Re: "hot news" myth

On 6/3/97, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> 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.
>

Agreed. I suppose one could make one of two opposing arguments based on that fact:

1. if fixation and originality are the "requirements" for obtaining a copyright, and if states can protect unfixed works without preemption, they ought to be able to protect unoriginal works as well; or
2. since the statute expressly preserves state statutes on fixation from preemption, but says nothing about state statutes on originality, the latter must be preempted.

God I love the law. :)

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

Published at last: Merges, Menell, Lemley & Jorde, Intellectual Property  in the New Technological Age (Aspen Law & Business 1997)

For information on the Intellectual Property program at UT, see http://www.utexas.edu/law/intelprop/ Received on Wed Jun 04 1997 - 15:54:26 GMT