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COPYRIGHTS
PROF. JANICKEFALL 2014
2014 Copyrights 2
CONSTITUTIONAL POWER
• ART. I, SEC. 8 (8):
SCIENCE USEFUL ARTS
AUTHORS INVENTORS
WRITINGS DISCOVERIES
2014 Copyrights 3
REQUISITES FOR PROTECTION:
• ORIGINALITY (i.e. NOT COPIED)
• WORK OF AUTHORSHIP
• FIXATION
2014 Copyrights 4
FIXATION REQUIREMENT
• WORK MUST BE FIXED IN A TANGIBLE MEDIUM OF EXPRESSION (§ 102)
• MORE THAN TRANSITORY TIME (§101)
• HENCE, NOT COPYRIGHTED: – MY CLASSES (WITH NO RECORDING)– PASTOR’S UNWRITTEN SERMON
2014 Copyrights 5
WORKS COVERED• LITERARY (INCL. SOFTWARE)• MUSICAL (INCL. WORDS)• DRAMATIC (INCL. MUSIC)• PANTOMIME / CHOREOGRAPHY• PICTORIAL, GRAPHIC,
SCULPTURAL• MOTION PICTURES AND OTHER A/V• ARCHITECTURAL WORKS
2014 Copyrights 6
WORKS COVERED
• SOUND RECORDINGS (AS SEPARATE WORKS)– RECORD USUALLY HAS MORE THAN
ONE “WORK” ON IT: • THE RECORDING WORK, AND • THE UNDERLYING (E.G., MUSIC) WORK
(WHICH COULD IN TURN BE BASED ON A POEM)
• THE ARRANGEMENT OF THE MUSIC
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– SOMETIMES NOT CLEAR WHO THE “AUTHOR” OF THE RECORDING WORK (“SOUND RECORDING”) IS:
• SINGER, BAND, STUDIO ENGR.?
• USUALLY HANDLED BY CONTRACT
– COPYRIGHT IS OWNED BY THE AUTHOR, UNTIL ASSIGNED
2014 Copyrights 8
GOVERNMENT WORKS
• NO COPYRIGHT IF IT IS CREATED BY U.S. GOVERNMENT ACTIVITY §105
• BUT U.S. CAN ACQUIRE OTHERS’ COPYRIGHTS IN THEIR WORKS
2014 Copyrights 9
ORIGINALITY REQUIREMENT (§ 102)
• NOT HARD TO MEET
• SLOGAN MAY BE TOO SHORT (TRY TRADEMARK)
• DOESN’T MEAN NEW
• TWO PEOPLE THINK OF THE SAME POEM → TWO VALID COPYRIGHTS
2014 Copyrights 10
ORIGINALITY REQUIREMENT (§ 102)
• EXAMPLE: TAKING A PHOTOGRAPH OF BUILDING
• EXAMPLE: PAINTER COPYING THE MONA LISA [NO PERMISSION NEEDED IN THIS INSTANCE, BECAUSE ORIGINAL WORK IS VERY OLD, IN THE PUBLIC DOMAIN]
2014 Copyrights 11
WHAT IS NOT ENOUGH
• WHITE PAGES OF PHONE BOOK (FEIST
PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO., 499 U.S. 340
(1991)
2014 Copyrights 12
IDEA-EXPRESSION DICHOTOMY
• THE CENTRAL DOCTRINE OF COPYRIGHT LAW (§ 102(b))
• NO PROTECTION FOR IDEAS
– OTHERS CAN TAKE IT FREELY, USE IT IN THEIR OWN ORIGINAL WORKS
• ONLY PROTECTION IS FOR HOW YOU EXPRESS THE IDEA
2014 Copyrights 13
IDEA-EXPRESSION DICHOTOMY
• EXAMPLE: I WRITE A BOOK DESCRIBING AND DISCUSSING 10 PHYSICS EXPERIMENTS– YOU CARRY OUT EACH EXPERIMENT
TO THE LETTER -- NOT AN INFRINGEMENT
– YOU PHOTOCOPY THE BOOK – IS AN INFRINGEMENT
2014 Copyrights 14
COMPILATIONS
• CAN BE “ORIGINAL” WORKS; COPYRIGHTED UPON FIXATION, IF THE PIECES WERE LAWFULLY TAKEN (§ 103(a))
• PROTECTION EXTENDS ONLY TO THE SELECTION OR ARRANGEMENT (I.E., SEQUENCING) (§ 103(b))
2014 Copyrights 15
DERIVATIVE WORKS
• PERHAPS THE MOST POWERFUL AND VALUABLE OF ALL COPYRIGHT RIGHTS
• EXAMPLES:– SCREENPLAY FROM A BOOK (2 ©s)– TRANSLATION OF A NOVEL (2 ©s)– ORCHESTRATION OF A SONG/ARIA (e.g.,
Liebestod from Tristan und Isolde)
2014 Copyrights 16
WHERE THE UNDERLYING WORK IS STILL UNDER COPYRIGHT
• DERIVATIVE WORK IS MADE WITHOUT PERMISSION OF COPYRIGHT OWNER: IS AN INFRINGEMENT
• DERIVATIVE WORK IS MADE WITH PERMISSION: IS A SECOND COPYRIGHTED WORK
2014 Copyrights 17
EXAMPLE
• A COPYRIGHTED PLAY
• SOMEONE WITH PERMISSION MAKES A MOVIE
• A SECOND COPYRIGHT EXISTS, OWNED BY THE MOVIE-MAKER
2014 Copyrights 18
• SOMEONE COPYING THE MOVIE INFRINGES BOTH COPYRIGHTS
• FACES TWO SUITS
2014 Copyrights 19
WHEN IDEA (UNPROTECTABLE) AND EXPRESSION
(PROTECTABLE) COLLIDE
• SOMETIMES HARD TO TELL WHICH IS WHICH
• CALLED “MERGER”
• IN THAT CASE, PROTECTION FAILS
BAKER v. SELDEN, 101 U.S. 99 (1879)
CASES
• BAKER v. SELDEN
• LAUREYSSENS
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RIGHTS
• ARE DIVISIBLE FOR LICENSING OR ASSIGNMENT
• THERE ARE NO REDUNDANCIES
• >>>
2014 Copyrights 22
RIGHTS
• MAKE COPIES (§106(1))
• CREATE DERIVATIVE WORKS (§106(2))
– VERY POWERFUL, ESP. WHEN INFRINGEMENT CLAIM FAILS
– APPLIES EVEN IF DERIV. WORK IS ORIGINAL AND WOULD BE COPYRIGHTED
• DISTRIBUTING COPIES PUBLICLY, EVEN IF YOU DIDN’T MAKE THEM (§106(3))
2014 Copyrights 23
RIGHTS
• PERFORM THE WORK PUBLICLY §106(4)
• DISPLAY THE WORK PUBLICLY §106(5)
– BUT OWNER OF THE ACTUAL ARTICLE (e.g. PAINTING) OR COPY CAN DISPLAY PUBLICLY OR AUTHORIZE OTHERS (MUSEUM) TO DO SO§109(c)
2014 Copyrights 24
A CLOSE CALL?
• SCRIPT FOR A PLAY
• PUBLIC PERFORMANCE IS INFRINGEMENT
• BUT, CARRYING OUT PHYSICS EXPERIMENTS IS NOT
• ??? WHY
2014 Copyrights 25
“MORAL RIGHTS”
• WE HAVE THEM, IN COPYRIGHT LAW, ONLY FOR FINE ART WORKS, AND WHERE NO MORE THAN 200 NUMBERED COPIES ARE MADE BY THE “AUTHOR”:– PAINTINGS– DRAWINGS– PRINTS– STILL PHOTO PRINTS– SCULPTURE CASTINGS
2014 Copyrights 26
“MORAL RIGHTS”
• ATTRIBUTION §106A (a)(1)
– INCLUDES RIGHT OF NON-ATTRIBUTION IF IT’S NOT YOURS
– DON’T SAY IT’S MINE IF YOU’VE CHANGED IT IN ANY WAY
• INTEGRITY §106A (a)(3)
– DON’T CHANGE MY WORK
2014 Copyrights 27
“MORAL RIGHTS”
• ARE NOT ASSIGNABLE §106A (e)
• TERM: LIFE §106A(d)
2014 Copyrights 28
“MORAL RIGHTS”
• ARE BIG IN OTHER COUNTRIES• IN U.S., PROTECTION BY
COPYRIGHT LAW IS LIMITED TO WORK OF VISUAL ART – PAINTINGS, DRAWINGS, PRINTS,
SCULPTURES– SINGLE, OR LIMITED EDITION OF 200
OR FEWER, SIGNED AND NUMBERED
2014 Copyrights 29
“MORAL RIGHTS”
• FOR OTHER TYPES OF WORKS, AUTHORS USE § 43(a) OF THE LANHAM ACT [15 U.S.C. § 1125(a)], SUING FOR UNFAIR COMPETITION
• BIG PUSH FOR EXTENSION OF MORAL RIGHTS, SINCE NO COMPETITION HARM IS NEEDED
2014 Copyrights 30
THE INFRINGING CONTENT:
• EITHER: COPIED A SUBSTANTIAL PORTION OF PROTECTED MATTER FROM THE WORK
• OR: DID NOT EXACTLY COPY, BUT PRODUCED A SUBSTANTIALLY IDENTICAL WORK AFTER ACCESS
CASE
• PARAMOUNT
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SUBJECT TO CERTAIN EXEMPTIONS, THE
INFRINGING ACTS ARE:
• MAKING COPIES
• MAKING A DERIVATIVE WORK
• DISTRIBUTING COPIES PUBLICLY
• PERFORMING WORK PUBLICLY
• DISPLAYING WORK PUBLICLY§106
2014 Copyrights 33
FAIR USE DEFENSE
• COULD BE FOR ANY TYPE OF WORK §107
• PURPOSE IS JUST A THRESHOLD – USE LEVEL MUST STILL BE “FAIR”
2014 Copyrights 34
THE FAIR-USE FACTORS:
• PURPOSE AND CHARACTER OF USE– AN ALTRUISTIC OR SOCIALLY DESIRABLE
PURPOSE HELPS– BUT $$ DOESN’T CREATE PRESUMPTION OF
UNFAIRNESS
• NATURE OF THE COPYRIGHTED WORK– COPYING MORE LIKELY TO BE FAIR IF FROM
A SCIENCE HYPOTHESIS THAN FROM A SCULPTURE
2014 Copyrights 35
THE FAIR-USE FACTORS:
• AMOUNT AND SUBSTANTIALITY OF THE PART TAKEN
• IMPACT ON POTENTIAL MARKET FOR THE ORIGINAL WORK– SEEMS TO BE THE MOST IMPORTANT
FACTOR BY FAR, IN ACTUAL PRACTICE
2014 Copyrights 36
• THERE IS NO CONCEPT OF FAIR USE AKIN TO “FAIR COMMENT” IN DEFAMATION LAW
• ORIGINAL EXPRESSION IN A BOOK BY OR ABOUT A FAMOUS PERSON IS ENTITLED TO FULL PROTECTION– RANGE OF FAIR USE MAY BE A LITTLE
LARGER
Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)
CASE
• HARPER & ROW
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THE PROBLEM OF PARODY AS FAIR USE
• PARODY IS ENCOURAGED FOR POLICY REASONS, EVEN IF IT HURTS MARKET FOR TARGET WORK
• MUST TAKE SOME OF TARGET, TO IDENTIFY IT
• TAKING EXCESSIVE AMOUNT IS APT TO BE NOT FAIR
Fisher v. Dees, 794 F. 2d 432 (9th Cir. 1986)
CASES
• FISHER v. DEES
• SEGA v. ACCOLADE
• TY INC.
• MGM v. GROKSTER2014 Copyrights 39
2014 Copyrights 40
MANY SPECIAL EXEMPTIONSFROM BASIC INFRINGEMENT
RULES
• IN ADDITION TO FAIR USE, THE STATUTE PROVIDES VARIOUS NARROWLY TAILORED SPECIAL EXEMPTIONS FROM INFRINGEMENT:– LIBRARIES– CLASSROOM INSTRUCTION– RELIGIOUS SERVICES– STATE FAIRS
2014 Copyrights 41
EXEMPTION: RIGHT TO SELL YOUR OWN
COPY
• APPLIES TO A LAWFUL COPY § 109(a)
• CAN ALSO RENT OUT, EXCEPT FOR PHONORECORDS OR COMPUTER PROGRAMS §109(b)
– THESE HAD A BAD HISTORY OF PIRACY, LEADING TO CONG. RESTRICTIONS
2014 Copyrights 42
EXEMPTION: HOME-SIZE RADIO/TVBROADCAST PUBLICLY PLAYED AT
PUBLIC BUSINESS LOCATION
• PLAYING RADIO AND TV BROADCASTS IN STORES, RESTAURANTS, BARS– CAN’T HAVE ANY CHARGE FOR THE
TRANSMISSION– USUALLY MUST HAVE “PRIVATE HOMES”
TYPE GEAR – MAY BE RESTRICTED TO NON-MUSICAL
WORKS [UNCLEAR TODAY]§110(5)(A)
2014 Copyrights 43
CAVEAT
• NO EXEMPTION FOR PLAYING RECORDINGS AT A PUBLIC PLACE, WITHOUT PERMISSION
• ONLY BROADCASTS
2014 Copyrights 44
EXEMPTION: CERTAIN ACTS RE. COMPUTER
PROGRAMS
• NOT AN INFRINGEMENT TO: – MAKE A COPY IN ORDER TO USE THE
PROGRAM– MAKE AN ARCHIVAL COPY
§117(a)
2014 Copyrights 45
INCORPORATING THE WORK INTO A USEFUL
ARTICLE
• REMAINS COPYRIGHTED See, e.g., Mazer v. Stein, 347 U.S. 201 (1954) (glass figurines of dancers, used as lamp bases).
2014 Copyrights 46
COPYRIGHT IN SOUND RECORDINGS
(PERFORMERS’ RIGHTS)• MORE LIMITED THAN COPYRIGHT IN THE
UNDERLYING WORK (MUSIC)• NO RIGHT TO PROHIBIT PERFORMANCE OF
THE RECORDING (i.e., BY PLAYING THE RECORD) §114(a)– EXCEPT: DIGITAL AUDIO
• RECALL: ANY PUBLIC PERFORMANCE [PLAYING THE RECORD IN PUBLIC PLACE] WOULD INFRINGE THE COMPOSER’S PERFORMANCE RIGHT
2014 Copyrights 47
COPYRIGHT IN SOUND RECORDINGS
(PERFORMERS’ RIGHTS)
• SOUND RECORDING COPYRIGHT IS LIMITED TO PREVENTING MECHANICAL REPRODUCTION OF THE RECORDING OR PORTIONS THEREOF
• IMITATING THE RECORDING’S STYLE IS NOT AN INFRINGEMENT OF SOUND RECORDING COPYRIGHT
§114(b)
2014 Copyrights 48
COMPULSORY LICENSE TO MAKE SOUND RECORDING OF
ANOTHER’S WORK
• RIGHT TO MAKE A SOUND RECORDING IS INITIALLY RESERVED TO THE COMPOSER
• HOWEVER, ONCE SHE ALLOWS SOMEONE TO MAKE AND DISTRIBUTE A RECORDING IN U.S., THE SITUATION CHANGES >>>
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• ANYONE ELSE CAN THEN PERFORM THE WORK PRIVATELY AND RECORD HER OWN PERFORMANCE §115(a)(1)
• CAN SELL THE RECORDS
• MUST NOTIFY THE COPYRIGHT OWNER
• MUST PAY A STATUTORY ROYALTY– ABOUT 1.5 CENTS PER MINUTE OF
PLAYING TIME, PER RECORD
2014 Copyrights 50
CAVEATS:
• NO COMPULSORY LICENSE TO DO A PUBLIC PERFORMANCE AND RECORD IT
• NO COMPULSORY LICENSE TO RECORD ANYONE ELSE’S RENDITION OF THE WORK
2014 Copyrights 51
A NOTE ON ARCHITECTURAL WORKS:
• NOT AN INFRINGEMENT TO TAKE A PICTURE OF IT, OR MAKE A PAINTING, ETC., IF THE WORK IS IN PUBLIC VIEW § 120
• [NOTE: BOTH WOULD NORMALLY BE FORBIDDEN DERIVATIVE WORKS]
2014 Copyrights 52
REMEDIES
• INJUNCTION §502
• DAMAGES §504(a), (b)
• AND D’s PROFITS §504(a), (b)
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REMEDIES
• IMPOUNDING– DURING LITIGATION §503(a)
• DESTRUCTION– AFTER TRIAL §503(b)
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STATUTORY DAMAGES
• STATUTORY DAMAGES ARE AVAILABLE AS ALTERNATIVE TO ACTUAL DAMAGES
• $750 – $30,000 PER WORK §504, 505
• HIGHER IF WILLFUL (TO $150,000)• AVAILABLE ONLY IF PROMPT
REGISTRATION OCCURRED §412
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ATTORNEY FEES
• IN COURT’S DISCRETION, AS PART OF “COSTS”
§ 505
• PROMPT REGISTRATION NEEDED
2014 Copyrights 56
REGISTRATION
• IS NOW PERMISSIVE• NEEDED FOR ATTORNEY FEES AND
STATUTORY DAMAGES §412
• NEEDED BEFORE SUIT CAN BE COMMENCED §411
• NO OTHER MAJOR LEGAL SIGNIFICANCE
• GREAT PRACTICAL SIGNIFICANCE
CASE
• ARTHUR RUTENBERG
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OWNERSHIP
• INITIALLY IS IN THE “AUTHORS”
• FOR WORK MADE FOR HIRE, HIRER IS THE AUTHOR
• >>>
2014 Copyrights 59
WHAT IS A “WORK MADE FOR HIRE”?
• A WORK:– BY AN EMPLOYEE; OR – BY WRITTEN COMMISSION, BUT ONLY
IF IN THE NINE CLASSES OF WORKS §101
– IN OTHER SITUATIONS, NEED A SEPARATE ASSIGNMENT
• THE UNDERLYING CONTRACT TYPICALLY PROVIDES FOR LATER EXECUTION OF SUCH A DOCUMENT
2014 Copyrights 60
DURATION OF COPYRIGHT
• NORMALLY, LIFE OF AUTHOR + 70 YEARS §302(a)
• IF MULTIPLE AUTHORS, LAST TO DIE + 70 YEARS §302(b)
• WORKS MADE FOR HIRE: 95 YEARS FROM 1ST PUBLICATION OR 120 YEARS FROM CREATION [EARLIER GOVERNS] §302(c)
2014 Copyrights 61
NOW YOU SEE IT, NOW YOU DON’T:
REVOCATION/TERMINATION OF COPYRIGHT
ASSIGNMENTS/LICENSES
• STATUTE CALLS IT “TERMINATION” §203
• IT’S REALLY A STATUTORY RIGHT TO RENEGE ON AN AGREEMENT
2014 Copyrights 62
• POWER OF TERMINATION EXISTS AS TO LICENSES AS WELL
• DESPITE LICENSE TERMS
• NO REASONS NEEDED IN EITHER CASE
• NO SUCH POWER OVER WORKS MADE FOR HIRE
2014 Copyrights 63
TERMINATION RIGHT
• IS NOT PASSABLE BY WILL
• GOES TO PRESCRIBED RELATIVES
§203(a)(2)
2014 Copyrights 64
TERMINATION OF GRANTS FOR NEWER WORKS
• FOR WORKS CREATED AFTER 1977
2014 Copyrights 65
HOW IT WORKS• OCCURS IN A WINDOW: 35-40 YRS.
AFTER THE GRANT* TO BE TERMINATED
• MUST GIVE NOTICE OF TERMINATION 2-10 YRS. BEFORE IT IS TO HAPPEN
• ∴ FOR EARLIEST POSSIBLE TERMINATION, MUST SERVE NOTICE BETW. 25 AND 33-YRS. AFTER GRANT
* = ASSIGNMENT OR LICENSE
2014 Copyrights 66
MORE ABOUT TERMINATION
• TERMINATION RIGHT IS NOT ASSIGNABLE AND CANNOT BE CONTRACTED AWAY
• A GRANT NOTICED FOR TERMINATION CANNOT BE “RENEWED” UNTIL AFTER THE TERMINATION HAPPENS §203(b)(4)