District of Columbia [pdf] [docx]
  • Slides
  • Recording of the class

Class 10: Formalities, Preemption, and State Law

Required Readings

  • Sections 301, and 401 through 412, of the Copyright Act and relevant selections from Section 101
  • Michael J. Madison, Formalities, on the Copyright Law – Spring 2023 page on TWEN
  • Wheaton v. Peters [pdf] [docx]
  • Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. [pdf] [docx]
  • Maloney v. T3Media, Inc. [pdf] [docx]
  • Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. [pdf] [docx]
  • Slides
  • Recording of the class

Optional Materials

Class 11: Boundary Problems – Copyright and/vs. Trademark Law

Required Readings

  • Section 103 of the Copyright Act and relevant selections from Section 101
  • Dastar Corp. v. Twentieth Century Fox Film Corp. [pdf] [docx]
  • Gilliam v. American Broadcasting Co. [pdf] [docx]
  • Re-read the Batmobile materials from Class 1
  • Slides
  • Recording of the class

Class 12: Boundary Problems – Copyright and/vs. (Design) Patent Law: Useful Articles with Pictorial, Graphic, or Sculptural [PGS] Aspects

Required Readings

  • Relevant selections from Section 101 of the Copyright Act (“Pictorial, graphic, and sculptural works”)
  • Mazer v. Stein [pdf] [docx]
  • Star Athletica v. Varsity Brands [pdf] [docx]
  • Slides
  • Recording of the class

4: The Statutory Rights of Copyright Owners

Many of the cases below feature claims of infringement in musical compositions and sound recordings. The Music Copyright Infringement Resource, hosted at George Washington University, contains an enormous volume of information about the works at issue in these and many other cases.

Class 13: The Elements of Copyright Infringement

Class 14: The Reproduction Right

Required Readings

Optional Materials

Class 15: The Distribution Right and the First Sale Doctrine [Exhaustion]

Required Readings

  • Sections 106(3) and 109(c) of the Copyright Act and relevant selections from Section 101
  • Capitol Records, Inc. v. Thomas [pdf] [docx]
  • Bobbs-Merrill Company v. Straus [pdf] [docx]
  • Kirtsaeng v. John Wiley & Sons, Inc. [pdf] [docx]
  • Capitol Records, LLC v. Redigi Inc. [pdf] [docx]
  • Slides
  • Recording of the class [That is the 2022 class, which is substantially the same as the 2023 class. The 2023 class failed to record.]

Optional Materials

  • The United Kingdom and Ireland each have a Public Lending Right, which does not exist in the United States. Read more here.

Class 16: The Right to Prepare Derivative Works

Required Readings

  • Sections 106(2) of the Copyright Act and relevant selections from Section 101
  • Lee v. A.R.T. Company [pdf] [docx]
  • Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.[pdf] [docx]
  • Micro Star v. FormGen, Inc. [pdf] [docx]
  • Warner Bros. Entertainment, Inc. v. RDR Books [pdf] [docx]
  • Slides
  • Recording of the class

Assignment Number Two will be distributed around this time. The assignment will be due on Friday, March 31, 2023.

Class 17: The Public Performance and Public Display Rights

Required Readings

  • Section 106(4), 106(5), 109(c), and 110 of the Copyright Act and relevant selections from Section 101
  • Columbia Pictures Indus. v. Redd Horne, Inc. [pdf] [docx]
  • Perfect 10, Inc. v., Inc. [pdf] [docx]
  • American Broadcasting Companies, Inc. v. Aereo, Inc. [pdf] [docx]
  • Nicklen v. Sinclair Broadcast Group, Inc. [pdf] [docx]
  • Slides
  • Recording of the class

Class 18: “Moral” Rights in US Law and Elsewhere

Required Readings

  • Section 106A of the Copyright Act and relevant selections from Section 101
  • Massachusetts Museum of Contemporary Art Foundation, Inc. v. Buchel [pdf] [docx]
  • Lilley v. Stout [pdf] [docx]
  • Cheffins v. Stewart [pdf] [docx]
  • Castillo v. G&M Realty L.P. [pdf] [docx]
  • Slides
  • Recording of the class [introduction; includes Q & A for assignment 2]
  • Recording of the class [includes coverage of the full slide deck]

Class 19: Building Copyright Businesses and Institutions – Of Customs, Practices, Licenses, Deals, and the Mechanics of Transfers

Required Readings

5: Copyright Enforcement – Who is Liable and How?

Class 20: Identifying Defendants (and Business Partners)

Required Readings

  • Sections 106 and 501 of the Copyright Act and relevant selections from Section 101
  • Religious Technology Center v.  Netcom On-Line Communication Services, Inc. [pdf] [docx]
  • Fonovisa, Inc. v. Cherry Auction, Inc. [pdf] [docx]
  • Perfect 10, Inc. v. Visa Int’l Service Ass’n [pdf] [docx]
  • MGM Studios Inc. v. Grokster Ltd. [pdf] [docx]
  • Slides
  • Recording of the class

Class 21: Remedies

Required Readings

Optional Materials

Class 22: Service Providers

6: Regulatory Copyright

Class 23: Duration, Renewals, and Termination of Transfers

Required Readings

Class 24: Copyright, Compulsory and Statutory Licensing, and Collective Rights Organizations

Required Readings

7: The Future of Copyright (or “De-Regulatory Copyright?”)

Class 25: The Future of Copyright? Law Reform Past, Law Reform Present, and Law Reform Yet to Come

Class 26: The Future of Copyright? Sci-Fi, or More of the Same

Assignment Number Three will be distributed during the last week of class. The assignment will be due on the last day of exams.