This release will include the following developments:  

Validity of Civil Anti-Bootlegging Legislation. In United States v. Martignon, the Second Circuit validated criminal antibootlegging legislation. But it did so in a manner that carves a giant question mark over the validity of the civil antibootlegging legislation that is included as Chapter 11 of the Copyright Act. Is Chapter 11 headed into bankruptcy? It would seem so. Stay tuned for the remand of this startling ruling—new limitations on copyright law based on its constitutional definition may be in the offing. See Nimmer on Copyright § 8E.05[C].  

First Amendment Challenge to Round Agreements Act. Offering the old one-two punch after the ruling in Martignon, the Tenth Circuit in Golan v. Gonzales reviewed a district court ruling that had brushed off a First Amendment challenge to a different part of the same enactment at issue in Martignon. Although the Supreme Court’s Eldred had been thought to give Congress almost unlimited discretion about how to craft copyright laws, this case shows that it ain’t necessarily so. It reversed and remanded for reconsideration of the First Amendment safeguards that Eldred had recognized. Stay tuned for the remand of this startling ruling, too—new First Amendment limitations on copyright law may be in the offing. See Nimmer on Copyright § 19E.06[B].  

Recent DMCA Cases. The Digital Millennium Copyright Act gets its share of treatment in this release, which integrates the discussion with the most recent rulings about mod chips for PlayStations and embedded fonts in Adobe files. See Nimmer on Copyright § 12A.06[C].  

Requirement of Creativity in Musical Works. What creativity is required for musical works? Must it be in melody, or will rhythm do? What about harmony? How about a distinctive setting of the word, “uh-oh”? What have the Beastie Boys done to this domain, by transposing James Newton classical flute solo from to the hip hop domain? See Nimmer on Copyright § 2.05[D]. 

Protection for Taxonomies of Numbers. Can numbers be copyrightable? If not, what about a taxonomy of numbers? Legion are the cases grappling with this intractable issue, from the nail-biting Code on Dental Procedures and Nomenclature to the American Medical Association numbers needed for Medicaid reimbursement to the numbers assigned captive screw fasteners and other like hardware. This release concludes that protection for naked numbers tends to be unavailable, albeit turmoil continues to roil the circuits that confront copyright protection for taxonomies. The deeper lesson seems to be that the requisite protection emerges from the interaction between human choice and external constraints—either predestination or unbounded freedom (chaos) being the poles at which copyright protection ceases to be available. See Nimmer on Copyright § 3.04[B][2][c].  

Collective and Derivative Works. A Ninth Circuit ruling considered whether a given work qualified as a collective work or a derivative work. The problem, which the court never confronted, is that a work may simultaneously be both. This release runs through numerous scenarios to ventilate why either/or is not the spirit of Title 17 of the United States Code, but instead its zeitgeist embraces both/and. The failure to appreciate that orientation set the court down the wrong path, which this release seeks to rectify. See Nimmer on Copyright §§ 10.02[D][4], 3.08.  

Rights to Publicity Stills. Time to take out your hankies. From the 1920’s through 1970’s, publicity photos for motion pictures were routinely released without the requisite copyright notice. Often, photos were taken on the set depicting the same stars, wearing the same costumes, appearing in the same scenery, that would later appear in the movie, but the photographs were sent off to newspapers before the film’s release, in order to generate a buzz about its forthcoming opening. A recent case concerned photos of Marilyn Monroe. Although they claimed copyright, the notice that was affixed to the photos did not comport with the statutory strictures then in effect, thereby rendering them effectively unnoticed. Their unnoticed publication in the media with authorization from the copyright owner would forfeit copyright protection, unless the doctrine of limited publication could ride to the rescue. But making copies of the photographs available to the general public in newspapers and magazines is the antithesis of limited publication. Accordingly, plaintiff lost its copyright interest in the affected shots. See Nimmer on Copyright § 4.13[A][3].  

Pre-emption of Moral Rights in Puerto Rico . Is Puerto Rico part of the ? The Copyright Act so defines it. Yet the pre-emption of moral rights that applies throughout the and the District of Columbia has apparently been interdicted somewhere in Caribbean waters, allowing that Commonwealth to develop its own mind-boggling doctrines. This release seeks to pull some of the shocking rulings that have flown into space from the Supreme Court of Puerto Rico gently back into the proper orbit of la legislación federal sobre derechos de autor. See Nimmer on Copyright § 8D.09.

Check out Nimmer on Copyright, Release 75 (May 2008) on Lexis.com

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