Copyright Wex

8/8/2019 Copyright Wex

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Copyright, Trademark & Patent Survey 1

Copyright, Trademark & Patent Survey

1909 Act 1976 Act 1988 Berne Agreementprior to 1/1/78 1/1/78 to 2/28/89 3/1/89 to today

CopyrightNoticeRequirement

Requires:1. symbol or Copyright orCopr. or else forfeited.2. Year of the works firstpublication3. Name of the owner of the

. abbreviations may suffice

Requires:1. symbol or Copyright orCopr. or else forfeited.2. Year of the works firstpublication3. Name of the owner of the .abbreviations may suffice

Required prior to 3/1/89. Notice option from 3/1/89, butmay affect monetary recovery as Dmay claim innocent infringement.

Specific locations: printed matter must appearon title page or oneimmediately following.

No specific location for notice

date of publication/registration

Duration ofcopyright

302

28 years and 28 year renewal 1) Life of author + 50 years2) Anonymous/Pseudonymous:75 years from first publication or100 years from date of creation,whichever shorter.3) Joint works: Last survivingauthors death + 50 years

Life of author + 50 years

Duration ofsound

recordingsfixed301(c)

Prior to 2/15/72 onlyprotected by state statute andcommon law and unaffectedby 1976 Act until 2047 From 2/15/72 through12/31/77 has 28 year and47 year renewal (75 years) From 1/1/78 - current life ofauthor + 50 years

From 1/1/78 - current life ofauthor + 50 years

Duration ofworks

created butnot publishedbefore 1/1/78

303

All works created but not /published before 1/1/78 willbe protected until 12/31/2002per 302. Failure to publishbefore 2003 will result in

forfeiture of renewal rights. If works are published before2002, protection lasts until12/31/2027 (50 years from12/31/77)

If works are published before2002, protection lasts until12/31/2027 (50 years from12/31/77)

Duration ofworks

publishedduring and

Works published from 1/1/50will be in their first term of protection in 1978. Renewal isto be done in the 27th year,

Property of Michael M. Wechsler


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after 1950and before

1/1/78

some time after 12/31/77 andwithin 1976 Act. 47 yearsrenewal term, 75 total. 1st term: 28 years Renewal Term: 47 years

Works insecond term

as of 1/1/78

Works in second term sget 19extra years tacked on,

protected until 12/31/2005

Forfeiture: Easy to do by anysimple omission. No forfeitureif: accidental omission whenthe owner attempts to comply omission without consent of

owner

Forfeiture may be cured foromission per 405(a)(2) when:1) the work is registered within5 years of publication; and2) owner makes reasonableeffort to add notice to allunmarked copies sold in theUS.

28 years with the ability torenew for an additional 28years for total of 56 yearsfrom the time of publication

Several laws were passedby Congress extending oldercopyrights to terms totaling 75years.

begins at C/L state protection exists.Federal protection at time of

publication

State C/L protection exists butis extinguished with fixation in

tangible expression. Federal Protection from firstfixation in tangible expression.

Requirementsfor protection

3011. Must be fixed in tangiblemedium of expression per

106.2. Must come within the subjectmatter of copyright per 102

& 103When is a

workpublished?

1. Investitive publication:when owner invests himself of

federal statutory protection.2. Divestitive Publication: thatwhich owner divested himself

of state C/L protection.

court hates forfeiture andusually tried to find someprotection for an injured

owner.

101: dissemination to thepublic, but not limited &/orunauthorized, nor public

performance.

May ownerbring suit

beforeregistration?

NO. May have to bring suitagainst office to obtain if

not approved initially.



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Duration: All copyrights end last day of the calendar year of expiration.e.g. April 10, 1972, under 1909 act renewal is up to December 31, 2000.

Anonymous 302(c): If a creates a work in 1978 as work for hire, published in 1980, the work goes into PD in2055.

Joint Works 302(b): A and B create joint work in 1980. A dies in 1990 and B in 2000. Copyright enters the PDin 2050.

Death Records 302(e): Year of death is most important and kept by the Register of Copyrights and creates apresumption of death taking effect 75 years after publication, 100 years after creation, whichever is less. The

Register may certify a report that there is no indication of the authors existence or had died within the previous50 years.

Duration of Copyright Works Created But Not Published or Copyrighted Before 1/1/78: 303. All works createdbut not copyriighted/published before 1/1/78 will be protected until 12/31/2002 per 302. Failure to publishbefore 2003 will result in forfeiture of renewal rights. If works are published before 2002, protection lasts until12/31/2027 (50 years from 12/31/77). 12/31/2002 will be s significant date.e.g. A owns on letter sent to B in 1911. A dies in 1927 is never published. Copyright lasts until 12/31/2002. Ifletter is published before 2003 is extended another 25 years to 12/31/2027. (Note this is 50 years from12/31/77).

Summary:

Published or copyrighted before 1/1/78:75 years (28+47 years)

Unpublished:Life of author + 50 years. All unpublished works on 1/1/78 will last through 2002, and if subsequently published,through 2027.



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I. REQUIREMENTS FOR PROTECTION

Once the work has fallen into PD during the period that governs, the subsequent Act will not retrieve the workfrom the PD. e.g. any work published without copyright notice prior to 1/1/78 will be PD despite the fact that theBerne Convention of 1988 would have allowed it to be protected without notice.

Modern law requires notice only on commerciably appreciable units e.g. wallpaper with squares may

require notice on each square, but modern rule probably requires notice only for each unit that is smallesamount sold so as to have at least one symbol on it.

Hasbro v. Sparkle Toys - p. 540

Facts : Takara, Japanese toymaker, designed and manufactured toys in Japan without a trademark. Japandid not require a trademark, and 213,000 toys were manufactured in Japan as such. Takara sold therights to Hasbro which manufactured the toys in the US under a trademark they registered for Takura asauthor and Hasbro as copyright claimant. Sparkle copies the Transformers that contain a US copyrightcharging them to be PD due to invalid copyright.

Issue : Can the omission of a copyright notice on a product be cured?

Holding : Yes, P. A owner has 5 years from date of publication to make a reasonable cure.

D Sparkle argues Takaras manufacture of Transformers without the symbol injected the product intothe PD. 405(a) that the omission of notice from copies of a protected work may be excused or curedunder certain circumstances, in which case the copyright is valid from the moment the work wascreated, just as if no omission had occurred. 405(a)(2) allows a person who publishes acopyrightable work without notice to hold a kind of incipient copyright in the work for 5 yearsthereafter. If the omission is cured in that time through registration and the exercise of a reasonableeffort, to add notice to all copies that are distributed to the public in the US after the omission hasbeen discovered. This is how the 1975 Act allows greater flexibility than the 1909 Act.

Court states rule that even with deliberate omissions, such as takaras, there is a 5 year cure option. In

addition, all Hasbro had to do was make reasonable effort to cure product manufactured in the US, not theproduct released by Takara in Japan.

1. Registration :

Informal procedure where applicant can rite informal appeal if denied.

Original Appalachian Artworks v. The Toy Loft - p. 556Failure to supply the office with information that may be relevant or may jeopardize an applications

approval may make a subsequently granted license invalid.octrine of unclean hands. Finding theomission were not fraudulent and no intent to deceive, therefore no forfeiture of the .

Reasons to register:1. Registration is not a condition of copyright protection and may be done at any time during term.

a. 1976 Act offers incentives to register: cure is allowed only for works registered within 5 years after the publication without notice. 410(c) limits prima facie effect of registrations made within 5 years of the work 412 provides no awards of statutory damages or attorneys fees for any infringement before

effective date of registration or any infringement of copyright commenced after firstpublication of the work and before the effective date of its registration unless registered within3 months after first publication of the work.



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2. Prior to 3/1/89, 411(a) of 1976 Act required filing before a suit could be brought for works published in theUS. Works published in foreign countries of Berne Convention did not have to be registered to bring suit (acompromise before the signing of the Convention).

Deposit : Deposit must be made of a copy of the work within 3 months after receiving written demandfrom the Copyright Office.

Secure Tests : Copyright may be given to standard exams like the bar, and may be returned after theexam to prevent others from retreiving the questions.

2. Statutory Subject Matter

A. 102 requires (1) originality and (2) fixation in a tangible form.1. Originality: Left undefined so a s to allow courtsto define and change the standard of what meets the

criteria for originality with the changing times. This standard does not include novelty or ingenuity,merely origination of the work with the author.

2. Fixation in Tangible Medium of Expression: medium may be known now or later developed, form is immaterial as long as semi permanent

medium. Fixation is sufficient if the work can be perceived, reproduced or otherwise communicated either

directly or with the aid of a machine. What is made is an original that is fixed, and copies of the

original that can be distributed. 301 Unrecorded performance is not fixed, and isonly subject to state C/L or statutory protection,but not eligible for Federal statutory protection under 103.

101 fixation includes: a. If there has been an authorized embodiment ina copy or phonorecord and if that

embodiment is sufficiently stable to permit the work to be perceived, reproduced, orotherwise communicated for a period more than the transitory duration.

b. Live broadcasts that is being recorded for the first time is treated as if it was a prerecordedbroadcast of a motion picture.

B. Categories of Copyrightable Works

Illustrative and not limitative, allowing flexibility to include other types of works.

1. Literary works: Does not make qualitative judgments of the work, and may include catalogs,directories, or factual references.

2. Pictoral, graphic, and sculptural works: 113: Does not make qualitative judgments of the work, andincludes any craftsmanship but not their mechanical or utilitarian aspects as per Mazer. Only thosefeatures that can be identified seperately from the utilitarian use will be protected.

a. e.g. A two dimensional painting on product is seprately identifiable, but the shape of a lampp is notseprate from the utilitarian use. Therefore a drawing of a fixture may be copyrighted, but not thespecific style of its work in relation to its utility.

a. Mazer v. Stein Design of a useful article shall be considered a pictorial, graphic or sculptural work only to the extent that

such design incorporates features that can be identified separately from, and capable of existing independently of, the utilitarian aspects of the article. Held that the patentability of statutes, fitted as lampsor unfitted, does not bar copyright as works of art. The copyright protects originality rather than novelty orinventionconferring only the sole right of multiplying copies. Thus respondents may not exclude othersfrom using statuettes of human figures in table lamps; they may only prevent use of copies of theirstatuettes as such or as incorporated in some other article. Finite number of shapes as applied tofunctional/utilitarian nature.

3. Motion pictures and audiovisual works Three elements:

i. series of images



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ii. capability of showing the images in successive orderiii. impression of motion when the images are thus shown.

Includestapes, video disks and other media, but not:a. unauthorized live performances/telecastsb. live telecasts not simultaneously fixed during transmissionc. filmstrips and slidesets that are useful but incapable of being shown in succession creating an

impression of motion.

4. Sound recordings In any fixed medium such as tapes, records, CDs,

5. Musical works6. Dramatic works7. Pantomimes and choreographic works

C. Other Rules 102(b): Nature of Copyright Copyright only extends to expressions of ideas, not any particularidea, procedure, process, system,

principle or discovery, despite the fact that it is embodied in a work.

103. Compilations and Derivative Works in a new version only extends to that additional work that has been added to the original

protected or PD work. Derivative work: A recasting , transforming or adapting of one or more preexisting works.

Characters of Fiction: As per J.. Hand in Nichols v. Universal: The less developed the characters,the less they can be copyrighted; that is the penalty the author must bear for marking them tooindistinctly.

Nichols v. Universal Pictures Corp.Ordinary, wrongful appropriation is shown by proving substantial similarity of copyrightable expression.

Copyright in play cannot be limited literally to text, else plagiarist could escape by immaterial variations.Question is whether part is so substantial, and therefore not fair use of copyrighted work. Whenplagiarist does not take a block out of situation but abstract of whole, decision is more troubling. Inplays, great number of patters on increasing generality will fit equally as more of incident is left out.There is point where abstraction = idea = uncopyrightable.

Architecture: protected under 102 and includes overall form as well as plans and drawings. Labels: Phrases are not and labeling usually falls into unfair competition and trademarking. Obscene Works: Copyright protects works and the government does not pass judgment whether

they are of sufficient moral and literary value, or it would be unconstitutional. US Government: May purchase and hold rights to a but work done by its employees as part of

their official duties are not considered protectable by . Works not subject to :

a. Short phrases, slogans, mere typographic ornamentations

b. Ideas, plans, methods, but manner of expression is copyrightable.c. Blank forms, time cards, graph paper, diaries, bank checks and other generic order formsd. Common property such as standard calendars, height/weight charts, tape measures,

schedules of sporting events or other tables taken from public documents.

3. Original Expression

Supplement from book



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Sheldon v. Metro-Goldwyn Pictures - p. 573Real life: woman poisons lover in love triangle. Cause-celebre with books published, etc.. Play made based on it with

key things changed, woman poisons lover in love triangle with stricknine in coffee and is revealed through familyassociation. Movie made substantially similar to play. In its broader outline, a play is never copyrightable. However,a play may be with out using the dialogue. Speech is only small part of dramatists means of expression. Dramaticsignificance of the scenes here was recited almost to the letter. While much of picture owes nothing to the play, it isenough substantial parts were lifted from the plot and court awarded a percentage of movie proceeds to playwrightattributable to the plays success.

Bleistein v. Donaldson Lithographing - p. 573Facts : Wallace hired P Bleistein to do a lithograph to promote his circus and it included his picture and some other

scenes from the circus. After D Donaldson made reduced copies , P sued for copyright infringement. while it ispossible they may have been used properly for Wallace, the issue is as follows.

Issue : Are chromolithographs designed for advertising purposes not eligible for copyright protection?Holding : P, no. A picture is none less a subject of copyright that is used for an advertisement. Copyright was not

limited to the fine arts. Outside both copyright law and competence of courts to assess artistic merits of originalcreations. To hold otherwise would set up the judiciary as an arbiter of artistic quality which it is not equipped to doso.

Note: There could be a seeming paradox. A better replication, one that is produces far more deftness ofhand, may be guilty of infringement because it copies the original. A clumsy copy , on the other hand,may prove to be too crude to constitute a copy and is not an infringement.

Note: This was decided in the opposite in Alva, where P received protection for an exact replication inminiature of a Rodin sculpture in the PD. That work was held as constituting sufficient originality, espeiallywith the great work that went into it, yet in Tomy, who made three-dimensional works out of the twodimensional characters, the court ruled that it didnt take much skill to do so. In Batlin the court did noptgrant a for a plastic replica of a cast iron Uncle sam bank in the PD because it was said not to constitutesuffient originality or skill. The plastic model had differed in size and details, yet it seems as though the office is pushing works to embody expressive differences rather than PD copies. In Alfred Bell the courtruled that a painters mezzotint engravings of paintings by the masters were copyrightable because theyexhibited expressive differences. The court says little more than one cannot copy a work.

Feist Publications v. Rural Telephone - p.581

Rule : A factual copilation is eligible for copyright if it features an original selection or arrangement of facts, but thecopyright is limited to the particular selection or arrangement. In no event may the copyright extend to the factsthemselves.

Facts : Rural telephone was a monopoly telephone service that produced a telephone directory in areas it serviced asa condition of its monopoly status. D Feist offered to pay for the use of Ds directories but was denied. D Feistsubsequently copied at least 1,300 entries and used them in Ds compilation, which included an accumulation ofregional phone books. P sues that D could not copy its work for its directory.

Issue : Is copyright protection extended to a mere compilation of facts?Holding : D, NO. Facts are not copyrightable unless the compilation of facts contains a modicum of originality such as

an original selection or arrangement. The rerquisite level of creativity required is extremely low. Here the directorywas typical, listing telephone customers by last name and providing address and phone number, all of which arebare facts and could be copied the same way a street map is factual. The facts are public domain and are available

to every person. Preesident Ford could not stop others from copying the bare facts historical facts from hisautobiography, but he could prevent others from copying his subjective descriptions and portraits of public figures.Notes : The court rejects the sweat of ones brow theory as copyrights purpose is to promote the progress of the arts

and sciences, not to reward the labor of authors. Originally the court required the subsequent copier of bare facts togo out in the streets and perform the same factual compilation. The court requires three items for a compilation tocontain sufficient originality and to be copyrightable:

i. collection and assembly of preexisting factsii. selection, coordination and arrangement of those materialsiii. the creation, by virtue of the particular selection, coordination or arrangement, an original work of authorship.



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B. RIGHTS AND REMEDIES

a. The nature of copyright

Baker v. Selden - p.600Rule : Where the use of an idea requires the copying of the work itself, such copying will not constitute infringement.

On the other hand, if the copying does not involve the use of the art but instead its explanation, then such copying

will constitute an infringement.Facts :P Baker introduced a book that was an essay to his new system of bookkeeping followed by forms to put theaccounting system to use. The columns on a page were arranged to so the operation of a day or week wasavailable on a single page. D Baker brought out that acheived the same result but used different forms. P Seldenargues his forms are copyrightable.

Holding : D. The forms are a utilitarian tool for using a noncopyrightable system. Only the authors unique explanationof the system is copyrightable. If the system were allowed to be copyrighted the author would have a monopoly onthe system. Copyright is based on originality, not novelty and protects the explanation, not the use of the systemexplained.

Notes : This case implies that there are instances that copying is permissible. This is a fallacious assumption that thereis only one written expression of an idea - which is why case law has allowed copying of a contract because it wasfor use rather than explanation. Morrissey v. Proctor & Gamble allowed word-for-word copying of contestinstructions, even though more than one form of expression was available, because only a limited number of formsof expression were possible.

Some later discussion yields that it is possible that when plans are specific, such as architectural, copyright protectsas it is not a plan for the general public as is an accounting system.

Russell v. Price - p. 604Rule : The copyright holder of a play may sue one for the unauthorized use of a film that is public domain and a

derivative work based upon the play.Facts : In 1913, George Bernard Shaw copyrighted the play "Pygmalion." In 1938, MGM produced a film version,

whose copyright protection they did not renew 28 years later in 1966, and it became public domain. The play'scopyright was renewed in 1941, 28 years later, and was granted renewal for 47 years until 1988. In 1975, Pexclusive copyright holders of the film through the play, sued D for renting out copies of the film withoutauthorization.

Holding : The copyright holder of an original work can sue an unauthorized user of a derivative work that is PD anduses parts of a copyrighted work. The on a derivative work only includes the added value to the work which is theonly part of the work that is and owned outright by the owner of the derivative work. The original concepts andexpressions of the original work still remain the property of the original owner. When the works are too tightlybound within each other it is possible that even when a derivative work's copyright expires, the work cannot be usedbecause too much of its component contains protected works of the original copyright.

Notes : Rohaur is a case with different results that are confined to their special facts.



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b. Statutory Rights

106. Exclusive Rights in Copyrighted Works Five fundamental rights of copyright owners, subject to 107-118:

Numbers i-iii all are usually violated at one time.

i. Reproduction

The right to reproduce material where the work is duplicated, transcribed or imitated, or simulatedin a fixed form from which can be perceived, reproduced, or otherwise communicated, eitherdirectly or with the aid of a machine."

For a work to be reproduced it must be sufficiently permanent or stable to permit to be perceived,reproduced, or otherwise communicated for a period of more than a transitory duration."

ii. Adaption Derivative works: Exclusive right to prepare may overlap right of reproduction, as some

infringement may take place in intangible form such as a ballet or pantomime or play. Violation of copyrighted work occurs in a derivative work when:

- it must be based on a copyrighted work- a translation, musical arrangement, dramatization, etc. or any other form in which way a work

may be recast, transformed, or adopted.- a detailed commentary on a work inspired by another work is not infringement.

iii. Publication The right 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.The owner would have the right tocontrol the first public distribution or his work.

iv. Performance 106(4) extends to "literary, musical, dramatic, and choreographic works, and motion pictures and

other audiovisual works and sound recordings." Exclusive right of public performance is expanded to include not only motion pictures on video

tape, film and disk, but slides aswell. Examples of performance:

- singer performing in public- broadcasting network is performing when he or she sings a song- cable television when it transmits the network broadcast- when an individual plays a phonorecord or tunes in a radio

Performance may be accomplished using a machine or other device Performance is public if:

(i) the performance takes place at a place open to the public or at any place where asubstantial number of persons outside of a normal circle of a family and its socialacquaintances is gathered; or

(ii) a performance is transmitted or communicated to a place defined in (i) or to the public, bymeans of any device where the members of the public are capable of receiving theperformance or display receive it in the same place or in seperate places and at the sametime or different times.

Routine meeting of business and government are excluded as the numbers are not substantial. Performance in public place may also include wired transmission, and any method

v. Display 106(5) gives exclusive right to show a copyrighted work or image of it to the public.



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Compulsory Licenses

The Copyright Royalty Tribunal is a creation of the 1976 Act and was set up to administer the five compulsorylicenses. It:

i. Sets statutory royalty rates for all compulsory licensesii. Settles disputes concerning distribution of monies collected for cable television and jukebox

performances.

It is more practical to have a standard method in which to have set prices rather than ongoingnegotion by all interested parties. Most couldn't afford the extensive litigation and negotiationrequired for such agreements.

1. Cable Transmissions - 111 Establishes compulsory license for secondary tramnsmissions by cvable TV systems. A cable system

retransmits a primary signal from a local affiliate into a "secondary signal" to consumers and is liable forcompulsory fees.

2. Phonorecords - 115 2.75 / work or .5 / minute of playing time or 2 per every record manufactured.

3. Jukeboxes - 116 1909 Act exempted jukeboxes as not a public performance for profit unless charge is incurred and

reproduction/rendition then occurs. $8 / jukebox

4. Public Broadcasting - 118 nondramatic musical, literary, pictoral and graphic works for use by public broadcasters. Rate to be

determined by the tribunal.

5. Satellite Retransmissions 119

How compulsory licenses work: 1. As per 115, a phonorecord or non-dramatic musical work is distributed to the public by the owner

with his right to make first distribution.2. Thereafter, compulsory license provisions are triggered and the musical work is fair game to anyone

wishing to make independent uses for resale, subject to the compulsory license. In other words, onceparty A records their song and it is out on record or other medium, party B can make their ownrecording of the song and pay a compulsory license to do so. B must pay statutory royalties.

3. Obtaining a compulsory license: Notice of Intention must be sent to the license owner before filing fora compulsory license.

Appliesonly to non-dramatic musical works; it cannot be obtained for a recording of an opera, motionpicture soundtrack, medley of tunes from a Broadway show, etc.. To use dramatic works one mustnegotiate with the owner.

Purpose of distribution of use of compulsory recordings must be for private use. First distribution of the work must have been mmade and authorized by the license owner. A substantially modified use must be approvaed by the owner of the work as a derivative work. Non-

conformance may result in a forfeiture of the compulsory license. A person is not entitled to compulsory licenses for musical works for the purpose of making an

unauthorized duplication of a musical sound recording originally developed and produced byanother.



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114(b): Infringement of a sound recording (not musical works)(1) reproduction via mechanical means(2) rearranging, remixing, or altering it in some fashion via mechanical means.

Illustration: B can imitate without permission the sound and style of A's recording of Irving Berling songs withoutinfringing A's reproduction and adaptive rights in sound recording. B has not infringed the the in soundrecording,however B may be infringing the copyright by reproduction and adaption right by making theunauthorized recording.

Right of Public Display 106(5): Right odf display is limited to public displays (as per the definition ofpublic) and is considered displayed or performed when transmitted (as per definition of transmission).

109(c) Public Display of an Owned Copy An owner of a copy of a work, or original, may display that work. He may even charge admission and

display it within the place the copy is located, but he may not broadcast it elsewhere. Projection of more than one image at a time may not be shown even at the place of the copy, to

protect the owner's rights, and transmission over television or other media would likewise constitutean infringement.

Library Photocopying: 108: Allowed for scholarly purposes unless it is systematic and is a substitute forpurchase or subscription. The library collection must be open to the public and

i. The copy reproduced must be a single copy.ii. It must be made without any purpose of direct or indirect commercial advantage.

Columbia Pictures v. Redd Horne - p. 619Facts : D Redd Horne operated a video cassette rental outlet. In addition, it offered a service where patrons could view

videotapes in small groups in booths for roughly $5. D did not obtain copyright authorization and P ColumbiaPictures brings copyright infringement suit claiming "unauthorized public performance."

Holding : P. a video rental outfit may not exhibit videos to the public as per 106 of the Copyright act. A videocassettefalls within the definition of an audiovisual work. The First Sale Doctrine is not a defense as per 109(a) since all ithas to do is with the free alienability of rights of selling/renting the item. The court says there is no rental as thetapes never left the store, nor were they ever in the custody of customers. Since playing a videocassette will result ina sequential showing of a motion picture's image, it constitutes a performance under 101. The court read thedefinition in the statute of what constitutes "publicly" in the disjunctive. To constitute public performance:

(i) the performance takes place at a place open to the public or at any place where a substantial number ofpersons outside of a normal circle of a family and its social acquaintances is gathered; or

(ii) a performance is transmitted or communicated to a place defined in (i) or to the public, by means of any devicewhere the members of the public are capable of receiving the performance or display receive it in the sameplace or in seperate places and at the same time or different times.

The court read that if a place is public, it does not matter how large or small the audience is. If the same copy of agiven work is repeatedly played different members of the public, even at different times, this constitutes publicperformance.

Notes : Broadcasting may apply to limited public transmissions such as sending videos to private hotel rooms orsubscribers of a cable service. However, private viewing ina hotel of a videocassette which is not broadcast wouldnot constitute a public performance if the recipients constitute an ordinary number of people in circle of family oracquantance. D's hotel rooms could be rented out by members of the public, but become private when a guest takes

it and it may no longer be considered public. There is no exact formula as to size requirements for publicperformance.

The definition of t"transmit" under 101 for further transmission means a communication device and medium such asradio waves or through coaxial cables, beyond the place of origination. It does not mean physical transport of thetape or item accross town.

Springsteen v. Plaza Roller Dome - p. 625Facts : D Plaza Roller Dome operated a roller rink and adjacent miniature golf course. D paid for license for roller rink

and claimed they thought it covered the golf course.The course had 6 small speakers with a very unsophisticatedsound system, very similar to a home system, and covered a 7,500 foot area with radio music. ASCAP brought asuit for copyright violation from unlawful transmissions.



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Holding : D. Court cites 20th Century v. Aiken and uses the Aiken Exemption which states that there is an exemptionof copyright law for small business establishments, or else it would result in a regime of copyright law that would beunenforceable and inequitable. Aiken held that a small fast food shop (640 square feet) which had 4 small ceilingspeakers and an installed radio, did not fall into performance, but rather the streowner fell into the listener/viewercategory. Not only would it be impossible to enforce a rule in all such establishments and bars, but it would beinequitable as it is a single public rendition of the work and to exact tribute would be to go far beyond what isrequired for the economic protection orf copyright owners. Here, the speakers were of low quality such that onlystanding next to them would produce any real meaningful sound, as well as the fact that the noise level wassufficiently high in the outdoor course. - despite the much larger size of the area.

Notes : 110(c) exempts from liability:Communication of a transmission embodying a performance or display of work by the public reception of a

transmission on a single receiving apparatus of the kind commonly used in private homes, unless:(i) a direct charge is being made to hear the transmission(ii) the transmission thus received is further transmitted to the public.

The P argued with Gap Stores, a case where every Gap in the country was sued for infringement, as the Aiken casewas said to be the outer limits of what would not constitute infringement. In addition, Gap is a multimillion dollarestablishment that could afford such licensing fees and not a small establishment like Aiken, and had a wellequipped recessed sound system.

Mirage Editions v. Albuquerque A.R.T. - p. 632

Facts : P Mirage was exclusive publisher of a book of color prints of a famous artist. D was commercially engaged intransferring the prints to ceramic tile, by cutting out the prints from the book. P sues for infringement. D claims rightof First sale and that it does not fall within the meaning of 101 which defines a derivative work as one that is a formin which the work is "recast, transformed, or adapted."

Holding : P as a person cannot commercially transfer works onto other surfaces without authorization. The work inquestion is a derivative work

Notes : In C.M. Paula v. Logan (1973) the court found that transferring greeting cards on plaques was permitted by theFirst Sale Doctrine as it was not specifically adapted and each card was purchased by D who had the right to sell it.

Vicarious Libaility and Contributory Infringement: Parties may be held liable when they advertise orpromote advertising or dissemination of information about the sale of infringing items when they haveknowledge of the infrignerments. Concept is of knowingly participating in a tortious activity. Sony caseillustrates contributory infringement, aiding in the infringement process, and liability will be found onlywhen there is no substantive use for the product for non-infringing purposes. Vicarious liability will befound when it is not unfair to do soeven when D had no actual knowledge of the infringing behavior.

ASCAP: American Society for Composers, Authors and Publishers: A non-profit association to pool thenon-dramatic performance rights in members' musical compositions for licensing. ASCAP would giveblanket licensing and would give blanket licensing, and collect and enforce roylty collections. Radio andtelevision networks are major sources of ASCAP licencees. BMI is a rival. Both are governed by anti-trustregulations.

Fair Use: 107 privilege in others than the owner of a to use the copyrighted material in a reasonablke manner

without his consent, notwithstanding the monopoly granted to the owner by the copyright. Applied where a finding of infringement would either be unfair, or would undermine the progress of

science and the useful arts.

A. Allows limited use of the work in the general scope of fair use for the following, not all inclusivecategories:

i. criticismii. commentiii. news reporting



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iv. teaching (and multiple copies for classroom use)v. scholarshipvi. research

Examples of fair use: quotation of passages in scholarly work, illustration or clarification ofauthor's observations, use in parody of part of the work, summary and/or brief quotations in anews report, library reproduction to replace a damaged copy,

B. Four factors of Fair Use to be applied to the facts of every casei. the purpose and character of the use, including whether such use is of a commercial nature or is

for non-0profit educational purposes;ii. the nature of the copyrighted work;iii. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;iv. the effect of the use on the potential market or value of the copyrighted work.

Theories a. Productive Use theory is that the use uses the work to make a more valuable product such as a

news report or critical report. To copy a record so as not to buy it is a non-productive use(reproductive) and prohibited.

b. Case by Case determination: Illustrated in Sony Betamax case, as each facts have specificcharacteristics that may qualify a use not as infringement but as a fair use of the work.

Sony v. Universal City Studios - p. 644

Rule : If a product in question is capable of significant noninfringing uses then the manufacturer cannot be held liablefor contributory infringement by associtaion.

Facts : In 1970s Sony introduced the Betamax videocassette recorder which enabled users ot record homeTVprograms. Several copyright holders sued D Sony for copyright infringement by its consumers by contributoryinfringement. Therefore there are substantial noninfringing uses of the Betamax and Sony is therefore not acontributory infringer.

1. The recording and copying of significant PD and permissible programs make the recorder a useful and

noninfringing device. Mr. Roger's Neighborhood is one such example of a significant TV show that is proper torecord, as well as numerous other educational materials.2. Time Shifting uses were accepted by most owners and in addition, no damages were shown as a result of

the time shifting activities.Notes : What is important is to not that the use was for non-commercial purposes, and licensing agreements were

impossible. Sony could not approximate and pay for any potential infringements. In addition, the courts decided notto be in a position to make law and left it for legislature to decide issues on compulsory licenses.



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OVERVIEW

COPYRIGHT PATENT TRADEMARKProtects: Expression/artKey concept : OriginalityTime to obtain : >6 mos.

Cost to obtain : $20

Length of protection : life + 50 yrs.

Protects: Invention/ application/processKey concept : noveltyTime to obtain : 2 yrs.

Cost to obtain : $2000Length of protection : 17 yrs.

Protects :IdentificationKey concept :

distinctiveness

Time to obtain : 1 yr.Cost to obtain :

$1500Length of protection :

perpetual

COPYRIGHTS1. FUNDAMENTALSWhat Is A Copyright?

Protection which gives owner exclusive right to do and authorize others to do following (17 U.S.C.A. 106):Exclusive right to reproduce work.

Exclusive right to prepare derivative works (e.g. translations, abridged versions).Exclusive right to distribute copies of the work to the public by sale/rental.Exclusive right to perform the work publicly (e.g.: music, plays, dances, pantomimes, motion pictures).Exclusive right to display the work publicly (e.g.: paintings, sculptures, photographs).

2. CREATION, OWNERSHIP & DURATION OF COPYRIGHTWhen Does Copyright Occur?

PRIOR TO 1976 COPYRIGHT ACT AFTER 1976 COPYRIGHT ACTNo copyright until the work was published with a copyright

notice.Work is considered created when fixed in

a medium . 17 U.S.C.A. 102(a)

Ownership Ownership is vested initially in the author (17 U.S.C. 201(a)). Generally vested in creator. Special cases,author may be commissioner or employer or creator.Ownership of copyright is distinct from ownership of material object in which work is embodied (17 U.S.C.202). Absent written assignment, transfer of object or original doesn_t convey copyright an transfer ofcopyright conveys no right to object (17 U.S.C. 202).



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AUTHORS Immediately upon creation of work in fixed form (17 U.S.C. 201(a)).EMPLOYEES &CERTAIN WORKS FORHIRE

Employer is considered author and owner of copyright (17 U.S.C. 201(b)).Work made for hire is:

A work prepared by an employee within the scope of his employment;or,Work specially ordered/commissioned for use as a contribution to a

collective work, motion picture or other audiovisual, translation,supplementary work as a compilation, instructional text, test oranswers or as an atlas IF parties expressly agree in writing that workshall be considered made for hire.

Definition of employee requires inquiry into following factors:skill requiredsource of tools and instrumentalitieslocation of workduration of relationship between the partiesmethod of paymenthired party_s discretion over when and how long to workregular business of the hiring party

employee benefitstax treatment of party.INDEPENDENTCONTRACTORS

Almost never employees and therefore must have a written work for hireagreement to qualify as such. Community for Creative Non-violence v.Reid

CONTRIBUTORS In collective work, each author retains copyright to own contribution. If joint work, entitled to equal percentages of ownership unless agreedotherwise

ASSIGNEES Author may assign rights to another. Must be written and signed bytransferor (17 U.S.C. 204). Recordable (17 U.S.C. 205).

Notice

PRIOR TO MARCH 1, 1989 AFTER MARCH 1, 1989Copyright notice must appear on published work before itcould be protected. Must be affixed to copies in way that

gives reasonable notice of copyright. Must useSymbol /copyright/copr.

Year of first publication of workName of copyright owner.

No notice is required by law to copyrighta work. Still advisable (17 U.S.C. 401-

6).

Registration Is Not Required Registration permissive but not required . (17 U.S.C. 408(a)) However, registering confers followingbenefits:

Prerequisite for filing infringement action (17 U.S.C. 411).

Required in order to be eligible for an award in an infringement action (17 U.S.C. 504(c)). One cannotbring suit for infringement unless there is a valid, registered .Provides prima facie evidence of ownership and validity of copyright (17 U.S.C. 410(c)).



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Duration WORKS CREATED BEFORE

JANUARY 1, 1978:WORKS CREATED AFTER

JANUARY 1, 1978:28 years with the ability to renew for an additional 28 years

for total of 56 years. Several laws were passed byCongress extending older copyrights to terms totaling 75

years.

If one author , life of the author + 50years. 17 U.S.C.A. 302(a)

If two or more authors = life of lastsurviving author + 50 years.

If work for hire/anonymous work/ pseudonymous work = 75 years frompublication or 100 years from creation

whichever is shorter. 17 U.S.C.A. 203(a)(b)(d)

3. COPYRIGHTABLE SUBJECT MATTERWorks Where Copyright Can Arise

LITERARY WORKS Those works other than audiovisual works, expressed in words,numbers , or other verbal or numerical symbols (e.g.: novels, nonfictionalworks, poems, articles, essays, directories, advertising, catalogs,speeches, and computer programs). Medium is unimportant. (17 U.S.C.

101)MUSICAL WORKS Note difference between composition and performance. 1976 Act allows

registration of musical work regardless of medium. Lyrics without musicare literary works (e.g.: music and accompanying lyrics).

DRAMATIC WORKS (e.g.: plays, operas, scripts, screenplays, and accompanying music).PANTOMIMES &CHOREOGRAPHICWORKS.

Not inclusive of social dance steps or simple routines. Must be fixed byfilming, diagramming, or notation.

PICTORIAL, GRAPHIC, &SCULPTURAL WORKS

Distinction between applied art (which are protectable) v. Industrial designs (which aren_t because should get design patent). 17 U.S.C.101. Commercial work is also copyrightable unless it consists solely ofa trademark or slogan.

A picture is none less a subject of copyright that is used for anadvertisement. Copyright was not limited to the fine arts. Outside bothcopyright law and competence of courts to assess artistic merits oforiginal creations. Bliestein v. Donaldson Lithography Service

MOTION PICTURES &OTHER AUDIOVISUALWORKS

(e.g.: movies, videos, and film strips). any audio-visual display producedby a computer program is fixed in a tangible medium readable by amachine and can be copyrighted even though the computer programproducing the display is not copyrighted.

SOUND RECORDINGS Works that result from the fixation of a series of musical. Spoken or othersounds regardless of the medium in which they are embodied. (17U.S.C. 101)Prior to February 15,1972 , there was no protection for sound recordings.

After February 15, 1972 , included recorded music, voice, and soundeffects. Goldstein v. California.

ARCHITECTURALWORKS

Includes overall form of a building as well as arrangement of spaces andelements of design. Doesn_t include individual standard features likecommon windows, doors, and other staple building components. Alsoincludes architectural plans. (Architectural Works Copyright ProtectionAct of 1990).

DIRECTORIES,COMPILATIONS, &DERIVATIVE WORKS

Compilation is a work formed by collecting and assembling preexistingmaterials or by selecting, coordinating or arranging data in such a waythat the work as a whole constitutes an original work of authorship (17



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The copyright status of the written rules for a game or a system for the operation of a machine is unaffectedby the fact that those rules direct the actions of those who play the game or carry out the process. That thewords of a program are used ultimately in the implementation of a process, should in no way affect theircopyrightability.If other programs can be written or created which perform the same function as Apple_s operating systemprogram, then that program is an expression of the idea and hence copyrightable. Thus Apple seeks tocopyright only its particular set of instructions, not the underlying computer process.

Utilitarian-Nonutilitarian (Functional-Nonfunctional) Dichotomy Purely utilitarian are not subject to copyright protection . To extent not utilitarian, there is no reason to denycopyright protection.Why? Patent protection is reserved to works of utility. Because copyright protection lasts longer and isgranted on very minimal showing of originality, courts try to keep borders well-defined and clear.

Mazer v. SteinDesign of a useful article shall be considered a pictorial, graphic or sculptural work only to the extent thatsuch design incorporates features that can be identified separately from, and capable of existing independently of, the utilitarian aspects of the article.Held that the patentability of statutes, fitted as lamps or unfitted, does not bar copyright as works of art.

The copyright protects originality rather than novelty or inventionconferring only the sole right ofmultiplying copies. Thus respondents may not exclude others from using statuettes of human figures intable lamps; they may only prevent use of copies of their statuettes as such or as incorporated in someother article.Finite number of shapes as applied to functional/utilitarian nature.

As Idea And Expression Merge Or As Utility And Nonutility Narrow, Court Is Faced With Choice Between Two Decisions: Where inseparable, there could be no protection.Where so inseparable, protection should not be completely denied.

Originality

Feist Publications v. Rural Telephone Service Co.An author can claim copyright as long as created it himself, even if a thousand people created it beforehim. One man_s alone. Originality does not imply novelty; it only implies that claimant did not copy it fromsomeone else.

Work must possesses some minimal degree of creativity. Test doesn_t incorporate novelty or nonobviousnessstandard. Very low level of creativity requiredsome creative spark no matter how crude, humble orobvious.

Amsterdam v. Triangle Publications, Inc.Schroeder v. William Morrow & Co.

Originality requirement varies according to whether ideas/information are substance of underlying work.Sweat theory of copyright Demands that author demonstrate the investment of some original work in thefinal product. Directories, compilations, etc. are copyrightable only if author has invested original effort intoproduct.Originality requirement varies according to whether there is any form or style to underlying work. Whenform is minimal/absent, all that is copyrighted is information. Originality (if any) is supplied by theinvestment of original labor by he second author. Impossible to infringe directories where there is noform/style aside from raw data.

Alfred Bell & Co. v. Catalda Fine Arts, Inc.Source of subject didn_t originate with reproducer but with original author. Nevertheless, copyrightability iswell established. Copyrightability is based on fact that copyist originated reproduction, if nothing else.



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Underlying subject matter is not protected. Copyist is protected from those that may want to reproduce thereproduction instead of the original. Note, however, that copyist must demonstrate that he has contributedsomething to final reproduction. ( Originality = distinguishable or substantial variation between original and reproduction )

Financial Information, Inc. v. Moody_s Investors Service, Inc.Copyright Act does provide for protection of compilations. Here there were five only facts per card. Did

some minor research to find facts, but little independent creation involved. There was insufficient proof of independent creation to render Daily Bond Card copyrightable.

West Publishing Co. v. Mead Data Central, Inc.West publishing takes cases arranges them in geographical reporter system. Arrangement that Westproduces through process is the result of considerable labor, talent, and judgment. Arrangement easilymeets modicum of intellectual-creation standard. Protection not given to numbers for own sake, butbecause access numbers gives to West_s system of arranging otherwise uncopyrightable material .West_s case arrangements, an important part of which is internal page citations, are original works ofauthorship entitled to copyright protection.

Fixed In A Tangible Form

1976 Copyright Act protects all works of authorship from moment fixed in tangible form, be it film, paper,tape, hard disc, or any other human or machine readable format. (18 U.S.C. 101)Works is fixed in tangible medium when is sufficiently permanent or stable to permit it to be perceived,

reproduced or otherwise communicated for a period of time more than transitory duration. (18 U.S.C.101)

4. COPYRIGHT INFRINGEMENTTo Claim Infringement, There Must Be: Ownership ofCopyrightable subject matterThat the defendant has substantially copiedWithout any justifiable defense.

Ownership Of For examples of ownership, see above.Copyright registration is prima facie evidence of ownership copyright (17 U.S.C. 204).

Copyrightable Subject Matter For examples of copyrightable, subject matter see above.For examples of noncopyrightable subject matter, see Plaintiff_s Issued Copyright Invalid below.

Mirage Editions, Inc. v. Albuquerque A.R.T. Co.Protection of derivative rights extends beyond mere protection against unauthorized copying to include theright to make other versions or, perform, or exhibit the work. Appellant by stripping Naegles from book andmounting them on ceramic tile, made derivative work. First sale doctrine applies only to particular copywhich appellant has purchased and nothing else. Does not bar appellee_s infringement claims. Derivativeworks right remain s unimpaired by sale of book.



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That The Defendant Has Substantially Copied DIRECT EVIDENCE Defendant either is caught in the act or admits to copying.CIRCUMSTANTIALEVIDENCE

Copying may be inferred where defendant had both access and the workis substantially similar to copyrighted work. Sid & Marty Kroft Televisionv. McDonald_s Corp.

To prove access a plaintiff has only to establish that the defendanthad the opportunity to see the work. Kenbrooke Fabrics Inc. v.

Holland Fabrics, Inc.To prove that works are substantially similar, plaintiff must

demonstrate similarity of idea and expression. Two step process fordetermining substantial similarity.

Extrinsic test : objective test where court examines the typeof work involved, the materials and the subject matter andsetting for the object. If found similar or identical, proceed tostep #2. Kroft.Intrinsic test : whether ordinary reasonable person would failto differentiate between the two works or consider themdissimilar by reasonable observation. Narell v. Freeman.Test is satisfied if the total concept and feel of the works

are substantially similar Data East. Must dissect similaritiesrather than dissimilarities. Alioti v. R. Dakin & Co. Is theaccused works so similar to the plaintiff_s work that anordinary, reasonable person would conclude that thedefendant unlawfully appropriated the plaintiff_s protectableexpression by taking material of substance and value. Takeinto account that copyright laws preclude appropriation ofonly those elements that are protected by copyright. Atari.Idea v. Expression. Mazer.

Gaste v. Kaiserman (Feelings)Appellee composed and published song for movie. Because copiers rarely caught red-handed, copying

has traditionally been proven circumstantially by proof of access and substantial similarity. Thoughpublisher of appellee claimed he had never heard/seen song, he owned company which had contract withappellant = reasonable opportunity for access.In some cases similarities between works are so extensive and striking , without more, as to justify an inference of copying and to prove improper appropriation. Evidence as whole must preclude anyreasonable possibility of independent creation. Such existed in this case. Note that music has limitedrange and finite number of elements. Striking similarity must extend beyond themes that are trite orderived from common source.

Sheldon v. Metro-Goldwyn Pictures Corp.Real life: woman poisons lover. Cause-celebre with books published, etc. Play made based on it with keythings changed. Movie made substantially similar to play. In its broader outline, a play is nevercopyrightable. However, a play may be with out using the dialogue. Speech is only small part ofdramatists means of expression. Dramatic significance of the scenes here was recited almost to the letter.While much of picture owes nothing to the play, it is enough substantial parts were lifted .

Arnstein v. PorterTo prove infringement, plaintiff must demonstrate that defendant_s copied his work and that he improperly appropriated his expression.Plaintiff_s legally protectable interest is not his reputation as a musician but his interest in the potential financial returns from his compositions which derive from the lay public_s approbation of his efforts. Thequestion, therefore, is whether defendant took from plaintiff_s works so much of what is pleasing to the



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ears of lay listeners, who comprise the audience from which such popular music is composed, thatdefendant wrongfully appropriated something which belongs to the plaintiff.

Nichols v. Universal Pictures Corp.Ordinary, wrongful appropriation is shown by proving substantial similarity of copyrightable expression.Copyright in play cannot be limited literally to text, else plagiarist could escape by immaterial variations.Question is whether part is so substantial, and therefore not fair use of copyrighted work. When plagiarist

does not take a block out of situation but abstract of whole, decision is more troubling. In plays, greatnumber of patters on increasing generality will fit equally as more of incident is left out. There is pointwhere abstraction = idea = uncopyrightable.

Saul Steinberg v. Columbia Pictures Industries. (Moscow on Hudson)Definition of substantial similarity : whether the average lay observer would recognize the alleged copy ashaving appropriated from the copyrighted work. Posters had striking stylistic relationship. In this casewhile not all scenes identical, many could be mistaken for another. Original picture hung in artist_s office.Where striking similarity and no evidence of creation independent of the copyrighted source justifiessummary judgment.

Whelan Associates, Inc. v. Jasow Dental Laboratories

There is substantial similarity and hence infringement when there is literal copying of elements of computerprograms provided those elements are expression not ideas. However, in determining whether there issubstantial similarity in the non-literal (non code) aspects of a computer program, the courts are split onprotection for separating protectable expression from unprotectable ideas.

WHELAN ASSOCIATES, INC. v. JASLOW DENTALLABORATORIES

(SINGLE IDEA RULE)

COMPUTER ASSOCIATESINTERNATIONAL, INC. v. ALTAI, INC.

(ABSTRACTION-FILTRATION-COMPARISON TEST)

Liberal infringement standard : the purpose or function ofthe work is the work_s idea; everything that is notnecessary to the purpose or function is part of the

expression of the idea.

More conservative : views the program asa combination of constituent structural

parts and examines each part, as

opposed to the program as a whole, toseparate protectable expressions fromunprotectable ideas, and to compare theprotectable expressions with the accused

work.

Without Any Justifiable Defense For examples of defenses, see below.

5. DEFENSES TO COPYRIGHT INFRINGEMENTPlaintiff_s Issued Copyright Invalid

WORKS THAT HAVE NOT BEENFIXED IN TANGIBLE FORMTITLES, NAMES, MOTTOES,SLOGANS, WORDS ORPHRASES

e.g.: book titles, company names, group names, pen names,pseudonyms, product names, phrases, mottoes, slogans,catchwords, advertising expressions

IDEAS, METHODS,PROCEDURES, AND SYSTEMS

In no case does copyright protection for an original work ofauthorship extend to any idea, procedure, process, system,method of operation, concept, principle or discovery, regardlessof the form in which it is described, explained, illustrate orembodied in such work.(17 U.S.C. 102(b)) Apple Computer, Inc. v. Formula



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International Inc.PLOTS, THEMES, HISTORICALEVENTS

Basic plot of a story cannot be protected, only the words in whichthe story is told.

MERE FACTS & COMMONINFORMATION

e.g.: calendars, height and weight charts, rulers, or other Lists ofinformationcan own design but not information.

Sweat of brow theory : For many years courts held thatcollection that took time and labor to collect (e.g.: lists of

certain persons_ names and addresses) were entitled tocopyright protection.) See Feist Publications v. RuralTelephone Services: USSC reversed stating that collectionsof mere facts cannot be copyrighted. Collection of namesand addresses took no creativity to compile/alphabetize.Copyright only work for something that took creativity. Seealso Financial Information, Inc. v. Moody_s Investors Service,Inc.: Facts may not be copyrighted. To grant putting copyrightprotection based merely on sweat of the author_s browwould risk putting large areas of factual research off-limitsand threaten the public_s unrestrained access to information

Producers of fact works have long anticipated copying and

insert into their works phone, arbitrary elements. The blatantcopier copies these phony elements and thereafter is hardpressed to argue that he took only the unprotectedelements. Inadvertent errors of fact or typographical errorsperform a similar role in other cases.

SIMPLE RECIPES & LISTS OFINGREDIENTS

As opposed to a more detailed recipe and compilation.

FORMS, SYSTEMS, CONTESTBLANKS, AND TESTS

Where there is some creativity, may be entitled to protection.However, provided much less protection than other works. Courtsare reluctant to grant protection where work seems coexistentwith underlying idea. (e.g.: blank checks, scorecards, reportforms, order forms, address book, columnar pad, time cards,

graph paper, account books, and diaries). Baker v. SeldenHISTORY Historical facts are in the public domain and not copyrightable,even though an overall historical work is protectable. A.A.Hoehling v. Universal City Studios

SCENES A FARE Stock or standard literary devices (incidents, characters orsettings which as a practical matter, indispensable, or at leaststandard, in the treatment of a subject) are not copyrightable.Hoehling

GOVERNMENT PUBLICATIONSTYPE FACES Subject matter (alphabet) is so limited and finite as to preclude

copyrightabilityUTILITARIAN OBJECTS If object is designed merely to work in a certain way, design

cannot be copyrighted. Should be covered by patents.

Hoehling v. Universal Studios (Hindenberg)Factual information is in the public domain . Each has the right to avail himself of the facts contained inplaintiff_s book and to use such information, whether correct or incorrect in his own book. Refuses tosubscribe to the view that an author is absolutely precluded from saving time and effort by referring to andrelying upon prior published material. Thus all allegations rest upon material that is noncopyrightable as amatter of law.



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Your Use Constitutes Exception To Plaintiff_s Copyright FAIR USE Equitable rule of reason which may prevent liability for an unauthorized

use of a work (17 U.S.C. 104). (1976 codification of common law)Factors considered:

Purpose and character of use (commercial v. Nonprofit);Nature of the work ;Amount or substantiality of the portion used in relation to the

copyrighted work as a whole; andEffect of the use upon the potential market for or the value of thework. This is considered the primary factor. Stewart v. Abend.

Examples of fair and unfair use:Parody : legal to copy part of a work in a parody of it. Acuff-Rose

Music, Inc. v. CampbellLimited use : no hard and fast rules. Depends on nature of work. Even

extremely small amount can be illegal if it is heart of work Harper &Row, Publishers v. Nation Enterprises.

Comparative Advertisement : if done in manner generally accepted inthe advertising industry, does not copy essence, and has nocommercial impact. Triangle Publications, Inc. v. Knight-Ridder

Newspapers, Inc.Unpublished works : not as great a right to use unpublished works as

there is for published works.Libraries and Archives : libraries are allowed much greater rights to

make copies of copyrighted materials for their own use.Educational use : more likely to be considered fair use if it is for an

educational purpose. But see Marcus.PUBLICPERFORMANCES

Exceptions include:Face to face systemic teaching in nonprofit educational institution (all

types)Instructional broadcasting (nondramatic literary and musical works)Religious services (nondramatic literary and musical works)

Nonprofit performances with no admission fee and where no objectionfrom owner (nondramatic literary and musical works)Broadcasts in public place where no charge and no retransmission (All

types)Agricultural and horticultural fairs (nondramatic music works)Retail businesses selling records , tapes, compact disks, and sheet

music (nondramatic music works)Noncommercial broadcasts to deaf and blind (nondramatic music

works)noncommercial broadcasts to blind/ visually handicapped (dramatic

literary works 10+ years old)Social functions by veteran_s groups (nondramatic literary and musical

works)INCIDENTAL USE If copyrighted work is used incidentally in background, the use is usuallyfair.

USE WITH PERMISSION Always get it in writing and include subsequent conditions in your workCOMPULSORY LICENSE Allowed for phonorecords, juke boxes, cable systems, and

noncommercial public broadcasters.SOUND RECORDINGSMADE BEFOREFEBRUARY 15, 1972:

Prior to date couldn_t copyright recordings of sounds even thoughunderlying work could be copyrighted.

HOME VIDEO TAPING: Home taping of copyrighted programs for later use was fair use under



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copyright laws and not infringement. Sony Corporation of America v.Universal City Studios

RENTAL OFCOPYRIGHTED WORKS

Historically allowed to unlimited right to sell/rent own copy of work toothers. Limited: sound recordings by record Rental Amendment ofCopyright Act, computer programs by Computer Software rentalamendments Act.

Sony v. Universal City Studios, Inc. (the Betamax case)An action against the manufacturers of video tape recorders for contributory infringement. USSC held thattime shifting (recording program to watch it later) was fair use. As result, recorders were capable ofsubstantial noninfringing use and no contributory infringement existed. Decision does not make duplicationof copyrighted tapes legal.

Harper & Row, Publishers, Inc. v. Nation EnterprisesFact that an article is arguably news and therefore a productive use is simply one factor is a fair useanalysis. Nation_s use had not merely the incidental but the intended purpose of supplanting the copyrightholder_s commercially valuable right of first publication. Like its competitor, it was free to bid on the right ofabstracting excerpts. Fair use distinguishes between a true scholar and a chiseler who infringes a work forpersonal profit.

Pacific & Southern Co. v. DuncanSecond factor: news justification is necessarily limited.Third factor: took whole segments = entire work.Fourth factor: profit was primary motive for taping whole segments of TV news programs. Fact that stationdoesn_t currently market copies of its news programs doesn_t matter for 107 looks at potential markets.

Marcus v. RowleyThird factor: whole sale copying of copyrighted material precludes application of the fair use doctrine.Fourth factor: A finding of nonprofit educational use doesn_t automatically compel a finding of fair use.Finding that infringers copied material to use it for same intrinsic purpose for which owner did = strongindicia of no fair use. Copied material was textbooks prepared primarily for school market.

Fair use presupposes good faith : No attempt to secure plaintiff_s permission.

6. REMEDIES FOR COPYRIGHT INFRINGEMENTINJUNCTIONS Can be either preliminary or permanent (17 U.S.C. 502(b)). Court may order

the destruction of the infringing articles, as well as the plates, molds, masters,negatives, etc. Used to make the infringing materials. (17 U.S.C. 503)

DAMAGES Court may also order actual damages and any profits made by the infringer(17 U.S.C. 504(b)). Copyright statute permits one t elect to receive statutory damages (depends on whether infringement is innocent or willful).

COSTS &ATTORNEYS FEES

Award should be made routinely rather than as exception. Micromanipulator,Inc. v. Bough

CRIMINAL

SANCTIONS

In extreme situation, when the infringement is willful and for the purposes of

commercial advantage (17 U.S.C. 506(b)).BAN IMPORTATION Copyright infringement by foreign nationals which injures an efficiently rundomestic injury is an act of unfair competition (19 U.S.C. 337(b)).

Documents

Copyright Wex