Copyright and Misappropriation
University of Dayton Law Review, Vol. 17, p. 885, 1992
44 Pages Posted: 29 May 2009
Date Written: 1992
Many works are today subject to piracy and are likely to be under produced without some form of legal protection. Notwithstanding the recent Supreme Court decisions in Feist Publications, Inc. v. Rural Telephone Service Co. and Bonito Boats, Inc. v. Thunder Craft Boats, which widen the piracy crack into which valuable works can fall, notions of misappropriation or piracy can, do, and should play an important role in copyright interpretation. Antimisappropriation of authorial skill and effort is an implicit part of all forms of copyright protection, even where protection extends broadly to the intellectually creative and expressive content of the finished product. Protection of authorial skill, effort, and judgment in the making of the product is all that is protected, however, where the content of the finished product falls outside copyright protection.
This article argues that misappropriation’s role should be more explicit in copyright interpretation, both so that appropriate protection is extended to desirable works otherwise vulnerable to piracy and so that countervailing policies, such as limited protection of ideas, factual information, and function, can be more carefully weighed in the balance. Feist would make misappropriation essentially an irrelevant factor for factual compilations, and language unnecessary to the actual decision potentially extends its denial of protection much further. This paper assumes, however, that Feist did not really intend to open the piracy door so widely, and offers a framework for copyright analysis that accepts misappropriation as a legitimate copyright concern, albeit only one of several, and inquires into the role that misappropriation notions should play in the analysis. This approach, not strictly prohibited by Feist’s actual holding, leads to better results when measured against the applicable social policies underlying copyright.
Keywords: Feist Publications, Inc. v. Rural Telephone Service Co.,
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