The Illustrated Story of Copyright
© 2000 by Edward Samuels

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[255]

Notes and Sources

 

 

There are many hundreds of sources for much of the information in this book. The ones I list here are either the ones I considered best, or, more often, the ones I serendipitously found, or found useful.

 

            For quickly finding cases and other information, I usually use law school casebooks. My major sources are Ralph Brown and Robert Denicola, Copyright (7th ed. 1998); Robert Gorman and Jane Ginsberg, Copyright: Cases and Materials  (5th ed. 1999); Melville Nimmer, Paul Marcus, David Myers and David Nimmer, Cases and Materials on Copyright (5th ed., 1998); and Craig Joyce, William Patry, Marshall Leaffer, and Peter Jaszi, Copyright Law (4th ed. 1998). There are numerous treatises and outlines for law professionals and students who want to learn more about copyright. I recommend Paul Goldstein, Copyright: Principles, Law and Practice (2d ed. 1996, with updates). Any Internet research should start with the Copyright Office Web site, www.loc.gov/copyright [now www.copyright.gov] or the Copyright Society of the U.S.A., www.csusa.org.

 

            Citations to court cases list the volume number first, then the abbreviation for the official volume where the case appears, then the page number. U.S. identifies the Supreme Court reporter; Fed. or F.2d or F.3d contains generally federal circuit court opinions; and F.Supp. contains federal district court opinions. U.S.P.Q. is the United States Patent Quarterly. The parenthetical details following the case identifies the court and the year of decision. It is customary in district court cases to list the plaintiff first; but in appellate court cases, the appealing party, not necessarily the plaintiff, usually is listed first.

 

[256]    The current Copyright Act is codified in 17 U.S.C. (that is, title 17 of the United States Code). Textual references to the “Act” with a capital “A” refer to the current statute. The most recent complete overhaul was Public Law 94-553, 90 Stat. 2541 (that is, volume 90, p. 2541 of the Statutes at Large). Passed in 1976 (with some provisions first effective on Jan. 1, 1978), it has been much amended since then. References to the House Report are to the comprehensive H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. (1976); references to the Conference Report are to H.R. Rep. No. 94-1733, 94th Cong., 2d Sess. (1976).

 

            Citations to law review articles list the volume number before the name or abbreviation of the law review.

 

Introduction

 

For the phrase “The Machine in the Parlor,” I am indebted to Leo Marx for his book, The Machine in the Garden: Technology and the Pastoral Ideal in America (1967, republished 1999). Marx identifies a major historical trend at the turn from the eighteenth to the nineteenth century. The pastoral world of Thoreau gave way to the world of technology, epitomized by the graphic image of a train intruding upon the quiet in Thoreau’s garden. Increasingly throughout the twentieth century, the technology has not been mechanical but digital; and it has represented an intrusion into our “parlors” every bit as vivid as the intrusion upon Thoreau’s garden.

 

Part One

Chapter 1

 

The Printing Press. An excellent source of information on the early production of books is Michael Olmert, The Smithsonian Book of Books (1992). For the history of books, their early effect on the law, and especially the history of the Stationers’ Company, see Philip Wittenberg, The Protection of Literary Property (1978) and Bruce Bugbee, Genesis of American Patent and Copyright law (1967). The Boorstin quote about the age of authorship is from Daniel J. Boorstin, The Discoverers: A History of Man’s Search To Know His World and Himself (1983), pp. 492-93 . The quote from Carl Sagan is from his Cosmos (1980), p. 281.

            The Statute of Anne. Daniel J. Boorstin, in The Creators: A History of Heroes of the Imagination (1992), cites many examples of authors who received specific grants of monopoly prior to the development of copyright, including Cervantes. Boorstin, who has served as senior historian of the Smithsonian Institution, director of the National Museum of History and Technology, and Librarian of Congress, is generally sensitive to the copyright issues and the social and business [257] contexts in which creators do their work. Another major source that is sensitive to the copyright and business context is Robert E. Spiller, et al., eds., Literary History of the United States.  I used the third revised edition (1963). Probably the most complete catalogue of plagiarism and other literary indiscretions through the ages is H. M. Paull’s Literary Ethics (1928). Paull documents hundreds of cases of pirated works, from copies of Shakespeare (who was himself “a notorious pirate,” consistent with the pre-copyright law and ethics of his day) to copies of Voltaire, Dickens , and Wordsworth.

            The U.S. Constitution, 1787. The copyright section of the Constitution is Article 1, section 8, clause 8. The text of the state statutes under the Articles of Confederation (p. 18) is from Library  of Congress, Copyright Office Bulletin No. 3, Copyright Enactments of the United States, 1783-1906  (1906). (Thanks to Everett Frohlich, who gave me this book as part of a set when I first went into teaching years ago.) The quote from The Federalist Papers is from The Federalist,  No. 43.

            The First U.S. Copyright Law, 1790. The first U.S. copyright act was Act of May 31, 1790, 1 Stat. 124. The quotes from President Washington’s speech and Congress’s response are from Thorvald Solberg, Copyright Office Bulletin No. 8, Copyright in Congress, 1789-1904  (1905, reprinted 1976), pp. 115-18. You can review Noah Webster’s letters to many politicians of the day in Letters of Noah Webster, ed. Harry Warfel (1953). Information on the life of Webster is from Harlow Giles Unger, Noah Webster: The Life and Times of An American Patriot (1998).

            The Photocopying Machine. A description of Chester Carlson’s invention and development of the photocopying process can be found in John Diebold, The Innovators: The Discoveries, Inventions, and Breakthroughs of Our Times (1990), p. 88.

            Library Photocopying. A detailed account of the Williams & Wilkins case, as well as many of the other major turning points of modern copyright law, is contained in Paul Goldstein, Copyright’s Highway: The Law and Lore of Copyright from Gutenberg to the Celestial Jukebox (1994). The Williams & Wilkins case is Williams & Wilkins v. The United States, 487 F.2d 1345 (Ct. Cl. 1973), aff’d by an equally divided court, 420 U.S. 376 (1975).

            Scholarly and Classroom Educational Photocopying. The NYU case was settled, so there was no court decision. The case was Addison-Wesley Publishing Co., Inc. v. New York University (82 Civ. 8333, S.D.N.Y.). The settlement is reported in New York Law Journal , vol. 189 (1983), pp. 1, 3 and in Ben Weil and Barbara Friedman Polansky, eds., Modern Copyright Fundamentals: Key Writings on Technological and Other Issues (1989), p. 107.

            Photocopying in the Commercial Setting. The photocopy cases are Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) and [258] Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1966) (en banc). The quotes from the Texaco case are from the district court opinion in American Geophysical Union v. Texaco, Inc., 802 F. Supp. 1 (S.D.N.Y. 1992). The case was affirmed on appeal, 60 F.3d 913 (2d Cir. 1995).

 

Chapter 2

 

General treatments that were invaluable on the inventions in the entertainment and information industries generally (sound recording, radio, movies, television, telegraph, telephone, and computers) are Steven Lubar, InfoCulture: The Smithsonian Book of Information Age Inventions (1993); National Geographic Society, Inventors and Discoverers: Changing Our World (1988); and Mitchell Wilson, American Science and Invention: A Pictorial History (1954).

            The Music Business. There are many excellent books on the music business. My favorite is Sidney Shemel and M. William Krasilovsky, This Business of Music, issued in new editions every few years. On early American songs, see Lynn Wenzel and Carol J. Binkowski, I Hear America Singing (1989), and Vera Brodsky Lawrence, Music for Patriots, Politicians, and Presidents (1975).The quotes are from Richard French, “The Dilemma of the Music Publishing Industry,” in Paul Henry Lang, ed., One Hundred Years of Music in America (1961), p. 173 ; Deems Taylor, Forward, A Treasury of Stephen Foster (1946); and Neil Baldwin, Edison: Inventing the Century (1995), p. 98. The reference to Stephen Foster’s music as “so essentially American” is from World Book Encyclopedia (1957).

            Piano Rolls and Records. The White-Smith case is White-Smith Pub’g Co. v. Apollo Co., 209 U.S. 1 (1908). The Francis Robinson quote is from his book Caruso: His Life in Pictures (1957), p. 99 . The 1909 recodification of copyright, containing the first music compulsory license, was Public Law 60-349, 35 Stat. 1075; the relevant hearings were Hearings on S. 6330 and H.R. 19853, 59th Cong., 1st Sess. (1906), as reported in H.Rep. No. 2222, 60th Cong., 2d Sess.(1909). The compulsory license is continued in the present Act, primarily in 17 U.S.C. §115, Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords. The sound recordings pictured on pp. 37-39 are the types that might be covered by a compulsory license; I have no idea whether the producers of these works gave the appropriate notice or paid the appropriate fees. The PBS special Rock and Roll (pp. 40-41)was produced by WGBH (Boston) and the BBC (1995).

            Radio and Performing Rights. Details about industry reactions to records and radio (as well as the quote “vocal bellowers and booming brass” from p. 33) are contained in Joseph and June Bundy Csida, American Entertainment: A Unique History of Popular Show Business (1978). That book reproduces articles, photographs, and advertisements from Billboard, one of the leading entertainment trade magazines. Another great retrospective is B. Eric Rhoads’ Blast [259] from the Past: A Pictorial History of Radio’s First 75 Years (1996). The cases discussed in the text are Herbert v. Shanley, 242 U.S. 591 (1917) and M. Witmark & Sons v. L. Bamberger & Co., 291 F. 776 (D.N.J. 1923). (ASCAP cannot sue in its own name, since it owns only nonexclusive rights in music. The nominal plaintiffs are therefore the copyright owners of particular songs that have been performed.)

            Sound Recordings: The New Industry. Each amendment to the 1976 Copyright Act can be found as it is codified in title 17 of the United States Code. The major affected sections are 17 U.S.C. §114, Scope of exclusive rights in sound recordings; §109, Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord; and 17 U.S.C., Chapter 10, Digital Audio Recording Devices and Media The charts in this chapter are my own.

            Why Can’t I Make Copies from Copies of My CDs? The Rio case is Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072 (9th Cir., 1999).

 

Chapter 3

 

Motion Pictures. A good, all-around history of the movies is Richard Griffith and Arthur Mayer, The Movies (I used the 2d ed., 1970). Joel W. Finler’s The Hollywood Story (1988) is an encyclopedic history of the business of movies.

            Ben-Hur. The Ben-Hur case is Kalem Co. v. Harper Bros., 222 U.S. 55 (1911), and the railroad scene case is Daly v. Palmer, 6 Fed. Cas. 1132 (C.C.S.D.N.Y. 1868) (No. 3552). The quotes from Iris Newsom, ed., Wonderful Inventions: Motion Pictures, Broadcasting, and Recorded Sound at the Library of Congress (1985) are at pp. 280 and 259. The quote from Charles Musser is from his book Thomas A. Edison and His Kinetographic Motion Pictures (1995), p. 35.

            Television. There are many fine books on the history of television. I found particularly useful Irving Settel and William Laas, A Pictorial History of Television (1969); Jeff Greenfield, Television: The First Fifty Years (1977); Curtis Mitchell, Cavalcade of Broadcasting: Radio and Television—And How They Grew (1970); and the textbook by Sydney W. Head, Christopher H. Sterling and Lemuel B. Schofield, Broadcasting in America (7th ed., 1994). The reference to National Geographic Society, We Americans (1975), is to pp. 416-17.

            Cable Television. For the early history of Paragould cable television, I’m indebted to Professor Willis Emmons’s 1993 case study 9-794-030, Paragould City Cable, Harvard Business School (rev. 1996). The cable cases are Fortnightly Corp. v. United Artists T.V., Inc., 392 U.S. 390 (1968) and Teleprompter Corp. v. Columbia Broadcasting Sys., 415 U.S. 394 (1974). The cable compulsory license is contained in 17 U.S.C. §111.

            The Videocassette Market. The Betamax line of cases is Sony Corp. of America v. Universal City Studios, Inc., reported at 480 F. Supp. 429 (C.D.Cal. 1979), 659 F.2d 963 (9th Cir. 1981), and 464 U.S. 417 (1984). The quote from  [260] Steven Lubar is from his book, InfoCulture, The Smithsonian Book of Information Age Inventions (1993); and quotes from James Lardner are from his fascinating book Fast Forward: Hollywood, The Japanese, and the VCR Wars copyright © 1987 by James Lardner. Used by permission of W.W. Norton & Company, Inc., at pp. 204 and 302-3.

 

Chapter 4

The Workings of the Computer. The description of computers is from my own general knowledge, acquired over the years by using computers and by reading computer magazines, most particularly Rainbow magazine (a now defunct magazine devoted to the now defunct Radio Shack Color Computer) and Macworld, with occasional references to PC Magazine, Byte, and Wired. The diagrams on the function of the computer and the look inside the computer’s memory are by Anita Costello, based upon my rough sketches.    How Do We Protect the Investment? The first Supreme Court computer patent case was Gottschalk v. Benson, 409 U.S. 63 (1972). The CONTU report was the Final Report of the National Commission on New Technological Uses of Copyrighted Works (1978). The Office of Technology Assessment quote (p. 85) is from its report Intellectual Property Rights in an Age of Electronics and Information (1986).
            The Computer-Copyright Cases. The quote is from Les Freed, The History of Computers, (1995), p. 99 . The cases are Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3rd Cir. 1983); Apple Computer, Inc. v. Microsoft Corp., one portion of which is reported at 779 F. Supp. 133 (N.D. Cal. 1991); and Computer Associates International, Inc. v. Altai, Inc, 982 F.2d 693 (2d Cir. 1992).
            The Computer-Copyright Amendments. The archival/adaptive amendment of 1980 is codified at 17 U.S.C. §117; the Semiconductor Chip Protection Act of 1984 added 17 U.S.C., chapter 9; and the Computer Software Rental Amendment of 1990 amended 17 U.S.C. §109.

 

Chapter 5

 

The Telegraph and the Telephone. The information and quotes about Joseph Henry are from Albert E. Moyer, Joseph Henry: The Rise of an American Scientist (1997), pp. 212-13. The Isaac Asimov quote is from Asimov’s Biographical Encyclopedia of Science and Technology (1964), p. 244 . Asimov puts Morse in his place by listing him in a subsidiary entry (211a) under the primary entry for Henry (211). Shortly after feeling smug for seeing the link between the telegraph and the Internet, I discovered Tom Standage, The Victorian Internet (1998), which documents the connection in great detail. The Mark Twain quote is from Charles Neider, ed., The Autobiography of Mark Twain  (1959, Perennial Library, 1975), p. 254.

[261]    Internet­­­­­­­The Technology. Particularly helpful are Tim Berners-Lee, Weaving the Web: The Original Design and Ultimate Destiny of the World Wide Web by Its Inventor (1999); SmartComputing’s The Computing Dictionary: The Illustrated Book of Terms and Technologies (3rd ed., 1998) (the quotes are from pp. 25 and 52); and Preston Gralla’s How the Internet Works (4th ed., 1998).

            How Do We Protect the Investment? The Wired quote is from the March 1994 issue. The quotes from the white paper are from the Report of the Working Group on Intellectual Property Rights, pp. 10-11, 17, 122, 183 (no. 507), 212. There are different versions of the Edward R. Murrow quote (p. 133); this one is from Curtis Mitchell, Cavalcade of Broadcasting (1970), p. 254.

            The Digital Millennium Copyright Act. The 1998 Act rewrote many of the sections of the Copyright Act. Most significantly, it changed 17 U.S.C. §114, and it added a new chapter 12. I’m not sure that the Digimarc in the sample photo will survive multiple scannings. If it does, you should be able to scan the image of the dog and open it in a recent version of Photoshop, which will detect the watermark (choose Filter: Digimarc: Read Watermark). If not, first try applying the blur filter (Filter: Blur: Blur).

 

Part Two

Chapter 6

Originality. The cases are Sheldon v. Metro-Goldwyn Pictures, 81 F.2d 49 (2d Cir. 1936) (Judge Learned Hand); Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903) (Justice Oliver Wendell Holmes); Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) (Justice Sandra Day O’Connor on telephone books). The quote from Benjamin Kaplan is from his book, An Unhurried View of Copyright (1967).
            What Kinds of Works Are Protected? For the most part, the works protected by copyright are listed in 17 U.S.C. §102, as supplemented by the definitions in §101.
            Maps and Charts, 1790. The quote by Charles Goodrum is from his book, Treasures of the Library of Congress (1980), pp. 22-23.
            Prints, 1802. The description of Morse’s The Gallery of the Louvre is from 19th Century America: Paintings and Sculpture, An Exhibition in Celebration of the Hundredth Anniversary of The Metropolitan Museum of Art (1970) (text accompanying plate 30). The cases are Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99 (2d Cir. 1951) and Bridgeman Art, Inc. v. Corel, Inc., 36 F. Supp. 2d 191 (S.D.N.Y. 1999). Carol Wax’s book is The Mezzotint: History and Technique (1990).
            Photographs, 1865. The principal case is Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). The information about Mathew Brady is from Roy Meredith, The World of Mathew Brady: Portraits of the Civil War Period (1970). The Ansel Adams quote is from Ansel Adams, An Autobiography (Little, Brown & Co., 1985; 1996 ed.), p. 60.
[262]    Drama, 1870. The quote from John Anderson is from his book The American Theatre (1938), pp. 49-50. The quote from Alexander Cowie is from his entry in Robert Spiller, et al., Literary History of the United States (3d ed.), p. 191. The description of the dramatization of Uncle Tom’s Cabin is from Joseph and June Bundy Csida, American Entertainment: A Unique History of Popular Show Business (1978), p. 22 .
            Paintings, Drawings, and Sculpture, 1870. The cases are Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903) (circus poster); Alva Studios, Inc. v. Winninger, 177 F. Supp. 265 (S.D.N.Y. 1959) (Rodin’s Hand of God); and L. Batlin & Son v. Snyder, 536 F.2d 486 (2d Cir., en banc 1976) (Uncle Sam bank).
            Movies, 1912. The Zapruder case is Time, Inc. v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y. 1968).
            Architecture, 1990. The architecture case is Demetriades v. Kaufmann, 680 F. Supp. 658 (S.D.N.Y. 1988).
            Boat Hull Designs, 1998. The Supreme Court case is Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989). The boat hull provisions are incorporated in 17 U.S.C., chapter 13.
            Characters. The major cases are Warner Bros. Inc., v. Columbia Broadcasting System, 216 F.2d 945 (9th Cir. 1954) (Maltese Falcon); King Features Syndicates v. Fleischer, 299 F.2d 533 (2d Cir. 1924) (Spark Plug); Detective Comics, Inc. v. Bruns Publishing, Inc., 111 F.2d 432 (2d Cir. 1940) (Superman); Atari v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982) (PAC-MAN); Burroughs v. Metro-Goldwyn-Mayer, Inc., 519 F. Supp. 388 (S.D.N.Y. 1981), aff’d on other grounds, 683 F.2d 610 (2d Cir. 1982) (Tarzan); Filmvideo Releasing Corp. v. Hastings, 668 F.2d 91 (2d Cir. 1981) (Hopalong Cassidy).

Chapter 7

Substantial Similarity. The Steven Spielberg cases are Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984); Zambito v. Paramount Pictures Corp., 613 F. Supp. 1107 (E.D.N.Y.), aff’d, 788 F.2d 2 (2d Cir. 1985); Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996); and Chase-Riboud v. DreamWorks, Inc., 987 F. Supp. 1222 (C.D. Cal. 1997). Schrader’s unsuccessful appeal to the Writers Guild is recounted in Douglas Brode, The Films of Steven Spielberg (1995), p. 64.
            The Story Lines of Books, Plays, and Motion Pictures. The Learned Hand cases are Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930) (Abie’s Irish Rose); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir., 1936) (Letty Lynton); and Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960). The quotes from Brooks Atkinson are from his book Broadway (1970), pp. 249 and 75-76. The Ford memoirs case is Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).      
            Visual Works. The cases are Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960); Steinberg v. Columbia Pictures Industries, 663 F. Supp.  [263] 706 (S.D.N.Y. 1987); Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157 (1977).
            Photographs. The Ansel Adams quote is from An Autobiography (Little, Brown & Co., 1985,;paperback ed. 1996), p. 305. The cases are Kisch v. Ammirati & Puris, Inc., 657 F. Supp. 380 (S.D.N.Y. 1987) and Alt v. Morello, 227 U.S.P.Q. 49 (S.D.N.Y. 1985).
            Music. An exhaustive treatment on the subject is Alfred Shafter, Musical Copyright (1932; 2d. ed. 1939). The book was written when the effects of radio were just being felt. What Shafter says about the difficulty of predicting how copyright and the music industry would adapt to radio in many ways parallels what current authors say about the Internet. The cases are Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976) (“My Sweet Lord”); ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir. 1983) (remedies stage of the “My Sweet Lord” case); and Fred Fisher, Inc. v. Dillingham, 298 Fed. 145 (S.D.N.Y. 1924) (“Kalua”). The quote by Robert Palmer (p. 166) is from his book Rock & Roll: an unruly history (1995), p. 75.
            Access. The Bee Gees case is Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984).
            What Are the Exclusive Rights of Copyright? The exclusive rights are enumerated primarily in 17 U.S.C. §106. The limited “moral rights” are covered in §106A; the exclusive rights in live musical performances in §1101; and the rights in technological protection measures and copyright management information in 17 U.S.C., chapter 12. The quote from Clinton Heylin (p. 171) is from Bootleg: The Secret History of the Other Recording Industry (1994), pp. 205-6.
            Remedies. For the most part, the remedies are provided in 17 U.S.C., chapter 5. The discussion of and quote from the Sheldon case is from the remedies portion of the case, Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390 (1940). The remedies portion of the Fogerty case is Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).

Chapter 8

Non-profit Musical Performances. Many of the non-profit exceptions to the public performance right, including the new exemption for certain radio musical performances in restaurants and small businesses, are contained in 17 U.S.C. §110. The organ music case was M. Witmark & Sons v. Pastime Amusement Co.,  298 F.2d 479 (E.D.S.C.), aff’d, 2 F.2d 1020 (4th Cir. 1924). The movie soundtrack case was Alden-Rochelle Inc. v. ASCAP, 80 F.Supp. 888 (S.D.N.Y. 1948). ASCAP’s attempt to license camps is described in Bumiller, ASCAP Asks Royalties from Girl Scouts and Regrets It, New York Times, Dec. 17, 1996, p. B1.
            Compulsory Licenses. The various compulsory licenses are codified in 17 U.S.C. §115 (phonorecord compulsory license); §111 (cable); §118 (noncommercial broadcasting); §119 (satellite systems); §§1003-07 (digital audio recordings); [264] and §114 (digital audio transmissions). The jukebox compulsory license used to be 17 U.S.C. §116, but it has been replaced by a new provision §116 that provides for negotiated licenses.
            Works of Utility. The definition of a pictorial, graphic, or sculptural work is from 17 U.S.C. §101. The provision that pictures of works of utility don’t extend protection to the making of such works is cryptically provided in 17 U.S.C. §113, which states that the new law does not change the old law in this respect.
            The Fact-Expression Distinction. The quote from the Feist case is from Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). The European Directive was issued by the European Parliament and the Council of the European Union as Directive 96/9/EC, O.J.E.C. No. L 777/20 (23.3.96).
            The Idea-Expression Distinction. The cited section is 17 U.S.C. §102(b). The cases are Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930) (Abie’s Irish Rose); Hoehling v. Universal City Studios, Inc., 618 F.2d 972 (2d Cir. 1980) (Hindenburg); and Nash v. CBS, 899 F.2d 1537 (7th Cir. 1990) (John Dillinger).
            Fair Use. The fair use section is 17 U.S.C. §107.
            Parody. The parody cases are Columbia Pictures Corp. v. National Broadcasting Co., 137 F. Supp. 348 (S.D. Cal. 1955) (Sid Caesar); Berlin v. E.C. Publications, Inc., 329 F.2d 541 (2d Cir. 1964) (Mad Magazine lyrics); Elsmere Music, Inc. v National Broadcasting Co., 482 F. Supp. 741 (S.D.N.Y. 1980) (Saturday Night Live); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. 1998) (Naked Gun 33-1/3); Benny v. Loew’s Inc., 239 F.2d 532 (9th Cir. 1956) (Jack Benny); Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978); Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) (puppies); Dr. Seuss Enters., LP v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (Pretty Woman). I thank my daughter, Claire, for noting the similarity of the Air Pirates images to particular Disney frames. THE LAST TIME I SAW PARIS, words and music by Jerome Kern and Oscar Hammerstein II © Copyright 1944 Universal Polygram International Publishing, Inc., a division of Universal Studios, Inc. (ASCAP). Copyright renewed. International copyright secured. All rights reserved. MAD is a trademark of E.C. Publications, Inc., © 2000. All rights reserved. Lyrics used with permission. The quote from Harvey Kurtzman is contained in Maria Reidelbach, Completely MAD (1991), p. 29 .
            Compromise on Public Policy Grounds. The cases are Sony Corp. of America v. Universal City Studios, Inc. 464 U.S. 417 (1984) (Betamax); Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992) (Sega Genesis); Time, Inc. v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y. 1968) (Zapruder film); and Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) (Ford memoirs). The Sobel quote is from Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium 43, 78 (1971).

[265]
Chapter 9

How Long Does Copyright Last? The Mark Twain quote is from Neider, ed., The Autobiography of Mark Twain, pp. 304, 306. The Sonny Bono Term Extension Act extended the terms set in 17 U.S.C. §§302-04; and the Fairness in Music Licensing Act amended the provisions of 17 U.S.C. §110(5).
            The Library of Congress. The quotes from Charles Goodrum are from Charles A. Goodrum, Treasures of the Library of Congress (1980), pp. 21, 25-26, and 78.            
            The Medium Is Not the Message! The quote from the Act is 17 U.S.C. §202.
            The Work-for-Hire Doctrine. The doctrine is set out in the statute in 17 U.S.C. §201(b), and in the definition of “work made for hire” in §101. The Third World America case is Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
            Government Works. Jefferson’s instructions to Lewis are from First Trust Co. of Saint Paul v. Minnesota Historical Society, 116 U.S.P.Q. 191 (D. Minn. 1956).. The Eleventh Amendment cases (p. 216) are Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (Commerce Clause); College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (Lanham Act); and Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) (Patent Act).
            Give Me Back My Copyright! The major renewal case is Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643 (1943), holding that an author who lives to the renewal term is bound by an assignment that purports to cover that term. The cases cited in the sidebars are Oona Chaplin’s settlement (never requiring a lawsuit); Saroyan v. William Saroyan Foundation, 675 F. Supp. 843 (S.D.N.Y. 1987), aff’d, 862 F.2d 304 (2d Cir. 1988); and Stewart v. Abend, 495 U.S. 207 (1990) (Rear Window). The general termination provision is 17 U.S.C. §203; the special termination rights for the extension periods of existing copyrights are set forth in §304(c).
            Patents. The Patent Act is 35 U.S.C. The novelty and non-obvious standards are set forth in 35 U.S.C. §§102 and 103; the special design patent provisions are §§171-173.
            Trademarks. The federal trademark law is the Lanham Act, 15 U.S.C. Groucho’s letter is excerpted with permission from the publisher, Bernard Geis Associates, from Groucho and Me by Groucho Marx. © 1959 by Groucho Marx.. Andrew Carroll’s remarks are excerpted from Andrew Carroll, ed., Letters of a Nation: A Collection of Extraordinary American Letters (1997), p. 253. The McSleep case is Quality Inns International, Inc. v. McDonald’s Corp., 695 F. Supp. 198 (D. Md. 1988).
            Unfair Competition. The cases are Gilliam v. American Broadcasting Cos., 538 F.2d 14 (2d Cir. 1976) (Monty Python); and Romm Art Creations, Ltd. v. Simcha Int’l, Inc., 786 F. Supp. 1126 (E.D.N.Y. 1992) (Tarkay paintings).
            Contracts. The case is Buchwald v. Paramount Pictures Corp., 13 U.S.P.Q.2d 1497 (Cal. Super. 1990). The follow-up information on the settlement [266] can be found at Abelson, “The Shell Game of Hollywood “Net Profits,’ ” New York Times, Mar. 4, 1996, D1.
            Defamation, Right of Privacy, and Right of Publicity. The cases are Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) (human cannonball); Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir. 1978) (Elvis poster); Apple Corps. Ltd. v. Leber, 229 U.S.P.Q. 1015 (Cal. Super. 1986) (Beatlemania); Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988); Sinatra v. Goodyear Tire & Rubber Co., 435 F.2d 711 (9th Cir. 1970) (Nancy Sinatra).
            Federal Preemption of State Law. The companion Supreme Court cases are Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964) and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234 (1964). The DeCosta case was bounced all up and down the federal courts over a period of almost twenty years. The primary appellate opinions are DeCosta v. Columbia Broadcasting System, Inc., 520 F.2d 499 (1st Cir. 1975) and DeCosta v. Viacom International, Inc., 981 F.2d 602 (1st Cir. 1992).

Chapter 10

1790-1891: Copyright Outlaws. The quotes are as follows: Barbara Ringer, The Role of the United States in International Copyright—Past, Present, and Future, 56 Georgetown L. J. 1050, 1051 (1968); Alexis de Tocqueville, Democracy in America, Part II, Book  One, chap. 19 (1835, 1840); Address of the British Authors, presented to the Senate by Henry Clay, Feb. 2, 1837, S. Rep. No. 134, 24th Cong., 2d Sess.; James J. Barnes, Authors, Publishers and Politicians: The Quest for an Anglo-American Copyright Agreement 1815-1854 (1974), p. 53; Boorstin, The Creators, p. 371; Charles Dickens, reported in Hamish Sandison, The Berne Convention and the Universal Copyright Convention: The American Experience, 11 Columbia-V.L.A. J. Law & Arts 89 (1986); Spiller, et al., eds., Literary History of the United States, pp. 125-26, 129-30, and 523 (Charvat quote (p. 234)); Max Kempelman, The United States and International Copyright, 41 American Journal of International Law 413 (1947); and Joseph Henry, quoted in Alfred E. Mayer, Joseph Henry: the Rise of an American Scientist (1997), p. 238.
            For Gilbert and Sullivan materials, the Iolanthe case is at 15 F. 439 (Cir. Ct., D. Md. 1883); the Mikado case is Carte v. Duff, 25 F. 183 (Cir. Ct., S.D.N.Y. 1885). Carte was more successful in Massachusetts, Carte v. Evans, 27 F. 861 (Cir. Ct., D. Mass. 1886) The Gerald Bordman quote is from his book, American Operetta: From H.M.S. Pinafore to Sweeney Todd (1981), pp. 60-61. The Sullivan quote in response to the Mikado case is from Jane W. Stedman, W.S. Gilbert, A Classic Victorian & His Theatre (1996), p. 234. The Sullivan speech and response are from the New York Times, Sept. 25, 1885, p. 5.
            The Trollope quotes (pp. 238-39) are from Anthony Trollope, An Autobiography (1950, World’s Classics, 1980), pp. 308, 309, 311, and 313 . The signatures in A Memorial of American Authors (p. 239) are digitally cut and [267] pasted from R.R. Bowker and Thorvald Solberg, Copyright—Its Law and Literature (1886, repr. 1986).
            1891-1955: Copyright Outsiders. The quote from William Charvat (p. 242) is from his entry in Spiller, et al., eds., Literary History of the United States, p. 962.
            It’s a Two Way Street! My quotes (pp. 248, 250) are from The Public Domain in Copyright Law, 41 Journal of the Copyright Society 137, 177-82 (1993).

Afterword

The earliest reference I’ve found to the saying “information wants to be free” is by Stewart Brand in his book, The Media Lab: Inventing the Future at MIT (1987, Viking paperback edition), p. 202. He, at least, didn’t intend it as a manifesto; his next sentence was, “Information also wants to be expensive.” He describe the tension between the cheapness of reproducing information and its frequently immeasurable value to the recipient, leading to “endless wrenching debate about price, copyright, ‘intellectual property,’ and the moral rights of casual distribution.”
            The President’s Committee on Arts and Humanities report, Creative America, is available on-line at http://arts.endow.gov/pub/PCAH/First.html [now http://www.pcah.gov/publications.htm—click on the Creative America  Report].

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