I. Requirements for Obtaining Copyright

a. Constitutional source of copyrighti. Article I, §8, cl.8 : Congress is given the power to promote the progress of science

and useful art by granting an exclusive right for a limited time to authors and inventors for their works and discoveries

1. the following items are appropriate subject matter for copyright (BUT this list is not exhaustive)

a. literary worksb. musical works (including any accompanying words)c. dramatic works (including any accompanying music)d. pantomimes and choreographic workse. pictorial, graphic, and sculptural worksf. motion pictures & other audiovisual worksg. Sound recordingsh. Architectural worksi. Compilations of facts may be protected

2. The following items are inappropriate subject matter for copyrighta. Ideas

i. Stock characters/plotb. Proceduresc. Processesd. Methods of Operatione. Concepts or principlesf. Discoveryg. Blank forms (unless there is text integrated with the blank form

which gives it enough explanatory force to render it protectible- Bibbero)

h. Factsi. Short phrases (happy birthday)

b. §102: copyright protection is extended to:i. works of original authorship

ii. Fixed in a Tangible Medium of Expression, now known or later developediii. From which the work can be perceived, reproduced, otherwise communicated,

either directly or with the aid of a machineiv. Federal protection attaches the minute the work is original and fixed,

automatically.

c. Fixed in a Tangible Medium of Expressioni. Work must be embodied in a copy or a phonorecord by or under the authority of

the author 1. copy: a material object (aside from a phonorecord) by which a work is

fixed by any method now known or later developed from which the work can be perceived, reproduced, or otherwise communicated, either directly or w/the aid of a machine

2. phonorecord: material object in which sounds, other than those accompanying a motion picture or audiovisual work, are fixed by any method now known or later developed, from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine

ii. This must be sufficiently permanent or stable (so as to permit it to be perceived, for a period of more than transitory duration)

iii. Note : must distinguish between ideas and expressions- can’t copy a tangible work, but you can copy the idea behind it (see below)

d. Originality i. Work must be independently created by the author

1. this does not require the work to be novelii. Work must possess some minimal degree of creativity

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1. this is a very low standard- no matter how crude, humble or obvious2. Creativity must be inherent in the new work:

a. the author must contribute more than a trivial variation of a previous work. The work must be recognizably his own

3. The following DO NOT possess the requisite level of creativitya. Brief words, phrases, titles, slogans, familiar symbols & designsb. Forms of consideration only created for functional consideration

(play, stop, eject)c. Mere variations of typographic ornamentation, lettering or coloringd. Mere listing of ingredients or contents

e. Idea/Expression Dichotomyi. §102(b) says that copyright protects the expression of an idea, but not the idea

itself1. E.g. there is a clear distinction between a book as an object, and what the

book seeks to describe or explain. Copyright protection can extend to the book itself- the right to print and publish it. It will not prevent the right of others to use the method and sell books that employ the same method (Baker v. Seldon)

ii. Merger Doctrine (defense to infringement)1. protects ideas from private ownership2. when the expression is essential to the statement of the idea, the

expression will never be protected3. Remember, Merger is used to determine infringement, NOT if the work is

copyrightable to begin with. 4. Different categories of ideas help to decide when to apply the Merger

Doctrinea. Ideas that undertake to advance the understanding of phenomena

or the solution of problemsi. It is more important to keep these ideas free

ii. E.g. idea to get a lightweight vehicle to Jupiter via Saturn b. Ideas that are infused with the author’s taste or opinion

i. These don’t materially assist the understanding of future thinkers, so its easier to protect them

ii. E.g. pastrami tastes better than corned beef5. Step by step analysis of merger doctrine

a. Identify the idea that the work expressesb. Attempt to distinguish that idea from the author’s expression of it

i. If the court concludes that the idea & its expression are inseparable, then the MD applies & © extends to neither

ii. If the court can distinguish the idea from the expression, then the expression will be protected, b/c the fact that one author has copyrighted one expression of that idea will not prevent others from creating and copyrighting their own expressions of the same idea, b/c there is more than one way to express the idea

c. Apply the merger doctrine when its more beneficial to the public interest to have the body of work unprotected

d. But, when the public is not benefited as much as the intention of the Act is destroyed, refuse Merger Doctrine argument

i. Categorize the idea very generally & then you are free to protect the more detailed ideas as expression.

II. Murky Copyrightable Subject Matter

a. Facts and Compilationsi. Facts are NOT copyrightable

1. Factual works (e.g. historical novels, etc.) are protected only in their fixed expression. The underlying theories (interpretation of the facts) are not protectible; they are the equivalent of ideas.

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2. Only expression of theories, and selection, coordination and arrangement are a source of originality and require protection (Nash v. CBS)

a. This doesn’t apply to fictional works since they are not factually based.

3. Once the creator represents his work as factual, he is estopped from treating it as original and creative, even if it is found not to be true.

4. News events are not copyrightable, but analytical reports based on the news might be- must differentiate between the substance of the information contained in the report, and the event itself.

ii. Compilations , including compilations of facts MAY be protected1. As long as they are fixed and original2. A compilation is a work formed by the collection and assembling of

preexisting material or data that are selected, coordinated, or arranged in such a way that the work as a whole constitutes an original work of authorship

a. a compilation must result from a process of selecting & organizing previously existing material- it doesn’t matter if that material were subject to copyright or not

iii. there are 2 subcategories of compilations1. anthologies

a. collections of material, each one of which could independently be thought of as a copyrightable work,

i. e.g. book of American poetry, issue of law review2. data compilations

a. collection or assembly of material that is not independently copyrightable,

i. e.g. directory, table, almanac

iv. 3 elements to be met for compilation to be protected 1. collection and assembly of preexisting material, facts or data,2. selection, coordination, or arrangement of these materials3. creation, by virtue of this selection, of an original work of authorship

a. Selection : what facts to includeb. Arrangement/Coordination : how to organize the facts

i. Originality can be found in the selection & ordering of facts- just b/c arrangement responds logically to needs of the market doesn’t negate. Use of logic itself is independent creation (CCC)

ii. But, some courts won't assign originality to a selection or arrangement that is entirely “typical” or “practically inevitable”

1. in these situations, use Merger Doctrine4. If the compilation is copyrightable, the copyright protection only extends

to those original components of the compilation, NOT to the facts themselves (§103)

v. Rationale: the value to consumers is in the combination of its individual parts1. The individual parts alone are not copyrightable b/c they lack sufficient

originality vi. Look at the work as a whole, combination of its components, in order to decide if

it can be protected1. To get copyright for a basic work, must show someone else copied the

aggregate of your work (not one single element or component)- if a basic work got protection, it would be “thin” (i.e. only an exact replicate of all the elements of the first work)

a. E.g. greeting cards, where text alone is too commonplace to be protected, but when considered with artwork, & arrangement (as a whole) will be considered original enough to be protected

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b. E.g. “For Rent” signs sold as a packet of 5 do not warrant copyright protection b/c they are not independent works, and they exist separately from their components. They are 5 individual works that are not protected separately.

2. Circuit Split on whether page breaks inserted into cases are copyrightable as compilations or not

a. 8th circuit: says its copyrightablei. but it seems that they focus too much on sweat of the brow-

and it might have been overruled by Feistii. Sweat of the Brow: theory that someone should be given ©

in a work that they labored over (put a lot of time, effort, resources into the work, but not technically covered by the rules, b/c not original)

b. 2nd circuit: says its not- lacks the requisite originality

b. Derivative Worksi. §101: a work based on one or more pre-existing works such as:

1. translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted based on an underlying work

a. a work consisting of editorial revisions, annotations, elaborations, or other modifications, which as a whole represent an original work of authorship is a derivative work

ii. A derivative work may be eligible for © if 1. It is taken from a pre-existing work in the public domain2. It is taken from a pre-existing © work with a license (need permission

from © owner)a. 103(a) if you make a DW from a © work & don’t obtain a license,

not only are you infringing, but you cannot get a © in your work at all

b. Remember, even if the DW falls into the public domain, it may be the case that the underlying work is still protected. So, use of the DW will still constitute infringement.

iii. To determine if a work is a derivative work, and not a reproduction or copy 1. Must be at least some substantial variation, not trivial,2. Focus on the variation in the derivative from the original work3. The standard of originality is higher for derivative works than it is for an

“original work”a. Policy:

i. provides more incentive for originality b/c can't get the work copyrighted unless its substantially different from the original

ii. when another party comes along & makes a derivative work, the courts can tell whether he is copying from the original, or from some other derivative work that is already out there b/c this first derivative work has substantial variation from the original to easily distinguish it (Gracen)

iii. to the extent that some of the claimed originality is the byproduct of functional considerations, upholding a © would remove the work from the public domain b/c other derivative work authors would not be able to use those functional considerations in their derivative works

1. e.g. shouldn’t give a copyright based on a functional consideration like material, b/c that means that no one else could make the product using that material.

b. Great skill & exactitude in producing a scaled reproduction of a great work may be afforded © protection even though its not technically original or different. (Alva Studios)

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c. Pictorial, Graphic, and Sculptural Worksi. §101: 2 and 3 dimensional works of fine, graphic and applied art, photographs,

prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans

1. include works of artistic craftsmanship insofar as their form, but not their mechanical or utilitarian aspects

2. the design of a useful article shall be considered a pictorial, graphic or sculptural work only if and only to the extent that such design incorporates pictorial, graphic or sculptural features that can be identified separately from and are capable of existing independently of the utilitarian aspects of the articles

3. a useful article is a. one which has an intrinsic utilitarian function, that is not merely to

portray the appearance of the article or to convey informationii. this means that the design of a useful article is only sculptural & thus

copyrightable if the design can be separated from its useful articleiii. Step by step analysis for useful articles

1. Is the article useful?a. If no, then its not copyrightableb. If yes, go to 2

2. Does the article have physically or conceptually separable aesthetic features?

a. The statutory separability requirement confines © protection to those aspects of the design that exist apart from its utilitarian value and that could be removed w/out reducing the usefulness of the item

b. Pictorial, graphic, or sculptural features incorporated in the design of a useful article are Conceptual Separable if they can stand on their own as a work of art traditionally conceived & if the useful article that embodies it would be equally useful w/out it

i. Ask not whether the features to be © could be sliced off for separate display, but whether one could conceive of this process

c. There are 6 tests to determine separability i. Primary aspect test:

1. Whether the primary aspect of the article is aesthetic or utilitarian

a. belt buckles were determined to be conceptually separable sculptural elements b/c people wore them for ornamentation on parts of the body other than the waist

ii. Use test: 1. what is the object most often used for- art, or utility?

iii. Market test: 1. if the object were stripped of its utilitarian capacity,

would it still have a market as art?iv. The wholly unnecessary test:

1. if the features of the article are necessary to the utilitarian function of the article, they are not separable; the aesthetic features have to be wholly unnecessary to the functioning of the article to be copyrightable

v. Newman’s Dissent in Barnhardt: 1. the article must stimulate in the mind of the beholder

a concept that is separate from the concept evoked by its utilitarian function to be considered conceptually separable and therefore copyrightable

a. but this isn't law!b. e.g. is it a chair, or a sculpture?

vi. Brandir test:

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1. what the artist’s motivation was in making the work: aesthetic or functional?

d. If no, its not copyrightablee. If yes, copyright extends to the separate features (not to the whole

article)iv. Original works of art do not cease to be such when they are embodied in useful

articles, 1. so for this purpose, the following factors make no difference whatsoever

a. The potential availability of design patent protection for the same subject matter

b. The intention of the artist as to commercial application & mass production of the design

c. The aesthetic value of the deign or its total lack thereofd. The fact that the design, in its useful embodiment, was mass

produced and merchandised commercially, on a nationwide scalev. There is full protection against copying the 3 dimensional shape of only 3 kinds of

useful articles1. architectural works2. vessel hulls3. computer “mask works”

d. Architectural Worksi. Laws for buildings erected PRIOR to 1990

1. materials (sketching, drawings, and models) of the work are protected 2. actual buildings themselves are not (so can look at a building & mimic it,

as long as didn’t copy the plans)a. this is b/c actual building had utilitarian value & hard to separate

3. Illegal to take someone’s plans & photocopy them, but not illegal to see a building & copy it from sight

a. It was thought that with buildings, separability of aesthetic & utilitarian elements were inseparable so even the aesthetic elements were not copyrightable

ii. Laws for building erected AFTER 1990 1. §101: the design of a building as embodied in any tangible medium of

expression, including a building, architectural plan, or drawings; the work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features

2. §102(a)(8) specifically mentions architectural works as protectible material

3. But, §102(b)- idea/expression dichotomy applies to architecture4. §120 limits the rights regarding architecture

a. (a) its not infringement to take photos of a building that is visibly accessible

b. (b) the current owner can make alterations to the building w/out the copyright owner’s consent

i. this means owner making changes to the house, not whether expanding the building is an alteration

ii. Destruction is allowed too5. This is b/c US joined the Berne Convention

e. Charactersi. 2 different ways to determine whether © extends to a particular literary

character1. Learned Hand : is the character sufficiently & extensively delineated?

a. The less developed the character, the less likely © extendsb. Character must be highly developed and distinct

2. 9 th Circuit (Warner Bros v. CBS)

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a. distinction between character integral to the story (one around which the story is based) and character who is a “mere chessman” and only serves to further the plot

ii. A character that appears in a long series of works, and is in many situation, might take on a personality sufficiently rich in order to protect that character from infringement

1. E.g. Sherlock Holmes, James Bondiii. Taking the substance or idea of a character and producing it through a different

medium can be © infringement (King Features Syndicate v. Fleischer)1. e.g. if take a cartoon character & make a stuffed animal out of it, this may

be infringement, if © protection extended to cartoon character

f. Gov't Works & Other Public Policy Issuesi. §105: Copyright protection is NOT available for any work of the US Gov't

1. but, gov't is not precluded from receiving and holding ©s transferred to it by assignment, bequest or otherwise

ii. Policy1. promotes widespread public dissemination2. ensures access to the law for ordinary citizens3. allows for less gov't corruption4. No need for an extra incentive; public employees are already paid to do

the work, citizens pay taxes, and employees don’t need an incentive to create, which is fundamental to the purpose of the Act.

iii. Fuzzy edge of this statute1. A gov't official or employee would not be prevented from securing © in a

work that he created on his own time and outside of his duties, although the subject matter might involve the gov't

2. No express prohibition in works prepared under gov't contract or grant.

iv. State Authored Materials1. §105 only prohibits protection in materials generated by the Fed Gov't, not

the state2. But, SC decided that state judicial opinions are publicly owned & not

copyrightable b/ca. Judges are paid with public fundsb. Public interest is served by free access to the law (due process)

3. Beyond judicial opinions, a case by case analysis is used to determine whether the state authored work is in the public domain or is protected

a. Whether the work may be properly deemed in public domain :i. Did the creator need an economic incentive to create the

work?1. Determination whether the particular gov't entity has

adequate incentive to create the work absent © protections- judges don’t b/c already paid. Many works might b/c of their expense.

ii. Does the public need notice of this particular work to have notice of the law

1. Due process requires an individual have fair warning of the conduct prohibited by law

b. Then, ask whether the state entity is attempting to restrict access, or something else (like redistribution)

i. If attempting to restrict access, it should be in the public domain b/c public should be able to get it

4. An individual or organization who writes and/or publishes codes or regulations, etc, creates copyrightable works. However, when those codes are enacted into law, they must be reproduced & distributed as the law of the jurisdiction

a. This means that the code enters the public domain & are not subject to © holder’s exclusive prerogatives

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v. Obscene Works1. Act protects all writings, even those that are rendered obscene2. This serves the Constitutional purpose of power to promote the progress

of science & useful arts b/c allows all creative works to be protected, regardless of subject matter or content.

3. Obscenity is important b/c the pursuit of creativity requires the freedom to explore the gray areas- social values change over time

a. It is dangerous to restrict this

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III. Ownership of Copyrightable Work

a. §201(a): copyright in a work vests initially in the author or authors of that worki. Author: the person who actually creates the work from his intellectual capability.

In general, it is the person who translates an idea into a fixed tangible expression entitled to © protection

1. this idea has been modified, so that an author is one who asserts a high degree of control over the fixation of his idea. The final product duplicates his conceptions & visions of what the final product should be (Lindsay v. RMS Titanic)

2. the people who actually fix the work in this scenario are not entitled to author status

3. This definition is different for WFH & Joint Works (see below)ii. There are 2 competing concepts of authorship :

1. One based on execution (an author is the one who actually creates the work)

2. Other based on conception (Lindsay). This is the dominant view today. (see above)

b. Works Made for Hirei. A WFH can be prepared either by an employee or an independent contractor

(§101)1. Determining whether a work is a WFH is dependant on whether it was

a. prepared by an employee or an IC, and b. whether there was a written instrument on this topic

2. Once determined that the work is a WFH, © is owned by the person who commissioned the work

ii. Analysis :1. Was the work prepared by an employee or IC?

a. Several factors (not one is determinative, but those marked with * are particularly important)

i. Hiring party’s right to control the manner & means by which the product is accomplished*

ii. Skill req’d*iii. Source of toolsiv. Location of Workv. Duration of relationship between parties

vi. Whether hiring party has the right to assign additional projects to a hired party*

vii. Extent of the hired party’s discretion over when & how long to work

viii. Method of paymentix. Hired party’s role in hiring & paying assistants x. Whether the work is part of the regular business

xi. Whether the hiring party is in businessxii. Provisions of employee benefits*

xiii. Tax treatment of hired party*

2. If the work was prepared by an employee , go to (§101(1)) a. (1): A work prepared by an employee w/in the scope of his or her

employmentb. The assumption under this provision is that any work in this

category is a WFHc. §201(b): the employer or other person for whom the work was

prepared is considered the author and, UNLESS the parties have EXPRESSLY agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright

d. The word “employee” has been determined to carry its common law agency meaning:

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i. a traditional master/servant relationshipe. 3 pronged test to determine whether a work is w/in the scope of

employmenti. Work is of a type which the individual was hired to perform

ii. The creation occurred substantially w/in the authorized time/space limits of the job

iii. The worker was motivated by the desire to serve the employer

f. Teacher Exception:i. Academic writings are usually not deemed WFH

ii. Universities don’t supervise faculty in preparation of books/articles, and don’t have the ability to exploit the writing, through publication or otherwise (says Posner)

iii. Where the professor is in direct competition with the University for a work he has produced (like selling his lectures on tape) there is a greater likelihood that the court will not let him use the exception.

iv. Professor is definitely acting w/in the scope of his employment, so this is an exception

3. If the work was prepared by an IC , go to (§101(2)) a. it is specially ordered or commissioned for use as:

i. a contribution to a collective work ii. as a part of a motion picture or other audiovisual work,

iii. as a translation, iv. a supplementary work,

1. A work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work.

2. Examples include: a. Forwardsb. Afterwardsc. Pictorial illustrationsd. Mapse. Chartsf. Tablesg. Editorial Notesh. Musical Arrangementsi. Answer materials for testsj. Bibliographiesk. Appendicesl. Indexes

v. a compilation, vi. an instructional text,

1. A literary, pictorial or graphic work prepared for publication and with the purpose of use in a systematic instructional activities

vii. a test, viii. answer material for a test, or

ix. as an atlas, b. IF the parties EXPRESSLY AGREE in a written instrument signed

by them that the work shall be considered a WFH.i. Regardless of the language in the K , a work will not be a

WFH if it doesn’t fall into one of the above 9 categories at the time of its conception. This is so even if the work can be transformed into a work included in the categories subsequent to its creation.

ii. Circuit split on when the K has to be executed

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1. Posner - The writing must be before the creation of the work in order to serve the purpose of identifying the owner unequivocally (i.e. so the work will be readily marketable)

2. 2 nd Circuit - Parties must agree before the commissioned work is created, but it can be oral or implied. The written document can be executed after the work is begun or completed.

iii. Policy Rationales behind WFH doctrine1. The creator has already been paid for his work. 2. The employers are the ones who provide the raw resources to create the

work3. It is part of the bargain of employment.

c. Joint Worksi. §101: a work prepared by 2 or more authors with the intention that their

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

1. inseparable : collaboration to create a play (2 authors talking about a script before writing it- ideas are meshed together)

2. Interdependent : music- one writes the sheet music, and one writes the lyrics

ii. 2 situations that can give rise to joint ownership in a work 1. when 2 or more people contribute substantively to the work2. when one is hired or commissioned by another to do part of the work

a. if the person is hired as an employee, but executes a writing retaining partial ownership of his creation, he is a JA, not WFH

b. if the person was commissioned as an IC, and the work either i. is not w/in 9 categories OR

ii. there is no writing assigning authorship to the commissioner

iii. 2 pronged test to determine co-authorship : someone claiming to be co-author of a work, must establish that EACH of the co-authors (Childress test):

1. Made independently copyrightable contributions to the worka. Collaboration alone is not sufficientb. Contribution does not have to be equal- just more than a de

minimus amount of the workc. The contribution CANNOT be just ideas/facts

2. Fully intended to be joint authorsa. The way in which parties bill or credit themselves may be

indicative of intent to be or not to be co-authorsb. The amount of decision making authority each party may have over

the changes or additions made to the work may be probative of mutual intent to be co-authors

c. The ability to enter into Ks as the sole author, with no mention of another, proves intent to be the sole author. No need for consent from other author.

iv. §201: The authors of a joint work are co-owners of © in the work1. authors are classified as tenants in common- each owns a fractional share

of the work, dependant on how many authors there are2. Allows equal, undivided interests in the entire work. Each author has the

right to use or license the work as he wishes, subject only to the obligation that other owners get equal profits

a. All the co-owners are entitled to an accounting- the co-owner who exploits the work cannot keep all the profits from the exploitation, he must share them with his co-authors equally.

3. Though the co-author doesn’t need permission to exploit the work, he can't do this if it will result in the destruction of its economic value

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4. If one co-author creates a derivative work based on a co-created original work, the new work is NOT a joint work even if its an updated version of the original

v. In practice, its better to enter into a K with your co-authors.1. Language in the K can be constructed to embody intent2. Though the nature of the work cannot be changed by language in a K,

(either its © or its not), the main author can still assign a “half-interest” to others so they are owners in common

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IV. Duration of Copyright Ownershipa. **Note: §305 says that all terms of © run to the end of the calendar year, regardless

what date the work was published on. The work will ALWAYS expire on 12/31 of the appropriate year.

b. Works Published between Jan 1 1906 and 12/31/22 i. These works fell into the public domain on or before 12/31/1997 b/c they were in

their 75th year of publication in 1997 ii. These works were in their renewal term in 1962, when Congress elongated the

renewal term to 1/1/78.iii. In 1/1/78, the 1976 Act extended protection of these works for P +75.iv. The EARLIEST of these works (i.e. 1906) fell into the public domain on 12/31/81v. The LATEST of these works (12/31/22) fell into the public domain on 12/31/97.

c. Works Published between 1/1/23 and 12/31/49 i. These works were in their renewal term in 1962 when Congress elongated the

renewal term to 1/1/78.1. Note: these works MUST have been properly renewed. Otherwise, they

were in the public domain & the rest is irrelevant.ii. In 1/1/78, the 1976 Act extended protection of these works for P + 75. This

meant that these works were still protected in 1998 when the CTEA was passed, giving these works protection for P + 95

iii. To figure out date of expiration for these works, use P + 95iv. The EARLIEST of these works (i.e. published on 1/1/23) will fall into the public

domain in 12/31/2018v. The LATEST of these works (i.e. published on 12/31/49) will fall into the public

domain in 12/31/2044

d. Works Published between 1/1/50 and 12/31/63 i. These works were in their first term in or on 1/1/78, when the 1976 Act took

effect. ii. The Act extended the renewal term to 47 years (instead of 28 years)

iii. This was contingent upon renewal being PROPERLY made1. So these works were under protection when the CTEA was passed, giving

them an extra 20 years on the renewal term (now 67 years)iv. To determine the exact duration:

1. P + 95 years (28 + 67 = 95)v. The EARLIEST a work in this period (1950) would expire would be 12/31/2045

vi. The LATEST a work would expire (1963) is 12/31/2058

e. Works Published between 1/1/64 and 12/31/77 i. These works were in their first term in or on 1/1/78, when the 1976 Act took

effect.ii. The Act extended the renewal term to 47 years (instead of 28)

iii. Congress, beginning in 1992, gave these works AUTOMATIC RENEWAL1. So, these works were under protection when the CTEA was passed, giving

them an extra 20 years on the AUTOMATIC renewal term (now 67 years)iv. T determine the exact duration:

1. P + 95v. The EARLIEST a work in this period (1964) would expire would be 12/31/2059

vi. The LATEST a work (1977) will expire is 12/31/2072

f. Renewal of © Protection of Works Published before 1/1/78 i. Once a work was published it had 28 years of © protection under the 1909 Act

(1st term)1. this could be renewed for a further 28 years (renewal term)

ii. Works that came up to their renewal term BEFORE 1964 had to be ACTIVELY renewed by the author

1. The author could transfer his renewal right to another during the 1st term

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a. However, the author had to be alive when this renewal term vests for the transferee to retain the renewal rights

i. Such a transfer only gave the transferee as much as the author himself possesses. (e.g. the author could only assign the exclusive rights he held- he might not have had them all)

b. If the author DIES w/in the first 28 years of protection (1st term) the renewal right is automatically passed to his statutorily named successors (thus, the transferee would not retain the renewal rights)

i. First to Spouse or Kids,ii. Executor (if he had a will & if no spouse/kids)

iii. Owner’s next of kin (if no will or spouse/kids)c. **Renewal term doesn’t revert to author’s heirs in a WFH, it stays

w/© owner2. Under this scheme, the author could not divest the interest of his

wife/kids, no matter how much he hated thema. These statutory heirs can assign away their interest in this renewal

expectancy, however.3. In order for the author to properly transfer his interest in a renewal term,

he must have used clear and concise, and unambiguous language (Fred Fisher Music)

iii. Works that came up to their renewal term BETWEEN 1964-1978 were renewed AUTOMATICALLY w/1 year of original term expiration.

1. this was b/c a number of works had been inadvertently losing © protection b/c the renewal provisions were too hard to understand

2. Also US joined the Berne Convention which required protection with no contingencies on formalities.

3. Although renewal was automatic, the 1992 legislation provided incentives for © owners to register the renewal

a. Voluntary renewal allowed a presumption of both validity and ownership.

b. Voluntary renewal secures ownership of the renewal interest based on who is alive as of the date of the filing.

i. Thus, if an author assigns away his renewal right and then dies, the interest will go to the transferee, NOT revert to author’s statutory heirs

ii. If the author dies w/out voluntarily renewing, and lets the protection be renewed automatically, his renewal interest vest at the end of the original period w/his statutory heirs

1. Spouse/Kids,2. Executor (if there is a will & no s/k)3. Next of Kin (if no will and no spouse/kids)

c. Voluntary renewal allows any transfer of © in the initial term for the preparation of DERIVATIVE works to end. Thus, the derivative work owner cannot further exploit his work.

i. If the author had not filed, the DW could continue to be exploited during the renewed term, but no new derivative work could be prepared.

ii. This allows authors to renegotiate for a higher price4. In order for the owner to properly transfer his interest in a renewal term,

he must have used clear and concise, and unambiguous language (Fred Fisher Music)

iv. Rationale: Congress though the author should get the benefit of his successful work, and he should be able to renegotiate disadvantageous bargains. Bargains are frequently made at a time when the value of the work is unknown- author is in a poor bargaining position.

1. But, a publisher could demand these rights to renewal as well2. Renewal terms were intended to be completely separate and clear of all

rights, interests, or licenses granted under the original ©.

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g. Works Created on or after 1/1/78 i. §302 covers works created on or after 1/1/78

1. copyright in these works exist from the moment its created (not published)2. (a) copyright endures for L (of author) + 70 years3. (b) joint works (i.e. a work prepared by 2 or more authors)

a. L (of the last surviving author) + 70 years4. (c) Anonymous, Pseudonymous Works, WFH

a. Year of 1st Publication + 95 OR Creation + 120 years, whichever COMES FIRST

i. So, if publish a work more than 25 years after it was created, duration goes by the C + 120 time period

b. For anonymous or pseudonymous works, if the real author’s name is revealed in the records of a registration for the work, either by the author or by a person who has an interest in the work, duration is calculated by using §302(a) or (b)\

5. (d) anyone who holds an interest in the © may record a statement of the date of the death of the author, or a statement that the author is still living

6. (e) If nothing in the records indicates that the author is still living or that he died less than 70 years before, & a period of

a. C + 120, or Year of 1st Publication + 95, whichever is EARLIER, has passed,

b. The author is presumed to be dead for at least 70 yearsc. Reliance on this is a complete defense to infringement

h. Works Created Before 1/1/78 but Still Unpublished i. §303 covers unpublished works created before 1/1/78

1. (a) copyrights in these works exist from 1/1/78 and endure for term provided in §302 (see above)

a. this is if the work was not in the public domain or already ©2. These works CANNOT expire before 12/31/02

a. So these works will ALWAYS get the benefit of Sonny Bono (CTEA) b/c they were protected in 1998

i. Without the CTEA protection, the duration of © would only by L + 50

b. HOWEVER, for general works and joint works, to determine exact duration, choose the LATER date of the following

i. L + 70 or 12/31/02ii. This is b/c 12/31/02 is the MIN date of protection, and L +

70 might extend protection further into the futurec. BUT, for anonymous, pseudonymous and WFH, to determine exact

duration, choose the EARLIER date betweeni. C + 120

ii. Year of 1st Publication + 95iii. AND THEN choose the LATER date between the above date

and 12/31/023. if these works are PUBLISHED on or before 12/31/02, they

CANNOT expire before 12/31/2047a. To determine exact duration:

i. General works/joint works:1. Choose the LATER date between

a. L + 70b. 12/31/2047

ii. Anonymous, pseudonymous, WFH1. Choose the EARLIER date between

a. C + 120b. Year of 1st Publication + 95

2. THEN, choose the LATER of the above date and 12/31/2047

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4. (b) The distribution before 1/1/78 of a phonorecord that was created before 1/1/78 doesn’t constitute a publication of the musical work embodied therein

i. Arguments for and against duration i. For duration for a short period : (Chafee)

1. Without a limit on ©, there would be no public domain and this would deprive future authors of a considerable amount of raw material to make use of for future enterprise

2. Its not true that the longer the monopoly, the better for the author. This is b/c the advantage will be shared by someone long after the author is dead, who the author might not even know. Thus, there is no motive for him to act.

3. Every subsequent year that you tack onto a © makes the work less and less valuable

ii. For duration to be for a longer period 1. Congress believes that the longer terms are necessary to ensure that the

author and his heirs get the full economic benefit from the work.a. Right now, life expectancy has increased, & authors were watching

their works fall into the public domain 2. Growth in communications media has substantially lengthened the

commercial life of works. Thus, the value of a work might not be recognized until after many years

3. Too short of a term harms the author with no cognizable benefit to the public. The public pays the same amount for a work, regardless if it is in the public domain or protected. The only result is a windfall to certain users at the author’s expense.

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V. Transfer of Copyright Ownership

a. §202: the transfer of a “copy” or “phonorecord” as a physical object does not convey any rights in the © of the underlying work- transfer of ownership of the fixed medium of the work doesn’t convey the copyright

i. This destroyed the suggestion under the 1909 Act that the transfer of the object that is an unpublished or one of a kind work created a presumption that the © transferred as well (Pushman Doctrine of 1942)

b. §201(d)(2): any of the exclusive rights comprised in a © may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right, is entitled to all of the protection and remedies afforded to the © owner

i. © is infinitely divisibleii. the 5 exclusive rights can be licensed individually or as a whole bundle

iii. economic rationale: creates sophisticated price discrimination, & gives the author many opportunities to exploit his work

1. price discrimination is when you give your work first to the people who will pay the most for it, then release it to those who will pay a little less…(e.g. hardcover/softcover release of books)

2. So the author can split up his exclusive rights to get the most economic benefit from them.

c. §201(d)(1): ownership of a © may be transferred in whole or in part by any means of conveyance, or by operation of law, and may be bequeathed by will or passed as personal property by the applicable laws of intestate succession

i. © interest can be sold, and licensing, either exclusive or non-exclusive is allowedii. §204(a): transfer of copyright ownership MUST BE IN WRITING and SIGNED BY

THE OWNER who is conveying the right1. exception : non-exclusive licenses- can be oral or implied. This is b/c

a non-exclusive license is not a transfer under the §101 definition (Cohen)a. non-exclusive license holders hold nothing but a “covenant not to

sue” thus, there is no reason for a writing, b/c others can exploit the works in the same way.

b. A number of people can hold the exact same rights. But they have no right to sue another party for using the work in the same way they are.

2. Transfer includesa. Assignmentb. Mortgagec. Exclusive licensed. Any other conveyance

3. Policy: (Cohen)a. Forces parties to clarify their thinkingb. Encourages parties to take their promises seriouslyc. Ensures creator will not give away his © inadvertentlyd. Forces a party who wants to use the work to deal directly with the

creator & negotiatee. Enhances the predictability and certainty of the © ownership

iii. Licenses vs. Assignments 1. Licenses enable owners to “rent” rights in the © to others2. Assignments allow owners to grant complete ownership in the © to others

iv. Problems with Licenses- Scope of Grants1. Technological changes exceed the scope of most grants. Courts are

constantly forced to interpret contracts and determine whether a “new use” is permitted by the license.

a. Scope of grant is not an issue w/assignments b/c owner is allowed to sue for infringement

2. There are 2 competing approaches a court may take in resolving this issue, when a K is ambiguous

a. Strict approach: limits media use to the literal terms of the agreement

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i. This is b/c the original licensee could not have bargained for, or paid for the rights associated with the new medium. The holder of the license should not reap the entire windfall associated with the new medium (Cohen v. Paramount Pictures)

ii. This is better for passive licensees, who are not using the work to create something new

iii. Language favored by this approach :1. “grantor reserves rights not expressly given” (this

precludes uses not contemplated or not then known to the parties)

2. “by any means or methods now or hereafter known” (this shows the party plainly intended rights would be without limitation)

3. e.g. court wants explicit broad language that signals intent

b. Broad approach: A new use is okay if it can be reasonably be said to fall w/in the medium as described in the license (Boosey & Hawkes v. Disney)

i. If the language is broad enough to include authorization of the use, then the party benefited from this should be able to rely on it (even if it doesn’t have the “magic words”)

ii. The party who wants the K to be read in a manner that deviates from the meaning the court accepts should have negotiated better for clearer language

1. Thus, the fact that there is a reservation clause and no future use clause is irrelevant.

iii. This is better for creative licenseesiv. Policy: its better to deprive an author of profits from

unforeseen technological developments than to deprive the other party from the reasonable terms of his K

3. Transfer of Collective Worksa. These are types of compilations- essentially they are anthologies.

They are collections of works each of which is independently copyrightable

i. E.g. a survey literature book for HS, or a newspaperb. The transfer of © is more complicated here.c. The Act grants multiple ©s for these types of works

i. Each author of the individual contributions owns the © for that contribution

ii. The compiler of the collective work owns a separate right in the collective work, which covers the Newspaper’s creative authorship (decision to use that specific article, to place it on a specific page, to use certain photos near it, etc.)

d. When the holder of the © in the collective work wants to further exploit that work- (to do something else with it…)

i. §201(c) is the default rule :1. in the absence of an express transfer of the copyright

or any rights under it, the owner of the collective copyright (publisher) is only presumed to have acquired the privilege of reproducing and distributing the contribution

a. as part of that particular collective workb. a revision of the work, ORc. a new collective work in the same series

2. Thus, publisher can reprint the contribution in a later issue of its magazine, but it can't revise the contribution itself, or include it in a new anthology, different magazine, or collective work

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ii. Policy: This accommodates the author’s interest in his contribution. That is, if publishers were allowed to reproduce the articles in isolation, it would frustrate the author’s interest in selling it himself- he should get the benefit of the demand of his work

iii. This argument turns on how the articles are PRESENTED AND PERCEIVED by the users of the new medium.

1. if the articles are presented w/out the context of the original periodical editions or by any revised editions, the articles will appear as a separate item & are arguably a part of a new compendium- the entirety of works in the database

iv. Thus, this is a requirement of paperwork. Authors and publishers should secure the rights ahead of time. They should make a K ahead of time.

d. §201(e): Involuntary transfersi. when an author’s ownership of a © has not previously been transferred

voluntarily, no action by a gov't to seize the © is valid. 1. this is to prevent foreign gov't from censoring works in the US2. This means that if a soviet author writes a book & the soviet gov't seizes

the © under soviet law, soviet gov't can't stop the publication of books in the US

ii. Bankruptcy is the exception to this

e. Recordation of Transfersi. Established in 1976 Act

1. preempts state law2. if there were state methods of perfection, lenders would be forced to

search for security interests in all states- this would lead to expense and delay, and hinder the purchase and sale of copyrights, which would frustrate Congress’ purpose

ii. Ensures that someone will take good titleiii. §205(a): MAY record any signed document pertaining to copyright

1. if you choose to record, you are given a certificate pursuant to 205(b), benefits of having such a certificate include:

a. (c) the certificate operates as constructive notice, as long as it i. specifically identifies the work, and

ii. a copyright claim is registered in the work (must have a previous registration of © in the work)

b. (d): gives the transferee priority of © rights over any subsequent transfer later recorded

i. transferee is given 1 month grace period to recordii. if first transferee doesn’t record, then there is a race to

record (but this must be done in good faith)c. (e): a non-exclusive transfer is given priority over

i. subsequent transfers of ownership orii. previous transfer of ownership that weren’t recorded if non-

exclusive license holder had no notice (good faith basis)iii. But, the non-exclusive transfer must be in writing & signed

by the transferor. iv. this is an incentive to write even a non-exclusive transfer b/c

will prevail even if the owner gives the rights away to someone else

f. Termination of Transfersi. Policy: The ability of an author to terminate a transfer of © ownership was

designed by Congress to allow the author a 2nd bite at the apple, i.e. a chance to rethink the value of his work that he had originally assigned away and bargain for a better deal.

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ii. There are 2 separate termination of transfer provisions in the 1976 act, depending on the DATE OF THE TRANSACTION the author is trying to revoke (ORIGINAL transfer)

1. if the transfer was made ON OR AFTER 1/1/78, use §2032. if the transfer was made BEFORE 1/1/78, use §304(c)3. This has NOTHING to do with when the work was created or published

iii. §203: © grant executed on or after 1/1/78 1. Must ask 5 questions:

a. When was the grant?b. Was there a renewal (or did it fall into the public domain?)c. Did it vest?d. Did the owner die before/after the grant?e. Did it pass to heirs?

2. The EARLIEST works that will be terminated under this provision will be terminated in 2013 (1978 +35).

3. The EARLIEST notices of termination were given in 2003 (2013-10)

4. What grants are covered?a. Grants by the author of any copyright interest. This includes

exclusive and non-exclusive licenses.b. Grants made on or after 1/1/78, for works created before OR after

1978c. NOT covered: WFH and dispositions by will

i. The author CANNOT grant his termination rights to someone other than his Wife or Kids by will.

5. (a)(1): Who may terminate?a. Only the author who executed the grant may terminate.

i. For Joint Works, a majority of the authors who executed the grant may terminate (so if 2 joint authors, BOTH need to agree to termination b/c majority means MORE than half)

b. (a)(2): When the author has died, a MAJORITY of owners of his termination interest may terminate

i. if there is a Widow & no kids, W gets termination rightsii. If there are kids and no widow, K gets termination rights

iii. If W & K, W gets 50%, and kids split the other 50% equallyiv. In order for the survivors to terminate, there must be a PER

STIRPES majority of the interests (original interests) in favor of termination

1. If one of the survivors is deceased, a majority of his heirs must agree on termination in order for his interest to count toward the majority needed for termination.

2. e.g. W has 3 kids, one who died. The deceased kid’s interest goes to his kids. The W needs at least 2 of his kids to agree to terminate if she wants to be able to do it. This is b/c the interest of a deceased child can be exercised only by a majority action of his surviving children.

a. If all of the other descendants other than W want to terminate they can't, b/c W has the 50% share. She always has to be involved

v. If the author is deceased and so are his W, children and grandchildren, the author’s executor, administrator, personal representative, or trustee shall own the entire termination interest

6. (a)(3): When a person may terminate

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a. The EARLIEST possible time one may terminate is 35 years after the date of the original grant. (grant + 35)

b. This window stays open until 40 years past the date of grant (there is a 5 year period). So, the LATEST possible time is 40 years after the grant. (grant + 40)

c. Exception: Grant was the right to publish i. Whichever is EARLIER of 2 scenarios

1. publication + 35 years, OR2. grant date + 40 years

7. (a)(4):How to effectuate terminationa. Author (or W or Child) must still pick a date w/in the 5 year window

allowed for termination.b. Then, he must file a written notice of termination w/the Copyright

Office as early as 10 years before the date he picked, but no later than 2 years before that date.

i. So, the EARLIEST possible notice one could file is date of grant + 25 years (35-10)

ii. The LATEST possible notice one could file is date of the grant + 38 years (40-2)

iii. Thus, the notice period must be between these 13 years (38-25)

c. Notice must comply with Copyright Office regulationsd. A copy of the notice must be recorded in the Office before the

effective date of termination

8. What is the effect of termination?a. All rights revert to those who have the right to terminateb. Exception : derivative works prepared before the termination.

These may CONTINUE to be exploited under the terms of the grant (§203(b)(1))

c. No new derivative works may be prepared after the date of termination

d. If the author terminates the original grant, then all subsequent grants made to others by the grantee are terminated as well. This is true even though the author himself did not make the subsequent grants.

9. (a)(5): the Author cannot waive the right to terminationa. this is contrary to Fred Fisher case, where you could contract away

the renewal rightb. The way to get around this is by labeling the work as a WFH, or by

renegotiating the grant in year 24 (1 year before the earliest time an author can give notice of termination of the grant). This will push the ultimate date of termination 35 years after the new grant.

c. The constant renegotiation only works when there is a “moment of freedom.” According to Nimmer, this is when there is a moment when the author is not bound by any grant. If the grantee constantly forces the author to engage in a series of rolling grants, and never has the opportunity to renegotiate, courts should treat this as a 203(a)(5) violation (treated as a waiver)

iv. §304(c)- Pre 1978 grants 1. This provision was enacted to help smooth the transition of the Sonny

Bono Act so that grantees didn’t get a windfall from the elongated renewal terms when they had never bargained for or paid for those extra years.

a. It allows the grantor to recover the extra renewal period (not get a 2nd bite at the apple)

2. What grants are covered?

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a. Grants of © interests, (in their original or renewal term) executed before 1/1/78 by the author OR his statutory heirs, including exclusive and nonexclusive licenses.

b. Exceptions : WFH and dispositions by willi. An agreement made after a work has been created

stipulating that the work is a WFH constitutes an “agreement to the contrary.” This may be disavowed by §304(c). It alters the nature of the parties’ relationship & is invalid

3. Who can terminate?a. The author, or majority of authors if it’s a Joint Workb. If the author is dead (see above to §203)c. When a grant is given by an author’s statutory heir, all surviving

grantors (i.e. no majority, this is unanimous decision) must give permission in order to terminate the grant.

4. When may termination take place?a. This is measured from the date when © protection first attached

i. But, under 1909 Act, this was when a work was first published

b. Termination can occur as EARLY as Publication (or date when © was originally secured) + 56 years

c. It can occur as LATE as the date of Publication + 61 yearsd. If the author MISSES this opportunity, the CTEA of 1998 gives him

a 2 nd chance to terminate . §304(d)i. There is a 5 year window between 75 and 80 years after

publication when the author can terminate againii. This can occur as EARLY as publication + 75

iii. This can occur as LATE as publication + 80

5. How may termination be effected?a. Notice of termination must be given:

i. As EARLY as 10 years before the window opensii. As LATE as 2 years before the window closes

iii. For the 1st termination opportunity:1. P + 46 years2. P + 59 years

iv. For the 2nd termination opportunity1. P + 65 years2. P + 78 years

b. If the termination is being effected by statutory heirs rather than the author himself, ALL of those who executed the grant and are surviving must sign the notice

c. A copy of the notice must be recorded in the Copyright Office before the effective date of termination

6. What is the effect of termination?a. All rights revert to those who had the right to terminateb. Exception : Derivative works prepared before termination may

continue to be exploited under the terms of the grantc. No new derivative works may be prepared after the termination

dated. Termination rights vest on the date notice is served

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VI. Publication and Copyright Formalities

a. Notice and Publication i. Under 1909 Act

1. Publication : A work was infinitely protected by state law until it was published. Once published, the author’s state interest was divested, but federal protection attached, provided there was NOTICE. Failure to provide notice meant the work forfeited its © protection & fell into the Public Domain (§10)

2. Policy: in order to induce an author to disclose his work to the public, he is afforded statutory rights, even though they are time limited

3. Problem: this Act didn’t define what a publication was a. Generally, the following were accepted by the courts not to be

publicationsi. Public performance of a spoken drama

ii. Motion picturesiii. Public performances of a musical composition (for profit or

not)iv. Oral delivery of a lecture or addressv. Doesn’t matter if broadcast over the radio

vi. Display, unless it carried w/it permission to take pictures or otherwise make copies (then it would be a publication)

vii. Uncertainty about general distribution of phonorecords. Generally accepted that the sale of records of a song didn’t forfeit common-law copyright protection

b. Policy of publication: publication is protected b/c people publish for money. However, people will only succeed in making money if they are protected by the gov't. So, if one wants to capitalize on his creation, he must comply with finite protection.

4. Disclosure or communication of a work to another person did not always constitute publication under the act.

a. Limited Publicationi. Did not cause the work to lose common-law © protection

(from the state)ii. Non-divesting publication that communicated the contents

of a work to 1. a select group of people 2. for a limited purpose, 3. w/out the right of further distribution

a. e.g. mailing manuscript of a law review article to publishers to ask them to include it in their journals

iii. A performance of a work was considered a limited publication b/c of the transitory nature of a performance. Its not easy to copy, and thus is very different from the distribution of tangible copies

iv. Distribution of copies of a speech to the news media to allow reporting of contemporaneous news is a limited publication

1. in order for this to be a general publication, it must go beyond customary sources of press or broadcasting in distributing the address to any interested individual

v. Release to news media for contemporary coverage of a newsworthy event is only a limited publication

1. but, the court might have said this to save the “I have a dream speech”

vi. This comports with common sense- it doesn’t force an author whose message happens to be newsworthy to choose

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between obtaining news coverage for his work and preserving his common law copyright

vii. An oral delivery of a speech is a performance, regardless of whether it was broadcast on radio & TV

1. b/c of its transitory nature

b. General Publicationi. Did cause the work to lose common-law © protection

ii. Occurs when a work was 1. made available to members of the public at large 2. w/out regard for their identity, OR 3. what they intended to do w/the work

iii. Occurs in 2 situations 1. tangible copies of the work are distributed to the

general public in such a way that allows the public to exercise dominion and control over the work

2. The work is exhibited or displayed in such a manner as to permit unrestricted copying by the general public

3. public performance doesn’t imply GPc. Divestive publication

i. Dissemination that lost common law copyrightd. Investive publication

i. Dissemination w/copyright notice that triggered statutory ©

5. Notice : Once it was determined that a work had been published, the Act required the placement of a © notice in a specified location (§10)

a. Each copy for sale in the US shall have i. the word “copyright”,

ii. the symbol ©, iii. the name of the copyright proprietor and

1. if the corporate name used was inaccurate but it was still obvious who held the copyright, this was overlooked by courts

iv. the year of publication1. inaccuracies of the date could be fatal :

a. if the date printed was earlier than the actual publication date, the beginning of the statutory term would be calculated from that date, & copyright protection would end early

b. if the date printed was more than 1 year later than the actual date, the work fell into the public domain

b. if the owner had sought to comply, but by accident or mistake had omitted the notice from a particular copy or copies, this wouldn’t invalidate the ©, but the owner couldn’t recover damages from an innocent infringer

i. this exception didn’t apply if the omission was through neglect or oversight

ii. Under 1976 Act (solutions to publication and notice) 1. Publication (§101)

a. Distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease or lending

b. The offering to distribute copies to a group of persons for further distribution, public performance, or public display (offer for sale)

c. Public performance or display does not itself constitute publicationi. But, in the case of a work of art that exists in only one copy,

it should not be regarded as published when the single

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existing copy is sold or offered for sale in the traditional way (art dealer, auction, etc.)

2. The notice requirements are different depending on when the work was first published

3. Notice for works published between (1/1/78-2/28/89) a. Works published during this time were dubbed “decennial works”b. Giving proper notice is not as important under this act as it was

under the 1909 Act. Notice has values which should be preserved, but not by causing outright forfeiture for error or omission

c. 4 principal functions are served by copyright notice lawi. Places a lot of published work in the public domain that no

one is interested in copyrightingii. Informs the public if a work is copyrighted

iii. Identifies the copyright owneriv. Shows the date of publication

d. The approach to notice requirements changed during this time b/c the US decided to sign on to the Berne Convention. To do this, the US could no longer condition copyright on the observance of formalities

e. §401: copies i. §401(a): a notice of copyright MUST be placed on all

publicly distributed copies from which the work can be visually perceived either directly or with the aid of a machine or device

ii. 3 elements for proper notice 1. (b)(1)word “copyright”, copyr., or ©2. (b)(3)name of copyright owner3. (b)(2)year date of first publication

a. Exception to the date of publication : when a pictorial, graphic or sculptural work w/accompanying textual matter is reproduced in or on greeting cards, postcards, stationary, jewelry, dolls, toys, or any useful article

i. this is b/c consumers don’t want to buy merchandise they think is old. In effect, to put the year on a product would devalue it.

iii. 401(c): notice shall be affixed to the copies in such a manner and location as to give reasonable notice of the claim of copyright

f. §402: phonorecords i. to protect against unauthorized duplication of the recorded

sound, a (p) notice was required to be put on the phonorecord if it is publicly distributed in the US or elsewhere

ii. This permits a clear claim of copyright to the sound recording as distinguished from the underlying literary or musical work, and it effects a distinction from claim of copyright in the printed text appearing on the record label, or album text

4. Other kinds of works a. §403: deals w/ a work that consists preponderantly of one or more

works of US gov'tb. §404: distinction between the copyright notice for a collective

work, and the notice for separate articles or other contributions included therein

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c. §405: Omission of the notice is DANGEROUS, but NOT FATAL. There are 3 circumstances in which failure to provide notice will be excused:

i. (a)(1) De minimus exception : notice has been omitted from a small number of copies or phonorecords distributed to the public

ii. (a)(2) Registration has been made before or WILL BE MADE W/IN 5 YEARS after the publication w/out notice, AND a reasonable effort is made to ADD NOTICE TO ALL COPIES that were distributed in the US after the omission was discovered

1. the LATEST DATE that this could be required for is a work published on 2/28/89. So, the LAST CURATIVE registration should have been made on 2/28/94.

2. Thus, work published during this time w/out notice will still be subject to statutory protection for at least 5 years, whether omission was partial or total, unintentional or deliberate.

3. The person who publishes a © work w/out notice holds a kind of incipient © in the work for 5 years. If the omission is cured in that time through registration & reasonable effort, © is perfected & applied retroactively for the entire time © endured.

a. What is a reasonable amount of effort to give to add notice to already distributed copies?

i. Use a cost-benefit analysis4. If the omission is not cured, there is no © at all.

iii. (a)(3) Notice has been omitted in violation of an express requirement in writing that, as a condition of the owner’s authorization of the public distribution, they bear the prescribed notice

1. Licensee/publishers messed up2. If its provided for in a K or license that a notice had

to be included, and someone else made an error, owner was not penalized for it

d. §406: errors in name or datei. (a) validity of copyright is not affected if the name of owner

is wrong on notice1. But, an INNOCENT INFRINGER has a complete

defense if he can prove he was a. Mislead by the noticeb. And he began the undertaking in good faith

under a purported transfer from the person named, UNLESS

i. Registration was made in the name of the rightful owner

ii. The document executed by the person named in the notice which showed ownership was recorded

c. The person named in the notice is liable to account to the rightful © owner for all receipts from transfers or licenses purportedly made under the © by the person named in the notice

ii. (b) if the year date is EARLIER than the actual year of publication, copyright is still valid. It is calculated from the year of the notice, not the actual year, so the copyright ends early. If the year date is LATER by one or more years, then

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it is considered to be published w/out notice & is under §405- still get 5 years to cure

iii. (c) if there is no name or date, the work is considered published w/no notice, and governed by §405- still get 5 years to cure

5. Notice (3/1/89 to present) a. Copyright notice was eliminated as a precondition to copyright

protection. However, incentives were provided to the owner to encourage him to avail himself of the discretionary option to use the notice on published works

b. §401(a) was amended: a notice of copyright MAY be placed on the publicly distributed copies

c. Incentives :i. §401(d): If copy had notice, D cannot claim he was an

“innocent infringer”1. P had a right to:

a. Actual damagesi. Money P would have made from selling

the work except for the fact that D sold it instead (this is normal)

b. Liquidated damages (§504)i. P is entitled to a lump sum damages

provision, which has a minimum and maximum. Court had the complete discretion as to how much to award ($750- $30,000)

2. Thus, the cheapest deterrent to infringement is still to give notice

ii. §402(d) gives the same provisions for phonorecords

d. International Implications:§104A i. resurrected certain copyrights from the public domain

ii. Until 1989, all works published in other countries, where there was no notice requirement, fell into the public domain in the US b/c of the phrase “work must bear a copyright notice if published in the US or elsewhere”

iii. Foreign works that fell into the public domain were given back protection, as long as

1. the work was under copyright protection in its own country

2. the author had to be a resident or domiciliary of WTO member, other than the US

3. These works are now protected for however long is appropriate under US law (L+70)

iv. Problem was that there were a lot of people acting under the assumption that the works were still in the public domain, (mass producing copies of books first published in France, or making derivative works by abridging the books, or translating them to English)

1. §104A makes compromises between these reliance parties and authors

a. once a relying party has actual or constructive notice, he has 12 months to liquidate his investment. After that, he can no longer infringe in any way.

b. However, constructive notice was considered filing w/the copyright office. But, this had to be done w/in 24 months of the enactment of

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this provision (1/1/96). Thus, the period has expired & the author must give actual notice.

2. Derivative works : these may continue to be exploited, as long as the derivative author pays a royalty to the © owner

b. Deposit and Registration i. 2 separate requirements for deposit

1. §407: Deposit for Library of Congress [Archival Deposit]a. Deposit SHALL BE MADE by owner of copyright or exclusive right

of publication w/in 3 months after publication in the USb. Sole purpose is to augment the collection of LOC for freec. This ONLY applies to works that are publishedd. Deposit must consist of:

i. 2 complete copies of the “best edition”, or 2 phonorecords together with accompanying printed material

1. “best edition”: edition that the LOC determines to be most suitable for its purposes

ii. if it is accompanied by an application to register and $30, it can be used to satisfy the deposit requirements of registration (see below)

e. This is enforced by a series of fines i. $250 for each work and pay the retail price of the copies to

the Library, and $2500 if person willfully or repeatedly fails to comply with the above 2 penalties

f. The Copyright Office is located in the LOCg. Register is given the authority to issue regulations exempting

categories of material from certain requirementsi. E.g. ETS can deposit identifying material instead of the

actual LSATh. If the work is extremely large, expensive, or confidential, the

author doesn’t have to submit the actual work. He can just turn in the “substance of the work” (i.e. the identifying material, like a photograph of the jewelry or the sculpture)

i. This is not considered a “taking.” Its part of the privilege of taking advantage of the commercial marketplace, and the entire © scheme.

2. §408: Registration Deposita. this provision is PERMISSIVE, not mandatoryb. This establishes a formal record of a claim of ownershipc. Procedures :

i. It may be made not only by the owner of ©, or owner of exclusive right to publish, but also by the owner of ANY exclusive right thereunder

ii. This applies to BOTH unpublished and published worksiii. It may be made at any time during the subsistence of ©iv. It includes works published abroadv. Group registrations are permitted for lots of works at the

same timed. Register’s authority and effect of registration

i. He may refuse registration upon his determinate that a claim is invalid

ii. §411(a) says that an infringement suit is possible even if registration is refused, as long as

1. the deposit application and fee are in proper form and

2. notice is given to the Register (who can intervene)e. Incentives for timely registration

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i. Early registration will ensure prima facie proof of validity of the copyright (§410(c))

1. absent a certificate, it becomes part of owner’s burden of proof to show © protection

ii. For works of US origin, registration is a prerequisite to an infringement action, or if the work is unpublished, its by a US author. (§411a)

1. this is limited to works of US origin, b/c it sounds like a formality which would violate the Berne convention, so parties from other countries are exempt

2. But, remember that if registration is denied, can still sue (see above)

iii. Statutory damages and attorney’s fees may be awarded only if registration is made prior to commencement of the infringement (§412)

1. this doesn’t exempt foreign parties2. Formalities don’t apply to statutory damages, so it

complies w/Berne Convention

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VII. Exclusive Rights of the Copyright Ownera. There are 6 rights exclusive to the owner of the copyright in a work under §106

i. Reproduction of the work in copies or phonorecordsii. Adaptation (right to produce derivative works)

iii. Distribution (publishing for the public)iv. Public Performancev. Public Display

vi. Digital Performance of a Sound Recording (perform by a digital-audio recording)b. The first 3 rights (reproduction, adaptation, and distribution) are available for ANY work

that holds a copyright- performance and display rights apply to only those works that can be performed or displayed

c. The Reproduction Right (§106(1)) i. This is the right to produce a material object in which the work is duplicated,

transcribed, imitated, or simulated in a fixed form from which it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device

ii. Infringement occurs by reproduction of1. the entire work2. ANY substantial part

a. This can be exact duplication, or an imitation that varies by a trivial amount (what a consumer would think- see below)

3. NON-LITERAL COPYING is ALWAYS LITIGATED as an infringement of the REPRODUCTION RIGHT, NOT as an infringement of the ADAPTATION right

iii. Anyone who makes COPIES or PHONORECORDS of the work w/out permission is an infringer

1. Copy:a. A material object, other than a phonorecord, in which a work is

fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise directly communicated, either directly or with the aid of a machine or device

b. Types of copies include:i. Unauthorized faxing

ii. Fixation in temporary computer memoryc. There is no copy made unless the work may be perceived.

i. Reproduction must exist for a sufficient time to be capable of perception, reproduction or otherwise communicated

ii. Intermediate Copying 1. copy made in the steps of creating an end product.

The public never perceives the copy, b/c the end work doesn’t incorporate the copied work

iii. Components of a work dispersed throughout a larger work 1. if the copy is reassembled at the destination,

infringement is likely2. if it remains dispersed, the question is open

iv. Courts now hold that computer input and manipulation of © work are violations of either the reproduction right or a derivative work

1. so, loading info into computer’s RAM is making a reproduction

2. But, if the person using the work manipulated it to be a copy on his own, this is not infringement- it must be perception of the work w/out the uninvited manipulation of the data

2. Phonorecord:a. material object in which sounds, other than those accompanying a

motion picture or audiovisual work, are fixed by any method now known or later developed, from which the sounds can be perceived,

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reproduced, or otherwise communicated, either directly or with the aid of a machine

iv. Limits on the Reproduction Right (§108), specifically for libraries and archives

1. §108(a): General conditions for library copyinga. a library & any of its employees working w/in the scope of their

employment MAY make ONE copy or phonorecord of a work, OR distribute such copy or phonorecord if:

i. the reproduction or distribution is made w/out any purpose of direct or indirect commercial advantage (not for profit library)

ii. the library is open to the public or at least available to outside researchers (other than those that are of the entity that support the library)

iii. The copy bears a copyright notice2. Policy: librarians want to make copies to

a. Have backups for rare materials b. To save spacec. To convert to new technology

3. §108(b): Covers unpublished work that libraries reproduce for themselves (e.g. those written by grad students & put in the school library)

a. A library can make up to 3 copies of the unpublished works :i. For purposes of security and preservation, or for deposit in

another libraryii. The copy reproduced is currently in the collection of the

library, ANDiii. Any such copy that is reproduced in digital format cannot be

available to the public in that format outside the premises of the library

1. e.g. the library cannot put a copy of an unpublished work on-line. It can put it on a CD-Rom, and then allow someone to access it while sitting in the library (but that person cannot check it out)

4. §108(c): Covers copies of published works that libraries make for themselves (public works)

a. A library can make up to 3 copies of the published work if one of the purposes is:

i. Replacement of a copy that is damaged, deteriorating, lost or stolen, OR

ii. If the existing format of the work has become obsolete, IFiii. The library after a reasonable effort determined that an

unused replacement can't be obtained at a fair price, ANDiv. Any such copy reproduced in digital format is not made

available to the public in that format outside the premises of the library.

5. §108(d): Copies for patronsa. A library may make for its patrons 1 copy of no more than 1 article

or other contribution to a © collection or a small portions of any other © works if

i. The copy or phonorecord becomes the property of the user AND

ii. The library has no reason to believe it will be used for any purpose other than research or private study

iii. A library prominently displays © warning in accordance w/the register of copyright’s requirements

6. §108(e): Copies of ENTIRE works that libraries make for their own patrons

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a. A library can reproduce or distribute an entire work or substantial part of it for a patron if:

i. Library has determined, after a reasonable effort, that a copy or phonorecord of the © work cannot be obtained at a fair price

ii. The copy or phonorecord becomes the property of the end user

iii. Library has no reason to believe it would be used for any purpose other than private study or research

iv. A library prominently displays a © warning in accordance w/register’s requirements

7. §108(f): Unsupervised copying in libraries a. copy cards and copy machinesb. Liability for infringement is not imposed on a library for the

unsupervised use of reproducing equipment on the premisesi. But, this is provided that a library posts notice about

copyright liability c. A person who uses the reproducing equipment is not excused if he

uses it in such a way that exceeds fair use8. §108(g): Even if all the criteria is met, none of it applies if the library is

engaged in “systematic” copying9. §108(i): this doesn’t apply to musical works, or pictorial works, or

graphic or sculptural works, or a motion picture or other audiovisual work other than one dealing with the news

10.§117: A Copy of a Computer Program (protectibility of software)a. (a) making of an additional copy is NOT infringement if:

i. (1) the owner of the program makes a copy by putting a CD in the computer, and the program is read into the machine (& a copy is made) in order to execute the program OR

1. The new copy is an essential step in utilizing the program (installation, regular use)

ii. (2) the owner of a program makes a back up copy (taking the info on the CD and copying it onto the hard drive)

b. (b) deals with Lease, Sale, or other Transfer of additional copy or adaptation

c. (c) machine maintenance or repairi. not infringement if a copy is made in order to activate a

machine, if turning on the machine would cause a copy to be saved on the machine by the repair person, if

1. such a copy is used in no other manner and is destroyed immediately after the maintenance or repair is completed, and

2. any computer program that is not necessary for the machine to be activated is not accessed or used other than to make a new copy by virtue of the activation of the machine

11.§114: Limited Reproduction Rights in Sound Recordingsa. a sound recording is the particular rendition of the underlying

musical compositionb. (b) The reproduction rights of the © owner are limited to a

prohibition against a direct, mechanical duplication of the sound recording, and

c. the right to prepare derivative works are limited to those works in which the actual sounds fixed are rearranged, remixed, or otherwise altered in sequence or quality.

d. The recording directly or indirectly must recapture the actual sound fixed in the protected recording.

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i. This means that there are situations where the © owner cannot stop another person from reproducing the sound recording

ii. E.g. you can ask a performer to re-record a song they have already recorded. This is b/c its not the actual sound fixed in the version that holds © protection

1. Sounds that imitate or simulate the © sound recordings are okay here

2. Rationale: this is the only way an artist can switch labels and re-record his songs (which he was forced to sign over rights to the label, or they are WFH)

e. A classic example of recapturing a sound recording’s actual fixed sound is “sound sampling”

i. the exact duplication of portions of a sound recording included in another song or live performance

f. Public broadcasting for educational works, etc. (as long as its not done commercially to the general public) is exempted.

g. Digital Performance Right in Sound Recordings (DPRSRA)i. 1995 act

ii. Compulsive license is extended to those who want to deliver a digital phonorecord

12.§115: Compulsory Licenses for Musical Compositionsa. This only applies to non-dramatic musical work (not operas, but

pop songs) & only applies to PHONORECORDS (see above for definition)

b. (a) Before a compulsory license can be obtained, i. the author of the © work must have arranged, on his own,

the production of phonorecords to be sold to the public1. © owner must get the first bite at the apple, and

once he does this he doesn’t have the right to restrict others from re-recording his song

ii. the person seeking the CL pays royalties1. Fixed by ad hoc tribunals2. A royalty must be paid for each record of the work

that is made and distributed 3. §803a3: CL royalty was made the subject of a

comprehensive reassessment in 1997a. before 1980, royalties were 2.75

cents/recordingb. 2000: 7.55 cents/songc. 2002-03: 8 cents/songd. 04-05: 8.5 cents/songe. 2006: 9.1 cents/song

iii. the person seeking the CL notifies the owner 1. Timely service is crucial ! If the party makes and

distributes the phonorecords BEFORE serving notice, he CANNOT obtain a CL, and he is subject to infringement liability.

2. The party must file with the owner a notice of intention to obtain a CL before making or w/in 30 days of making, and before distributing phonorecords of the work.

c. Policy: This is b/c in the 1909 statute, there was a concern that there would be a monopoly over the control of music for recording purposes, thus giving recording companies the ability to choke off new recording companies- they wouldn’t have any new material to produce

d. CL permits COVER RECORDINGS

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i. Cover artists can get licenses for public distribution, and also rearrange the song, as long as the basic melody and fundamental character of the work is kept in tact. (§115a2)

ii. Also, cover recordings are NOT considered derivative works, except of © owner ok’s this

e. CL permits digital phonorecord deliveriesi. It’s the equivalent of the sale & distribution of a musical

recordingf. CL does NOT PERMIT Song lyrics

i. Enjoy independent © protectionii. While a CL permits the recording of a cover version of a

song, it doesn’t permit the inclusion of a copy of the lyrics. You need to get separate permission from the © holder for this.

g. CL does NOT permit including a song on a soundtrack for a movie

i. If a party wants to use a song on his movie soundtrack (CD), he has to go to the © holder and clear the rights independently. Independent negotiations about the royalties rates will take place, and credit to the owner must be given.

ii. However, the owner has the right to refuse this request entirely.

h. Harry Fox Agency i. An alternative to finding the actual © owner of the musical

composition is to obtain the license from the Harry Fox Agency

ii. Music publishers/© owners allow HFA to issue licenses1. for a Mechanical Rights: to record musical

compositions onto phonorecordsa. make physical objects that embody the song

2. NOT other reproduction rights, like Synchronization with motion pictures and other audiovisual works

a. Music is synchronized to the visual aspects of the work

13.Private Copying of Sound Recordings a. This occurs when you copy a song off the radio, or off a CD you

already own onto a tape, or you make a copy for your friend. This is not an act of infringement.

b. Audio Home Recording Act of 1992 (AHRA)- 17 USC §1008i. Expressly prohibits infringement actions based on the

NONCOMMERCIAL USE BY A CONSUMER of a digital or analog recording device or recording medium

ii. Digital audio recording device 1. any device that is of a type commonly distributed to

individuals, designed for the Primary Purpose of making digital audio recordings for private use

a. this excludes computers, b/c that is not their primary purpose

iii. Royalty charges are imposed on sales of digital audiotape recorders and recording media (blank tapes)

1. paid by manufacturers & importers2. see page 508 of the book for how funds are divided

iv. Manufacturers and importers must include in all consumer digital audio recording devices a Serial Copy Management System (SCMS)

1. this disables machines from recording a copy from a prior copy

2. But, it permits unlimited first generation recordings 14.Private Copying of Audiovisual Works

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a. Digital Millennium Copyright Act of 1998- 17 USC 1201(k)i. Prohibits the manufacture and distribution of certain analog

VCR recorders UNLESS they are equipped with a copy control technology

ii. This copy protection must be set up for you to copy from TV and basic cable

1. you can’t copy a tape rented from Blockbuster, but can copy an episode of Friends

iii. © holder can prevent you from taping1. transmissions of live events2. pay-per-view3. copies of a transmission of a live event, or works

made available through a subscription TV channel (like cable or satellite)

4. copies of a transmission of a pay per view movie

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d. The Right to Prepare Derivative Works (§106(2))i. This right is used only in fringe cases, and in cases where there is NO

reproduction, or so little reproduction that there is no other alternative1. this right and the reproduction right overlap, but this right is broader b/c

it doesn’t require fixationa. When someone makes a non-literal copy w/out permission, that

copy violates the reproduction right AND the adaptation right. i. To the extent that it reproduces the plot structure, it

violates the reproduction right. ii. To the extent that it modifies the plot & brings in additional

info, it violates the adaptation right.b. Courts tend not to involve themselves in more than one analysis of

substantial similarity- they don’t break it up into reproduction and adaptation. Its only when the courts don’t go through substantial similarity test b/c they can't that they embark on a different approach- adaptation

ii. When the allegedly infringing material is in a different medium, it is more likely to be a derivative work than a reproduction violation. This is b/c it is nearly impossible to capture the essence of the original work in a work that is in a different medium.

1. e.g. photos of a ballet. Work is choreography, the essence of which is movement. If another troop of dancers did the same dance, it would be a performance, not a reproduction b/c the reproduction must be in a tangible object.

iii. To constitute a violation of this right, infringing work must1. incorporate a portion of the © work in some form

a. Infringement of the adaptation right will be found if the 2 works are substantially similar

i. If the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same, then the court will find infringement of this right

2. Have sufficient creativity or originality, which is more than a “trivial variation”

a. If the actual work was not changed at all, just its mode of display/presentation, this is not a derivative work

i. Even the original © holder could not obtain a derivate work © on this type of work

e. The Right to Distribute Copies or Phonorecords (§106(3))i. This right applies to all types of copyrighted works

ii. © owner has the right to control the first public distribution of his work1. this can be by sale, lease, rent, gift or loan

iii. Any UNAUTHORIZED distribution of copies or phonorecords that were unlawfully made constitutes infringement

iv. BUT, the © owner’s rights DO NOT extend to a particular copy or phonorecord once he has parted ownership with it (§109- first sale doctrine- see below)

v. Generally, the reproduction right and the distribution right go together 1. if one violates the reproduction right, then the sale of the infringing copies

is infringement as wella. this is b/c most people will want to gain some economic value from

the illicit reproduction, & this is done by distributionb. Additionally, e-mail forwards including a full-text reproduction of a

© work- this is definitely reproduction, but its distribution as well (lost of cases here about scanning playboy pictures & sending them over e-mail)

2. But, there are a few situations in which only distribution is at issuea. Computer and internet problemsb. Video rental places and the like

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vi. The following actions are distributions under §106(3) 1. the affirmative act of making a work available through an electronic

network for end-user downloading2. Bulletin boards, web-page operators, or online services originating

infringing contentvii. Rationale:

1. There are some instances where parties are selling copies of works they themselves did not make. The © owner is provided an opportunity to sue these people

2. This provides a remedy in the case of a sale of a one of a kind work that is taken from the possession of the creator w/out his permission & distributed.

viii. Limitations 1. The First Sale Doctrine (§109)- doesn’t apply to Reproduction or

Adaptation rightsa. (a) Once a © owner sells a copy or phonorecord of his © work to

someone else, the new owner of the copy can do whatever he wants with the copy & it will not violate the distribution right

i. Remember, that what the new owner does might violate other exclusive rights (like reproduction)

ii. BUT, the copy in question must have been LAWFULLY madeb. There is no analogous doctrine for works distributed “digitally”

i. This is b/c when one forwards a copy of a work he owns to another in this fashion, he is really only making a copy of the work, and not parting with the copy that he owns.

ii. Also not covered is if you forward your copy digitally, and then erase the original copy.

c. The distribution of the following items are not affected by any modifications listed below

i. Library books :1. the economic expense of making a copy of a book is

approximately the same as buying a copy of the book. This might not be fair to © owners, who could theoretically sell more copies if libraries didn’t exist

ii. Audiovisual works (mostly on VHS) 1. Technical self-help measures have made it hard to

copy these materials, so no legislation is really needed.

2. Modifications to the First Sale Doctrine a. §109(b)- The Record Rental Amendment

i. The owner of a particular PHONORECORD may NOT, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord by rental, lease, or lending

1. unless authorized by the © owner in the sound recording AND in the musical composition

2. This DOESN’T apply to the rental, lease, or lending of a phonorecord for non-profit purposes by a non-profit library or other non-profit educational institution.

ii. this is only meant to be a minor modification of the 1st sale doctrine. It DOESN’T restrict the right of the purchaser to sell or give away the phonorecord.

b. The Computer Software Rental Amendment of 1990i. Authors or producers of software have the right to either

authorize or prohibit the rental of copies of their software. This is true, even after the original sale.

ii. But, the authors or producers can't prohibit 1. non-profit transfers of copies of programs w/in

libraries

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2. The rental of copies contained w/in computer hardware when the programs are not normally susceptible to copying (e.g. rent a laptop- this is okay, or rental of cars w/computerized modifications & upgrades- this is okay too)

3. §602: Infringing Importationa. Importation into the US of a copy or phonorecord acquired outside

the US is an infringement of the right to distributei. This must be done w/out the authority of © owner

1. but, the owner can import his own workii. §501 says that anyone who imports copies into the US in

violation of §602 is an infringer!

b. There are 3 exceptions- works may be imported if i. Importation of the copies is under the authority or for the

use of the US gov't or any state for its own purpose1. but not for use in schools or copies of any audiovisual

work imported for purposes other than archival useii. For private use of the importer, if he imports only 1 copy

1. also, this doesn’t apply if buy the work abroad & bring back 3 or fewer copies in your personal luggage

iii. By or for an organization operated for scholarly, educational, or religious purposes, & not for private gain

1. importation of 1 copy of an audiovisual work solely for archival purposes

2. No more than 5 copies or phonorecords of any other work for library lending or archival purposes, UNLESS

a. The importation of the copies or phonorecords is part of an activity consisting of systematic reproduction or distribution, engaged in by an organization in violation of 108g2

c. This importation right is limited by §109 (first sale doctrine) i. The practical effect of this is that it is not infringement to

buy copies of a US manufactured work that was legally distributed abroad, and bring them back to the US to sell for a higher price.

1. this is called a “round trip” transactionii. But, if the works were manufactured legally in another

country, then §602 does apply, and its infringement to distribute those copies in the US.

iii. §109 is given a very literal reading in the context of imports1. 109 only applies to copies “lawfully made under THIS

TITLE (i.e. 17)” Thus, parties who purchase/import copies made under another country’s title do not benefit from 109 protection.

f. The Right of Public Performance (§106(4), (6))i. (4) the © owner has the right to publicly perform his work

1. the work must be one of the followinga. literary (reading a literary work aloud)b. musical (singing or playing)c. dramatic (acting)d. choreographic work (dancing a ballet)e. pantomimef. motion pictures & other audiovisual works

2. NOTa. Pictorial, graphic works

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b. Architectural worksc. Sound recordings (see 106(6))

ii. Always start by asking 3 questions1. Is the act at issue a performance?

a. To perform a work :i. To recite, render, play, dance, or act a work, either directly

or by means of any device or process,ii. in the case of a motion picture or other audiovisual work, to

show its images in any sequence or to make the sounds accompanying it audible

1. contrast this with when the movie is shown out of sequence- this is a public display infringement problem (see below)

iii. This covers not only initial rendition, but any further acts as well (e.g. multiple performances):

1. e.g. radio/tv broadcasting2. When a network transmits a signal, this is a

performance. When the local affiliate of the network picks up that signal & retransmits it over its local network, this is also a performance. A third performance occurs when one turns on the radio or TV to make the work seen/heard. .

2. Is the performance public?a. To perform a work “publicly”

i. To perform (or display- see below) the work at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family & its social acquaintances is gathered

1. e.g. turning on TV at home is a performance, but its not public

2. “family” includes an individual living alone so that gatherings confined to his social acquaintances would be regarded as private

3. “substantial number of persons” does not include routine meetings of business & gov't personnel

4. Large events (weddings, wakes, etc.) may or may not be considered a public performance

5. Just b/c not every single person is allowed in a place doesn’t make the place not “open to the public”

6. Semi-public places : places where a substantial number of persons are gathered

a. E.g. private clubs, lodges, factories, summer camps, and schools

7. A public place can be “open to the public” even if its open to only one person at a time. A place is determined public by the nature of the store, not the precise whereabouts of the transmission apparatus

ii. To transmit, or otherwise communicate, a performance or display of the work to:

1. a place specified by the above clause OR2. to the public,

a. by means of any device or process, b. whether members of the public capable of

receiving the performance or display receive it

i. in the same place or in separate places and

ii. at the same time or at different times3. To “transmit a performance”

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a. To communicate a work by any device or process whereby images or sounds are received beyond the place from which they are sent.

b. A performance made available by transmitting to the public at large is “public”

i. even though the recipients are not gathered in a single place, and

ii. even if there is no proof that any of the potential recipients were operating their receiving apparatus at the time of the transmission

iii. this also applies to limited segments of the public: hotel room occupants or cable TV subscribers

b. There are 5 types of Public Performances (§101)i. Performance in or at a public place

1. this includes places where admission is charged and places with security

ii. Performance in or at a “semi-public” place1. private clubs and organizations2. probably not a law school classroom b/c it doesn’t

meet the social acquaintance requirementiii. Transmission of a performance to a public place

1. e.g Times Square, or other amphitheatreiv. Transmission of a performance to a semi-public place

1. maybe weddings, etc, maybe notv. Transmission of a performance to the public

1. capable of being received by a large number of people who are not all in the same place

2. e.g. radio broadcasts

3. Is there an applicable exemption from liability? (§110)- the following are not infringements of copyright

a. (1) Face to Face Teaching Activities:i. Performance of a work by instructors or pupils in the course

of face to face teaching activitiesii. Must be by a non-profit educational institution

iii. Must be in a classroom or similar place devoted to instruction

1. UNLESS, in the case or a movie or other audio visual work, the performance is given by means of a copy that was not lawfully made under this title, AND the person responsible for the performance knew or had reason to believe it wasn’t lawfully made

a. If professor shows a DVD in class he bought from a card table- its arguable he knew it’s a bootleg

b. (2) Educational transmissionsi. “distance learning”- performance of a non-dramatic literary

work or musical work or display of the work, or in the course of transmission is not infringement if:

ii. (a) performance is a regular part of the systematic instructional activity of a gov't body or non-profit educational institution

1. e.g. not merely self study. Not barbri, but ok for GWiii. (b) performance is directly related and of material

assistance to the teaching content AND

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iv. (c) the transmission in made primarily for1. Reception by students officially enrolled in the

course2. Reception by gov't employees as part of their official

dutiesv. (d) The transmitting body or institution

1. must have a generic © policy in place2. in the case of a digital transmission (over the web)

a. the body must apply technological measures that make it difficult to

i. retain the work for longer than the class session

ii. further disseminate the workb. e.g. for an on-line course, students can't store

images on their machines or send them to others

c. also this must be works that are (1) an integral part of the class experience, (2) controlled by or under the actual supervision of the instructor.

d. This doesn’t refer to materials used in 1 or more class sessions that are typically purchased by students for their independent use

c. (3) Religious services or other Religious assemblyi. performance of a nondramatic or literary or musical work or

of a dramatico-musical work (opera) in the course of services at a place of worship or other religious assembly

1. church choirs are okay2. dramatic musical works like opera must be of a

religious nature3. “other religious assembly” means not w/in the 4

walls of the church4. Ministers can quote from Newsweek in his sermon5. *this applies to a display as well- minister can hold

up a newspaper or pictured. (4) Live performances w/out commercial advantage

i. Non-profit performance of a non-dramatic literary or musical work otherwise than in a transmission to the public

1. no direct or indirect commercial advantage2. no payment of any fee or other compensation for the

performance to any of its performers, promoter, or organizers if:

a. there is no admission charge (direct or indirect), OR

b. The proceeds, after deducting the reasonable costs of producing the performance are used exclusively for educational, religious, or charitable purposes & not for private financial gain

i. EXCEPT where the © owner has served notice of his objection of the performance-

ii. Notice must be in writing & signediii. Notice must be served on the

individual responsible for performance at least 7 days before the performance & list the specific objections

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iv. Notice must comply w/any requirements the Register of © prescribes

ii. Note : There is nothing here that says that the © has to be notified (performer doesn’t have to seek owner’s permission)

iii. General logic here is if the performers are being paid, then the author or composer should be paid too

iv. Note: playing the radio in a public place is not considered a transmission, but it is considered a performance

e. (5) Mere Reception of Broadcasts in Public Places (Home-style Exception)

i. (a) except as provided in (b), communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes

1. unless a direct charge is made to see it2. or the transmission is further transmitted to the

publicii. This exception ONLY covers broadcasting, NOT playing of

CDs, tapes, videos, etc.iii. If an establishment uses equipment that would typically be

used in a home to make a broadcast audible or visible, its not usually a public performance.

1. but, there is a debate about what kind of equipment qualifies for the home-style exception

iv. (b) if an establishment transmits or retransmits a performance or display or a nondramatic musical work & its intended to be perceived by the general public, originated by a radio or TV broadcast station licensed by the FCC, or, if an audiovisual transmission, by a cable system or satellite carrier if

1. non-food establishments: (retail stores) there is less than 2000 gross sq. ft of space (not including the parking lot) OR

a. these establishments can use whatever they want

2. food service establishments: less than 3750 sq. ft (excluding the parking lot)

a. these establishments can also use whatever equipment they want

3. if the establishment is bigger than the 2 above establishments, you are only exempt if

a. the transmission is audio i. There are no more than 6 speakers, no

more than 4 of which are located in one room

b. The performance is by audiovisual means i. There are no more than 4 total

audiovisual devices, no more than 1 of which is located in any one room

ii. No device has a diagonal screen size bigger than 55 inches

iii. The audio portion must follow the above guidelines

4. no direct charge is made to see or hear the transmission or retransmission

5. the transmission is not further transmitted beyond the establishment where it is received

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6. the transmission is licensed by © owner of the work that is being publicly played

v. EVEN IF the business doesn’t meet the above safe harbor provisions in (b), it can STILL ARGUE that the apparatus used is a Homestyle apparatus, under (a)

vi. Note : nothing in this section indicates a person, company, or other entity must own or operate only a single receiver to qualify for the exemption- the focus is on a single location (Edison Bros. v. BMI)

f. (6) Agricultural fair exceptioni. performance of a non-dramatic musical work by a

1. gov't body or 2. non-profit agricultural or horticultural organization

ii. In the course of an annual agricultural or horticultural fair or exhibition conducted by such body or organization

1. e.g. county fair where there are musical groupsg. (7) Vending establishment

i. performance of a non-dramatic musical work by a vending establishment

1. open to the public at large2. no direct or indirect admission charge

ii. Sole purpose of the performance is1. to promote the retail sale of copies or phonorecords

of the work, or the audiovisual or other devices utilized in such performance AND

2. performance is not transmitted beyond the place where the establishment is located, and is w/in the immediate area where the sale is occurring

a. e.g. if in the business of selling speakers, you can play music b/c the purpose of the establishment is to sell the speakers

iii. This does NOT apply to audiovisual works

h. (8) Noncommercial transmissions for blind/deafi. performance of a non-dramatic literary work, by or in the

course of a transmission specifically designed for and primarily directed to blind or other handicapped persons, who are unable to read normal printed material as a result of the handicap, or deaf persons unable to hear the sounds accompanying the transmission of visual signals

1. e.g. books read aloudii. Performance is made w/out any purpose of direct or indirect

commercial advantageiii. Transmission must be made through the facilities of

1. gov't body2. or a non-commercial educational broadcast station,

etc.i. (9) Noncommercial transmissions for the blind/deaf

i. performance on a single occasion of a dramatic literary work, by or in the course of a transmission specifically designed for and primarily directed to blind or other handicapped persons

1. dramatic literary work must have been published at least 10 years before the date of the performance

2. performance must be made w/out any purpose of direct or indirect commercial advantage

ii. Performance is made w/out any purpose of direct or indirect commercial advantage

iii. transmission must be made through the facilities of a radio subcarrier authorization

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iv. This is not applicable to more than one performance of the same work by the same performers or under auspices of the same organization

j. (10) Nonprofit performances at fraternal or veterans’ organizations

i. performance of a non-dramatic literary or musical work in the course of a social function to which the general public is not invited, but includes the invitees of the organizations, if

1. the proceeds from the performance, after deducting reasonable costs of producing the performance are used exclusively for charity and not for financial gain

2. Social functions of college sorority or fraternity are not included unless the function is held solely to raise funds for a specific charitable purpose

k. §111: Secondary Transmissionsi. Normally, it’s a violation of the public performance right to

receive a transmission & then re-transmit it to another location where there are members of the public w/out consent of © owner

1. e.g. radio broadcast in hotel lobby, elevators or dining room, TV broadcast by cable or satellite to persons well beyond the local viewing area of the broadcast station

ii. Exemption : (a)(1) Secondary transmissions that take the form of relaying, by the management of a hotel, apartment house, or similar establishment of signals, transmitted by a broadcast station licensed by the FCC, w/in the local service area of such station, to the private lodgings of guests or residents of such establishment, and no direct charge is made to see or hear the secondary transmission

1. this exemption doesn’t extend toa. dining rooms, meeting halls, theaters,

ballrooms, or similar places that are outside of a normal circle of a family and its social acquaintances

2. This transmission must NOT be made by a cable system

3. Basically, a hotel is permitted to do the functional equivalent of placing an ordinary radio or TV set in its private rooms

iii. This section doesn’t cover: liability under this section is based upon the cable transmission of distant non-network programming

1. this carries the program to an area beyond which it has been licensed, & thus adversely affects the ability of the © owner to exploit the work in that distant market

2. A distant signal is one imported from a broadcast station at such a distance that it could not otherwise be received by viewers in the area in which the cable’s system is located (more than 35 miles from signal point of origin)

3. A cable provider can broadcast a distant signal if they first obtain a compulsory license

a. There are royalty rates set up in §111(d)

l. §119- Satellite carriers

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i. there is also a compulsory license required here for secondary transmissions by satellite carriers to certain stations (e.g. direct TV)

m. §116- Jukebox Public Performancesi. performance of music through coin-operated machines

ii. (b)(1): owners of copyright in musical works and operators of coin operated phonorecord players may NEGOTIATE and agree upon the terms of royalty payments for the performance of such works & the proportionate division of fees paid among copyright owners

iii. (b)(2): permits arbitration by ad hoc panelsiv. (c) if a copyright arbitration royalty panel decides how this

negotiation should come out, a voluntarily negotiated license requirement will trump this

v. 803(a)(4): if a negotiated license lapses or terminates, & is not replaced w/a substantially equivalent license, the Librarian of Congress will convene a CARP (copyright arbitration royalty panel) which will determine the rates- but these rates will prevail until a new negotiated license is made

n. §118- Public Broadcastingi. performance of a published non-dramatic musical work and

the display of published pictorial, graphic, and sculptural works is exempted from infringement liability if:

1. VOLUNTARY LICENSE agreements are negotiated between the public broadcasting entities and © owners of the non-dramatic musical or of pictorial, graphic and sculptural works

ii. If the broadcasting entity complies w/the negotiated license rates and terms, it may engage in the following activities w/out infringing 106(4):

1. performance in the course of a broadcast transmission by a non-commercial radio or TV station

2. reproduction, copying & distribution of a program containing such performance solely for the purpose of broadcast by other stations

3. taping by a public school or other non-profit institution of such a broadcast for non-profit face to face instructional use w/in 7 days

4. Performing Rights Societies a. Even if an entity doesn’t meet any of the above exceptions from

liability, it may still publicly perform by getting a license to play music through ASCAP or BMI

i. ASCAP and BMI are entities that act as the liaison between the holders of © in songs, and entities that want to publicly perform those songs (i.e. “users”)

1. Users includea. Radio stationsb. Local TV stationsc. National TV stationsd. Airplanes that use background musice. Bars/Restaurants that use background musicf. Cruise ships that play music g. Musak (elevator & phone)

b. ASCAP/BMI is appointed as © owners non-exclusive agent, and is empowered to grant performance licenses (for musical

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compositions, NOT sound recordings) to users who pay a license fee.

i. This license is a “blanket license” which permits access to ANY song in the ASCAP or BMI inventory as many times as it wants w/in a specified period (usually 1 year)

1. Licenses are priced differently depending on the industry. Radio stations are usually charged a % of their annual revenues

ii. Often, a user will have to get licenses in both ASCAP and BMI b/c the inventories don’t overlap

iii. In the case of a band or DJ publicly performing a musical composition, the licenses are purchased from ASCAP/BMI by the owner of the venue itself.

1. a conscientious performer will ask if the venue holds a license before performing b/c he is still liable as an infringer

c. Rationale: this is beneficial to both parties. It would be extremely difficult for an FM broadcast station to track down every owner of a song that it might want to play, & the transaction costs would be way too high. It would be hard for an individual © owner to find all the people who are infringing b/c there are too many radio stations around the world.

i. Each time a musical work is played on the air or before live groups, the event becomes a possible source of revenue for the © owner.

ii. Performing rights societies are the means by which music composers and publisher police, license, and otherwise administer the potentially valuable but elusive performance right

d. ASCAP/BMI also police unauthorized performancei. If ASCAP or BMI find an instance of infringement, they

cannot initiate the suit themselves b/c they don’t have standing

1. the © holder must bring suitii. But, they can litigate and take all necessary legal actions to

prevent unauthorized public performances of the member’s © work

e. Anti-Trust Problems i. ASCAP must comply with provisions of a consent decree

with the DOJ anti-trust division 1. ASCAP cannot discriminate in license rates or terms

among similarly situated licensees2. ASCAP cannot acquire exclusive licenses of its

members’ performance rights. Individual members can negotiate licenses themselves and receive royalties from them

3. ASCAP must offer a per program license along with its blanket license on an economically meaningful basis

4. Distribution of royalties must be based on an objective survey system

g. The Right of Public Display (§106(5))i. The © owner has the exclusive right to display his work

ii. This applies to:1. literary 2. musical3. dramatic4. choreographic works5. pantomimes6. pictorial works

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7. graphic8. sculptural works9. individual images of a motion picture or other audiovisual works (like a

slide show)iii. To “display” a work means

1. to show a copy of it, either directly or indirectly by means of a film, slide, television image, or any other device or process or,

a. in the case of a motion picture or other audiovisual work, to show the individual images non-sequentially

i. Sequential presentation of an audiovisual work is a “performance” not a display

iv. The exclusive right is only afforded to PUBLIC display 1. To perform or display the work at a place open to the public or at any

place where a substantial number of persons outside of a normal circle of a family & its social acquaintances is gathered

2. To transmit, or otherwise communicate, a performance or display of the work to

a. a place specified by the above clause orb. to the public,

i. by means of any device or process, ii. whether members of the public capable of receiving the

performance or display receive it 1. in the same place or in separate places and2. at the same time or at different times

3. To “transmit a display” a. To communicate a work by any device or process whereby images

or sounds are received beyond the place from which they are sent. i. A display made available by transmitting to the public at

large is “public” 1. even though the recipients are not gathered in a

single place, and 2. even if there is no proof that any of the potential

recipients were operating their receiving apparatus at the time of the transmission

a. this also applies to limited segments of the public: hotel room occupants or cable TV subscribers

b. There are 5 types of Public Displays (§101) i. Displays in or at a public place

1. this includes places where admission is charged and places with security

ii. Displays in or at a “semi-public” place1. private clubs and organizations2. probably not a law school classroom b/c it doesn’t

meet the social acquaintance requirementiii. Transmission of a display to a public place

1. e.g Times Square, or other amphitheatreiv. Transmission of a display to a semi-public place

1. maybe weddings, etc, maybe notv. Transmission of a display to the public

1. capable of being received by a large number of people who are not all in the same place

v. Purpose: to make sure that the owner of the © gets the proper economic reward from displaying his work

vi. Limitations:1. First Sale Doctrine (§109c)

a. The owner of particular copy lawfully made under this title is entitled, w/out the authority of the copyright owner, to DISPLAY that copy publicly, either directly or by the projection of no

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more than 1 image at a time, to viewers present at the place where the copy is located

i. This ONLY applies if you actually OWN the physical copy you put on display (if its on loan, its infringement)

ii. This ONLY applies if the copy is LAWFULLY madeb. The practical effect of this is that a display by means of a

transmission is a technical violation of the exclusive right & is not protected by the first sale doctrine

i. This is b/c the object must be at the same place as the people when they view it

ii. So, if there is a potential likelihood that when you are filming a TV show you will capture works on film, you must first clear the rights. This is in part b/c you are making a reproduction, but also b/c this constitutes multiple images shown at once, in a place other than where the viewing public is

2. §110: the following acts are NOT infringementa. (1) Face to Face Teaching Activities:

i. Display of a work by instructors or pupils in the course of face to face teaching activities

ii. Must be by a non-profit educational institutioniii. Must be in a classroom or similar place devoted to

instruction1. UNLESS, in the case or a movie or other audio visual

work, the display is given by means of a copy that was not lawfully made under this title, AND the person responsible for the display knew or had reason to believe it wasn’t lawfully made

b. (2) Educational transmissionsi. “distance learning”- display of a non-dramatic literary work

or musical work, byor in the course of transmission is not infringement if:

ii. (a) display is a regular part of the systematic instructional activity of a gov't body or non-profit educational institution

1. e.g. not merely self study. Not barbri, but ok for GWiii. (b) display is directly related and of material assistance to

the teaching content ANDiv. (c) the transmission is made solely for

1. Reception by students officially enrolled in the course

2. Reception by gov't employees as part of their official duties

v. (d)The transmitting body or institution1. must have a generic © policy in place2. in the case of a digital transmission (over the web)

a. the body must apply technological measures that make it difficult to

i. retain the work for longer than the class session

ii. further disseminate the workb. e.g. for an on-line course, students can't store

images on their machines or send them to others

c. also this must be works that are an integral part of the class experience, controlled by or under the actual supervision of the instructor.

d. This doesn’t refer to materials used in 1 or more class sessions that are typically

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purchased by students for their independent use

c. (3) Religious services or other Religious assemblyi. display of a nondramatic or literary or musical work or of a

dramatico-musical work (opera) in the course of services at a place of worship or other religious assembly

1. dramatic musical works like opera must be of a religious nature

2. “other religious assembly” means not w/in the 4 walls of the church

3. *this applies to a display as well- minister can hold up a newspaper or picture

d. (5) Mere Reception of Broadcasts in Public Places (Home-style Exception)

i. (a)except as provided in (b), communication of a transmission embodying a display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes

1. unless a direct charge is made to see it2. or the transmission is further transmitted to the

publicii. This exception ONLY covers broadcasting, NOT playing of

videos, etc.iii. If an establishment uses equipment that would typically be

used in a home to make a broadcast visible, its not usually a public performance.

1. but, there is a debate about what kind of equipment qualifies for the home-style exception

iv. (b) if an establishment transmits or retransmits a display or a nondramatic work & its intended to be perceived by the general public, originated by a TV broadcast station licensed by the FCC, or, if an audiovisual transmission, by a cable system or satellite carrier if

1. non-food establishments: (retail stores) there is less than 2000 gross sq. ft of space (not including the parking lot) OR

a. these establishments can use whatever they want

2. food service establishments: less than 3750 sq. ft (excluding the parking lot)

a. these establishments can also use whatever equipment they want

3. if the establishment is bigger than the 2 above establishments, you are only exempt if

a. The performance is by audiovisual means i. There are no more than 4 total

audiovisual devices, no more than 1 of which is located in any one room

ii. No device has a diagonal screen size bigger than 55 inches

4. no direct charge is made to see or hear the transmission or retransmission

5. the transmission is not further transmitted beyond the establishment where it is received

6. the transmission is licensed by © owner of the work that is being publicly played

v. EVEN IF the business doesn’t meet the above safe harbor provisions in (b), it can STILL ARGUE that the apparatus used is a Homestyle apparatus, under (a)

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vi. Note : nothing in this section indicates a person, company, or other entity must own or operate only a single receiver to qualify for the exemption- the focus is on a single location (Edison Bros. v. BMI)

3. §118- Public Broadcasting is not an infringementa. the right to display published pictorial, graphic, and sculptural

works by public broadcasters on TV is covered, if parties fail to agree upon negotiated royalties, by a compulsory license granted under this section

b. If the broadcasting entity complies w/the negotiated license rates and terms, it may engage in the following activities w/out infringing 106(4):

i. display in the course of a broadcast transmission by a non-commercial TV station

ii. reproduction, copying & distribution of a program containing such display solely for the purpose of broadcast by other stations

iii. taping by a public school or other non-profit institution of such a broadcast for non-profit face to face instructional use w/in 7 days

h. The Right to Perform the Copyrighted Work Publicly by means of a Digital Audio Transmission (§106(6)) – DPRSRA)

i. The owner of © has the exclusive right to perform the copyrighted work (in the form of a SOUND RECORDING) by means of a digital audio transmission

1. only applies to sound recordings2. Sound recording are a particular rendition of a song (NOT underlying

musical composition- notes, melody, etc)3. A transmission is NOT playing a CD on digital equipment in a concert hall

where it is only available to those present ii. There are 4 main ways one can send out digital signals at a distance (which is

what a transmission is)1. Conventional radio means

a. Some radios broadcast/receive digital signals2. By digital cable

a. Comcast has music channels3. By satellite4. By computer

a. Can go online and get music, either b/c its background to something else, or b/c you are downloading it

iii. Limits on this right 1. §114(d) tries to discourage or forbid activities that would wholly deter

someone from going out and buying an actual copy of the song or album2. Rationale: Congress passed 114 b/c it realized there was a serious

economic threat to the ability of owners to recognize economic reward from sound recordings. B/c of digital copies, every copy is perfect, so there was a fear that eventually phonorecords would become obsolete- people would obtain all their music from online on-demand services.

3. The following digital transmissions of sound recordings are NOT infringement if the appropriate license is obtained

a. A non-subscription, non-interactive transmission i. E.g. over the radio or internet

ii. These require a compulsory license (1998 amendment)- before this they were exempt

b. A subscription but non-interactive transmission i. E.g. Comcast digital music

ii. These also require a compulsory licensec. Interactive services that are non-subscription (free)

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i. No exampleii. No one would provide a service like this for free

iii. But, a user must get a voluntarily negotiated license, but © has veto power- he can say no

d. Interactive service that is by subscription (not free) i. E.g. music on demand (celestial jukebox)

ii. This is the clear substitute for the purchase of phonorecords. Why would anyone buy a CD when you can listen to the music whenever you want?

iii. A voluntarily negotiated license is required for this4. The ONLY category wholly exempted from a license of any sort is a

non-subscription broadcast transmissiona. This is a narrowed category from non-subscription, non-interactive

transmissionsi. A transmission done by an FCC licensee from a licensed

facility in a local broadcast areab. Thus, internet transmissions are subject to a compulsory license

b/c they have a broad reachi. This is true even if the webcasters just pick up a radio

signal, digitize it, and send it over the internet5. §114(d)(2)(C): Conditions of eligibility for compulsory license

a. II: transmitting entity must not cause to be published an advanced program, schedule, or announcement of the names of the songs or artists to be played, AND

i. This is b/c a listener could anticipate when the music he wanted to hear would come on and record it, making it less likely he will buy the CD

b. I: transmission cannot exceed the Sound Recording Performance Compliment (SRPC), AND

i. SRPC is: the transmission during any 3 hour period of a particular channel of no more than 3 different selections of sound recordings from any one phonorecord, if no more than 2 such selections are transmitted consecutively, or 4 different selections of sound recordings by the same featured artist or from any set or compilation of phonorecords

c. IV: Eligibility is lost if one takes affirmative steps to cause or induce the making of a phonorecord by the transmission recipient

i. Moral Rights (Le Droit Moral)i. © law doesn’t recognize moral rights or provide a cause of action for their

violation1. © law seeks to vindicate economic, rather than personal, rights of authors

ii. In the international arena, art is considered an extension of the artist, and he should have control over how it makes its way through society.

iii. There are 2 major moral rights (in France and Germany) 1. right of attribution/right of paternity

a. this is the right to have your name accompanying (or not accompanying) your work in the public so you get credit

2. Right of integritya. Right to keep your work in tact, to prevent alteration of your work,

or at least alterations that are offensive to you or call your artistic vision into question, or convey a misunderstanding to the public about what you are as an artist

iv. In other countries, more exotic moral rights exist 1. Droit de Suite (right to follow)

a. This is the right to participate in the economic appreciation of your work, to share in the increased value

i. A creator is entitled to some percentage of sales every time his work was sold at a higher price

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ii. CA is the only state to enact this “resale royalty” statuteb. The artist’s right is non-waivable, & may be enforced by an action

for damages w/3 year SOL.2. Right of Recall

a. Permits one to withdraw his work from public circulation if his artistic views have changed

3. Public Lending Rightsa. The right to receive a royalty based on the circulation by a library

[actual or potential] of the workv. The Berne Convention requires its members to provide moral rights in their

countries’ copyright laws1. in order to bring itself in compliance with BC, Congress enacted explicit

protections for the attribution & integrity interests of a LIMITED class of VISUAL artists

a. Visual Artists Rights Act (VARA) of 1990- §106A (effective 6/1/91)

i. A work of visual art is :1. painting, drawing, print, or sculpture existing in

a. a single copyb. a limited edition of 200 copies or fewer that

are i. signed by the author

ii. consecutively numberedc. In the case of a sculpture:

i. In multiple castii. Carved or fabricated sculptures of 200

or fewer that are consecutively numbered and signed by the author

2. A still photo image produced for exhibition purposes only, existing in

a. A single copyb. Or a limited edition of 200 copies or fewerc. Signed by the authord. Consecutively numbered

3. But, if a reproduction, portrayal or use of a work of visual art is on an item defined as NOT a visual art, it is not actionable

a. E.g. if you make a movie, and one scene has a painting in the background, but its out of focus, this is not actionable b/c movie is not a visual art

ii. A work of visual art is NOT 1. poster, map, globe, chart, technical drawing,

diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, database, electronic information service, electronic publication, or similar publication

2. Any merchandising item or advertising, promotional, descriptive covering or packaging material or container

3. Any portion or part of these above items4. Any WFH5. Any work NOT subject to © protection

iii. §106A grants 3 substantive rights 1. (a)(1) right of paternity

a. right to claim authorship of the workb. right to have your name removed from any

work that you did not author

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2. (a)(2) right to prevent use of name as an author in the event that there has been a distortion that is prejudicial to the author’s honor

3. (a)(3) right of integritya. prevent distortion, mutilation, or modification

of work if its prejudicial to the author’s honori. Limitations: §106A(c)ii. (1) Any modification to a work of visual

art due to passage of time or preservation efforts or presentation considerations is not a distortion, mutilation, or other modification

iii. (2) the modification of a work of visual art which is the result of conservation or of the public presentation including lighting & placement of the work, is NOT a destruction, mutilation, etc.

b. prevents total destruction of a work of recognized stature

4. These rights put a great weight on the court to determine what is prejudicial to one’s honor, and what a work of recognized stature is.

iv. These rights are independent of both 1. the ownership of the © of the work2. the ownership of the physical copy/copies of the work3. Thus, artist always retains moral rights unless it’s a

WFH (but it has to be w/in the 9 categories)4. These rights apply to the original work- it says

nothing about distorting a copy of the artwork b. Duration of VARA rights

i. Works created AFTER VARA took effect 1. life of the author

ii. Works that predate VARA enactment (§106A(d)(2)) 1. if no transfer of title, then these rights last for the

same period of the copyright, L + 70iii. VARA rights cannot be transferred, but they can be WAIVED

if author expressly agrees in a written instrument & signs it. 1. This instrument must specifically identify the work &

uses of that work to which the waiver applies. 2. The waiver shall only apply to the work and uses so

identified. 3. In the case of joint works, the waiver of rights made

by one author, waives for all authorsc. Limitations on VARA rights (§106A(c))

i. (1) Any modification to a work of visual art due to passage of time or preservation efforts or presentation considerations is not a distortion, mutilation, or other modification

ii. (2) the modification of a work of visual art which is the result of conservation or of the public presentation including lighting & placement of the work, is NOT a destruction, mutilation, etc.

iii. (3) The reproduction, portrayal, or use of a work in an item that is NOT DEFINED as visual art cannot be actionable as a violation

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VIII. Proving Infringement a. In order to prove infringement, P must show

i. D actually copied the work1. evidence of actual copying may consist of

a. D’s admission of copyingb. Circumstantial evidence

i. There are 2 ways to show copying by circumstantial evidence:

ii. Proof of access + probative similarity1. proof of access

a. D had a chance to see, hear, read, etc. P’s work (widely disseminated)- Opportunity to See Test

i. Or D actually saw, heard, read, etc. P’s work- Actual viewing test

b. D owns a copy of P’s workc. P’s work was sent to the same distributor as

D’s workd. If access, subconscious copying is ok

2. probative similarity (resemblance) a. For the purpose of copying, this doesn’t have

to relate to the text that is copyrightable. It can relate to the components of the work that are unprotected. This is even proven when small bits of D’s work resemble small bits of P’s work

b. Dissection of the work and expert testimony is appropriate here

iii. Striking Similarity in the works1. this can also be shown by similarities of unprotected

elements in the works2. This can be proved in lieu of access if the works are

so shockingly similar that there is really no way that D’s work could not be a copy of P’s work.

3. This test is better suited for complex works, b/c its more unlikely that the 2 works were created independently.

a. However, this determination will fail if a work is found in the public domain that both P and D could have copied from.

4. A determination of striking similarity is to be made from the perspective of the audience that was intended by the author to constitute the commercial market

a. This is normally the ordinary observer, but its not a lay person when the work is designed to appeal to an audience with specialized knowledge

b. Thus, expert testimony has no place here5. The problem here is there could still be independent

creation. The similarity could be coincidentala. If there is no evidence of access, the similarity

must be so striking that a reasonable man would not think that both people independently arrived at the same result

iv. If there are no similarities, then no evidence will suffice to prove copying

ii. The copying constituted an improper appropriation (illicit copying)1. There must be a substantial similarity of PROTECTED expression

a. Test is the response of the ordinary lay observer (Peter Pan)

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b. This is true UNLESS the nature of the work is designed to appeal or addressed to a certain market or group, in which case it should be judged from the perspective of someone in that market or group

c. Thus, expert testimony has no place here2. Substantial similarity can be shown in either of 2 ways

a. Fragmented Literal Similarity :i. Taking of verbatim nuggets (snips and fragments) that

cumulatively add up to the substantial taking of the work1. this frequently happens in music pieces

b. Comprehensive Non-Literal Similarity i. Taking of the framework or structure, idea or theme of the

work1. frequent in books, movies, and plays2. Don’t confuse this with ideas- ideas are used as a

label, when the court doesn’t want to extend protection to something b/c its too general

c. For substantial similarity, should always use a RELATIVE quantity rather than an ABSOLUTE one

i. A de minimus defense may be used when copying has occurred to such a trivial extent as to fall below the quantitative threshold of substantial similarity

ii. But, de minimus defense should not be allowed to prevail when the copied portion is the most important part of the work (i.e. the heart of the work, or the part that will derive the economic reward). P should not be handicapped for writing a large work.

d. Courts differ as to how to apply the substantial similarity test- which subject matter should be used?

i. Totality Approach 1. Substantial similarity will be determined with respect

to the whole of the copied portions of P’s work, including portions that can't be protected

2. The point here is that to remove unprotectible elements ahead of time would preclude © protection for factual compilations that contain an innovative selection or arrangement of elements. These elements would have to be removed & there would be nothing left to analyze.

3. 9th circuit uses this approach for motion picture infringement

ii. Dissection or Subtractive Approach 1. Substantial similarity will be determined with respect

to only the part of the works that can be ©, removing the uncopyrightable elements first.

a. Take out the material that is facts, ideas, other non-protectible material & then determine if there are substantial similarities in the remainder of the work

2. 2nd circuit used this in computer software infringement cases

e. A work that bears substantial similarity to a protected work, but deliberately incorporates difference in order to distinguish it from the protected work should still be considered illicit copying.

3. The expression copied must be PROTECTED under © lawa. D can always copy P’s idea, just not his expression (jeweled bee

case)i. This distinction is one of degree- the courts should preserve

a balance between competition and protectionii. What is really at stake is the extent of the © owner’s

monopoly. Courts will label D’s work a copy of the “idea”

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and not the “expression” when they feel that P is asking for too much of a monopoly in the area. The real question is- is it okay to copy or not?

b. The issue of whether “visual style” and “concept and feel” is protectible has no definitive answer. Most black letter sources say style per se is not protectible.

i. However, style is an element of expression, such that if style plus something else is copied, it crosses the line & could be a copy of expression & not merely an idea.

ii. This is better applied to cases of pictorial copyright, b/c a picture can be viewed in a single glance as a totality

1. contrast this with literary works, where the protection of this might result in protecting plot ideas and stock devices

iii. Note: there is NO INTENT REQUIRMENT for infringement1. a showing of intent, or lack of intent can influence the amount of damages

awarded to the © owner, but its NOT an element of infringement

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IX. Liability for Copyright Infringementa. Criminal Liability b. §506 imposes federal criminal liability for various acts

i. (a): any person who infringes a copyright WILLFULLY either1. (1) for purposes of commercial advantage or private financial gain OR

a. punishment is required if i. the offense is unauthorized reproduction or public

distribution (BUT no other exclusive right of the copyright owner)

ii. at least 10 copies, of 1 or more © works w/retail value of more than $2500 are reproduced or distributed w/in 180 day period

iii. This is punishable by 5 years in prison, 10 years for a second or subsequent offense, or in any other case, 1 year of prison, fines or both

b. Financial gain is defined as:i. Receipt or the expectation of receipt, of anything of value,

including the receipt of other © works2. (2) by the reproduction and distribution, including by electronic means,

during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1000

a. punishment: 3 years, fines or both, if reproduction or distribution of 10 or more copies/phonorecords of 1 or more © work, which has a total retail value of $2500 or more, 6 years for a second or subsequent offense, prison for 1 year or fines or both if reproduction or distribution of 1 or more copies or phonorecords of 1 or more © works w/total retail value of $1000

3. NOTE that these acts must be Willfula. gov't must prove the accused intended to infringe, rather than

merely make or distribute copiesb. this intent requirement is NOT present in CIVIL cases

ii. (b): the court must order the forfeiture & destruction of all copies or phonorecords and manufacturing devices in the event of a finding of guilt

1. this is DISCRETIONARY in civil casesiii. (c): Criminalizes the knowing placement of a false copyright notice or the

knowing distribution or importation of any article bearing such a false notice1. this is not an act of infringement for which CIVIL remedies are available

iv. (d): Penalizes the fraudulent removal of a © notice1. this is also NOT an act of infringement for which CIVIL remedies are

availablev. (e): criminal liability for false representations of material fact in applying for ©

registrationvi. Note: Violations of integrity and attribution rights of visual artists (VARA cases)

CANNOT give rise to criminal liabilityvii. Liability for © offenses CAN'T arise under other federal criminal statutes

viii. Persons accused of conduct which creates criminal or civil liability under the Act are exempt from state criminal prosecution

1. Except for sound recordings made before 1972 (§310c)

c. Vicarious and Contributory Liability i. Since © infringement is a tort, all persons participating therein are liable

1. SC in Sony Corp. v. Universal City Studios endorsed possibility of imposing liability for © infringement on persons who have not actually engaged in the infringing activities

a. However, ct determined that vicarious liability cannot be imposed solely on the grounds that D’s have sold equipment w/the constructive knowledge that their customers may use that equipment to make unauthorized copies of © material

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b. Contributory liability will not be imposed on such a D if the machine is widely used for legitimate, unobjectionable purposes. It need merely be capable of substantial non-infringing uses

c. Courts have declined to extend Sony to providing goods that, although capable in the abstract of a substantial non-infringing use, are not actually used for such use

i. Thus, this doctrine only applies to staple articles or commodities of commerce, like VCRs, photocopiers, and blank, standard length cassettes

ii. 2 types of secondary liability1. Contributory Liability

a. In order for P to make out a case of CL, he must show:i. D’s end users are themselves engaged in direct ©

infringement1. in making a copy, even a temporary one stored in

the computer’s RAM to permit viewing of the website material is an infringement by the end user

ii. Knowledge of the © infringement1. knowledge can be actual OR constructive2. The knowledge must occur at a time, during which:

a. The D is materially contributing to the infringement (see below) AND

b. The D can use this knowledge to stop the particular infringement (this knowledge must be contemporaneous with the illicit activity, not subsequent to it)

3. There is no sharp line between actual and constructive knowledge. However, the amount of knowledge required for a finding of CL is directly related to how closely connected the D’s activities are to the direct infringers. The more material contribution a D makes, the more the court will find knowledge of the illicit activity self-evident.

4. In an online context, evidence of actual knowledge of specific acts of infringement is more likely to be required to hold a computer system operator liable for CI when the operator has little to no interaction with the end user.

a. If a computer system operator learns of specific infringing material available on his system & fails to purge such material from the system, the operator knows of and contributes to direct infringement

b. But, absent any specific info which identifies infringing activity, a computer system operator can't be liable for CI merely b/c the structure of the system allows for the exchange of © material (this is in line w/Sony holding)

iii. Material contribution1. with knowledge of the infringing activity, D must

induce, cause or materially contribute to the infringing conduct

a. Merely providing the site and facilities for the known infringing activity may be sufficient here- this may consist of providing space, utilities, parking, advertising, plumbing, customers

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2. This is linked with knowledge- the more material contribution the D makes, the more the court will find knowledge of the illicit activity self-evident & vice versa.

2. Vicarious Liability a. In order for P to make out a case of VL, he must show:

i. D’s end users are engaged in © infringement1. in making a copy, even a temporary one stored in the

computer’s RAM to permit viewing of the website material is an infringement by the end user

ii. D derived a direct financial benefit from the infringing conduct, AND

1. Direct financial benefit may be in the form ofa. A draw of customers who in turn pay

admission fees, concession stand fees, and parking fees

b. The financial benefit must be gained by the enhanced attractiveness of D’s business to the consumer b/c of 3rd party infringing behavior (like selling pirated CDs)

iii. D has the right and ability to supervise the infringing conduct

1. the ability to block infringer’s access to a particular environment for any reason whatsoever is evidence of the right and ability to supervise

a. e.g. an express reservation of rights policy will suffice, however a formal contractual ability to control the direct infringer is not needed

b. creating an audience for the direct infringers is evidence that D had ability to supervise conduct

2. Turning a blind eye to detectible acts of infringement for the sake of greater profits gives rise to VL

iii. For Internet Music Downloading Companies (peer to peer sharing)1. the finding of secondary liability rests in the intricate details of the

software schemea. Napster-like systems most likely support a finding of secondary

liabilityi. These systems have a central index made up from people

logged on at the time, which is stored by the corporation (Napster). But, the files of music are stored by the individual users. Nevertheless, the index allowed Napster to identify infringing material, & to block users from its system. Napster also reserved for itself the right to control the system. Because of this, Napster was continually involved in the infringement of its users.

ii. Napster was found guilty of VL and CLb. Grokster-like systems are least likely to support a finding of

secondary liability i. These systems have no central index. Grokster creates this

software program, and released it for the public. It had no involvement in the infringement of its users. This was a case of distributing a product & walking away

1. this right of control is essential for VL cases, & Grokster didn’t have it.

2. Used a Sony (Betamax) argument: the conceivable legit purpose of the Grokster program is that it could transmit any type of file, not just bootleg music.

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3. Also, the district ct took the view that the knowledge requirement had a time component to it- had to have knowledge at the time there was some possibility of control (by encouraging or providing material aid or contribution) for CL

ii. Grokster was acquitted of all charges but the case is on appeal.

c. Aimster-like systems are somewhere in the middle i. This kind of software involves a type of ongoing connection

with the user that is not present in the Grokster case. But, the court noted that Aimster, during trial, could have shown substantial non-infringing uses, like in Sony

ii. Posner : this type of software is capable of good or bad use. You can't say that just b/c it has one good use, its immune, or that b/c it has one bad use, it should be guilty of infringement.

1. You should consider the ratio of illegal uses to legal uses of the “tool.”

a. E.g. hammers are more likely to be used in construction than in murder

iv. Internet Service Provider Safe Harbors under DMCA (1998) 1. §512 of DMCA creates a number of safe harbors for ISPs faced with

claims of secondary copyright infringement liability2. Under these safe harbors, ISP is immunized against liability if :

a. (a) In the case of ISP that sends digital communications of others across digital networks, it plays the role of a “mere conduit for the communications of others” (i.e. email)

i. To qualify for this safe harbor, the ISP must show :1. communication containing the infringing material

was initiated by a person other than the ISP2. The ISP communicated the material through an

automatic technical process w/out selecting the material

3. ISP doesn’t select the recipients of the material4. Material is not maintained on the system for a period

longer than necessary for transmission so that anyone other than the anticipated recipient can access it, AND

5. ISP doesn’t modify the content of the material in the course of transmission

a. Basically AOL is not liable for what you send as an attachment over email

b. But, AOL can't itself send out a mass e-mail containing copyrighted material (spam)

b. (b): safe harbor for system caching (intermediate & temporary storage of material on a system)- not relevant to this course

c. (c): Web-hostingi. ISP stores on a network allegedly infringing material for a

longer time at the direction of a user of that material (like web-hosting bulletin boards, etc)

ii. To qualify for this safe harbor, ISP must show :1. no actual knowledge that the material is infringing

OR2. in the absence of actual knowledge, the ISP is not

aware of facts or circumstances from which infringing activity is apparent, OR

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3. upon obtaining such knowledge or awareness, the ISP acts expeditiously to remove or disable access to the infringing material

4. Additionally, the ISP must not receive a financial benefit directly attributable to the infringing activity, AND

5. Upon notice, removes or disables access to the material

iii. A take-down notice (issued by © owner) must1. be a written communication provided to the

designated agent of an ISP that includes substantially those things prescribed in §512c3A-see above

2. give at least a representative list of allegedly infringing works (i.e. the list doesn’t have to be complete)

3. provide information that is reasonably sufficient to permit the ISP to locate the infringing material

4. also in other subsections. 512(b)(2)(e), 512(d)(3)iv. But, under 512(g), there are a series of protections &

countermeasures that can be taken by the subscriber to get the material back up

1. subscriber can file a written counter-notification, which requires the restoration of the material to the website

2. subscriber must file a good faith statement that they believe the material is not infringing.

3. ISP must then put the stuff back up unless the copyright owner sues within 15 days.

d. (d): information location toolsi. Includes search engines

ii. These store info about websites, so they can operate more quickly

e. (h): subpoena power: to get a subpoena, you must first file a 512(c)(3) notice.

i. RIAA v. Verizon: RIAA asked for subpoena to give names of users on Verizon ISP. Verizon says they fall under 512(a), which has no notice requirement, and therefore Verizon has no liability for acts under 512(a) and there can be no subpoena if you can’t file a 512(c)(3) notice. DC Cir. agreed, supreme court denied cert.

v. Copyright Owner protection against Hackers under DMCA 1. §1201 forbids and provides criminal & civil remedies for people who

circumvent forms of self help taken by © owners in the digital world (e.g. by-passing password protection, encryption, and access only w/fee (a)(3))

2. There are 3 principle provisionsa. (a)(1): no person shall circumvent “access control” technology

i. i.e. things that make it impossible to see or hear the work w/out complying with a prerequisite that the owner has established

b. (a)(2): no person shall manufacture, import, or offer to the public, provide or otherwise traffic in any technology a device or part thereof that

i. (A) primarily designed or produced for the purpose of circumventing a technological protection measure that effectively controls access to a protected work

ii. (B) has only limited commercially significant purpose or use other than to circumvent a technological protection measure that has “access control”

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iii. (C) marketed by the person or another acting in concert with that person with that person’s knowledge for use in circumventing “access control” measures

c. NOTE: fair use CANNOT be a defense to above actions i. E.g. using DVD player to make a copy of a movie you

already own, for yourself, and using a device or program that decodes the encryption of the work to do it.

d. (b): no person can sell or manufacture a device that is designed to defeat the exclusive rights of a copyright owner

3. These provisions deal only with “access control”- obtaining access to the protected works. They say nothing about prohibiting copy control. However, though one can be in perfect compliance with the above access control provisions, (e.g. by lawfully obtaining a password), he may still be an infringer if he copies the works he has access to and sends them to others.

4. There are a number of exceptions to the prohibition or circumvention of technological protections of access, including

a. (d) Non profit libraries, archives & security testingb. (e) Law enforcement activities & security testingc. (f) Reverse engineeringd. (g) encryption research

i. in determining whether one is engaged in good faith encryption research, the court should consider:

1. whether the results of the putative encryption research are disseminated in a manner designed to advance the state of knowledge of encryption technology vs. facilitation of copyright infringement

2. whether the person in question is engaged in legitimate study of a work of encryption AND

3. whether the results in question are communicated in a timely fashion to the © owner

e. (h) exceptions regarding minors & their protectionf. (i) protection of personally identifying information

5. 1201(k): requires newly made DVD player manufacturers to have anti-copy technology in their players (by 2005), but this technology shouldn’t interfere w/ability to copy off the air (TV)

6. Some argue that these provisions effectively repeal the fair use doctrine b/c its virtually impossible to engage in copying that an owner doesn’t want you to engage in. This is especially problematic as we move into a more digital age, where more work is available in a digital environment.

vi. §1202: Copyright Management Information (CMI)1. (a) no person can knowingly & with the intent to induce, enable, facilitate

or conceal infringementa. (a)(1) provide © management information that is false ORb. (a)(2) distribute or import for distribution copyright management

info that is false2. (b) no person can, w/out authority of © owner, or the law:

a. (b)(1): intentionally remove or alter any CMIb. (b)(2): distribute or import for distribution CMI knowing that the

CMI has been removed or altered w/out authority of the copyright owner or the law OR

c. (b)(3): distribute, import for distribution, or publicly perform works, copies of works or phonorecords, knowing that CMI has been removed or altered w/out authority of the copyright owner or the law

d. knowing or having reasonable grounds to know that it will induce, enable, facilitate, or conceal an infringement of any right under this title

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i. so even intentional removal of CMI is not unlawful if the © owner cannot show that the removal would encourage or facilitate © infringement

3. (c) CMI is any of the following informationa. title and other info identifying the work including the info set forth

on a notice of copyrightb. the name of, and other identifying info, about the author of a workc. the name of and other identifying info, about the © owner of the

work, including the info set forth in a notice of ©d. with the exception of public performances of works by radio and TV

broadcast stations, the name of and other identifying info about a performer whose performance is fixed in a work other than an audiovisual work

e. with the exception of public performances of work by radio and TV broadcast stations, in the case of an audiovisual work, the name of and other identifying info about a writer, performer or director who is credited in the audiovisual work

f. Terms and conditions of the use of the work g. identifying numbers or signals referring to such info, or links to

such info, h. such other info as the Register of © may prescribe by regulation,

except that Register can't require the provision of any info concerning the user of a © work

4. This statute applies to EVERYONE not just the digital world (e.g. the local news station)

5. This provides an efficient low cost mechanism for good faith individuals to obtain permission w/a very low transaction cost.

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X. Fair Use (§107)a. Fair use includes using a work for such purposes as: (this list is non-exhaustive)

i. Criticismii. Comment

iii. News Reportingiv. Teaching (including multiple copies for classroom use)v. Scholarship

vi. Researchb. Note: this list in non-exhaustive, however keep in mind that fair use is a case-by-case

analysis- thus works that do fall into these categories are still vulnerable to infringement actions

c. Fair use is a defense to both the exclusive rights in 106, and visual artists rights in 106A (moral rights)

d. Rationale: Fair Use doctrine creates an exception to the copyright monopolyi. It permits and requires courts to avoid rigid application of the copyright statute

when, on occasion, it would stifle the very creativity which that law is designed to foster (Michigan)

e. Parodyi. Campbell v. Acuff-Rose Music – p 616

1. D makes parody of P’s well-known song. District Court finds fair uses, but Appellate court reversed. There was no question that there was infringement but for fair use.

2. The four fair use factors must not be treated in isolation, but should be weighed together, in light of the purposes of copyright.

3. Purpose and Character of the Usea. Central purpose is to determine if the new work merely supersedes

the objects of the original creation or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.

b. Parody may claim fair use as comment or criticism.c. Threshold inquiry is whether the parodic character may be

reasonable perceived.d. Commerciality does not cause a presumption against finding fair

use. 4. Nature of the Copyrighted Work

a. Factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.

5. Amount and Substantiality of Copyinga. Whether the quantity and value of the materials used were

reasonable in relation to the purpose of the copying.b. How much is too much?

6. Effect of the Use on the Marketa. Consider not only the extent of the market harm, but also whether

unrestricted and wide-spread conduct of the sort engaged in by D would result in a substantially adverse impact on the potential market for the original.

b. Must also take into account harm to the market for derivative works.

f. In determining whether a particular use is fair use, the court must consider the following factors (these are non-exclusive)

i. (1) The Purpose and Character of D’s Use1. there are 2 dichotomies for this factor:

a. Commercial or Noncommercial use? [old dichotomy]i. Non-commercial use is more likely to be considered fair use

b/c its less likely to undermine economic incentives that belong to the © owner

ii. Direct economic benefit is not required to demonstrate commercial use. Repeated and exploitive copying of ©

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works, even if the copies are not offered for sale, may constitute a commercial use- sole motive doesn’t need to be monetary gain

1. e.g. Napster use was commercial b/c users were getting something for free that they would otherwise have had to pay for

2. This is a sliding scale- a work that is exploitive but not highly so, only slightly weighs against a finding of fair use

3. Sampling of songs constitutes a commercial use, even if some users eventually purchase the music

iii. Princeton University Press v. Michigan Document Services: 1. no fair use found b/c Publishers are not challenging

the use by the students, they are challenging the duplication of © materials for sale by a for-profit corporation that has decided to maximize its profits- and give itself a competitive edge over other copyshops- by declining to pay the royalties requested by the holders of copyrights

b. Non-Transformative (Reproductive/Duplicating) or Transformative?

i. the point of this inquiry is to see whether the new work merely supercedes the original work, or instead adds something new with a further purpose (“value added?”, or different character, altering the first work with new expression, meaning, or message, (“derivative use?”)

1. courts have been reluctant to find fair use when an original work is merely re-transmitted in a different medium (e.g. just b/c put in a different medium doesn’t mean you have added something new to it- it doesn’t make it transformative)

2. Placing images in a frame on a website or locating them near text that specifies the originating website is not enough to create new expression or meaning for the images (i.e. make them transformative)

ii. The more transformative the work is, the more likely to be fair use, b/c they better promote the progress and advancement of “science”

iii. The court should look at the new work as a whole, to determine if its transformative

iv. Some examples of transformative works include1. Parody

a. a work is a parody if D is targeting (or making fun of) P or P’s works, NOT society in general.

b. A parody doesn’t have to be funny. It can be a targeted commentary. BUT, its distinguished from a satire, which is a social commentary

c. When fair use is raised as a defense of parody, the first Q should be whether the parodic character may be reasonably perceived (as a parody)

i. Whether parody is in good taste or bad doesn’t and shouldn’t matter to fair use

2. History3. Biography

a. Craft v. Kobler: it is appropriate, when writing a biography about someone who himself was an expressive author (novelist, poet, artist, etc.) to quote from the subject’s own writings.

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b. However, this license is not limited: the size and importance of the appropriated passages should be considered, as well as their individual justifications.

c. Its okay to quote from the subject to better illustrate to the reader the descriptive skill, wit, power, vividness, and originality of the author’s writing

d. But, when the quotations/paraphrases were taken to make the reading a richer, better portrait of the subject of the biography, and to make better reading than a drab paraphrase reduced to bare facts, this was not fair use

4. Criticismv. Keep in mind that this doesn’t mean that mere reproduction

is always going to fall outside of fair use1. reproduction could be fair use if the remaining

factors point us in that directionc. The work that would be most entitled to the fair use defense would

be a transformative, non-commercial usei. E.g. a professor who takes someone else’s words & uses

them in his article to build up his own new analysisd. The weakest case would be a reproductive, commercial use

2. (2) The Nature of the P’s copyrighted worka. Factual or Fictional/Creative?

i. The more factual the work is, the thinner the copyright it is entitled to in the first place.

1. Can't bar the reproduction of facts anyway b/c they are in the public domain

2. Some direct quotes are sometimes necessary to convey the proper meaning behind a factual context, but the D can only use as much as is needed to convey the meaning. Taking more, though it might still be factual, appropriates the expressive, and most protectible, elements of the work

ii. The more creative a work is, the closer it is to the “core of copyright” and the more careful we are about letting others copy it

b. Published or Unpublished at time of copying?i. The author has the right to control the timing of method of

first publication of his work, which is an important aspect of the author’s expressive rights

1. When a text was never intended to be published, this is not really an issue

ii. This is especially when a work is pending publication1. But, this is not itself dispositive

iii. First publication is inherently different from other 106 exclusive rights b/c only one person can be the first publisher & the commercial value of this right lies in this exclusivity

iv. Just b/c a work is newsworthy, does not give it an independent justification for unauthorized copying of the author’s expression prior to publication

1. to do this would be fundamentally at odds with the © scheme- owners would be denied the right to publish precisely when they would encounter the greatest demand

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3. (3) The Amount and Subtantiality of the portion used in relation to the © work as a whole

a. this is the most objective element, & focuses on the % of P’s work taken by D

b. Courts include both a quantitative and a qualitative analysisi. Although a small portion of P’s work might be appropriated

objectively, if qualitatively it was the “heart of the work”- the part that people purchased the work for, this weighs against fair use

ii. You can tell a “new work” takes the “heart” of an “old work” when the new work fulfills the demand for the old work

c. If the D only copies as much as is necessary for his intended use, this factor should not weigh against him

d. If the D copies the entire work, this militates against a finding of fair use (quantitative analysis)

i. Although just b/c the whole work has been copied, this doesn’t automatically mean that fair use won't apply, it just probably does

4. (4) The Effect of the Use upon the Potential Market for or Value of the Copyrighted Work

a. This is the most important factor in a fair use analysisb. If D’s use of P’s work diverts sales from the P, this factor weighs

against fair use protectioni. Courts must distinguish between biting criticism, which

merely suppresses demand for © work, and © infringement, which usurps it

1. this is also true if the harsh parody or criticism suppresses the available field for derivative works

ii. If the intended use is for commercial gain, the likelihood of market harm may be PRESUMED, but if its for a non-commercial purpose, the likelihood must be DEMONSTRATED.

iii. Once a © holder establishes with reasonable probability the existence of a causal connection between the infringement and a loss of revenue, the burden properly shifts to the infringer to show that this damage would have occurred had there been no taking of © expression

c. A Transformative work is less likely to have an adverse effect on the market of the original, than a work that merely supercedes the © work

d. Just b/c the unauthorized use of the original work might contribute to increased sales of that work, the original author still retains his right to license uses of the work. Doesn’t militate in favor of finding fair use

i. Sampling of songs constitutes a commercial use, even if some users eventually purchase the music

e. This analysis covers both Actual & Potential future markets that are awaiting exploitation (including derivative work markets)

i. Some courts examine whether P has manifested an intention to exploit that market in the future

ii. Others respect that the © holder has a creative and economic choice to exploit a certain market

f. This is measured on the assumption that D’s conduct will become widespread- what effect would widespread action like this have on the market?

i. This is Kant’s categorical imperative (focuses on the aggregate effects)

g. Also consider the degree to which D’s use is a good or poor substitute for the P’s work

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i. If D’s work is a poor version of P’s then it will not really have a negative effect on the market for P

5. Rationale: Purpose of © is to create incentives for creative effort, & even copying for noncommercial purposes may impair © holder’s ability to obtain the rewards that Congress intended him to have

a. A use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create

b. This would just inhibit access to ideas w/out any countervailing benefit

ii. Other factors not listed are1. D’s intent in engaging in the use without permission

a. To the extent that D has acted in flagrant disregard of the owner’s rights, this might cut against him

2. Where in the life of the © are we at the time the use is being made?a. A use that is made w/in the first 6 months of publication is more

likely to destroy incentives and have a bad consequential effect on the whole system than those that have been printed for 40 years already.

b. But, this can really be incorporated in Market Effects3. Propriety of D’s conduct

a. Fair use presupposes good faith and fair dealingb. Counterargument is that the wrongdoing on D’s part should be

discounted in assessing the more compelling public interests at stake in having fair use

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