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Copyright Law – Spring 2024

This is the home page for LAW 5328 – Copyright Law for the Spring 2024 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. Every effort will be made to incorporate new developments in trademark law into the syllabus, where appropriate.

The reading materials are 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. See the Important Course Information page for detailed information about the reading materials. Most of the assigned materials are available on this page as both .DOCX and .PDF files. A handful are available only as .PDF files.

How to read [new for Spring 2024]. Students still have lots to learn and lots to practice when it comes to reading primary source materials – cases and statutes – in law. How to Read a Legal Opinion by Professor Orin Kerr (UC Berkeley Law School) is an excellent primer when it comes to making sense of a single case. When it comes to making sense of a body of cases, additional tools are needed. My best initial advice is this: read each case both for its function (“what’s the rule?” “what’s the holding?” “what are the relevant facts?”) and also as literature, meaning: as a story. Possibly a comedy, possibly a drama, possibly a history, possibly a blend, or something else. That may involve reading the case twice, or even three times. As you would do with a novel or a poem, bear in mind that reading involves making sense of settings, characters, motivations, conflicts, and resolutions. Cases are stories (and stories are cases, often), in other words. Stories require reader involvement, meaning both you and also others. What you take away from a novel is based in part on what you know about what other people (teachers, friends, family, colleagues, reviewers) take away from it. Interpretation is an ongoing, collective, collaborative process. Law often operates the same way: you can and should read cases for what they say about other, earlier cases, teaching you what those other cases “mean” (and have meant, and will mean) as they exist in the world over time.

Extras. Many of the assignments include 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 copyright themes.  There are music videos. 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 optional material contains spicy and/or possibly offensive [NSFW] – but contextually appropriate – 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.  Three is “Intellectual Property: Law & The Information Society / Selected Statutes & Treaties / 2019 Edition” (James Boyle & Jennifer Jenkins, eds.). 

Have some theory! For several of the units of reading, optional law review articles are included. Some of these are relatively short. Some are quite long. Reading some or all of them will give students a deeper picture of the current state of copyright law, practice, 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 law, like any body of law, exists to solve social problems. As a solution, copyright law may not work terribly well, and it may create additional problems, but we start by talking about the problems that copyright evolved to solve. Some of those are ancient (the origins and character of knowledge, or “learning”). Some are recent, even modern (the origins and character of “originality” and “creativity” in art and entertainment.) We talk about other dimensions of those problems and their solutions. Copyright conflicts and copyright negotiations exist in companies, in markets, and among human beings. History matters. Culture matters. Economics and business matter. Systems matter. Other bodies of law matter, beyond copyright law 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.

Day by Day Syllabus and Reading Assignments

TOPIC 1: THE PROBLEMS THAT COPYRIGHT SOLVES (OR DOESN’T, OR CREATES)

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

TOPIC 2: THE PURPOSES OF COPYRIGHT, AS MEASURED BY LIMITATIONS: FAIR USE

Class 3: Fair Use Basics – Cultural Interchange

Required Readings

Optional Materials

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

Required Readings

Optional Materials

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

Required Readings

Optional Materials

TOPIC 3: THE SUBJECT MATTER OF COPYRIGHT

Class 6: Fixation

Required Readings

Optional Materials

Class 7: Originality

Required Readings

Optional Materials

Assignment Number One will be distributed around this time. The Assignment will be due on Monday, February 26, 2024.

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]
  • Hanagami v. Epic Games [pdf] [docx]
  • Corbello v. Valli [pdf] [docx]
  • Slides
  • Recording of the class
  • KRISP AI-generated summary: not today

Optional Materials

Class 9: Authorship and Ownership

Required Readings

Optional Materials

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 2024 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
  • KRISP AI-generated summary

Optional Materials

Class 11: Boundary Problems – Copyright and/vs. (Design) Patent Law: Useful Articles with Pictorial, Graphic, or Sculptural [PGS] Aspects

Required Readings

Optional Materials

Class 12: Boundary Problems – Copyright and/vs. Trademark Law

Required Readings

Optional Materials

TOPIC 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

Required Readings

Optional Materials

Class 14: The Reproduction Right

Required Readings

Optional Materials

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

Required Readings

Optional Materials

Class 16: The Right to Prepare Derivative Works

Required Readings

Optional Materials

Assignment Number Two will be distributed around this time. The Assignment will be due on Friday, April 5, 2024.

Class 17: The Public Performance and Public Display Rights

Required Readings

Optional Materials

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

Required Readings

Optional Materials

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

Required Readings

Optional Materials

TOPIC 5: COPYRIGHT ENFORCEMENT – WHO IS LIABLE AND HOW?

Class 20: Identifying Defendants (and Business Partners)

Required Readings

Optional Materials

Class 21: Remedies

Required Readings

Optional Materials

Class 22: Service Providers

Required Readings

Optional Materials

TOPIC 6: “REGULATORY” COPYRIGHT

Class 23: Duration, Renewals, and Termination of Transfers

Required Readings

Optional Materials

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

Required Readings

Optional Materials

TOPIC 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

Required Readings

Optional Materials

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

Required Readings

Optional Materials

Assignment Number Three will be distributed during the last week of class. The Assignment will be due on the last day of exams, which is May 1, 2024.