BALLER Copyright Outline

8/8/2019 BALLER Copyright Outline

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Intro to CR Law

Intro to C

Sources ofCR Law

What is a copyright?

o Copyrights protect original works of authorship fixed in a tangible medium of expression

o Begins upon fixation of original expression

Subject Mattero Literary, dramatic, and musical works; pantomimes and choreography; pictorial, graphic and sculptural

works; audiovisual works; sound recordings; and architectural works

Duration life of the author + 70 years or 95 years form publication or 120 years from creation, whichever is

less

Source of law Constitution Article 1, 8, Clause 8

o The Congress shall have the power to promote the progress of science and the useful arts, by securing f

limited times to authors and inventors the exclusive right to their respective writings and discoveries

Standard for infringement - Ownership of valid copyright and violation of an exclusive right (e.g. copying)

Justifications for Copyright law

o Utilitarian Concept incentivize artists to create so as to enrich the public domain

o Create an incentive for artists to come up with new works by allowing them time to recuperate the money

invested in the work

However, this is not entirely true as a lot of artists would continue to create works regardless of

whether they get a copyright or not.

How else could we protect works if not through copyright?

o Contract Law

Would create high transactional costs

The contract would only apply to those who agreed to it (privity of contract)

o Creative common licenses sets forth rules as to how works can be usedartists can get attribution for th

work

o Right of attribution is a moral right and not part of the US copyright law system

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Threshold Requirements for CR Protection

Threshold Requirements for CR Protectio

Elements ofCopyrightab

le SubjectMatter

102(a) Copyright protection subsists. . . in original works of authorship fixed in a tangible medium of expressionWorks of authorship include the following categories.

1. Literary works

2. Musical works, including any accompanying words

3. Dramatic works, including any accompanying music4. Pantomimes and choreographic works

5. Pictorial, graphic, and sculptural works (remember useful article doctrine.he likes this for exam

questions)

6. Motion pictures and other audiovisual works;

7. Sound recordings

8. Architectural works (plans and buildings)

REQUIREMENTS:1. Fixation

2. Originality

3. Formalities (most removed after Berne Convention)

Fixation Why do we require fixation?

Helps from an evidence perspective providing proof that the copyright exists Provides scope/boundaries for what the claim of infringement is Art 1, 8, Cl 8 says authorstheir respective writings

o Writings Construed to mean any physical rendering of the fruits of intellectual activity.

HISTORICAL: White-Smith Publishing Co. v. Apollo Co US 1908 (p47)o Facts:piano roller

o Holding: Player piano copy is not a copy of a musical work because in order to be infringing a

copy must be in a form which [humans] can see and read [like notes on a staff].o Notes: Congress responded to this case by creating a provision subjecting a compulsory license t

mechanical reproductions of the work; added phrase now or later developed to 1976 Act

Functional Approach 101 A work is fixed in a tangible medium of expression when its embodiment in a

copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to b

perceived, reproduced, or otherwise communicated for a period ofmore than transitory duration. A work

consisting of sounds, images, or both, that are being transmitted, is fixed for purposes of this title if a fixation of

the work is being made simultaneously with its transmission.

All methods of fixation are either phonorecords or copies Copies are material objects, other than phonorecords, in which a work is fixed by any method now known

or later developed, and from which the work can be perceived, reproduced, or otherwise communicated,either directly or with the aid of a machine or device 17 USC 101 (2000)

Phonorecords are material objects in which sounds, other than those accompanying a motion picturor other audiovisual work,are fixed by an method now known or later developed, and from which thesounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machinor device. 17 USC 101 (2000)

Distinction between the two - example book can be a printed record but it could also be a phonorecord ifsomeone reads and records it.A music video would be a copy.

Authority If someone recorded a lecture without permission - it would not be copyrightable because theauthor didnt authorize, the person may be infringing however, if it wasnt fixed anywhere, there would bno recourse

Permanent/Transitory: writing in frost in a window? depending on the period it exists and can bereproduce

Tangible 102(a) Copyright protection subsists, in accordance with this title, in original works of authorshifixed in any tangible medium of expression now known or later developed, from which they can beperceived, reproduced, or otherwise communicated, wither directly or with the aid of a machine ordevice

Transmission: To transmit a performance or display is to communicate it by any device or process

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whereby images or sounds are received beyond the place from which they are sent. 17 USC 101o If you give a lecture, someone records it simultaneously the simultaneous recorder could be free

because of the simultaneous requirement (?) Try to Assert a URUGUAY Claimo Hypo: Broadcast performance with simultaneous recording by artist and audience member?

Courts havent addressed thisIS IT AUTHORIZED? 1101 - Uruguay Round Agreement Act (1994) Limited Exception: Anti Bootlegging Provisions (violation

to have unauthorized recording) Unauthorized Fixation and Trafficking in sounds recordings and MusicVideos

o (a) Unauthorized Acts Anyone who, without the consent of the performer or performers involvo (1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecor

or reproduces copies or phonorecords of such a performance from an unauthorized fixation,o (2) transmits or otherwise communicates to the public the sounds or sounds and images of a live

musical performance, oro (3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any

copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurredin the United States, shall be subject to the remedies in sections 502 through 505, to the same extent an infringer of copyright.

To prevail in a claim of copyright infringement, P must prove ownership of a copyright and copying ofprotectable expression beyond the scope of the license.

Originality Originality Definition Originality is a judicial interpretation of constitutional requirement (author) and it is morthan mere independent creationOriginality Requirements There has to be an independent creation by the author, meaning he cannot copy the work from someone

else, although he can copy works from the public domain There has to be a minimal degree of creativity No requirement of novelty - just has to be original (not copied) Independent creation by author

Burrow-Giles Lithographic Co. v. Sarony US 1884 (p59) Authorship Requirement Facts: Oscar Wilde photograph Holding: court determined that the constitution is broad enough to cover copyrights of photographs so far a

they are representatives of original intellectual conceptions of the author; they are not simply a mechanicalprocess of capturing something outside author. Here the selection of the costume, draperies, angles, lightin

expression, etc was made entirely by the and is therefore an original work of authorship

Belstein v. Donaldson Lithographic Co. US 1903 (p62) Facts: Circus Poster Advertisement Holding: copyright okay; it would be a dangerous undertaking for persons trained only to the law to

constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and mostobvious limit. You are free to copy the original if it is part of the public domain, but you cannot copy thecopy

More than merely trivial Alfred Bell v. Catalda Fine Arts 2d Cir 1951 (p67) Facts: mezzotints of great work in the public domain Holding: Copyright upheld; an author must have contributed something more than a mere trivial variation,

something recognizable as his own. Unintentional variations are copyrightable as long as they are

substantial departures from the work. Originality in this context means little more than a prohibition onactual copying Devalues copyright and the originality standards. Even unintentional changes can result insomething original

Note: Intent could be a slippery slope, so courts dont want to evaluate

Bridgeman Art Library, Ltd. v. Corel Corp. SDNY 1999 (p70) Facts: Library had transparencies of public domain works; D copied transparencies. Holding:No copyright b/c purpose was to capture work precisely and not add anything new; no distinguishable

variation, as the production of a work of art in a different medium cannot by itself constitute originality; here thephotograph of a painting was nothing more than a slavish copy

Policy for not granting copyright for very simple designs Problems regarding proof

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The goal of copyright is to promote expression and if we start providing copyrights to elements of expressioyou are limiting what others will be able to use to express themselves

Typically not copyrightable: rhythm, words, short phrases, names, titles, slogans (37 CFR 202.1 - p78)

Summary of Originality

Summary of originality with respect to the statutory phrase, copyright subsists in original works ofauthorship:

o How does photography fit into writing?

o The subject of copyright: Congress can authorize copyright in all forms of writing by which theideas of the mind of the author are given visible expression so far as they are representatives oforiginal intellectual conceptions of the author

Selection and arrangement is the bare minimum for copyrightable work Fine art was a false definition - shouldnt evaluate for that. The fact that it was copied shows that is was

valuable. An advertisement can be copyright without judgment of its aesthetic valueBleistein v. DonaldsoLithography Co. (CB 62) 1903

Categoriesof

Worksthat are

Eligiblefor

Protection

Literary Works

101 literary works are works, other than audiovisual works expressed in words, numbers of other verbalsymbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts,phonorecords, film, tapes, disks, or chards, in which they are embodied

Includes computer programs, pictorial, graphic, and sculptural works Once there are mechanical utilitarian aspects, these arent considered part of the copyright

Architectural WorksDramatic WorksMusic/Sounds - Sound Recordings are works that result from the fixation of a series of musical, spoken, or othesounds, but not including the sounds accompany a motion picture or other audiovisual work

Pantomimes and Choreographic Works -by video type, or diagramMotion Pictures and Other Audiovisual Works

102(a) and 101 - Subject Matter of Copyright: In General Audiovisual work series of related images that when shown in succession, impart an impression of

motion 102(a)(5) Pictorial, graphic, and sculptural works protection extends to purely nonfunctional or

monumental structures and artistic sculpture or decorative ornamentation or embellishment added to astructure;see 101 - **includes useful articles when design can be identified separately from, and arecapable of existing independently of, the utilitarian aspects of the article

Sound recordings works consisting of the fixation of a series of sound. Motion picture soundtracks areprotected under the motion picture category

The list of categories is illustrative and not limited Basic questions here:

o Is the incentive of copyright really needed to produce more of a given work

o Is copyright the proper protection for the type of work at issue

Modicum of Creativity di minimis Limitation Rhythm typically not protectable Words and short phrases such as names, titles, and slogans are not copyrightable

__________ : Priceless. There are some things money cant buy for everything else theres MasterCard you would get trademark protection If you grant protection to the building blocks of creativity, you defeat the purpose. Titles, words, not usually protected

Idea/Expression

Dichotomy

17 USC 102(b) In no case does copyright protection for an original work of authorship extend to any ideaprocedure, process, system, method of operation, concept, principle, or discovery, regardless of the form inwhich it is described, explained, illustrated, or embodied in such work.

Limits the scope of cr protection to the expression of ideas and facts, and excludes the protection of the ideaof facts themselves. The ideas and facts are part of the public domain

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Baker v. Selden US 1879 (p73) Facts: Selden copyrighted a book about a dual entry book-keeping method and the forms in the book. He

was hoping to get protection for the method. Baker created new forms, which were similar but had variationin terms of the arrangements of columns and headings

Holding: no copyright protection for something that falls in the realm of patent law b/c you would gothrough less rigorous standards and essentially get protection for a longer period of time.

TODAY: blank forms which are designed for recording information and do not themselves convey

information are not the subject of copyright (37 CFR 202.1(c) - p78)

Facts are NOT copyrightable

Scene a faire Copyright does not extend to incidents, characters, or settings which are as a practical matterindispensable, or at least standard in the treatment of a given topic

A.A. Hoehling v. Universal City Studios 2d Cir 1980 (p80) Facts: case about the Hinderburg and its destruction (historical accounts); Hoelhing researched the event an

his theory was copied Holding: the copyright protection for historical facts is extremely narrow. Here there was also an issue

about characters or settings, which the court held to be scenes a faire, which are not copyrightable Notes: Even if Ps theory was incorrect, still not copyrighable b/c it was asserted as a fact; copyright

protection is not concerned with the sweat of the brow, if this was not the case, it would mean that anauthor is precluded from saving time an effort by referring or relying on published material

American Dental Association v. Delta Dental Plans Association 7th Cir 1997 (p86) Facts: P made taxonomy of dental procedures and D copied most of numbering system and descriptions Holding: Copyright upheld; classification involves creativity; facts do not supply their own organization

Merger theory (p77) Ideas that can only be expressed in one or limited number of ways: as a policy matter, copyrights will not b

granted b/c doing so would essentially monopolize the idea Could be used as a defense Morrissey v P&G 1st Cir 1967 - no copyright in sweepstakes contest instructions Example: building codes created by 3rd party adopted into law; even though code may have been

copyrightable initially, at time it became law, it is not copyrightable as public should have opportunity toreproduce codes as they are; any parts not in law could be protected (SBCCI v. Veek)

Court is less likely to restrict something that is commonly used (e.g. law journal articles)

Jellyfish Sculpture Case - Satava may not prevent others from depicting jellyfish within a clear outer layerof glass b/c the clear glass is the most appropriate setting or an aquatic animal

Jeweled bee example - limited ways to express? Not a useful article, is copyrightable (but fashion isnt - itsutilitarian)

Coloring Book Copyrightable What if you color in the book? Derivative Copyright

UsefulArticle

Doctrine

Articles having an intrinsic utilitarian function that is not merely to portray the appearance of the article arecalled useful articles.

Is the work a pictorial, graphical, and sculptural work? Is so, is it a useful article? Physical Separability ability to have the works physically separated (Mazercase) Although there are case

where you could not literally separate the aspects, i.e. carving on a chair Conceptual Separability more difficult than physical separability.

o If the design elements reflect a merger of aesthetic and functional considerations, the artistic

aspects of a work cannot be said to be conceptually separate from the utilitarian elements. If thedesign elements can be identified as reflecting the designers artistic judgment exercised independentof functional influences, conceptual separability exists (Bandir)

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o We are basically looking at is the intent of the designer. If they know of the test they will

basically testify that they intended to design a work of art. Copyright Offices test for useful articles is somewhat limited and different than what courts have done Compendium 2

Physical separabilityMazer v. Stein US 1954 (p212, L119) Facts: (lamp case) copyright was obtained for the statuettes without the lamp components. Later the

statuettes were sold as lamp bases and as statuettes

Holding: Copyright upheld; the court should not make determinations as to what is art and the fact thatsomething was incorporated in a useful article does not bar protection; physical separability b/c lamp partscould be removed from statuette

Notes: Think of the mickey mouse phone. You can still remove the character and have the phone. Physical separability is a bit easier. What about the model of a car?

o We want to encourage different designs of cars and this may be a case where creativity will

happen on its owno Who may object to providing protection to a real car?

Consumers Insurance companies b/c the replacement parts be part of the copyrightable work and th

dont want to incur additional costs

Conceptual separability Kieselstei-Cord v. Accessories by Pearl2d Cir 1980(p215, L123) - Facts: Belt buckles case; the buckle was registered as jewelry and as a sculpture Holding: Copyright okay b/c ornamental surface was unrelated to the utilitarian function of the belt. There

was evidence of aesthetic appeal - people wore buckles as jewelry other than at waist

Carol Barnhart Inc. v. Economy Cover Corp 2d Cir 1985 (p218, L123) Facts: Human torso mannequin case Holding: No copyright; the features claimed to be aesthetic or artistic are inextricably intertwined with the

utilitarian feature, the display of the clothes; appears to be more like physical separability than conceptual

Brandir International Inc. v. Cascade Pacific Lumber 2d Cir 1985 (p221, L124)

Fact: Bike rack case; designer first made a sculpture without thinking about utilitarian features. However,he made significant changes in the measurements to make sure bikes would fit on top of or underneath therack

Holding: No copyright b/c the form of the rack was significantly influenced by functional concerns. Here,the designer had created the sculptures without any thought of utilitarian elements, however, changes weremade, which rendered the work uncopyrightable.

TEST: adopted Denicola test: if design elements reflect a merger ofaesthetic and functional considerations, the artistic aspects of a workcannot be conceptually separable from the utilitarian elements.

Derivative 103. Subject matter of copyright: Compilations and derivative works (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works,

but protection for a work employing preexisting material in which copyright subsists does not extend to anypart of the work in which such material has been used unlawfully

(b) The copyright in a compilation or derivative workextends only to the material contributedby theauthor of such work, as distinguished from the preexisting material employed in the work, and does not impany exclusive right in the preexisting material. The copyright in such work is independent of, and does notaffect or enlarge the scope, duration, ownership, or subsistence or, any copyright protection in the preexistinmaterial

Derivatives and compilations are not a distinct category of copyrightable work; they have to be based onsubject matter that is copyrightable

101 Derivatives

A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical

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arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction,abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. Awork consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole,represent an original work of authorship, is a "derivative work".

106(2) - Exclusive Rights in Copyrighted Works Subject to 107-122, the owner of copyright under this title has exclusive rights to do and to authorize an

of the following: . . . (2) to prepare derivative works based upon the copyrighted work

Requirements:

o Recast, transform, or adapt preexisting work

o Contribute copyrightable (original) expression

L. Batlin & Son Inc v. Snyder 2d Cir 1976 (p91) Facts: Uncle Sam mechanical banks case. The metal bank was part of the public domain. Holding: No copyright; here the variations were trivial and to grant a copyright to the work would be to gra

a monopoly to a work that was already in the public domain; a considerable higher degree of skill is requiretrue artistic skill, to make the derivative copyrightable.

Notes: No statute requiring a higher standard

Entertainment Research Group v. Genesis Creative Group 9 th Cir 1997 (p94) Facts: three dimensional inflatable costumes of cartoon characters Holding: No copyright. The Durhamtest grants copyright to a derivative work if the form of the underlyi

work and the derivative work are sufficiently different this test CANNOT be applied when the underlyinwork is still protected by copyright. The Durhamtest states that (1) the original aspects of the derivativework must be more than trivial, (2) the original aspects of the derivative work must reflect the degree towhich it relies on preexisting material and must not in any way affect the scope of any copyright protection the preexisting material

if you give a derivative copyright, will it interfere with the orginal owners ability to license?

Gracen v. Bradford Exchange Facts: Dorothy plates case. Gracen won the contest and had authority to create the derivative wok, but not th

authority to get copyrights on it.

Pickett v. Prince 7th Cir 2000 (p98) -Facts: Prince established the symbol as his trademark and also copyrighted the symbol. made guitar wit

the symbol, but did not receive authorization from Prince. -Holding: Unauthorized use of symbol to make guitar infringed Princes copyright; b/c the underlying work

pervaded the derivative work, guitar-maker could not sustain independent copyright protection for hiscreation. The Copyright Act of 1976 gives the copyright owner the exclusive right to prepare a derivative

Compilations

101 Compilations

A "compilation" is a work formed by the collection and assembling of preexisting materials or of data that aselected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an originalwork of authorship. The term "compilation" includes collective works.

A "collective work" = Compilatoin is a work, such as a periodical issue, anthology, or encyclopedia, inwhich a number of contributions, constituting separate and independent works in themselves, are assembled

into a collective whole.

Requirements for Compilations There are three distinct elements needed to qualify for copyrightable compilation

o The collection and assembly of pre-existing materials, facts, or data

o The selection, coordination, or arrangement of those materials, and

o The creation, by virtue of the particular selection, coordination, or arrangement, of an original

work of authorship

Feist Publications v. Rural Telephone Service Co. US 1991 (p101) Facts: Rural had to create phone books under state regulations. Feist wanted to create a regional phone book

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and all the telephone companies except Rural gave them permission to use their information so F copied. Holding: No copyright in white pages b/c it did not satisfy the minimum constitutional standards for

copyright protection (selected, coordinated, or arranged from 101). The selection was merelyalphabeticalthere is no creativity, just typical, garden variety arrangement.

Notes: Rejected copyrights for sweat of the brow products. In factual works, protection only extends parts of work original to author, not facts themselves.

Roth Greeting Cards v. United Card Co. 9th Cir 1970 (p106)

Holding: the phrases (I love you, I Miss you, etc) were not copyrightable, but the cards were infringingb/c the total concept and feel of the cards were the same. (There was no claim for copyright in artwork.)

Mason v. Montgomery Data 5th Cir 1992 (p108) Holding: Masons maps were copyrightable b/c the selection, coordination and arrangement of the

information that he depicted are sufficiently creative to qualify the maps as compilations of facts.

Facts andCompilations

Selection, Arrangement, and Utility

Bellsouth v. Donnelly 11th Cir 1993 (p292, L74) -Facts: D copied both directory listings and classification headings in yellow pages -Holding: No copyright b/c classifications were typical; arranged alphabetically, geographically (though on

may argue this is not necessarily typical)

CCC Information Services v. Maclean Hunter 2d Cir 1994 (p296, L74) -Facts: D republished Ps Red Book information in various forms through computer database -Holding: Copyright upheld b/c values were not reports of historical prices nor mechanical derivations of

such prices; fact that values were numbers was immaterial to originality; values were like opinions, based oprofessional judgment and expertise; thus, selection and arrangement was sufficiently original

CDN v. Kapes, 9th Cir 1999 (p300) - what is a fact? -Facts: D developed computer program to generate retail prices from wholesale prices; D admitted using P

wholesale price lists -Holding: Copyright upheld; court analogizes to CCCand say CDN uses their judgment to distill and

extrapolate factual data to arrive at prices

Matthew Bender v. West, 2d Cir 1998 (p301, L76-77) -Facts: Star pagination case -Holding: No copyright of pagination/case info; pages determined automatically by computer

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Authorship

Who is an Author

Intro There are three kinds of authorship Sole Authorship Joint or co-authorship Employer authorship of works made for hire

201 - Ownership of copyright (a) Initial Ownership - Copyright in a work protected under this title vests initially in the author(s) of the

work. The authors of a joint work are co-owners of copyright in the work. (b) Works Made for Hire. In the case of a work made for hire, the employer or other person for whom the

work was prepared is considered the author for purposes of this title, and, unless the parties have expresslyagreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

(c) Contributions to Collective Works. . . (d) Transfer of Ownership . . . (e) Involuntary Transfer . . .

SoleOwnership

Lindsay v. The Wrecked and Abandoned Vessel RMS Titanic SDNY 1999 (p111) Facts: filmed and directed a British documentary film about the Titanic Holding: where a alleges that he exercised such a high degree of control over a film operation (lighting

angles, etc) such that the final product duplicates his conceptions and visions of what the film should look

like, he may be said to be the authoro

JointOwnership

101 - A joint work is a work prepared by two or more authors with the intention that

their contributions be merged into inseparable or interdependent parts of a unitary

whole.

Requirements:

o Two or more authors - each must contribute something independently

copyrightable

o intention to merge inseparable/interdependent parts of unitary whole (doesnt have

be simultaneous intention - e.g., music added to lyrics later)

Joint Ownership - see 201(a) above

o Each co-owner has undivided ownership in entire work

o Can license or use whole work w/o consent of other joint owners EXCEPT: duty to

account for profits to joint owners and cannot grant exclusive license w/o consent of

all co-owners

1st requirement Erickson v. Trinity Theater Inc 7th Cir 1994 (p113)

Facts: Erickson prepared three plays for theater, and after some time the theater stopped paying royalties onperformances; D argued it was co- author and co-owner b/c suggestions from Trinity actors were added

Holding: No joint authorship b/c Trinity could not identify any copyrightable contribution made by its actorrejected Prof Nimmers de minimis test requires that only the combined product of joint efforts can becopyrightable and upheld Prof Goldsteins copyrightability test.

2nd requirementAalmuhammed v. Lee 9th Cir 1999 (p114) - Facts: Lee directed movie Malcolm X. P reviewed the script and suggested revisions, also gave input as to

how to make the movie more authentic Holding: No joint authorship b/c no intent; a person claiming to be an author of a joint work must prove tha

both parties intended that each other be joint authors. Creative contribution does not suffice to establish coauthorship.

Works Madefor Hire

101 - A work made for hire is

(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a

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Authorship

motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as aninstructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in awritten instrument signed by them that the work shall be considered a work made for hire

1909 Act

Employee presumption that the work prepared by employees within the scope of employment were worksmade for hire

Independent Contractor presumption that commissioned works were made for hire

1976 Act 201 (b) Works Made for Hire. In the case of a work made for hire, the employer or other person for who

the work was prepared is considered the author for purposes of this title, and, unless the parties haveexpressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in thecopyright.

105 - Subject matter of copyright: US Gov works no protection for US Gov works rationales: work is subsidized by taxes so dont need copyright incentives, want to encourage public access considerVeekcase (building codes); PubMed case (access one year after publication)

Who is an EMPLOYEE? Community for Creative Non-Violence v. ReidUS 1989 (p119 Facts: CCNV conceived the idea about a nativity display and contracted Reid to do it, no talk of copyright Holding: Reid held to be an independent contractor (not an employee) so retained copyright

o There were about four different tests to determine whether the work was made for hire: Work made for hire if the hiring party retains control of the product (Right to control) If the hiring party has actually wielded control with respect to the creation of the work

(Actual Control) Common-law agency law meaning ***Court affirmed this test Formal salaried employee test

o Here the court determine that common law agency should govern and determined that Reid was

independent contractor rather than an employee

Factors to consider when determining if someone is an employee under the law oagency: Right to control manner/means by which product is accomplished, skill required, source of instrumentality,

location of the work, duration of relationship between the parties, hiring partys right to assign additionalprojects, amount of hired partys discretion, if work is part of regular business of hiring party, method ofpayment, tax treatment of the hired party, employee benefits, etc

EXAM NOTE: THERE MAY BE JOINT AUTHORSHIP IN A WORK FOR HIRE

Who is an Employee?Aymes v. Bonelli 2d Cir 1992 (p124) Facts: Bonelli hired Aymes to create computer program for a swimming pool business. Holding: although Bonelli had the right to control the manner of creation and the right to assign additional

projects, the other factors indicate that Aymes is an independent contractor This court held that 5 factors will almost always be significant in every situation

o The hiring partys right to control the manner and means of creation

o The skilled required

o The provision of employee benefits

o The tax treatment of the hired party (this is a big factor even today)

o Whether the hiring party has the right to assign additional projects to the hired party

What is SCOPE OF EMPLOYMENT?Avtec Systems, Inc. v. Peiffer4th Cir 1994 (p127) Facts: Peiffer, who worked for computer company Avtec, developed computer software afterhours Holding: Not in scope of employment; employer couldnt prove last two parts of Rest test below

o Restatement 228 - tripartite test:

Whether work was of type the employee was hired to perform Whether creation occurred substantially w/in the authorized time and space limits of

job Whether employee was actuated, at least in part, by a purpose to serve employers

purpose

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Acquiring, Keeping, and Transferring the Rights of CR

Acquiring, Keeping, and Transferring the Rights of C

Registration Registration Under the 1976 Act, registration is voluntary However, the copyright owner must register and deposit copies of the work before filing an infringement

action ( 411) and for statutory damages or attorneys fees ( 412)o No jurisdiction in federal courts until application for copyright is filed with the copyright office

(except for foreign authors who can get jurisdiction in fed court without registration)o If registration is denied, notice must be served on Register of Copyrights and Register may

intervene under 411 Advantages

o Evidentiary benefits

o Jurisdiction

o Expanded remedial options (statutory damages, attorney fees)

Deposit of a copy of the work with the designated entity 1976 Act

o 407 every person who published something in the US is required to submit two copies of bes

edition to the library of congress; if no deposit, a demand can be made (punishable).o 408 what has to accompany the registration (application, deposit to show the copyrightable

work, check)o Function of the deposit one of the reasons copyright began in the first place and this is how the

library of congress came to be

Notice Berne Convention 3/1/ 89 ELIMINATED notice requirement Breakdown:

o Published before 1/1/78: no notice = no copyright (1909 Act)

o Published on or after 1/1/78: no notice = no copyright but 5 yrs to fix under 405(a)

o Published on or after 3/1/89: notice is optional ( 401-406)

Generalo 401(b) - Form of notice

o Copyright (, Copr., Copyright)

o Year of first publication

o Nameo 405 Remedial provisions (how to remedy a mistake)

Principle Functions of the notice formalityo Had the effect of placing in the public domain a substantial body of published material that no on

was interested in copyrighting b/c the authors of such materials could simply omit the required notico It informed the public of whether a particular work was copyrighted

o It identified the copyright owner

o It showed date of publication

Presence of notice will defeat an innocent infringement defense

Publication Publication Prior to the 1976 Act unpublished works were protected by state common law and publication of such work

destroyed the common law rights. An author could choose to come under federal law for protection, howevif upon publication he failed to comply with the formalities, both common law and federal law protectionwere lost. If there was publication without proper notice, the author would lose protection (this is how thegeneral v. limited publication test came about)

What is a Publication:Estate of Martin Luther King Jr., Inc. v. CBS, Inc. 11th Cir 1999 (p144) - -Facts: summary judgment granted that held Dr. Kings speech in 1963 was a general publication -Holding: reversed; a performance, no matter how broad the audience, is NOT publication

General publication (rights divested) When a work was made available to members of the public at large withoregard to their identity or what they intended to do with the work. Public performance or display is not said to beconsidered a publication. Occurs when

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o Publications were published such that the public had dominion and control

o Publication such as to permit unrestricted copying of the work by the general public

Limited publication(non-divesting)Communicated the contents of a work to a select group and for limitedpurpose, and without the right of diffusion, reproduction, distribution, or sale.

HYPO: What about publishing work on website? Is this publication? For publication:

o A general publication can occur in such a manner as to permit unrestricted copying by public Against publication

o Anyone can publish

o There is not really distribution, although you can argue that copies are being made in various

servers Could some works be treated different? if you have to pay to get into the site or need a log in, maybe the

works can be said to be more restricted

Duration

SEE UC

234!!!

Durationo Works created today: Life of author + 70 yrs. For corporation, 95 yrs from publication or 120 yr

from creation, whichever is shorter. 1790 14 year term for works published with notice, running from registration extended for another 14

years if renewal was timely filed

1831 Extended to initial term to 28 years 1909 Extended renewal term to 28 years 1976 Changed basic term of 56 years to life of author + 50 years 1998 Extended terms of all copyrights by 20 years and changed basic term for new works to life plus 70 See 301-305

1923 1964 1/1/1978

Published with Proper Notice Fixed

28 year term,extended to 95 yearsif renewal was timelyfiled

95 years renewalautomatic

Sole and joint author:Life of the author +70years

Anonymous andpseudonymous works anworks made for hire:120 years from creation95 years from publicatio

Unpublished works (see 303)o Taking away perpetual protection from the unpublished work

o Congress wanted to serve public by trying to encourage authors to publish their work

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Unpublished prior to 1/1/78 and notpublished before 12/31/2002

Unpublished prior to 1/1/78 andpublished before 12/31/2002

Sole and joint author:Life of the author +70 years , BUT

no earlier than 12/31/2002

Anonymous and pseudonymousworks and works made for hire:120 years from creation or95 years from publication (whichever is shorter)

Sole and joint author:Life of the author +70 years , BUT

no earlier than 12/31/2047

Anonymous and pseudonymousworks and works made for hire:120 years from creation or95 years from publication (whichever is shorter)

Bright Line Rules Before 1923 anything published before 1923 is in the public domain and nothing else is going to enter the

public domain until 2018 After 1923 could get statutory protection by publishing an unpublished work

For the most part 1976 Act abolished common law copyright (except for unfixed work).there is no case lafor this

Everything prior to 1950 were works that were in their initial term at the time the 1976 went into effectifproperly renewed the Act brought them into the longer protection

For works after 1950 and before 1964 require the renewal. Automatic renewal applied to works after 1964

Eldred v. Ashcroft US 2003 (p159) -acts: This case sought constitutional review of the CTEA under the copyright clause and first amendment

free speech. CTEA increases the terms of copyrights by 20 years. The believed the 20 year extensionoffended the limited times provision of the Const and would result in robbing the public from the work b/the public would not be able to utilize the work for an extra 20 years (once the work is in the domain you arpromoting science) QUID PRO QUO ARGUMENT

Holding: The 20 year extension of CTEA is constitutional b/c congress has the power to decide how thesciences will be promoted and this was a proper means to the end. Also, CTEA put the US at par with therest of the world, was passed b/c of changes into technology, demography, and economy. Also, regarding tfirst amendment, the two built-in safeguards are still in place: ideas are still available (idea/expressiondichotomy) and fair use is also.

TransferFor:

Licensingand New

Media - lookto the

intent of

Parties -See UC 223,

236, 239Chart

RENEWAL AND TERMINATION OF TRANSFERSRenewal: 1909 rules were incorporated into 304(a) but applies only to works created before 1/1/78: 1st term is 28 yrs, renewal (2nd) term is 67 yrs which automatically reverts to author/family Renewal of these works will be in force until 2072! Procedure: file for renewal during 28th yr of 1st term (filed by anyone but must be in the name of one entitled

to renew term)Stewart v. AbendUS 1990 (p170, L250)

Facts: Woolrich created It had to be murder in 1942, he assigned his rights including the renewal term toDe Sylva Productions, who then assigned the rights to Stewart. However, W died and b/c his administratorChase Bank, renewed the copyright and assigned the renewal rights to respondent Abend. Abend then suedStewart for infringement claiming the right to use the film terminated when W died before renewing

Holding: The assignment of renewal rights by an author does not defeat the right of the authors statutorysuccessor(s) to those rights if the author dies before the renewal right vests. In other words, when the grantrights in the preexisting work lapses, the right to use parts of it in the derivative work ceases and continueduse will infringe the preexisting work

Notes: The renewal right was intended to give a second bite to the apple b/c in many instances thecopyright owner was in a poor bargaining position and would see himself as forced to assign all rights of thecopyright. (termination would be essentially a third bite)

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Transfer of a copyright 201(d)

o allows copyright owner to transfer less than the full ownership interest in the copyright

o provides that each of the exclusive rights set forth in 106 (i.e., reproduction, adaptation,

publication, performance, and display) may be infinitely subdivided and owned and enforcedseparately

204(a) - transfer of copyright ownershipis not valid unlessin writing and signed by the owner

Termination of a transfer PUSHMAN!!!! Upon the effective date of termination, all rights covered by the terminated grants revert to the author or

others owning termination interests, subject to certain protections for those who prepared derivative works ireliance on the original right

If you convey a painting, you only have conveyed the physical object, NOT the copyright in it (explicitlystated in 1976 act you have to convey IP explicitly)

Transfers before 1/1/78 304(c) and (d) (TRANSFER MADE BY AUTHOR OR OTHER)o Who can terminate?

If the grant was by author, termination by author, widow, children, etc, and executors. If the grant was by someone else, all surviving grantors are required to terminate

o When can they terminate?

304(c) - 5 yr window beginning at the end of the 56th year from the date of copyright o1/1/78, whichever is later

o 304(d) - 5 yr window beginning at end of 75 years from date of copyright can ONLY be used 1) if the termination rights under 304(c) expired before 10/20/98

(effective date of CTEA) and 2) if the right provided in 304(c) was not exercisedo Must serve notice no more than 2 and no less than 10 years before termination date

o Derivative works - can use if prepared under the grant and before termination (CANNOT

CREATE NEW WORKS AFTER TERMINATION)o DOES NOT APPLY TO WORKS MADE FOR HIRE OR TRANSFERS BY WILL

o The policy concern here is who should benefit from the lengthening of the renewal terms of 19

years under the 1976 Act and the additional 20 years of CTEA. Transfers on or after 1/1/78 203 (TRANSFERS MADE BY THE AUTHOR ONLY)

o Who can terminate? Author, widow, children, etc., executors

o When can they terminate? 5 yea r window beginning at the end of 35 years from the execution o

the grant

o Exception if the grant covers a the right of publication, then the window opens 35 years from tdate of publication or 40 years from the date of execution (whichever is earlier)o Derivative works - can use if prepared under the grant and before termination (CANNOT

CREATE NEW WORKS AFTER TERMINATION)o DOES NOT APPLY TO WORKS MADE FOR HIRE OR TRANSFERS BY WILL

o The policy concern here is that Congress wanted to give authors a second opportunity to obtain

remuneration for their creative works

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Statutory Rights of Copyright Holders (Chapter 5/6)

Statutory Rights of CR Holder

ExclusiveRights

Exclusive Rights: the limited statutory monopoly granted by the Act. Sticks for all categories of works include the right to:

o reproduce the work

o prepare derivative works based on the work

o publically distribute copies of the work

For certain categories of works, the rights include:o public display of the work and/or right to publically perform the work

Other categories, like sound recordings:o limits the right of public performance to performance by digital transmission

106 Exclusive Rights in Copyrighted Works Subject to 107-122, the owner of copyright under this title has exclusive rights to do and to authorize a

of the following:o Basically - (1) reproduce, (2) prepare derivatives, (3) distribute copies, (4) public perform, (5)

public display and (6) public performance by digital means

ProvingInfringe

ment

Prima Facie Case of Infringemen tTwo elements of infringement Ownership of the valid copyright

o A certificate of registration issued before publication or within 5 years after the first publication the work is prima facie evidence of ownership of the copyright work and its validityo There is an evidentiary presumption of validity in a registered copyright

o There is still a requirement of registering the copyright before filing suit

Violated one if the exclusive rights of the copyright owner under 106 (copying by the )o P must show obtained the protected expression and used it in the s work, AND

o P must show that the s work does not just represent s independent expression that

coincidentally resembles Ps work (copying in fact) Relevant Inquiry

o Whether copied Ps work

o Whether copied a sufficient amount of Ps protected expression to constitute infringement

Copying in Fact - ACCESS And SIMILARITY Need to show that had access to Ps work and the degree ofsimilarity between the works

o

Inverse ratio rule: The more you have of one the less you need of another, but limited. If you hano access, similarities do not matter, and if you have no similarities, access does not matter. ACCESS

o Evidence that can be used to prove access

o Direct evidence (hard to find/have)

An admission that the infringer copied (you would do this when you have an affirmativedefense I copied, but I did not infringe b/c of X, or when you are arguing that the work is not protected)

Eye witness to show that there was copyingo Circumstantial evidence

Wide dissemination can suggest access.look at all the events and establish proof ofaccess

o Why is proving access so important?

Without proof of access you need to show very high levels of similarity

If there is ABSOLUTELY no access, then the later work can be an independent creationwhich would receive copyright

SIMILARITY

o If the two works are not similar and there is all the access in the world, there is no copying.

o With circumstantial evidence, you can show that you are creating something unique that deviates

from what is in the public domain, and if there is another work with unusual similarities to your workthen you can argue copying.

Damages Statutory if registered, actual damages (loss in sale, etc), injunctive relief (prevent the work from being

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played, performed, etc)

Three Boys Music Corp. v. Michael Bolton 9th Cir 2000 (p315) Facts: Isley Brothers (P) alleged that Bolton copied a somewhat obscure song in making his own song Holding: Copying upheld; evidence indicates that there was substantial access of the work through

dissemination and testimony from D that he himself had listened to Ps works;subconscious copyingcan beaccepted (Learned Hand); strict liability so not consideration for intent!

o Striking Similarity similarity for which there can be no other explanation other than copying

Could not have independently created or mere coincidence, there was no prior source One thing to keep in mind is that two works may be strikingly similar b/c they are both

copies of a work in the public domain instead of each other.

Selle v. Gibb 7thCir 1984 (p318, L411) Facts: P allege D copied Ps song but song play was limited to Chicago area and D created song in France -Holding: No coping; even striking similarity is not enough to infer access without more; here no proof of

access at all and no striking similarity as material was commonplace, lacking complexities When analyzing striking similarity, look at the uniqueness of the selections that are asserted to be similar.

An unexpected departure or an error in both works can serve to show this

Ty Inc v. GMA Accessories Inc. 7th Cir 1997 (p320, L411n21) -Facts: Ty manufactured Beanie Babies but D denied access to Ps pig. -Holding: Access upheld b/c the pigs were very similar to each other and not to anything in the public

domain, D was in same business, Ps beanie babies were well known.

Bouchet v Baltimore Ravins 4th Cir 2001 (p324) -Facts: P showed papers trail in routine business and showed regular contact between offices -Holding: Copying found; striking similarity was sufficient to sustain verdict where access was possible

Defenses Defenses Invalid copyright Independent creation Authorized by license Copied but excused under an exception (fair use, first sale, etc in 107-122)

As defense attorney

you can find the same composition of notes in other works and argue that this was scenes a faire. Could have copied from the public domain instead of the Ps work. (See STRIKING SIMILARITY in 3 Boys

below) There was independent creation There was no access of the work b/c was isolated for X number of years

Innocent infringerAny person who innocently infringes a copyright in reliance upon an authorized copy from which the copyrightnotice has been omitted and which was publically distributed by the authority of the copyright owner incurs noliability for actual or statutory damages for an infringing act committed before receiving actual notice thatregistration of the work has been made if such person proves that he or she was mislead by the omission notice.See 405(b).

First Sale Doctrine - Defense for Distribution right - see Distribution Right - BelowFair UseParody - Satire

TheReproductio

n Right

106(1) - exclusive right to reproduce the copyright work in copies or phonorecords (or authorize)The Substantially Similar Copy P must show that the copied protectable expression This is a question of fact

Elements of a claim for copyright infringement (Basically the 2nd circuits view)1. Ownership of Copyright

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2. Unauthorized exercise of a right under 106

a. Did the copy the Ps work?

i. Direct evidence (admission by deft, or documentary/testimonial evidence) or

ii. Circumstantial evidence consisting of

1. Access

2. Probative similarity summary judgment stops here

b. AND did the improperly appropriate the Ps work

108 - exception that allows libraries to reproduce copies or phonorecords of a work or to distribute such copies if it is not for

commercial purposes, the library is open to the public, and a copyright notice is placed on the copy. Alsoallows for the reproduction and distribution of unpublished works for the purpose of preservation of the worCan also reproduce published works solely to replace a damaged, deteriorating, or lost copy.

These activities are limited as to not become substitutes in the market for copyrighted works

COMPARISON OF 2nd VS 9th Cir: 2nd Cir does more filtration and taking out unprotected elements as a legal matter 9th Cir does extrinsic copying, expert testimony at front end of analysis But same goal: what is protectable and how does it compare

Summary of substantial similarity or improper appropriation Abstraction

Ordinary observer Extrinsic/Intrinsic Total Concept and Feel Indented audience

o Children for the Kroft case.

o Confusion is more of a trademark issue, not copyright.

More discerning observer Abstraction/Filtration/Comparison

EXACT COPY Types of copying cases

o Piracy cases (e.g., D burns 5,000 unauthorized copies of cds)

o Privileged cases - where D engages in privilege conduct and infringement hinges on rules that

govern defenses afforded in copyright law (e.g., D alleges his conduct is excused by 107 for fair useo New third group has risen from technology changes

Example copies that are made automatically (e.g. copies that are made in RAM whenyou install software - MAI Systems v. Peak)

Congress amended 117 to authorize third party service organizations tomaintain or repair any computer that lawfully contains and authorized copy ofthe software BUT scope is limited

Ephemeral Copies (p363) Congress considers ephemeral copies to include copies or phonorecords of a work made for purposes of late

transmission by a broadcasting organization legally entitled to transmit the work 112(a) exempts a transmitting organization entitled to transmit a display or performance of the work to the

public from liability for making one copy or phonorecordo Conditioned on the organization refraining from making any other copy and is limited to use of

the copy solely for the transmitting organizations own transmission within the areao THIS EXCEPTION DOES NOT APPLY TO MOTION PICTURES AND AUDIO VISUAL

WORKS 118 has an additional exception for a public broadcasting entity

Classic casesNichols v. Universal Pictures 2d Cir 1930 (p326, L414)

-Facts: play with Jewish/Catholic; alleged substantial similarity of a Jewish/Catholic movie -Holding: No infringement; the common plot is like an idea, and the characters and expression are different

in each work (idea/expression dichotomy); characters can be protected, but the less developed they are theless they can be copyrighted (think of a drunk, a prostitutethese are scenes a faire); abstraction test: thecourt looked at the plot, then the subplot, the general characters, the specific character elements, and theprecise literal text

o Two part tests - must prove:

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Copying from P (expert testimony okay) Illicit Copying - If copying shown, then whether the copying amounted to an imprope

appropriation (relates to ordinary lay hearers response; expert testimony is irrelevant)

Arnstein v. Porter2nd Cir 1946 (p330, L422) -Facts: P alleged that s work was a plagiarism from his songs. Some of the songs alleged to be infringed

had been widely disseminated; some had never been published or publically performed -Holding: Remanded b/c P had at least raised issues of access.

Sid & Marty Krofft Television Production Inc. v. McDonald Corp. 9th Cir 1977 (p333, L422) -Facts: HR Pufnstuf vs McDonaldland TV commercials -Holding: Infringement upheld; the intrinsic test is the appropriate test to use b/c s do not dispute they

copied the idea. The facts show that the s work captured the total concept and feel of Ps work, so afinding of infringement was not clearly erroneous

o Extrinsic Test tests for similarity of ideas and does notdepends on the responses of the trier o

fact. Can look at criteria such as the type of artwork, the materials used, the subject matter, setting,etc. Also, analytic dissection and expert testimony are appropriate and this is a question that can bedecided as a matter of lawo Intrinsic Test tests for similarity in expression and depends on a reasonable person. Here,

expert testimony and analytic dissection are irrelevant.

Contemporary Cases

Summary judgment - A court may determine non-infringement as a matter of law on a motion for summarjudgment when the evidence is so overwhelming that a court would be justified in ordering a directed verdicat trial, it is proper to grant summary judgment

Steinberg v. Columbia Pictures Industries SDNY 1987 (p336) -Facts: D admitted to have referred to Ps New Yorker cover when designing the poster for Moscow movie. -Holding: Summary judgment granted; access and enough similarity even though not identical duplication

Boisson v. Banian 2d Cir 2001 (p341, L425n78) -Facts: alphabet quilt case -Holding: Copying upheld; even tho the alphabet is in the public domain, arrangement/shapes/colors must b

considered & court finds enormous amounts of sameness; a more discerning ordinary observer test applie

Computer Associate International, Inc. v. Altai, Inc. 2d Cir 1992 (p345, L417) -Facts: At issue is Ds software which was developed by simply telling programmers the functional

requirements; P argued software was same structure even if no direct copying of program code -Holding: No infringement; in abstraction-filtration-comparison test, comparison part looks for substantial

similarity; in this case, a comparison of the two works after filtration revealed that virtually no line of codewas identical in the works, that a few of the lists and macros were similar, but the rest were either in thepublic domain or dictated by functional concerns.

Cavalier v. Random House 9th Cir 2002 (p349) -Facts: Cavalier developed children story books and presented them to Random House, who rejected them

and later on published its own books -Holding: affirmed in part, reversed in part, and remanded

o LAW ON SUMMARY JUDGMENT

Although summary judgment is not highly favored in issues of substantial similarity, it appropriate if the court can conclude after viewing the evidence and drawing inferences

in a matter most favorable to the non-moving party, that no reasonable juror could findsubstantial similarity of ideas and expression On summary judgment only the extrinsic test matters for the comparison of literary

works. If the Cavaliers show issues of fact under extrinsic test, then the SJOL motionmust be denied

o TESTS - 9th cir moves closer to other circuits by modifying its extrinsic/intrinsic test

Extrinsic Test - objective comparison of specific expressive elements that focuses onsimilarities between the plot, theme, dialogue, mood, setting, pace, characters, etc

Encompasses all objective manifestations of expression The court must disregard the non-protected elements when applying this test

Intrinsic Test subjective comparison that focuses on whether the ordinary, reasonableaudience would find the works substantially similar in the total concept and feel of the

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workso Comparison of the Literary Works

On summary judgment, only the extrinsic test matters for comparison of literary works.If the Cavaliers show issues fact under the extrinsic test, then the inquiry of the intrinsictest is left to the jury

Basic plots and ideas are not protected under copyright law. Also, here the sky, thesetting, etc are all scenes-a-faire and the mood, pace, and dialog of the stories is differen

There is no issue of fact on whether the literary works are substantially similar under an

extrinsic testo Comparison of the Individual Art Works

The court looked at the moon light in the back cover The concept of the built-in light is not copyrightable, but the choice of where t

place the light, the smiling face of the moon, the encircled star on button, etcis. - differences do not support SJ for D

The illustration of the stars relaxing on clouds The facial features and curves of the stars are different, but there are striking similariti

in the arrangements of the clouds, the dress of the stars, etc to survive the question of S The illustration of the stars being polished

Not enough similarities to go to jury

Swirsky v. Carey 9th Cir 2004 (p354) -Facts: P alleged that Ds song infringed Ps song; summary judgment was granted for D based on Ps exper

testimony relating to the substantial similarity of the songs

-Holding: Reversed SJ; extrinsic test for similarity of ideas and expressions is measured by external, objecticriteria; here experts methodology was not inherently unsound, court cannot compare pitch sequences anddisregard other elements of compositions, and scenes a faire analysis did not consider the different fields ofmusic and different time signatures.

Marobie FL v. National Association of Fire Equipment Distributors ND Ill. 1997 (p360) EXACT COPY -Facts: P developed software clip art. NAFED obtained copies from unknown source and posted on webpag -Holding: Granted SJ for P b/c as a matter of law, innocent infringer defense may only be raised when

infringer relied on an authorized copy that omitted the notice; here the reproduction right took placewhen the clip art was downloaded to a server or unto a computer.

TheDistribution

Right

106(3) - exclusive right to distribute copies or phonorecords to the public by sale, transfer, rental, lease, or lendin(or authorize); see 101 publication - includes offer to distribute.

Even single copy can suffice! Often goes with reproduction right (unauthorized copy) but flexibility to sue distributer rather than copier.

Marobie FL v. National Association of Fire Equipment Distributors ND Ill. 1997 (p360, immediately above) -Holding: The placing of files on the web violate the exclusive right to publically distribute clip art

Hotaling v. Church of Jesus Christ of Latter-Day Saints 4 th Cir 1997 (p365, L318n146) -Facts: D obtained authorized copy of Ps microfiched genealogy for main library and made copies for bran

libraries; after complaint from P, D destroyed copies but a paper copy was found by P and main libraryretained an unauthorized copy allegedly b/c it had inadvertently destroyed original copy.

-Holding: Reversed SJ for D in part; AN OFFER TO DISTRIBUTE IS SAME AS DISTRIBUTING; libraryadded work to its collection, listed the work in the index or catalog system, and made the work available tothe borrowing or browsing public.

The First

SaleDoctrine

109(a) . . . the owner of a particular copy or phonorecord lawfully made under this title, or any person authorize

by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of thepossession of that copy or phonorecord . . .Notes: Affects only right to distribute, no other rights under 106. Does not apply where there is no privity of contract or where you are not the owner, but for example you ar

a licensee (think of the software context)Why is the first sale doctrine important? Alienation of property From a commercial standpoint, it gives way to new businesses (bookstores, amazon.com, ebay, etc) Avoid waste

Limits on the First Sale Doctrine (p371) The first sale doctrine does not apply to rental of sound recordings and computer programs (L323)

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o 109(b) provides that owners of phonorecords could not for the purposes of direct or indirect

commercial advantage, dispose of, or authorize the disposal of the phonorecord by rental, lease, orlending. This section also encompasses rental of computer softwareo The statute however, does not prohibit rental, lease, or lending of phonorecords or computer

programs by nonprofit libraries The policy behind this is the ease of copying and distribution of these works due to technological

advancements and the economic impact of such copying (not very costly to reproduce) Video games and books on tape DO come under the first sale doctrine

Bobb-Merrill Company v. Straus US 1908 (p369, L319n153) - First Sale Doctrine - codified in 109(a) -Facts: Bobb-Merrill placed a notice on novel Castaway that it could not be sold for less $1; P sold books to

wholesaler who sold book to D; D sold book for less than $1 -Holding: there is no right to impose such notice as to limit the price at which the book will be sold to those

with whom there is no privity of contract

Unauthorized Importation and the First Sale Doctrine 602(a) - Importation into the United States, without the authority of the owner of copyright under this title

of copies or phonorecords of a work that have been acquired outside the United States is an infringement ofthe exclusive right to distribute copies or phonorecords under section106, actionable under section 501.Exceptions include private use, government use, education, etc

Judicially construed to be limited by 107-122 (Quality King, below); if goods are made abroad andimported, then goods may be barred under 602(a) since such goods would not be lawfully made until this

title under 109.Quality King Distributors v. Lanza Research International US 1998 (p378, L326) -Facts: P has copyright on labels of shampoo; P sells to domestic distributors who agree to sell within limite

areas and to foreign markets; goods were sold from P in US to UK and eventually back to D in the US. -Holding: 1st sale doctrine applies; where a product is lawfully manufactured in the US for export and subje

to valid 1st sale, its subsequent reimportation is permissible under 109 and thus not w/in prohibition of602(a); consider contract law options

RIGHT TOPREPARE A

DERIVATIVEWORK

RIGHT TO PREPARE A DERIVATIVE WORK

106(2) - exclusive right to prepare derivative works based upon copyrighted work (or authorize) 103(a) of the copyright act makes clear that a derivative work meeting the statutory standard of 102 is

independently copyrightable and under 101 the underlying work must be recast, transform, or adapt (deminimis) to result in a derivative work

B/c some degree of copying takes place in a derivative work, it is difficult to determine whether thederivative or the reproduction right has been infringed Whether a work has be fixed to infringe is an open question, some legislative history seems to indicate that

fixation is not required and finds support in this assertion for this in that the derivative right is broader thanthe reproduction right, which does require fixation.

Paul Goldstein (p386) Believes that derivate rights affect the direction and levelof investment in a copyrighted work and looks at

the problem from an economic standpoint by saying that an author will invest more in his work if he can haall the markets and benefit from them

The problem with this analysis is that it only works for expected markets. Once we start asking aboutunexpected markets and people coming up with new uses that the original copyright owner would not havethought of.

Castle Rock Entertainment v. Carol Publishing 2d Cir 1998 (p387)

-Facts: P produces Seinfeld. D published the SAT, a trivia game regarding Seinfeld -Holding: Infringement b/c the SAT borrows exclusively from Seinfeld, it is likely to fill a market niche tha

P would in general develop and here there was no parody; court uses substantial similarity test, see belowPossible Tests to determine if there was infringement Substantial Similarity Requires that the copying be quantitatively and qualitatively sufficient to support

the legal conclusion that infringement has occurred.o The qualitative component concerns the copying of expression, and the quantitative component

concerns the amount of copyrighted expression that is copied, which must amount to more than deminimis.o Here more than de minimis copying satisfying the quantitative threshold and SAT copied

expression from Seinfeld satisfying the qualitative requirement (e.g. questions of SAT are not of theactors or the number of days it took to shoot the series, but of the characters and events in Seinfeld)

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Ordinary observer test - two works are substantially similar where the ordinary observer, unless he set outto detect the disparities, would be disposed to overlook them and regard the aesthetic appeal of the two workthe same

o Here we have a TV series and a book so this test does not really help. There is of course the aesthetic appeal of the cover o

the books which is a plain copy of Seinfeld

Total concept and feel test analyze the similarities in aspects such as the theme, characters, plot, sequencepace, setting etc of both works

o Argued by D but here we have different media and genre, so this test is not helpful

Fragmented literal similarity test focuses upon copying of direct quotations or close paraphrasing Comprehensive non-literal similarity test analyze whether the fundamental essence or structure of one

work is copied on anotherPolicy

it would not serve the ends of copyright law if artists were denied their monopoly over derivative versions otheir creative works b/c they made the decision not to saturate those market

Dam Things from Denmark aka Troll Company v. Russ Berrie & Company 3d Cir 2002 (p391, L270) -Facts: D manufactured trolls under license from Ps licensee; licensee went bankrupt and D continued to

make trolls using molds from P but D claimed he eventually modified trolls; prel injunction was issued -Holding: Remanded to consider whether Ds trolls where derivatives or even copies of Ps restore work The standard for substantial similarity for infringement is subtly different and separate from the test for

minimal creativity in assessing whether a derivative was created 104A(d)(3)(A) creates an exception b/c the creator of the derivative work based upon a restored work is

considered a licenseeModes of Transformation Mirage Editions v. ART9th Cir 1988 (p396, L302) --Facts: D purchased books, cut out artwork, and made ceramic tiles-Holding: Infringement of derivative right; held that D had recast or transformed imageno bar by 1st sale doctrine b/c doctrine only applies to distribution right, not derivative rightModes of TransformationLee v. ART7th Cir 1997 (p398, L303) Facts: same facts as Mirage above Holding: No infringement b/c derivative work was not prepared in tiling process and titles were not

independently copyrightable; court analogizes to framing of a painting Notes: rule from 9th Cir would create weird results (e.g. notes in text book creates a derivative)

Required FormLewis Galoob Toys v. Nintendo of America 9th Cir 1992 (p401, L301)-Facts: Game Genie allows the player to alter features of a video game by blocking a valueand replacing it with a new value; does not alter the date that is stored in the game cartridgand its effects are temporary

-Holding: No derivative work in this case b/c game itself was not recast, transformed, oradapted and did not incorporate any portion of the copyrighted work; Game Genie servesonly to enhanced but a derivative work must incorporate the protected work into someconcrete or permanent form - BUT SEE MICROSTAR, below.

Required Form Micro Star v. FormGen Inc 9th Cir 1998 (p403, L301) -Facts: user-created levels on Duke Nukem video game were downloaded and sold on CD by D; levels wher

MAP files with did not contain any of the copyrighted art images but were instructions about where to placeet art pulled from source library

-Holding: Infringement b/c audiovisual displays from MAP files constituted derivative works (analogy tosheet music); a derivative work must exist in a concrete or permanent form and must substantially incorporaprotected material from the preexisting work (this is a transition point.this is not really said in theGALOOB case and appears to do away with incorporation requirement)

PublicPerformanc

e andDisplayRights

106(4) exclusive right, in the case of literary, musical, dramatic, and choreographic works, pantomimesand motion pictures and other audiovisual works, to perform work publically (or authorize)

106(5) exclusive right, in the case of literary, musical, dramatic, and choreographic, works, pantomimesand pictorial, graphic, or sculptural works, including the individual images of a motion picture or otheraudiovisual work, to display the work publically (or authorize)

106(6) - exclusive right, in the case ofsoundrecording, to perform the work publically by means ofdigitaudio transmission (or authorize) - NOTE: no right to public display

101o To perform a work means to recite, render, play, dance, or act it, either directly or by means of

any device or process or, in the case of a motion picture or other audiovisual work, to show its imagein any sequence or to make the sounds accompanying it audibleo To display a work means to show a copy of it, either directly or by means of a film, slide,

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television image, or any other device or process or, in the case of a motion picture or other audiovisuwork, to show individual images non-sequentiallyo Publicly means (1) to perform or display it at a place open to the public or at any place where

substantial number of persons outside a normal circle of the family and its social acquaintances isgathered, or (2) to transmit or otherwise communicate a performance or display of the work to a placspecified by clause (1) or to the public, by means of any device or process, whether the members of tpublic are capable of receiving the performance or display receive it in the same place or in separateplaces and at the same time or at different times

Limitations: (includes all of 107-122 but main limitations below)o 107 - fair use

o 109(c) allows someone who owns a copy of the copyright work to publically display the work t

viewers present at the place where the copy is located. Does NOT apply to cases where the person has obtained possession of the copy from th

copyright owner through rental, lease, loan, or otherwise, without acquiring ownershipit - 109(d)

o 110 - Exemptions of certain performances and displays (L334)

(1) - Education (face-to-face) and (2) - Distance learning (3) - Religious service and (4) - Certain non-profit performances (5)(A) - Homestyle exception: transmission of a single receiving apparatus is ok unless

you directly charge for viewing the transmission or if you further transmit thetransmission to the public

(5)(B) - Business exception: transmission ok but cannot charge admission or retransmit,

have to meet certain area limitations or limit number of speaker/tv size; conflict withforeign systems!

(6) - Agricultural and Horticultural Fairs (7) - Retail sales of sheet music and phonorecords (8) - Transmission of non-dramatic literary works for Handicapped (9) - Transmission of dramatic works for Handicapped (10) - Veterans and Fraternal Organizations (11) - Allows individuals to skip objectionable content in

authorized movies (ClearPlay technology)o Limitations on music/sound recordings - 114 and 115 (below)

o 111 - Compulsory License for cable retransmission;

o 119 - Compulsory License of satellite retransmission

Public Performance Columbia Pictures v. Redd Horne Inc. 3d Cir 1984 (p428, L332)

-Facts: D operated video store with in-store viewing rooms -Holding: Public performance found b/c store was public so size/composition of audience was irrelevant (if

place is not public, then size/composition is determinative); no 1 st sale defense b/c D retain dominion andcontrol of the tapes (not the same as renting or leasing the work after purchasing it)

Public DisplayRinggold v BET 2d Cir 1997 (note p432) - -Facts: Poster displaying work used in background scene on a TV program -Holding: No dispute as to copying so focus on deminimis use and fair use; poster was a focal point in

scene

Copyrightand The

MusicIndustry

Overview (p444) Any piece of recorded music has two copyrights: (1) musical work and (2) sound recording.

o Music work: sheet music with lyrics if any, recording or videotape of song, piano player roll

o Sound recording (101): fixation of a series of musical, spoken, or other sounds, but not includin

the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of thematerial objects, such as disks, tapes, or other phonorecords, in which they are embodied

Harry Fox licenses the right to record and reproduce in phonorecords (i.e. fixed sound recordings) millions musical works as well as the right to distribute them; includes synchronization licenses for putting music tomotion picture

Mechanicals b/c they involved the mechanical reproduction of musical works Copyright owners of musical works have the right of public performance, therefore permission will be need

from them if no other exception applies. HOWEVER, there are collective rights organizations (CRO) thathave licensed the right to administer public performance rights and can authorize public performances formillions of copyrighted works

Example: Radio stations engage in public performance of both musical work and sound recordingso For the musical work they will have to pay a compulsory license.

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o No general public performance right for sound recordings.

If the performance is by means ofdigital audio transmission (e.g. webcasting), thenauthorization for the sound recording is necessary - 106(6).

There are no CROs for sound recordings, so you would have to get permission from thecopyright owner if one of the exceptions does not apply to your public performance

Example: Cover band in restauranto Restaurant needs license for musical work under 115 (can get blanket license from CRO)

REPRODUCTION, PUBLIC DISTRIBUTION, AND DERIVATIVE WORK ISSUES SEE TABLE P445 FOR INTERPLAY OF RIGHTS AND LIMITATIONS!!! Musical Works and 115 (p447)

o Mechanicals compulsory license - applied to any phonorecord and includes distribution of

phonorecords through digital downloado digital phonorecord delivery (DPD) = each individual delivery of a phonorecord by a digital

transmission of a sound recording which results in a specifically identifiable reproductiono Allows for player piano rolls, CDs, cassettes, etc, and cover songs (covers are not derivatives!)

Sound recordings and 114 (p449)o Reproduction right

o Must be actual sounds; sound alikes do not infringe

o Congress was focused on stopping piracy, not imitations

o There is indication that congress was concerned about safeguarding our musical heritage

Derivative righto Only infringe if you rearrange, manipulate, etc the actual sounds of the sound recordings

o 114 requires that the actual sounds fixed in the sound recording be rearranged, remixed, or

otherwise altered in sequence or quality to qualify as a derivative work of a sound recording Digital Performance Right in Sound Recordings Act of 1995 (codified in 114) formed a 3-tier system for

categorizing digital transmissions based on the likelihood of affecting phonorecord sales.o Least likely to affect sales exempt

o Transmissions that may harm sales are within the scope of the right, but subject to a statutory

licenseo Transmissions with the most potential to reduce phonorecord sales are fully within the control of

the copyright owner Chapter 10 of title 17 and 1008 - Audio Home Recording Act (p458)

o Dealt with DAT technology but left out computer so largely irrelevant now

o Had three key elements:

SCMS technology allowed 1st generation copies but prevented subsequent copies created royalty pool based on each blank sold (regardless of what consumer intended to

do) excused from liability consumers engaged in certain activities as well as manufacturers

devices Rio case (p461) - device needed computer so wasnt a digital audio recording device

Sampling Musical Works and Sound Recordings Sampling entails the incorporation of short segments of prior sound recordings into new recordings Like a new collection of sounds **Only infringes sound recording but must be actual copying (not sound alikes)

De miminis for sampling Newton v. Diamond9th Cir 2004 (p450, L419n52) -

-Facts: Beasty Boys obtained a license to sample the sound recording but not musical work of Ps song -Holding: No infringement b/c sampling was de minimis (use is de minimis only if the average audience

would not recognize the appropriation); court filtered out elements of sound recording to determine what waunique to the performance (most of what was unique was captured in sound recording).

Fragmented Similarity - when D copies a portion of Ps work exactly (or nearly) without appropriating the works overall

essence/structure. When the degree of similarity is high the question is whether the copying goes totrivial/substantial elements. Measure substantiality by quantitative + qualitative analysis

No de minimis in sampling, case criticizedBridgeport Music v. Dimension Films 6th Cir 2005 (p455) - -Facts: D sampled George Clinton work in song for movie. Appears to have had license to musical work an

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an oral synchronization license but no other license to the sound recording. -Holding: Reversed SJ for D; no deminimis in sampling cases b/c sound recordings have less rights than oth

works so you should protect it more strongly; did suggest that court should consider 107 defense on remand

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Fair Use

Limiting Doctrine

Summary Authorizes users of copyrighted works to copy, distribute, or publically display or perform portions of work

and sometimes even entire works without incurring liability for infringing the cr owners exclusive rights

Fair Use

SeeComput

erOutline

too

107 Limitations on exclusive rights: Fair Use (codified Folsom v Marsch CCD Mass 1841 (p527)) The fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching,

scholarship, or research is not an infringement of copyright. In determining whether the use made of a worin any particular case is a fair use the factors to be considered shall include:

o (1) Purpose and character of the work, including whether such use is of a commercial nature or i

for nonprofit educational purposeso (2) The nature of the copyrighted work

o (3) The amount and substantiality of the portions used in relation to the copyrighted work as a

whole, ando (4) The effect of the use upon the potential market for or value of the copyrighted work

Purpose and character of using the expression of another (Purpose of what was copied - in SW an intermediastep might not be bad)

focus on D and his use was use transformative or does the new work merely supersedes the objects of the original?

was use socially productive? was use commercial or non-profit? did D act in good faith? was original obtained lawfully?

Nature of original

examine characteristics of work use was work predominately creative or factual? was it published or not? was it freely available for use by public?

Amount/substantiality of use compared to whole was amount used more than necessary or reasonable in relation to the purpose? was amount qualitatively significant (heart of work)? was amount quantitatively significant (%)?

Effect on potential market/value of original does use supersede original? does use affect traditional or likely markets of original? does use affect value of work? are there derivative or established licen

Documents

BALLER Copyright Outline