Re: "hot news" myth

On Mon, 2 Jun 1997, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> In the copyright context, a couple of
> courts (notably the Seventh Circuit, in Baltimore Orioles, I think)
> have held that the originality requirement is like obviousness in this
> respect -- unoriginal works of authorship are within the scope of
> copyright; they just don't meet the minimum requirements for protection.
> [Curiously, though, courts do *not* say the same thing about fixation,
> adding another layer of confusion to the doctrine].

I think they'd have a hard time saying the same about fixation. Section 301(b)(1) expressly states that such works aren't within the subject matter of copyright.

> Second, "equivalence to copyright" is the test for preemption under
> 17 U.S.C. sec. 301. Even if that hurdle is passed, there is still a
> possibility of Supremacy Clause preemption based on a conflict between
> federal copyright law (express or implied) and the state statute.

If I recall correctly, last year there was a case, either in the California appellate courts or in the Ninth Circuit, in which the court found an actor's right of publicity was constitutionally preempted by the Copyright Act under the Supremacy Clause, to the extent that the actor could use that right to prevent distribution of the film itself.

--
Terry Carroll       | "The invention provides means for continuously
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