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Robart v. State (01/23/2004) ap-1914

Robart v. State (01/23/2004) ap-1914

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


SCOTT P. ROBART,              )
                              )            Court of Appeals No. A-
8313
                               Appellant,    )        Trial Court
No. 3AN-97-6951 CR
                              )
                 v.           )
                              )                    O  P  I  N   I
O  N
STATE OF ALASKA,              )
                              )
                                Appellee.     )         [No. 1914
January 23, 2004]
                              )

          Appeal  from the District Court,  Third  Judi
          cial District, Anchorage, John Lohff, Judge.

          Appearances:  Matthew W. Claman,  Claman  Law
          Firm,   Anchorage,  for  Appellant.   Douglas
          Kossler  and Kenneth M. Rosenstein, Assistant
          Attorneys   General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Gregg  D.  Renkes, Juneau, Attorney  General,
          for Appellee.

          Before:  Coats,  Chief Judge, and  Mannheimer
          and Stewart, Judges.
          
          STEWART, Judge.


          A  jury found Scott P. Robart guilty of using the state

seal for an advertising or commercial purpose without the written

permission of the lieutenant governor.1  On appeal, Robart claims

that  the  statute  protecting the state seal, AS  44.09.015,  is

preempted by federal copyright law.  Robart also claims that  the

district court erred when it refused to issue a protective  order

          to prevent the State from arguing that the state government was

unaware  of Robarts use of the state seal, that the jury was  not

instructed on Robarts theory of the mistake of fact defense,  and

that  the general verdict form used did not ensure that the  jury

deliberated on all the elements of his defense.  For the  reasons

expressed  below,  we find that federal copyright  law  does  not

preempt  AS  44.09.015, that no error occurred when the  district

court  refused to issue the protective order, that the  jury  was

properly instructed on the mistake of fact defense, and that  the

general  verdict  form  was  adequate.   Accordingly,  we  affirm

Robarts conviction.



          Facts and proceedings

          This  case began in 1996, when an employee of the State

Department of Commerce and Economic Development wrote Robart  and

invited  him to submit one or more of your companys products  for

consideration  for  a  show  featuring  consumer  products   from

Alaska[.]2   The  show  was  to appear on  QVC,  a  home-shopping

television  cable  channel.  Robart decided to participate.3   He

wanted  to  use  the state seal on a medallion commemorating  the

anniversary of the Alaska gold rush.

          At  trial,  Robart testified that he did some  research

regarding  use  of  the state seal, and found  the  statute  that

required him to get permission from the lieutenant governor.   He

called  the lieutenant governors office and was told to  put  his

request  in writing; he did so, faxing his request soon after  he

had  called.   He  got  no response.  Although  he  re-faxed  his

request,  and  made  another phone call,  he  still  received  no

response.   Consequently,  he  testified  that  he  thought   the

lieutenant governors office did not think that the state seal was

important, and that the office would not enforce the statute. But

he then called the governors office, and submitted to that office

the faxes he had sent to the lieutenant governor.  He received no

answer from the governors office either.

          Because  he  had been encouraged by the  Department  of

          Economic Development to submit a product, he decided to proceed

and  to  use  the  state seal on a medallion without  permission.

Robart  submitted  a form showing the design  of  his  medallion,

which  had  a  reproduction of the state seal on  one  side.   He

testified that no one from the state said anything about his  not

having permission.  Nor did anyone tell him not to proceed  until

he  had  the permission of the lieutenant governor.  Robart  said

that  because  no one said anything to him, he thought  that  his

using  the  medallion without permission was  not  an  issue  for

anyone in the government.

          On  February 1 and 2, 1997, various vendors,  including

Robart,  displayed  Alaska-made  products  at  a  trade  show  in

Anchorage.  Robarts medallion was one of those chosen to be  sold

on  QVC.   On April 17, 1997, the governor sent Robart a  letter,

congratulating  him on his companys selection as one  of  Alaskas

top  small businesses, and for earning the opportunity to present

your product during the upcoming QVC live national broadcast.

          On  May  24,  1997, Robart appeared on QVC marketing  a

silver  and gold medallion commemorating the anniversary  of  the

1897  Alaska gold rush.4  A replica of the state seal was on  one

side  of  this  medallion,  while a  design  for  the  Gold  Rush

Centennial  was  on  the other side.5  John  Lindback,  then  the

lieutenant  governors chief of staff, watched the QVC show;  when

he saw Robarts medallion, he wondered if Robart had permission to

use  the  state  seal.  Because Robart did not  have  permission,

Lieutenant  Governor  Fran Ulmer, on May 29,  1997,  sent  him  a

letter, with a copy of AS 44.09.015, explaining that it had  been

her  policy since taking office that the state seal shall not  be

used  for commercial purposes.6 She told him to stop selling  the

medallions  because  he  was  violating  AS  44.09.015.7   Robart

acknowledged receiving this letter.8  He responded with a  letter

that  same day.  Although he claimed that he was confused by  the

lieutenant governors position, he did not admit that he had known

that  he  needed permission, nor did he claim that he thought  he

had any authorization to use the state seal.

          On  August  6, 1997, two months after Robart  had  been

told  to  stop selling his medallions, Alaska State Trooper  Curt

Harris,  posing as a buyer, purchased two of the medallions  from

Robart.9   On  August  12,  1997, shortly  after  this  purchase,

another  trooper  interviewed Robart.  Robart told  this  trooper

that  he did not know that he needed permission to use the  state

seal.

          The  State charged Robart with using the state seal for

commercial  purposes  without  the  written  permission  of   the

lieutenant governor.10  Robart moved for dismissal on the grounds

that  the  statute violated his federal and state  constitutional

rights  to  free  speech.  The district court agreed,  concluding

that  the state statute violated Robarts constitutional right  to

freedom of speech and expression.11  The State appealed.

          On   appeal,  after  finding  that  the  State  had   a

legitimate governmental interest in regulating the commercial use

of  the state seal, we concluded that commercial use of the state

seal  was not protected speech.12  After we reversed the district

courts  dismissal,  Robart successfully  petitioned  the  supreme

court for a hearing.  When granting the petition for hearing, the

supreme  court  ordered  the parties  to  brief  whether  federal

copyright  law preempted AS 44.09.015.  After briefing  and  oral

argument,  however, the supreme court dismissed the  petition  as

improvidently granted.

          The  case then returned to the district court.   There,

Robart   moved  to  dismiss  the  charge,  arguing  that  federal

copyright  law  preempted AS 44.09.015.   Robart  relied  on  the

briefings  that  he and the State had submitted  to  the  supreme

court.  Robart also submitted the transcript of the oral argument

before the supreme court.  Ultimately, District Court Judge  John

Lohff denied Robarts motion.

          At trial, Robart claimed that his defense was a mistake

of  fact  regarding whether he had gotten permission to  use  the

seal.   But at trial, Robart wanted the jury instructed that  the

governor (rather than the lieutenant governor) could and did give

          Robart written permission to use the state seal.  To that end,

Robart  unsuccessfully sought a number of jury instructions  that

addressed   various  principles  from  agency  law  (agents   and

principals, and imputed knowledge), and the powers and duties  of

the  governor.   Most  of  these requests for  instructions  were

denied,  although the district court did agree  to  instruct  the

jury  that  the  executive power of the state is  vested  in  the

governor,  and  that his office included the lieutenant  governor

and  the  governors  staff.   In  addition,  the  district  court

modified  some  of  Robarts other proposed instructions.   Robart

also unsuccessfully sought both a protective order to prevent the

State from claiming that state employees were unaware that he was

using the state seal on his medallion after February 1997, and an

elaborate  special verdict form.  A jury found Robart  guilty  of

violating AS 44.09.015.  This appeal followed.



          Does federal copyright law preempt AS 44.09.015?

          Robart  claims that federal copyright law  preempts  AS

44.09.015(a), which provides that a person may not use or make  a

die  or  impression  of  the state seal for  any  advertising  or

commercial  purpose,  unless written permission  has  first  been

obtained from the lieutenant governor.13

          Federal  copyright law is found at 17 U.S.C.   100-1332

(2000).   Among other things, it provides in part that all  legal

or  equitable rights that are equivalent to any of the  exclusive

rights  within  the general scope of copyright ...  are  governed

exclusively  by this title.  17 U.S.C.  301(a).  Section  301(a),

however,  is  qualified by subsection (b),  which  provides  that

[n]othing  in this title annuls or limits any rights or  remedies

under  the  common law or statutes of any State with  respect  to

certain  types  of  matters  or  actions.   The  first  of  these

exceptions  is  subject  matter that does  not  come  within  the

subject matter of copyright as specified by sections 102 and  103

[of  Title  17].14  The second exception does not apply  in  this

case.   The third exception addresses activities violating  legal

          or equitable rights that are not equivalent to any of the

exclusive  rights  within  the  general  scope  of  copyright  as

specified by section 106 [of Title 17].15

          Robarts  position is that the state seal  can  only  be

protected  by the federal copyright statute.  Based on  copyright

law,  he  argues that the state seal is now in the public  domain

and  can  be  used freely by the public.  He concludes  that  the

state  cannot pass its own statute to provide protections similar

to those in the copyright statute.

          The  States  position  is  that  AS  44.09.015  is  not

preempted,  because  it  falls within the  preemption  exceptions

listed  in 17 U.S.C.  301(b).  The State argues that AS 44.09.015

falls  within   301(b)(1) and (b)(3).  Under  301(b)(1),  federal

copyright law does not preempt state law that addresses rights or

remedies  that do not come within the subject matter of copyright

as  set out in  102 or 103.  Meanwhile, under  301(b)(3), federal

copyright law does not preempt state law that addresses rights or

remedies  with  respect  to  ... activities  violating  legal  or

equitable  rights that are not equivalent to any of the exclusive

rights within the general scope of copyright[.]  The State argues

that  a  state seal, because it is the symbol of a sovereign,  is

not  a  type  of  work that comes within the  subject  matter  of

copyright.

          We agree with the State  copyright law does not preempt

the Alaska statute limiting the commercial use of the state seal.

We  believe  it  is clear that states have the power  to  protect

symbols  of  their  sovereignty.16   For  instance,  the  Supreme

Judicial  Court of Massachusetts in Commonwealth v. R.I.  Sherman

Manufacturing Co., held that the commonwealth could  prevent  the

use  of  its  seal  for  advertising  or  commercial  purposes.17

Convicted of violating a statute that prohibited the use  of  the

great  seal of the commonwealth, [or] any representation thereof,

for   any  advertising  or  commercial  purpose  whatever,18  the

defendant  argued that the commonwealth had interfered both  with

the defendants trademark and with the commerce clause of the U.S.

          Constitution.  Finding that the commonwealth had appropriated its

great  seal to itself as a symbol of its sovereignty,19 the court

said  that  [a]s  against the commonwealth, the defendant  cannot

have  any claim to a trademark.20  The fact that the commonwealth

could protect its seal was to the court too clear for argument.21

The  court  also  found  that  because  the  statute  merely  ...

protect[ed] the seal and coat of arms of the commonwealth, it did

not conflict with the commerce clause.22

          Likewise, the federal Court of Appeals for the District

of  Columbia  in  In  re Cahn, Belt, & Co.23 recognized  that  as

against  a  state, no person or entity can acquire [an  exclusive

use]  property  right in the [states] coat of  arms  ...  or  any

simulation thereof[.]24

          In addition, in Katz v. Department of Motor Vehicles,25

the  California  Court of Appeals ruled that the  state  had  the

right  to protect the legitimacy, credibility and reliability  of

its  symbols  and emblems because of the substantial  impact  the

symbols  may have on public attitudes and behavior.26   Katz  had

challenged  the constitutionality of the states power to  prevent

certain  combinations of numbers, letters or both from  appearing

on personalized license plates.27

          Before  Congress can be said to have preempted an  area

that has traditionally been occupied by the states, congressional

intent  to  supersede  state laws must be clear  and  manifest.28

Here,  federal copyright law is silent on this issue  state seals

are  not mentioned at all.  Additionally, we cannot find a single

federal  or  state  case  discussing the application  of  federal

copyright law on laws protecting state seals.  Nor have  we    or

the  parties  found any other evidence that Congress intended  to

preempt  the  states ability to protect and regulate their  state

seals.

          Moreover,  state  seals  appear  to  be  more  akin  to

trademarks  or service marks than they are to the  type  of  work

Congress  intended  copyrights to cover.  The  federal  trademark

statute  unlike the copyright statute  specifically provides  for

          state flags, coats of arms, or other insignia by prohibiting them

from   being   registered.    See   15   U.S.C.    1052   (2000).

Additionally,  the majority of cases addressing state  seals  are

trademark  cases;29 there are no copyright cases addressing  this

issue.

          Although we recognize that trademark and copyright  law

can  overlap,30  generally  speaking,  the  two  schemes  address

different  concerns.   Under  the copyright  statute,  an  author

secures  the sole right to copy the protected work and to license

others  to produce copies.31  The copyright holder may  not  only

exploit  his  work  commercially, [but]  may  also  exercise  the

copyright in a purely proscriptive manner to prevent anyone  from

copying the protected work.32  Trademarks, however, are based  on

common law concepts of unfair competition; hence, the purpose  of

a  trademark is to prevent confusion as to the origin of goods or

services  and to prevent fraud and misrepresentation as to  their

source.33  Here, AS 44.09.015 does not provide the equivalent  of

copyright protection; rather, it provides protection analogous to

trademark protection.

          Finally,  as  the State points out, despite  the  broad

sweep  of  federal copyright law, and despite a specific  statute

that  places all federal government work in the public  domain,34

Congress  has  passed a statute protecting symbols similar  to  a

state  seal.   Under  18  U.S.C.   713(a)  (2000),  Congress  has

protected  the  great seal of United States,  the  seals  of  the

President and the Vice President of the United States,  the  seal

of  the United States Senate, the seal of the United States House

of  Representatives, and the Seal of the United States  Congress.

Although  Section  713(a) makes it a crime to use  any  of  these

seals  for  the  purpose of conveying ... a false  impression  of

sponsorship  or approval by the Government of the United  States,

subsections  (b), (c), (d), and (e) generally  make  it  a  crime

merely  to  manufacture, reproduce, use, sell,  or  purchase  any

likeness  of  these seals (except the great seal  of  the  United

States) without permission from the appropriate agency.  It seems

          evident that Congress, by protecting specific important federal

seals that were left unprotected by copyright law (and by federal

trademark law), did not intend to prohibit states from protecting

seals that represent state sovereignty.

          For  all  the  above reasons, we conclude that  federal

copyright  law does not preempt AS 44.09.015, which protects  the

state seal from unauthorized commercial use.



          Robarts requested protective order
          Robart  claims  that he was entitled  to  a  protective
order that prevented the States witnesses from claiming that they
did  not  know  that  he  was using the state  seal  after  state
employees saw it as part of his initial submission for the  trade
show.   Robart  based this request on his claim  that  under  the
theory  of imputed knowledge, the knowledge of one state employee
must  be  imputed  to all other state employees.   After  hearing
argument,  Judge Lohff denied Robarts motion.  We find no  error.
Even  assuming  that  Robarts theory of imputed  knowledge  among
state  agencies and employees was applicable in this case, Robart
was  convicted  for  using the state seal  after  the  lieutenant
governor  expressly informed him that he was doing so  illegally.
It was not relevant what other state employees knew before Robart
was  warned.  (Moreover, under Robarts imputed knowledge  theory,
when the lieutenant governor told him to stop using the seal, she
acted on behalf of the governor.)
          Additionally,  Robart  has  not  shown   how   he   was
prejudiced.   No State witness testified that they were  ignorant
of  Robarts  use of the state seal.  In his reply  brief,  Robart
argues  that he wanted the protective order to prevent the  State
from  arguing  that the governor could not or did  not  give  him
permission  to use the state seal.  But he did not  present  this
reason to Judge Lohff, nor  for the reasons explained in the next
section  was Robart entitled to a protective order that prevented
the State from making this argument.

          Was the jury instructed on Robarts theory  of
          defense?
          Robart  next claims that Judge Lohff should have  given
Robarts proposed jury instructions because these instructions ...
described and defined Robarts theory of defense.  At trial Robart
characterized  his defense as a mistake of fact, but  he  claimed
that  to establish this defense, he was entitled to have the jury
instructed  on  general principles of corporate agency  law.   To
that  end, Robart sought instructions that defined agent and  the
scope of an agents authority.  He also wanted the jury instructed
that  an  act  or  omission of state employees  was  the  act  or
omission  of  the governor, and that any act or omission  of  any
state   employee,  including  the  governor  and  the  lieutenant
governor, was the act or omission of the state.
          Most  importantly,  however,  Robart  wanted  the  jury
instructed  that  both the governor and the  lieutenant  governor
could  grant  permission to use the state seal.  Robarts  desired
defense,  and his agency instructions, were based on  the  notion
reflected in this last instruction:  that because the governor is
the  head  of the executive branch, he has the same authority  as
the  lieutenant  governor  over  the  state  seal.   Judge  Lohff
properly rejected this instruction because it is not supported by
the constitution or AS 44.09.015.
          The  Alaska  Constitution provides that the  lieutenant
governor  shall perform such duties as may be prescribed  by  law
and as may be delegated to him by the governor.35  With regard to
the state seal, the lieutenant governor has duties prescribed  by
law.   In  AS  44.19.022,  the  legislature  expressly  made  the
lieutenant  governor the custodian of the state seal.   Likewise,
in  AS 44.09.015, the legislature granted the lieutenant governor
the  authority to grant permission to use the state  seal  for  a
commercial  use.  These statutes show a clear legislative  intent
that  the lieutenant governor has authority to permit use of  the
state seal for a commercial or advertising purpose.  Although the
governor  can,  by  appropriate court action  or  proceeding  ...
enforce   compliance  with  any  constitutional  or   legislative
mandate36  nothing  in the constitution allows  the  governor  to
supplant  the  lieutenant governor with regard  to  that  persons
          duties ... prescribed by law.
          Hence,    Judge   Lohff   properly   rejected   Robarts
instructions because they misstated the law  that is, contrary to
statute,  they  told  the  jury that  the  governor  could  grant
permission to use the state seal.
          Although  Judge  Lohff rejected Robarts assertion  that
the  governor,  as  a matter of law, had the authority  to  grant
permission to use the state seal, Judge Lohff allowed  Robart  to
present  a  legitimate  mistake of  fact  defense.   Judge  Lohff
instructed  the jury that [t]o prove that the defendant  did  not
act under a reasonable mistake of fact, the state must prove that
the  defendants mistaken belief that he had permission  from  the
lieutenant governor to use a die or impression was not reasonable
and  that  the  defendants reliance on a course of  communication
with  the  governor or the lieutenant governor  in  reaching  his
belief  was not reasonable.  This defense was  based on  evidence
of  the  states consistent failure to respond to Robarts requests
for  permission, on the encouragement to produce the  medallions,
and  on  the  congratulatory letter  from  the  governor.    This
defense  properly allowed Robart to argue to the  jury  that  the
state,  by  its  actions,  led him  to  believe  that  the  State
permitted his use of the seal.
          We   conclude  that  Judge  Lohff  did  not  err  when,
rejecting  Robarts  characterization  of  the  mistake  of   fact
defense, he denied Robarts proposed jury instructions.
          Robart also claims that error occurred when, at the end
of  trial, Judge Lohff changed two instructions that he had given
at the beginning of trial, when he gave the jury some preliminary
instructions.   Of  these,  one explained  the  elements  of  the
offense, while another explained the elements of the defense.  In
each of these, however, the preliminary instructions omitted  the
statutory  requirement that Robart have written  permission  from
the  lieutenant governor to use the state seal for  a  commercial
purpose.   Later,  when  discussing the final  instructions,  the
State pointed out that these instructions, to accurately set  out
the  elements of the statute, had to have the word written added.
Judge Lohff agreed, but Robart objected.
          On  appeal, Robart argues that changing the preliminary
instructions vitiated his defense.  But Judge Lohff was  required
to  instruct the jury on the essential elements of the offense.37
Moreover,  the  defense of mistake of fact  instruction  did  not
require that the permission be in writing.  The language of  this
instruction  allowed Robart to argue, based on the  encouragement
he  received  from state agencies and on his correspondence  with
the  governor  and  the  lieutenant  governor,  that  he  had   a
reasonable  mistaken  belief  that he  had  permission  from  the
lieutenant governor to use the state seal.
          In  addition, Robart has not shown how his defense  was
prejudiced.  The record shows that prior to trial he was  clearly
placed  on  notice by both the statute and the charging  document
that  he  had  to have written permission to use the state  seal.
Before  trial,  Robarts  position was that  the  governors  April
letter  was specific written permission to use the seal.  As  for
his  defense, Robart did not claim in his opening statement  that
he had written or unwritten permission to use the seal.  Instead,
he asserted that it had been a reasonable mistake of fact for him
to  rely  on  the  pattern of non-response  from  the  lieutenant
governor, the letter from the governor, and the encouragement  he
received  from  other state agencies.  In addition,  Judge  Lohff
told Robart early in the trial that he could argue as part of his
mistake  of  fact defense that he had reasonably considered  that
this letter constituted written permission to use the state seal.
We  conclude  that Judge Lohff did not err when he corrected  the
erroneous  preliminary instructions.  Under the circumstances  of
this case, Robarts defense was not prejudiced.

          Robarts other requested instructions
          Robart  also claims that his theory of defense required
the  trial  court to instruct the jury that the State  could  not
claim that it was ignorant of the law and to apply the definition
of  writing  that  is  included in the Uniform  Commercial  Code.
Robart  further claims that the jury should have  been  given  an
elaborate definition of what constitutes acting unreasonably.  He
also  claims that to ensure that the jury considered his defense,
          he was entitled to a special verdict form.  Judge Lohff refused
to  give  the first instruction, and modified the other  two;  he
also rejected Robarts proposed special verdict form.
           Although the trial judge must instruct the jury on the
essential  elements of an offense or a defense, the  trial  judge
has  broad discretion to decide what other instructions  to  give
the jury.38  Here, we find no abuse of discretion.
          Robart argues that the first of these instructions  was
important because he relied on the government to warn him that he
did  not have permission to use the seal.  But even assuming that
such  an instruction would ever be warranted in a criminal  case,
Robart  was warned by the lieutenant governor to stop  using  the
state  seal;39 Robart was charged for using the state  seal  only
after he ignored that warning.
          Robart   next  argues  that  his  other  two  requested
instructions were necessary to allow him to present his  defense.
But  [a]s  long as the instructions actually given by  the  trial
court  adequately set forth the applicable law, a more  elaborate
explanation of the defendants theory of the case is not  required
unless it would substantially aid the jury in arriving at a  just
verdict.40   The instructions as given by Judge Lohff  adequately
informed  the  jury  as to what constitutes a  writing  under  AS
44.09.015,  and  as to what acting reasonably means.   Here,  the
jury was instructed that a writing includes printing, typewriting
or  any other intentional reduction to tangible form.  From this,
Robart  was  allowed  to argue that the governors  congratulatory
letter,  despite its lack of relevant language,  was  a  writing.
Meanwhile,  the jury was instructed that acting reasonably  meant
that   [i]n   deciding  whether  a  party  acted  reasonably   or
unreasonably,  you may consider what a reasonably prudent  person
would do under similar circumstances and that [a]cting reasonably
may  consist of doing something that a reasonably prudent  person
would  do,  or  it  may  consist in not doing  something  that  a
reasonably  prudent  person  would  not  do.   Again,  this   was
sufficient to allow Robart to argue that he had acted reasonably,
and that the State had acted unreasonably.
          Accordingly, we conclude that no error occurred by  the
          rejection or modification of these three instructions.
          Judge  Lohff  also rejected the special  verdict  form.
Robart  argues  that  the special verdict form  was  required  to
ensure  that  the  jury properly considered the elements  of  his
mistake  of fact defense.  He made a similar argument below,  but
Judge  Lohff rejected this argument and found that the jury could
follow the instructions setting out Robarts defense.  We conclude
that  Judge Lohff did not abuse his discretion by using a general
verdict form.
          
          Conclusion
          Robarts conviction is AFFIRMED.
_______________________________
     1 AS 44.09.015(a) & (b).

     2 State v. Robart, 988 P.2d 1114, 1114 (Alaska App. 1999).

     3 Id.

     4 Id.

     5 Id.

     6 Id.

     7 Id.

     8 Id.

     9 Id.

     10 Id.

     11 Id. at 1115.

     12 Id.

      13 Under AS 44.09.015(b), [v]iolation of this section is  a
misdemeanor, and upon conviction is punishable by a fine  of  not
more  than $500, or by imprisonment for not more than six months,
or by both.

      14  Section  102  (a) provides that [c]opyright  protection
subsists,  in  accordance with this title, in original  works  of
authorship fixed in any tangible medium of expression, now  known
or later developed, from which they can be perceived, reproduced,
or  otherwise communicated, either directly or with the aid of  a
machine  or  device.   This  section  then  provides  a  list  of
categories of works of authorship:

   (1) literary works;
   (2) musical works, including any accompanying words;
   (3) dramatic works, including any accompanying music;
   (4) pantomimes and choreographic works;
   (5) pictorial, graphic, and sculptural works;
   (6) motion pictures and other audiovisual works;
   (7) sound recordings; and
   (8) architectural works.

Section   102(b)  provides  that  [i]n  no  case  does  copyright
protection for an original work of authorship extend to any idea,
procedure,   process,  system,  method  of  operation,   concept,
principle,  or discovery, regardless of the form in which  it  is
described, explained, illustrated, or embodied in such work.

 Section 103 applies to compilations and derivative works of  the
items listed in  102, and is not applicable in this case.

     15 Section 106 provides that

   [S]ubject to sections 107 through 121 [none of which apply
   in this case], the owner of copyright under this title has
   the  exclusive rights to do and to authorize  any  of  the
   following:
    (1)  to  reproduce  the copyrighted  work  in  copies  or
   phonorecords;
    (2)   to   prepare  derivative  works  based   upon   the
   copyrighted work;
    (3)   to   distribute  copies  or  phonorecords  of   the
   copyrighted  work to the public by sale or other  transfer
   of ownership, or by rental, lease, or lending;
    (4)  in  the  case  of literary, musical,  dramatic,  and
   choreographic works, pantomimes, and motion  pictures  and
   other  audiovisual works, to perform the copyrighted  work
   publicly;
    (5)  in  the  case  of literary, musical,  dramatic,  and
   choreographic  works, pantomimes, and pictorial,  graphic,
   or sculptural works, including the individual images of  a
   motion  picture or other audiovisual work, to display  the
   copyrighted work publicly; and
    (6)  in  the  case of sound recordings,  to  perform  the
   copyrighted  work  publicly by means of  a  digital  audio
   transmission.
   
     16 The state seal is provided for in article XV,  21, of the
Alaska Constitution.

     17 75 N.E. 71, 72 (Mass. 1905).

     18 Id. at 71.

     19 Id.

     20 Id. at 72.

     21 Id.

     22 Id.

     23 27 App. D.C. 173 (1906).

     24 Id. at 5.

     25 108 Cal.Rptr. 424 (Cal. App. 1973).

     26 Id. at 428.

     27  Id. at 425.

      28  Totemoff  v.  State, 905 P.2d 954,  958  (Alaska  1995)
(citations omitted).

      29  See  R.I. Sherman Mfg. Co., 75 N.E. at 71; In re  Cahn,
Belt, & Co., 27 App. D.C. at 173.

      30 See, e.g., Bicentennial Commn. v. Olde Bradford Co., 365
A.2d  172, 176 (Pa. 1976) (Although the laws governing copyrights
and  trademarks may overlap as applied to a single item, they are
intended  to grant quite different forms of protection  to  their
holders.).

     31 Id. (citation omitted).

     32 Id.

     33 Id.

     34 See 17 U.S.C.  105.

     35 Alaska Const. art. III,  7.

     36 Id. art. III,  16.

      37  See  Sears v. State, 713 P.2d 1218, 1219  (Alaska  App.
1986) ([T]he trial court is under a duty to instruct the jury  on
the essential elements of the offense.).

      38   Stoneking  v.  State, 800 P.2d 949, 950  (Alaska  App.
1990).

     39 Robart, 988 P.2d at 1114.

     40 Lee v. State, 760 P.2d 1039, 1041 (Alaska App. 1988).