Overview

Today virtually all businesses have copyrighted advertising and promotional materials.  Many—if not most—also have copyrighted websites and custom computer programming.  Lawyers who advise businesses therefore must have some acquaintance with copyright law, just as business lawyers need some knowledge of tax law although they may not practice it as specialists.  The more modern and web-oriented the business, the greater the need for knowledge of copyright law.

Copyright may have a mysterious and esoteric flavor when applied to new media and new technologies.  Yet this is just an introductory survey course.  We will dip a toe into the murky waters of computer programming and the Internet (including file sharing and search engines), but we will emphasize basic principles and more traditional media, such as books, music, movies, and the arts.  Only in this way will we make it possible to understand how copyright does and should apply (or not apply) to more modern media and new technologies.  If you would like to undertake further study of copyright as applied to software and the Internet, you should consider taking Computer Law or Cyberlaw.

Pedagogic Approach

Copyright law is a fun subject.  It is enjoyable because it involves popular culture and common media with which we are all familiar.  It is not, however, an easy field.  At times it is abstract and highly conceptual.  It also has important interrelationships with the First Amendment and other fields of intellectual property, principally patent law.  Furthermore, as part of a growing body of "economic law," it has implications for competition, antitrust, and international trade.  Last but not least, many of the vital doctrines of copyright law, such as the idea/expression dichotomy and fair use, are easy to state in the abstract but devilishly complex in application.  There is thus a lot to learn.

The conceptual complexity of copyright law demands both perspective and consistent focus on important principles.  We will explore the basic conceptual underpinnings of copyright law, its growth and adaptation to new media and new technologies, and its prospects for continued use—and perhaps abuse—in the Internet age.  Our primary goal will be to gain a solid footing in the basics as they work today and the skill to predict and help shape their future development.

To help achieve this level of of understanding, nearly every class will be "interactive" in some sense.  Many class sessions will involve the usual Socratic discussion.  Often we will take decided cases as springboards and explore their applications to hypothetical (or real but unassigned) cases.  Sometimes, you will be asked to cooperate with other students in solving problems during classes.  At other times you may be asked to play roles as opposing advocates or judges, explaining your arguments and decisions to the class.  Through this sort of interactive exercise, we will seek to give you a real understanding of the subject, including both the rules and the difficulty of applying them.

Study Groups

Required Texts

Our casebook, from which most of our readings will be drawn, is the following:

Ralph S. Brown and Robert C. Denicola, Copyright: Unfair Competition, and Related Topics bearing on the Protection of Works of Authorship (9th ed. 2005, University Casebook Series) [the "Casebook"]

We will also use the latest published case supplement for the casebook, supplemented by current cases and other materials published on this Website.

As the Casebook's subtitle suggests, its focus is the traditional "copyright industries": publishing, entertainment, music, and the fine arts.  Yet because of its relatively recent vintage, it also covers many recent developments in computer and Internet law, as well as important points of copyright practice.  We will exploit all the strengths of this book and supplement it where necessary with other materials.

Although much of copyright is still-judge made law, it is in essence a field of federal statutory law.  The text of the statute is becoming increasingly important and detailed as time goes on.  Accordingly, I have also assigned the following statutory compendium as a companion to the casebook:

Paul Goldstein and Edmund W. Kitch, Selected Statutes and International Agreements on Unfair Competition, Trademark, Copyright and Patent (2007 ed., Foundation Press) [the "Statute Book"]

This book contains not only the copyright statute, to which we will frequently refer, but also the most important statutes from other fields of intellectual property, as well as governing treaties and international agreements.   We will refer to these materials for purposes of comparison and better understanding of context.  If you have a similar supplement from another course, you may use that supplement, as long as it was published in 2006 or later.

Please bring the Casebook and the Statute Book with you to class every day.  When there are supplementary readings from the website, you may bring a laptop computer containing them or your own printouts.  Supplementary readings will appear on this website in electronic form only.

Course Goals

1. An appreciation for the economic purposes of copyright, its place in the constitutional scheme of intellectual property protection, and its relationship to other fields of "economic law;"

2. An understanding of the basic concepts and principles of copyright, including the idea-expression dichotomy, the "substantial similarity" test for infringement, and the doctrine of fair use;

3. An appreciation of how difficult it is to apply these abstract doctrines in individual cases and how their application may depend upon the medium of expression or the industry involved;

4. An overview of the growth and development of copyright, its recent expansion in coverage, and the changes in law necessary to make it fit new technologies well;

5. An ability to predict and perhaps help shape the contours of copyright as we move forward in the Twenty-First Century; and

6. Skill in identifying copyright-related legal issues, distinguishing between fundamental and minor issues, and finding answers to new questions through analysis and research.