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COPYRIGHTS
PROF. JANICKEJULY 2012
2012 Copyrights 2
CONSTITUTIONAL POWER
• ART. I, SEC. 8 (8):
SCIENCE USEFUL ARTS
AUTHORS INVENTORS
WRITINGS DISCOVERIES
2012 Copyrights 3
REQUISITES FOR PROTECTION:
• ORIGINALITY (i.e. NOT COPIED)
• WORK OF AUTHORSHIP
• FIXATION
2012 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
2012 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
2012 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
2012 Copyrights 7
– 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
2012 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
2012 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
2012 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]
2012 Copyrights 11
WHAT IS NOT ENOUGH
• WHITE PAGES OF PHONE BOOK (FEIST
PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO., 499 U.S. 340
(1991)
2012 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
2012 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
2012 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))
2012 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)
2012 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
2012 Copyrights 17
EXAMPLE
• A COPYRIGHTED PLAY
• SOMEONE WITH PERMISSION MAKES A MOVIE
• A SECOND COPYRIGHT EXISTS, OWNED BY THE MOVIE-MAKER
2012 Copyrights 18
• SOMEONE COPYING THE MOVIE INFRINGES BOTH COPYRIGHTS
• FACES TWO SUITS
2012 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)
2012 Copyrights 20
RIGHTS
• ARE DIVISIBLE FOR LICENSING OR ASSIGNMENT
• THERE ARE NO REDUNDANCIES
• >>>
2012 Copyrights 21
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))
2012 Copyrights 22
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)
2012 Copyrights 23
A CLOSE CALL?
• SCRIPT FOR A PLAY
• PUBLIC PERFORMANCE IS INFRINGEMENT
• BUT, CARRYING OUT PHYSICS EXPERIMENTS IS NOT
• ??? WHY
2012 Copyrights 24
“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
2012 Copyrights 25
“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
2012 Copyrights 26
“MORAL RIGHTS”
• ARE NOT ASSIGNABLE §106A (e)
• TERM: LIFE §106A(d)
2012 Copyrights 27
“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
2012 Copyrights 28
“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
2012 Copyrights 29
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
2012 Copyrights 30
SUBJECT TO CERTAIN EXEMPTIONS, THE
INFRINGING ACTS ARE:
• MAKING COPIES
• MAKING A DERIVATIVE WORK
• DISTRIBUTING COPIES PUBLICLY
• PERFORMING WORK PUBLICLY
• DISPLAYING WORK PUBLICLY§106
2012 Copyrights 31
FAIR USE DEFENSE
• COULD BE FOR ANY TYPE OF WORK §107
• PURPOSE IS JUST A THRESHOLD – USE LEVEL MUST STILL BE “FAIR”
2012 Copyrights 32
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
2012 Copyrights 33
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
2012 Copyrights 34
• 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)
2012 Copyrights 35
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)
2012 Copyrights 36
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
2012 Copyrights 37
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
2012 Copyrights 38
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)
2012 Copyrights 39
CAVEAT
• NO EXEMPTION FOR PLAYING RECORDINGS AT A PUBLIC PLACE, WITHOUT PERMISSION
• ONLY BROADCASTS
2012 Copyrights 40
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)
2012 Copyrights 41
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).
2012 Copyrights 42
COPYRIGHT IN SOUND RECORDINGS
• MORE LIMITED THAN COPYRIGHT IN THE UNDERLYING WORK (MUSIC)
• NO RIGHT TO PROHIBIT PERFORMANCE [BY PLAYING THE RECORD] §114(a)
– EXCEPT: DIGITAL AUDIO
• RECALL: ANY PUBLIC PERFORMANCE [PLAYING THE RECORD] WOULD INFRINGE THE COMPOSER’S PERFORMANCE RIGHT
2012 Copyrights 43
COPYRIGHT IN SOUND RECORDINGS
• SOUND RECORDING COPYRIGHT IS LIMITED TO PREVENTING MECHANICAL REPRODUCTION OF THE RECORDING OR PORTIONS THEREOF
• IMITATING OF STYLE IS NOT AN INFRINGEMENT OF SOUND RECORDING COPYRIGHT
§114(b)
2012 Copyrights 44
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 >>>
2012 Copyrights 45
• 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
2012 Copyrights 46
CAVEATS:
• NO COMPULSORY LICENSE TO DO A PUBLIC PERFORMANCE AND RECORD IT
• NO COMPULSORY LICENSE TO RECORD ANYONE ELSE’S RENDITION OF THE WORK
2012 Copyrights 47
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]
2012 Copyrights 48
REMEDIES
• INJUNCTION §502
• DAMAGES §504(a), (b)
• AND D’s PROFITS §504(a), (b)
2012 Copyrights 49
REMEDIES
• IMPOUNDING– DURING LITIGATION §503(a)
• DESTRUCTION– AFTER TRIAL §503(b)
2012 Copyrights 50
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
2012 Copyrights 51
ATTORNEY FEES
• IN COURT’S DISCRETION, AS PART OF “COSTS”
§ 505
• PROMPT REGISTRATION NEEDED
2012 Copyrights 52
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
2012 Copyrights 53
OWNERSHIP
• INITIALLY IS IN THE “AUTHORS”
• FOR WORK MADE FOR HIRE, HIRER IS THE AUTHOR
• >>>
2012 Copyrights 54
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
2012 Copyrights 55
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)
2012 Copyrights 56
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
2012 Copyrights 57
• 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
2012 Copyrights 58
TERMINATION RIGHT
• IS NOT PASSABLE BY WILL
• GOES TO PRESCRIBED RELATIVES
§203(a)(2)
2012 Copyrights 59
TERMINATION OF GRANTS FOR NEWER WORKS
• FOR WORKS CREATED AFTER 1977
2012 Copyrights 60
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
2012 Copyrights 61
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)