Chapter 1:
Introduction: The Landscape of Copyright
Art 1, Section 8, Cla. 8: The Congress shall have Power To...To promote the the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries Who decides copyrightability c opyrightability? ? a. Mixed question of law and fact, but necessarily a question to be ultimately answered by the court so as to ensure protection of the type and scope intended by the framers.
Feist Publications, Inc. v. Rural Telephone Service Company, Inc. o Is a white pages directory sufficiently original so as to be afforded Copyright protection as a compilation? Originality required in a compilation, compilation, since the underlying facts can not be protected, must be in the form of selection or arrangement. arrangement. Sweat of the brow doctrine expressly dismissed. dismissed. While the effort that went into the works is admirable, the arrangement of facts in alphabetical order is insufficiently original to merit protection of Copyright. Merger doctrine applicable? Some courts will apply to copyrightablility Other courts will only apply at infringement analysis
a. Thinking and Talking About Copyright Law o In General o Copyright and "Interest "analysis" o "Rehtorics" of Copyright Jurisprudence The Utilitarian and Natural Law Conceptions of Copyright Other Rhetorics in Contemporary Copyright Discourse o Conclusion
Chapter 2:
Prerequisites for Copyright Protection
a. FIXATION 101
Copy: material object…in which a work is fixed… and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device”. *copy can be the original fixation, or a reproduction+ Fixation: A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the t he author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than t han transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission. Creation: A work is “created” when it is fixed in a copy or phonorecord phonorecord for the first time
1101
Unauthorized Fixation and Trafficking in Sound Recordings and Music Videos: (a) Unauthorized Acts.--Anyone who, without the consent of the per former or performers involved-(1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation, (2) transmits or otherwise communicates to the t he public the sounds or sounds and images of a live musical performance, or (3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States, shall be subject to the remedies provided in sections 502 through 505, t o the same extent as an infringer of copyright.
a. Introduction b. Development of Current Law
White-Smith Music Publishing Co. v. Apollo Co. Punched roll for player piano not a copy, because bec ause not readable by people, not presented in “a written record of intelligible notation”. notation”. Strict interpretation of the Copyright Act as it existed at that time. Midway Manufacturing Co. v. Artic International Inc. Midway’s video games are fixed in such a tangible medium, re producible and repeatable by assistance of a machine or device, so as to be copyrightable and receive r eceive Copyright protection. Injunction granted against Arctic.
b. ORIGINALITY 101
Created: A work is “created” “create d” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.
102(a)
(a): ...in original works of authorship.. (b): In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
a. Was not defined originally. The court has defined it to mean "he to whom anything owes its origin" fair are not encompassed. Stereotypes, cliché's… b. Scenes a fair are c. From Feist : Sweat of the brow cannot serve as a substitute for originality originality d. Basic Originality Concepts TWO REQUIRMENTS! o Independent creation by author, cannot just have copied from a preexisting source o Must exhibit a minimal amount of creativity. e. The Originality/Novelty Distinction
Novelty means that it is unique o Original just means that it "originated" with you. f. "Authors" and Their "Writings" o
Burrow-Giles Lithographic Co v. Sarony o Oscar Wilde photograph. Constitution not intended to protect only books but also maps, charts, plates and prints as evidenced by a subsequent statute. Would have included photos, but for the fact that photography was not yet invented at that time. The arrangement, evocation of expression, posing, lighting, selection of materials and costumes, etc. that went into the photograph are sufficiently original so as to afford the work Copyright protection. Although the "machine" ultimately created the work, the person had significant artistic input to make it original. o Three non-mutually exclusive items from Mannion v. Coors Rendition: Angle, light, shade… Timing: Siezing the moment in time Creation of subject: posing... Bleistein v. Donaldson Lithographic Co o Circus advertising. That the images merely represent actual people is no reason to declare a lack of originality and deny Copyright protection. To do so would eviscerate the rights of Whistler simply because someone else could render a portrait of his mother. Nor should the fact that they were used for commercial purposes to advertise the circus be grounds for argument that they are not useful. Principle of aesthetic non-discrimination. Meshworks v. Toyota Motor Sales, USA o Digitization of Toyota models for advertisement. Meshworks could not get a CR for as the models were just shifting the medium of Toyota's creations.
THE IDEA/EXPRESSION DICHOTOMY 102(b)
(b): In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
a. Policy: (1) To preserve the balance between encouragement of competition and protection of works reflected in the patent and copyright clause.
Baker v. Seldon Whether the exclusive property in a system of book-keeping can be claimed, under the law of copyright, by means of a book in which that system is explained. © protection only extends to books, maps, charts, musical compositions, prints, and engravings. If © protection should extend to Selden’s work, the work must be a book. If it is a book, it is an expression/explanation of a system, the system is free for the public to use. The book itself can be copyrighted, but such © will confer no right in the system of using blank lined account books. Blank forms are [generally] not copyrightable [limited by later case law]. May carve out a “takings for practical application” exception to Copyright.
a. The Merger Doctrine
i.
If there are only a limited number of ways for an idea to be expressed , there is a strong argument that the idea and expression should be merged and Copyright not afforded. ii. Can lead to "thin" copyrights if allowed. THIS IS USUALLY DECIDED AFTER ALL THE EVIDENCE OF INFRINGMENT HAS iii. BEEN PRESENTED Morrissey v. Procter/Gamble Contest Rules copied. to permit copyrighting would mean that a party or parties by copyrighting a mere handful of forms, could exhaust all possibilities of future use o f the substance. In such circumstances it does not seem accurate to say that any particular form of expression comes from the subject matter. However, it is necessary to say that the subject matter would be appropriated by permitting the copyrighting of its expression. We cannot recognize copyright as a game of chess in which the public can be checkmated. a. National Origin/US Govt Works
Chapter 3: 102(a)
Works of Authorship
Subject Matter of Copyright: (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.
a. LITERARY WORKS 101
works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature o f the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.
b. MUSICAL WORKS, DRAMATIC WORKS, PANTOMIMES AND COREOGRAPHIC WORKS 115
c.
Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords. Get "first bite of the apple" then anyone can cover by paying the license a. Undefined because they have "fairly stettled meanings" b. Still must be fixed PICTORAL, GRAPHIC AND SCULPTURAL WORKS
101
Two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, technical dr awings, diagrams, and models. Still must be identified seperately from the utilitarian aspects of thearticle.
113
Photographs of the work are allowed related to disribution/display and news. Can still be patentable and copyrighted. But still must be able to separate the utilitarian aspect
a. Pictorial, graphic, and sculptural works include works of artistic craftsmanship insofar as their form, but not their mechanical or utilitarian aspects are concerned. b. 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 from, the utilitarian aspects of the article. c. Purpose of above language is to draw a distinction between applied art and industrial design. d. USEFUL ARTICLE : "an article having an intrinsic utilitarian function that is not merely to protray the appearance of the article or to convey information. Mazer v. Stein o court refuses to hold, that patentability of an article forecloses on its ability to be copyrighted. Pivot Point Int'l. v. Charlene Products (7th circuit) o Temporal displaccment: in the mind of an ordinary observer two different concepts: the artistic and the utilitarian object, that are not entertained symultaneously. o Seven different tests Whether conceptually separate Substantial likelyhood that even if it had no utility, it would still be marketable The above temporal Similar to above, but if merged… Goldstein: Whether the artistic feature could stand alone as a work of art traditionally concieved, and if the useful article in which it is embied would be equally useful without it Asthetic features not utilitarian Only where physical separably can be imagined, but for some practica l reason cannot be accomplisehd MOTION PICTURES AND OTHER AUDIOVISUAL WORKS
101
V.
are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.
SOUND RECORDINGS 101
are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.
114
As of effective date in 1971, infringment is not only of the rights of songwriter and publisher, but all other perios holding copyirhg ton the disc o r tape.
a.
f.
VII.
This is the rendition of the song as embodied in the phonorecord, including the way it is sung, played, arranged and mixed. b. Recent 1995 limitation on publish performance right c. Subject to anti-bootlegging 1011. d. SEE HANDOUT!!! ARCHITECTURAL WORKS 101
is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, 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.
120
The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the w ork, if the building in which the work is embodied is located in or ordinarily visible from a public place.
Works based on preexisting material 103
(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
a. 101
DERIVATIVE WORKS A work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture ver sion, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. 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.
Schrock v. Learning Curve o Thomas & Friends. Must have still contributed something . Seems to be a greater degree of originality required. Distinguishable variation raised in Batlin (uncle sam bank) to "Substantial, not merely trivial variation". Only get a CR for what you have added. COMPILATIONS
101
A work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term compilation includes collective works
Collective works: Works, such as periodical issues, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole
Feist : Originality required in a compilation, since the underlying facts can not be prot ected, must be in the form of selection or arrangement. Sweat of the brow doctrine expressly dismissed Originality standard satisfied when the compiler’s claimed “original” (1) contribution is subjective and evaluative.
Chapter 4: 203
a.
Ownership and Transfers
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which t he work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object. INITIAL OWNERSHIP 201
(a) Initial Ownership.--Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.
a.
b.
Co-owners of Copyright are generally treated as TIC, with an independent right to use or license the use of a work, subject to a duty to account to the other co-owners for any profits. WORKS MADE FOR HIRE 201
(b) Works Made for Hire.--In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
101
(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, ex plaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepare d for publication and
with the purpose of use in systematic instructional activities. a.
On a work made for hire, the employer is treated as the "author" for ownership purposes Community for Creative Nonviolence v. Reid Statute made for non-profit. Mary and Joseph as homeless. Court adopts the requirement of employee as of rules of agency. Court should first ascertain if the creator is an “employee” o r an “independent contractor” and then apply the appropriate provisions, either 201(a) or 201(b) depending on the outcome of that analysis. For employee: considers the hiring party’s right to control the manner and means by which the product is accomplished. Factors include: skill required, source of instrumentalites and tools, location of the work, duration of relationship of parties, whether the hiring party has the right to assign additional products, extent of hired party's discretion over when and how long to work, method of payment, hired party's role in paying assistants, whether wor k is regular business of hiring party, whether hiring party is in business, employee benefits, tax treatment. JOINT WORKS
c.
101
Childress v. Taylor o Play about female black comedian. Each must "entertain in mid the idea of coauthorship" o Inseparable: when the have little or no independent meaning standing alone. o Interdependent: when they have some meaning standing alone but achieve their primary significance because of their combined effect, like wor ds and music to a song o Also, the intent must be at the time they engaged in the writing. o Each portion must be independently eligible for copyright protection. Contrast with Aalmuhammed : Masterminds considered co-authors CONTRIBUTIONS TO COLLECTIVE WORKS
201
a.
e.
A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.
(c) Contributions to Collective Works.--Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.
Separate copyrights in each item, as well as one published as a whole. Tasini v. NY Times o Microfilm databases. Databases preserve the "selection" put on by the publisher. TRANSFERS OF OWNERSHIP 202
Sale of an embodiment does not imply sale of the CR. See above. First sale doctrine under 109.
201
(d) Transfer of Ownership.-(1) The ownership of a copyright 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 pass as personal property by the applicable laws of intestate succession. (2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.
204
Execution of transfers of copyright ownership (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent. (b) A certificate of acknowledgement is not required for the validity of a transfer, but is prima facie evidence of the execution of the transfer if-(1) in the case of a transfer executed in the United States, the certificate is issued by a person authorized to administer oaths within the United States; or (2) in the case of a transfer executed in a foreign country, the certificate is issued by a diplomatic or consular officer of the United States, or by a person authorized to administer oaths whose authority is proved by a certificate of such an officer.
a. b. c. d.
201d allows for the item to be sold whole or in part Under 204, it has to be in writing to be valid (statute of frauds) Remember "the bunde of rights" Nonexclusive licenses can be implied from conduct, and an nonexclusive licensee isnt an owner, cannot sue for infringment Effects v. Cohen o Cohen has company make special effects scenes for movie. Effects sues for infringement when doesn’t get paid in full. held: no transfer of copyright, put nonexclusive license implied from conduct of the parties (fact that Cohen paid $58,000)
Chapter 5: a.
Duration and Terminations
Duration and Renewal Rules WORKS FIRST PUBLISHED BEFORE JAN 1. 1923 ARE IN THE PUBLIC DOMAIN A) Works Created After Jan. 1, 1978 (§ 302) 1) basic term: “life 70” (§302(a)) 2) joint works: “life of last author living 70” (§302(b)) 3) works made for hire: lesser of {pub. +95, creation + 120} (§302(c)) (Same for anon or pseudoname works) 4) all terms run to end of calendar year (§ 305) So all entering the PD do so on Jan 1. of the following year 5) Presumption of death 95 after publication, or 120 after creation if nothing in reco rd indicates otherwise. (§ 302(e)) Rmk: all these terms 20 years longer than were originally enacted due to Sonny Bono Act of 1998.
B) Works Created Before 1978 but Not Published (§ 303) 1) § 303 covers works unpublished and not in public domain on Jan. 1, 1978. 2) For such works, life determined by § 302, except: BUT: no copyright shall expire before Dec. 31, 2002. AND: if such work published before 2002, lasts at least until Dec. 31, 2047. 3) can also use 302(e) presumption of author’s death. As it is 2007, any unpublished work created before 1887 can rely on the presumption, in or after 1887 cannot. 4) After 1/1/2003, we now have an unpublished public domain. C) Works Under the 1909 Act (§ 304) 1) history: original term under 1909: 28 years + 28 year renewal in 1978, extended renewal to 47 years (adding 19) in 1998, extended renewal to 67 years (adding 20) 2) Initial term lasts 28 years. If renewed, renewal term lasts: 28 years, 1909 –1977 47 years, 1978 –1997 67 years, 1998 – 3) starting in 1992, renewal became automatic 4) Duration: in initial term on 1/1/78 (CA of 1976): 28 + 67 renewal in renewal term on 10/27/98 (Sonny Bono): 95 years total Thus: any work published in 1922 or before: copyright has expired as missed the 1998 Sonny Bono Act. any work published in 1923 or after: copyright did not expire (if properly renewed) and made the Sonny Bono Act. None of these will expire until 2018 at earliest. 5) Renewal Right Assignments (§ 304) a) statute grants new estate at end of initial term to: i) author, if living ii) if author dead, surviving spouse and children iii) if no spouse/ kids, will executor iv) if no will, statutory next of kin Rmk: this order mandated by statute b) assignability of renewal right: renewal beneficiary can assign in advance their expectancy rights (Fred Fisher ) if expectancy fails, assignee takes nothing Miller Music Corp. v. Charles N Daniels: If author dies before the renewal vests, then it falls to the heirs. rationales of renewal: i) more works into public domain ii) give author a “second bite” at the apple, protection of author from bad bargains. Renewal of Derivative works Main Points
1) independent copyrights in underlying work (UW) and in derivative work (DW) 2) thus, use of DW = use of incorporated portions of UW 3) therefore: use of DW without permission to use UW infringes including where lack of permission due to renewal (Stewart v. Abend ) but, after 1992, automatic renewal provisions mitigate Abend , which only applies if renewal is applied for and not if automatic. including where DW has gone into public domain but UW has not (Russell v. Price) Restoration of Copyright
104A o o
K
Foreign works. Not simultaneously published in US. Restored if as of Jan 1, 1996, still under copyright in source country but in public domain in US not due to lack of formalities. For the remainder of the term their would have enjoyed if the copyright had not been denied or forfieted. Remedies against reliance parties: limited. Notice + 1 year to sell inventory and can exploit derivative works. Eldred - Sonny Bono Extension Act did not violate constitution Golan - Either does restoration TERMINATION OF TRANSFERS (203) rationale for termination: give author a chance to get it back, protection from bad bargains correct for information problems: uncertainty ex ante what will be successful. serves same policies renewal used to serve 1) § 203 scope (§ 203(a)): applies to author’s post-1977 inter vivos grants not WMFH [Note: § 304(c) (applies to pre-1978 transfers of renewal terms) – parallel statute] 2) Termination features (§203): a) transfers subject to termination can occ ur during 5 year window starting 35 years after grant if right of publication if what is transferred, window begins lesser of {transfer + 40, publication +35}. b) notice must be given between 2 –10 years in advance c) party with termination right: i) author if living ii) surviving spouse/ kids, in proportions listed iii) if ii not existing, estate (i.e., will) 3) if interest divided, majority required to terminate and to re-grant. 4) § 203(b)(5): termination only affects rights under US copyright law 5) § 203(b)(1): original grantee can continue using derivative work he created (opposite of Stewart v. Abend )
o
o
6) can’t contract around termination – e.g., agree in original transfer not to terminate. Termination effective “despite any agreement to the contrary.” (anti-Fred Fisher ) TRANSFERS BEFORE Jan 1, 1978 Termination window opens 56 years after the CR was secured. 5 year window If the window expired before 10/27/1998 Sonny Bono CTEA) without exercise of term rights, a second window opens 75 years from date of securement with 5 year window.
Chapter 6: I.
II.
Prior to Jan 1, 1978. a. 1909 act, dual system of state law and federal. State protected prior to publication and federal after. Needed notice or it would fall into the public domian Between Jan 1, 1978-Feb 28. 1989 a. Did away with dual system of copyright. Federal protection is created on fixation 101
II.
III. IV.
Publication and Formalities
is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
Still had mandatory notice provisions of 401. a. 3 elements a. © Symbol, “Copyright”, or “Copr.” b. Year of first publication of the work c. Name of author/owner, abbreviation, or generally known alternative name b. Position a. Reasonable notice c. Evidentiary weight of notice a. If notice, no weight given to argument of innocent infringement in mitigation of damages except as provided under 504(c)(2) III. Could be cured by 405 a. Small number of copies b. Registration and effect to add notice within 5 years. Needed reasonable efforts c. Omission in violation of express agreement. d. Innocent infringers were protected (reliance) March 1, 1989-now a. Berne proscribes against "any formalities". Now they are voluntary. Limited publication a) “general publication” = “distributing/ making available tangible copies to public at large” published under 1909 Act, must comply with formalities. b) “limited publication” = “communicate to a select group of people, f or a limited purpose, and recipients don’t have the right of further reproduction, distribution or sale.” Limited publication didn’t count as “publication” for the purposes of the federal statute, and so work remained under state protection. eg, Academy of Motion Picture Arts and Sciences – distribution of Oscar statuettes in 1929 to limited group of winners counted only as a limited publication.
c) “public performance or display” not considered publication under the 1909 Act, and so notice requirement not triggered yet. MLK: “a performance, not matter how broad, is not publication” distribution of speech to the press —and allowing them to record it—constituted only a limited publication. rationale for limited publication: avoid unfairness of works accidentally falling into public domain. Deposit
407
2 copies or phonrecords of the best edition of that work with Copyright Office within 3 months. Registration
a. b. c.
408
May at any time register with office. CO issues a certifiate without looking at the merits or prior work, but does do a cursory exam of whether it is Crable.
411(a)
– must register (and get certificate of copyright) before you can sue for infringement
410(c)
Certificate is prima facie evidence of validity.
412
Stautory damages and attorney's fees are only for registered.
Registration must have taken place within 5 years. The Majority view is that you cannot sue until you get the certificate (Corbis) Foreign authors are excused from the prereq of registration for suit, and restoration is available due to formality problems. a. Foreign as in not first published in the US or simultaneously in country of origin and US.
Chapter 7: a.
Exclusive Rights and Their Limitations
THE REPRODUCTION RIGHT 106(1)
a.
the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords;
Reproduction in Copies 108
Library or archive can make one copy, not for commercial, open to public, notice Three copies of unpublished for preservation Three copies of published work soley for replacement
113
Scope of this right for pictural/sculptural and graphic works . VARA protections against distruction/mutulation
definitions:
“reproduce” = not defined, but House Report says it’s = “making new tangible objects which embody the work” § 101 “copy” = “material object in which the work is fixed, by any means now known or later developed, in which the work can be perceived or otherwise communicated, directly or which aid of device.”
§ 101 “fixed” = embodiment in a copy or phonorecord is sufficiently permanent to enable it to it be perceived for a period of more than transitory duration 2) is RAM a copy, or too transitory to be “fixed” majority view: Congress implicitly adopted view that RAM is a copy. many academics protest this, as potentially cast broad net – just browsing the web creates a copy, which makes you a prima facie infringer. eg, if buy eBook, to read it, must make a temporary copy which makes you a prima facie infringer (though will be saved by express or implied license) Walt Disney Productions v. Filmation Associates o New adventures of Pinocchio. Can violate reproduction right without any of the other rights. "To constitute an actionable copy...an expression need only be a material object permantely cast in some intelligible form."
Reproduction in Phonorecords 114
Scope of rights in sound recordings. Only protects the copyright owner against the making of copies or phonorecords that direct ly or indirectly recapture the actual sounds fixed in the copyrighted recording. Sampling of the mechanicalyl recaptured sounds is infringment.
115
Compulsory license. A person wishing to record a copyrighted nondramatic musical work and publically distribute it if the owner has made or authorized a reccording of the work that been distributed in the US; the purpose is for private, noncommercial use; . Requires advance notices (30 days) and royalties (set by copyright office judges) CANNOT ALTER THE BASIC MELODY OR FUNCTIONAL CHARACTER OF WORK.
1008
exempting noncommercial consumer copying à limits reproduction right of both musical works and sound recordings. Digital audio recording devices pay a tax. Electronic Reproduction and the Internet
117
Limitatons on exclusive rights for computer programs. Not liable if essential step in using computer, can make copy for backup purposes, amendment in 1998 to allow for copies that are made by virtue of turning computer on, computer contains the copy, purpose is maintenance/repair and new copy is destroyed once copy is made. (MAI response) Only to OWNERS of the program. Most programs are LICENSED
i. Fixed for more than "transitory" duration. Cartoon Network v. CSC Holdings Buffer was too transitory. Moreover, the end user was causing the copy, no underlying infringment for 2ndary liability
ii.
THE ADAPTATION RIGHT
c.
106(2)
2) to prepare derivative works based upon the copyrighted work;
101
Derivative work: s a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. 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”
103
Subject matter: Compilations and derivative works. (a) does not extend to part of the work where material was used unlawfully. (b) extends only to material contributed, does not affect or enlarge protection in the preexisting work
a. The derivative work must "transform, recast or adapt" the underlying work. b. The derivative work must copy protected expression to infringe. c. Defination has no "fixation" element Lee v. A.R.T. Company o Is the act of buying an artist’s work and mounting it on a tile with an epoxy resin a preparation of a derivative work? No. it is no different than putting it in a frame, and to hold that such an act is an unauthorized preparation of a derivative work would make criminals of collectors and tourists Lewis Galoob Toys Inc. v. Nintendo of America, Inc. o Game Genie. In order to infringed, the alleged derivative work must incorporate the underlying work in a concrete or permanent form. Didn’t do so here. o Contrasts with 9th circuit in Microstar v. Formgen - Duke Nukem 3d levels are perminant & concrete enough through audiovisuak. Batlin v. Snyder - Uncle Sam bank. Raised the bar from "distinguishable variation" to "substantial, not merely trivial variation" to get a derivative work copyright. Higher standard per 103. See also, Collective Works again.
THE PUBLIC DISTRIBUTION RIGHT 106(3)
to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
109
First Sale Doctrine: “notwithstanding 106(3), the owner of a particular copy or phonorecord lawfully made under this title …is entitled … to sell or otherwise dispose of that copy or phonorecord…” This includes selling/renting
109
EXCEPTIONS: 109(b)(1)(A): Excludes rentals of sound recordings. 109(b)(1)(B): Excludes rentals of computer programs. THESE DO NOT APPLY TO NONPROFIT LIBRARIES
London-Sire Records, Inc v. Doe - P2P file sharing o 106(3) confers on the copyright owners the right to control purely electronic distrubutions of their work.
What matters in the marketplace is not whether a "material object changes hands" but whether once the transaction is complete, the distributee has a material object.
o
Still subject to VARA if visual art.
THE PUBLIC PERFORMANCE RIGHT 106(4)
gives exclusive right to “perform *the work+ publicly” applies only to limited class: literary, musical, dramatic, choreographic, motion pictures, and audiovisual works does not apply to sound recordings
101
Performance: means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.
101
Publically: (i) To perform or display it 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 and its social acquaintances is gathered; or 1. [Note: an individual living alone displaying a movie to his friends at home would not be a public performance] (ii) To transmit or otherwise communicate a performance or display of the work to a place specified by the clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
Two prongs to "publically" o IN a place that it either "semi public" (gathering of large number of people or "open to the public" or o TRANSMISSION to a public/semipublic place or to the public “Transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent. Columbia Pictures Industries, INC v. Aveco, Inc o Video rental place renting rooms. Public place as they are "open to the public" as anyone at any time could rent one. o Hotel rooms. Distinguished here as the rooms are generally not rented for the purpose of performing copyright works. More like a private home o Remember about transmission and renting directly to rooms.
Limitations on Performances and Displays 1) § 110(1) – Teaching: exempts performance or display by instructors or pupils in course of face-to-face teaching activities in a classroom or similar place devoted to instruction. “classroom” = limited to enrolled members of class. [§ 110(2) – covers distance education]
2) § 110(3) – Religious Services: covers performances in places or worship or religious assembly. 3) § 110(4) – Non-Profit: covers performance of nondramatic literary or musical work without any purpose of direct or indirect commercial advantage, without payment of compensation to performers, promoters or organizers, if: (A) there is no direct or indirect admission charge; OR (B) the proceeds (after deducting for cost of performance) are used exclusively for educational, religious, or charitable purpose But: copyright owner has opportunity to serve a notice of objection. 4) § 110(5) – “home-style exemptions. ” Covers small businesses playing radio or TV in their store. 110(5)(A) exempts “communication of a transmission [of a performance of display] on a single receiving apparatus of the kind commonly used in private homes,” so long as— i) no direct charge is made ii) the transmission is not further transmitted. [110(5)(A) enacts Aiken, which held radio in fast food restaurant did not infringe.] 110(5)(B) expands the coverage, only for nondramatic musical works, to any public establishment under 2000 ft 2 or restaurants under 3750. OR, even if you are larger, you can still be exempt if: radio transmission communicated by not more than 6 speakers TV transmission of nondramatic musical works communicated by not more than 4 devices Rmk: doesn’t cover CDs, performance of live music.
o
o o
Performing Right's Societies ASCAP, BMI, SESAC. These represent rightsholders in musical works and enforce performance rights Give blanket licenses for nondramatic performance of musical works to uses Divide fees among members. Nonexclusive, copyright owner can still license directly
Secondary Transmissions 110(5)
See the above "home style" exemptions
111(a)
Transmission exempt of : Not made by cable system, no direct or indirect control over content of primary, governmental body or satalite.
Aiken
(i) Radio played in fast food restaurant over 4 ceiling speakers was a reception, not a public performance. (ii) Impetus for the 110(5) exception [communication of a transmission]
THE PUBLIC DISPLAY RIGHT 106(5)
in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly;
101
Display” means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.
109
(c) - lawfully made, cannot display more than one image at a time to viewers present at the place where the copy is located.
Perfect 10, Inc. v. Amazon Google's servers did not contain the photographic images. Therefore, they didn't have a copy to transmit/display and only gave the HTML instructions to display the images.
THE DIGITAL PUBLIC PERFORMANCE RIGHT 106(6)
in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
1. no general public performance right a. radio, e.g., implicates no sound recording right 2. § 106(6) in digital audio transmission context (e.g., satellite radio, cable TV music channels): get limited public performance right. a. policy: prevent celestial jukebox. VII.
MORAL RIGHTS 106A a.
b.
c.
d.
VARA: Gives rights in integrity, attribution, and disclosure. SUBJECT TO FAIR USE.
grants rights of integrity and attribution 1. 106A(a)(1) – right to claim authorship, and prevent misattribution 2. 106A(a)(3) – right to prevent intentional distortion, mutilation 3. 106A(a)(3) prevent destruction of work of “recognized stature” conditions: 1. not transferable, but waiveable if express, in writing, and specific (§106A(e)) 2. subject to fair use exceptions 3. lasts length of author’s life ONLY FOR WORKS OF VISUAL ART Scope: applies only to “works of visual art” (§ 101 - defined as essentially fine art: painting, photography, drawing, sculpture) 1. in single or signed limited (> 200) editions 2. not WMFH, books, magazine, motion pictures, anything mass produced. Not chart, diagrams, models. 3. advertising and promotional materials excluded (Pollara). 4. doesn’t apply to reproductions if not themselves fine art (eg, catalogues) a. 106A(c)(3) specifically exempts any reproduction from the attribution right, if not “visual art.” "of recognized statute" by art community or society.
Phillips v. Pembroke Real Estate o "Site specific art". VARA does not apply to site-specific art at all. Would restrict property rights. Carter - weird scupture. Work made for hire
CAN GET MORE MORAL RIGHTS THOUGH LANHAM ACT. SEE Gilliam v. ABC . Right to not have confusion of endorsement.
Chapter 8: 501
Infringement Actions
(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.
Arnstein inquiry : Copying and improper appropriation
OWNERSHIP OF A VALID COPYRIGHT. o Registration certification provides prima facie evidence of validity of the copyright and all the facts stated in the certificate. COPYING. o Can be proven one of two ways 1. Access + Probative similarity ( Arnstein) a. Access a. Majority: Opportunity to view i. a mere possibility that such an opportunity to view the plaintiff’s work could have arisen is insufficient. It must be reasonably possible that the paths of the infringer and the infringed work crossed. b. Minority: "actual viewing" b. Probative Similarity a. Can used similarities in unprotect elements 2. Strikingly Similar allowed to prove factual copying element with similarities “so striking as to preclude the possibility of *similarity by coincidence+” eg, copy a sentence verbatim, or a Mountweazel. D can rebut even striking similarity with own evidence tending to show independent creation
Bright Tunes Music v. Harrissongs Harris’ song was virtually identical (to the ear) and Harris must have been *subconsciously+ aware of the Original Copyrighted work “He’s So Fine”, as it was number 1 on US Charts and 12 on UK charts. Therefore, Harris’ song is a plagiarism and infringes upon the Copyright in “He’s so fine”. Ty, INC v. GMA Accessories Beanie Babies. Copy is so striking that independent creation is unlikely. GMA offers drawings by designer to show independent creation. The evidence is weak, there was clear intervention between her design and the manufacture of final product.
The finished pigs resemble Ty’s products more than they resemble t he design drawings”
IMPROPER APPROPRIATION: Must demonstrate that the alleged infringing work is substantially similar to the protect expression in the allegedly infringed work. Subtractive Approach Identify protectible and non-protectible elements of the work Subtract out the non-protectible elements Historical facts Scenes a faire (incidents, characters or settings which are as a practical matter indispensable or at least standard in the treatment of a given topic) Common sources Cliché’d language, metaphors, theme or setting Compare what is left of the protected work to the allegedly infringing work, to see if substantial similarities exist. Must take care not to ignore protectible “selection and arrangement” of components, even if the components themselves are to be subtracted as nonprotectible. Totality Approach This approach is the counter balance to the Subtractive approach. Balances the risk of sweeping non- protectible elements in under the net of “selection and arrangement”. “Total Concept and Feel” McDonaldland v. H.R. Pufnstuf – substantial similarity found Radiator Catalog Case – even though total concept and feel are the same, the test is less applicable to “factual” catalog works than it is to “creative or artistic” works. May require verbatim reproduction or very close paraphrasing. Krofft Test – Role of Experts In subtractive approach, experts may be used to help in extrinsic analysis, to determine which elements should or should not be protected. After that, though, experts may not be used in a subjective determination of the materiality or substantiality of the copying (intrinsic analysis) Learned Hand's approach: "levels of abstraction" Start broad and work your way down, what depth of abstraction does the co pying still exist "audience/ordinary observer test" Nichols v. Universal Pictures Corp Stereotype play. Hand's approach: Plot is similar at most general level. Just sterotypes Peter Pan Fabrics Inc. v. Martin Weiner Corp Dress fabric case. The ordinary observer, unless he set out to find the diffferences, would likely overlook them, thus they are similar enough.
Chapter 9
Secondary Liability
Courts have long recognized claims, even though the act does not expressly state them. Landlord v. Dancehall cases.
Vicarious Liability Main Points 1) Gershwin/ Shapiro test: vicariously liable if: i) have the right and ability to supervise the infringing activity; AND don’t need formal contractual right to control. Actual control is enough. ii) direct financial interest/ benefit from infringing activity. [acts as an expansion of respondaet superior ] 2) no knowledge requirement 3) “directness” of financial interest becoming more attenuated ( Cherry Auction)? Case Law Fonovisa v. Cherry Auction – Cherry Auction runs flea market at which pirated records are sold. i) clear that CA has ability to control, as contractual right to remove vendor. ii) less clear that CA has direct financial interest. Doesn’t get a cut from them (as in Shapiro). Court nonetheless holds claim stated, since possible that infringing activity increased audience and thus rent charged. after Cherry Auction, can landlord be liable for downloading of tenants? i) has right and ability to control, given lease terms BUT: seem to be countervailing privacy concerns in this context. ii) financial benefit seems very indirect, but could make CA analogy.
B. Contributory Infringement Main Points: 1) Gershwin: liability imposed on one who: i) has knowledge of another’s infringing activity; AND ii) “induces, causes, or materially contributes to ” infringing activity 2) objective knowledge standard (Napster ): D actually knew or “reasonably should have known” typically, need only know that the activity is occurring, not whether it was actually infringement (e.g., if it’s an ambiguous case like a fair use defense) But see Netcom. (requiring notice/ knowledge of the infringing nature of the activity, not just the activity itself). 3) A Direct Form of Liability : D is held to account for her own acts under contributory infringement (not the acts of another as in vicarious liability) Cases and Examples 1) Cherry Auction – under contributory theory, claim has been stated. Knowledge satisfied as CA given notice of activity; providing customers, space, parking all “materially contribute to” the infringement. 2) Landlord accountable for downloading of tenants? likely will not have knowledge.
if knowledge satisfied, does providing “space and facilities” constitute materially infringement? seems to satisfy test on literal level. however, countervailing privacy concerns, wary of imposing affirmative duty on landlord to police tenants. Residential context different from commercial one in Cherry Auction.
C. Sale of Copying devices. Main Points: 1) Sony: sale not copyright infringement if: product widely used for legitimate, nonobjectionable uses; OR if device is merely capable of substantial [or commercially significant] noninfringing uses dissent: no liability unless significant portion of product’s actual use is noninfringing. “Mere capability” not enough. rationale: protect new technologies. 2) Inducement-Based Liability: Liability for D who distributes the device with object of promoting or inducing infringing use ( Grokster ) shown by “clear steps taken to foster inducement” inducement can be shown by: i) advertising or solicitation – “classic” proof of promotin g infringing use e.g., targeting users with known demand for infringement ii) business model used (does it make more money if more infringement) iii) failure to take precautions, affirmative steps to prevent though things under ii –iii may not be enough alone. Case Law and Examples Sony – held no secondary liability for VCR makers since device is “capable of substantial noninfringing uses” rationale: balancing copyright protection against not discouraging development of useful new technologies N.B. Sony would fail under normal contributory infringement test i) they have reason to know about the infringement ii) they are materially contributing (couldn’t infringe without them) policy debate between Blackmun and majority: Blackmun’s test less protective of new technologies uncertainty – manufacturer won’t know whether he’s liable until he sees how people use his product. won’t give time for noninfringing uses to develop majority’s test has own problems not protective enough of copyright owners – unfair to let device makers hide behind capability that is never used. Napster (9th Cir.) – held contributory infringer for P2P program though has substantial noninfringing uses (e.g., transmitting public domain works), Court holds that Sony test only goes to knowledge
prong—since Napster had knowledge of infringement and did nothing, it’s liable. test applied: if operator learns of significant infringing material and fails to purge or attempt to correct it, this constitutes a knowing material contribution. holds Sony test only applies for contributory infringement, not vicarious liability Grokster – case involving P2P program with decentralized server (thus Grokster only distributes the software. Held: Sony test does not apply when infringement is induced and promoted by the device maker. relies on fact that Grokster targeted Napster users, had business model based on infringement, didn’t employ protections against infringement liable. Side-debate on Sony test: Ginsburg: would put more emphasis on how device actually used, not just the capability Breyer: would preserve Sony test and rule for Grokster absent the inducement. Concern with protecting technologies.
D. Section 512...DCMA § 512: Creates “safe harbors” (no damages and only limited injunctive relief) for Online Service Providers (OSPs): 1) 512(k): definition of “OSPs” = “a provider of online services or network access or the operator of facilities therefor.” Broad definition – includes not only AOL or access providers but sites like YouTube or message boards. 2) “512(i) termination policy”: threshold condition to be eligible. (1)(A) OSP must “adopt and reasonably implement” termination policy for repeat infringers. a lot of debate on what is “reasonable implementation” – do you have to monitor, actually kick off infringing users, etc. 3) Categories of Safe Harbors: § 512(c) – main section. deals with storage of user content (Eg, server space, chatrooms, search, sites like YouTube) Safe Harbor if meet three conditions: 1st: either: (A)(i) no actual knowledge of infringement; OR (A)(iii) upon obtaining knowledge, acts expeditiously to remove such material “red flags” of pirating may be enough for knowledge 2d: (B) gets no direct financial benefit from infringement, if OSP has right and ability to control. like vicarious liability, but maybe a bit stricter. 3d: (C) upon receiving notice of infringement, acts expeditiously to remove (the “notice and take down” [and put back])
gives specific conditions for notice, and user allowed to counter-notify (and then OSP must put back up) other sections of safe harbors: § 512(a) – “mere conduit” (protects access providers) § 512(b) – deals with “caching” § 512(d) – deals with linking. Same “notice and take down” structure. 4) Policy: balance protecting copyrights, facilitating internet business, and concerns for chilling speech. Rmk: § 512 just establishes only supplies a safe harbor. If fall outside these safe harbors, it doesn’t mean you are liable , just that court will fall back on traditional theories of secondarily liability (as in Netcom). Case Law Netcom – Inspired § 512. Disgruntled ex-Scientologist posts unpublished Scientology documents on message board. Server of message board (Netcom) sued. court rejects claim of direct infringement, even though Netcom technically made a copy. reflects policy view that Netcom shouldn’t have to filter all content. vicarious liability: rejected as no direct financial benefit. contributory infringement: issue of fact wrt knowledge – they got notice, but might have been unsure whether it was infringement material contribution satisfied. YouTube litigation – YouTube sued by Viacom for infringement by its users. YouTube will try to rely on § 512: 1) fits definition of OSP. 2) has 512(i) policy in terms and conditions, kicks you off if violate twice Viacom may argue this is not reasonably implemented. 3) fit into 512(c)? seem to satisfy (A) no knowledge or take down; (C) take down upon notice but could argue they get direct financial benefit through their advertising. Case made hinge on interpretation of “direct.” Corbis – Amazon sued for infringing sales through independent vendors on its site. “reasonable implementation” interpreted favorably to OSPs. Need not be perfect, just reasonable.
ANTI-CIRCUMVENTION PROVISIONS 1201(a)(1) - Thou shalt not hack. Access the work without authorization from CR owner. Exception: Allow the CR office to allow for exceptions through notice and comment rule making. If you can show that your fair use is being adversely affected, they can declare a 3 year exemption for you. 1201(a)(2) - Device limitation. Thall shall not manuf. Import, offer to public, provide, or otherwise tracffic something that allows someone else to hack.
1201(b) - Close to 1201(a)(2) - except these are tech measures that effect the rights of the copyright owner. Copy protection. Not access protection. 1201(c) - Cannot affect rights...remedies 1201(c)(2) - no enlarging or dominishing vicarious or contributory liablity. 1201(c)(3) - Do not have to comply with tech measures, so long as you don't infringe. Main Points: 1) § 1201 provides protection for technological protection measures address problems of serial copying, and easy dissemination in digital context. 2) Taxonomy: Two Types of controls: Access controls – blocking access to work (eg, password) Rights controls – restrict uses (eg. prevent copying or other 106 right) Two types of prohibitions: device bans – prevent creating device to do act. act bans – prevent individual acts. Chart:
Act Ban
Device Ban
Access Controls
1201(a)(1)
1201(a)(2)
Rights Controls
---
1201(b)
3) violates §1201(b) if “circumvents” and: (A) primarily designed for purpose of circumvention; OR (B) has only limited commercially significant purpose other than circumvention; OR (C) marketed with knowledge of use for circumvention. Universal City Studios v. Corley DeCSS for DvD copying. Clearly falls within ban of § 1201, but D raise constitution claims, since device is capable of fair use, which after Eldred is protected by First Amendment, and statute says “nothing in the statute was intended to affect … scope of fair use.” Court dismisses First Amendment claim, arguing there’s no r ight to make your fair use in a maximally convenient way.
Chapter 10 107
Fair Use and Affirmative Defenses
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research , is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to t he copyrighted work as
a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
Purpose and character of the use Transformative v. superseeding Have they changed the puspose/character? (bill Graham) Also thumbnails in Perfect 10 v. Amazon Nonprofit v. commercial Commercial generally weighs against, but not all the time Educational v. entertainment Parody and Satire Good faith v. bad faith Nature of the copyright work Fact/Non-fiction v. fictional/creative Published v. Soon to be published Harper and Row : When unpublished, use will rarely be fair. NOT DETERminative Amount and substantiality of the portion copied Heart of the work? Quantitative and Qualitative Effect on potential market Look at both the market itself and the effect on potential derivatives. If there is a possibility of "tarnishment" of the reputation, then possible moral rights implications
Campbell v. Acuff-Rose 2 Live Crew;s pretty woman. Held that a market for parody didn’t exist. Harper and Row Gerald Ford book. Acted wrongfully and used the heart.
OTHER DEFENSES Copyright misuse Copyright owner has engaged in miscounduct by attempting to broadedn is protections and gaining a monopoy right beyond what is prescribed by congress Statute of Limitations
507
3 years for civil actions and 5 for criminal. Crim - Runs from the date that the cause of action arose. Civil - runs from the date the ciam accrued.
Laches Permits dismissal for unreasonable delay that prejudices the defendant. Runs from the time that the plaintiff knew or should have know about actual or impending infringment. Estoppel: The owner knew the facts of infringment, the owner intended its conduct to be acted upon such that the infringer has a right to believe it was so intentdened, the infringringer is ignorant of the ture facts, reliance e. Abandonment or forfieture a. Forfeiture: Publish without notice b. Abandonment: Requires intent and an overt act
f. Fraud on Copyright Office g. Innocent intet Good faith reliance.
Chapter 11
Remedies, Preemption and Related Bodies of Law
502 – Injunctions a. (a) Any court having jurisdiction of a civil action arising under this title m ay, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright. b. Any such injunction may be served anywhere in the United States on the person enjoined; it shall be operative throughout the United States and shall be enforceable, by proceedings in contempt or otherwise, by any United States court having jurisdiction of that person. The clerk of the court granting the injunction shall, when requested by any other court in which enforcement of the injunction is sought, transmit promptly to the other court a certified copy of all the papers in the case on file in such clerk's office. a. Available at equitable discretion of the court. Preliminary injunctions typical. b. In cases where D has added expression, compulsory licensing is an option 503 – Impounding and disposition of infringing articles a. At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable, of all copies or phonorecords claimed to have been made or used in violation of the copyright owner's exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced. b. As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner's exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced. 504 – Damages and profits (NO DOUBLE DIPPING) a. Injured party may recover actual damages plus the profits of the infringer or statutory damages (If Registered!!! Per 412) b. To prove profits, P need only show gross profits and D bears the burden of proving deductible expenses. c. For statutory damages, awards range from $750 - 30,000, as the court considers just d. For willful acts, court can go up to $150,000. Conversely, if D shows that infringement was innocent, damages may be lowered to $200. 505 – Costs and Attorney’s Fees a. In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs. Calculating Actual Damages and Profits from Infringement a) Types of Actual damages: i) lost profits – recover if infringement cut into your sales
ii) lost licenses from third parties – if infringement resulted in inability to license to another (eg, Schlitz) iii) lost license from the infringer himself – fair value of what D would have had to pay to P if he had properly gotten permission (eg, Davis) b) Profits Attributable to Infringement P can get indirect profits. Eg, Frank Music. P need only present proof of “gross profits” of D . 504(b). BUT: profits must be “reasonably related” to infringement. Davis. In discretion of judge to apportion profits in his “best estimation” and interests of justice. Schlitz. 4) Calculating Statutory Damages a) Amount: P entitled to sum of: not less than $750 and not more than $30,000 for all infringements with respect to any one work. court will likely take into account whether just one copy of many copies made (toward top of range) of the work. if willful, max. award increases to $150,000. if innocent, min. drops to $200. P gets jury decision on statutory damages. PREEMPTION
i. ii.
iii.
1.
1.
1.
Work must be the same subject matter protected under 102 or 103, and the rights in question must be the same rights conferred under 106. Katz, Dochtermann, & Epstein v. HBO (1999) p.1035 To have preemption, the work must be the same subject matter protected under 102 or 103, and the rights in question must be equivalent to the rights conferred under 106. 102/103: Here, state claims based on misappropriation of the “idea” of the advertising campaign. P argues ideas not protectible hence not the subject matter of 102. Preemption is not coterminous with protectibility, it is broader. The idea was necessarily intertwined with the expression, when presented to HBO. Therefore the “idea” underlying the expression is within the scope of 102/103 for purposes of preemption. 106: The Second Circuit has explained that a state law claim is not equivalent to any of the exclusive rights protected in § 106 if it includes an “extra element” instead of or in addition to acts of reproduction, performance, distribution, or display, which “changes the nature of the action so that it is qualitatively different from a Copyright infringement claim.” Extra Element Analysis; a. What plaintiff seeks to protect b. The theories in which the matter is thought to be protected c. The rights sought to be enforced Unfair Comeptition: The essence of unfair competition is “misappropriation of the fruit of P’s labors and expenditures by obtaining access to P’s business idea either through fraud or deception, or an abuse of a fiduciary or confidential relationship”. P asserts that HBO misappropriated the idea for the campaign by way of a fraudulent promise to pay for it. Court says the idea is still inseparable from the expression, could not have accessed the idea, but for its presentation in the expression of the literary work. The claim of fraud only alters the scope of the state claim, not the equivalency of its nature to a Copyright claim. Dismissed.
1.
1.
1.
1.
Breach of implied in fact contract: A contract will be implied in fact when the parties clearly intended payment to the extent of the use of the plaintiff’s idea, though they did not set for that intention in express language P asserts an implied in fact promise to pay for its labors if D should choose to use them. That right to be paid for the idea, used in any form, is wholly separate from Copyright claim, and is therefore not dismissed. Unjust enrichment: P must show that the defendant was enriched by plaintiff and that the circumstances were such that it would be unjust, in equity and good conscience, to permit defendants to refuse to make any restitution to the plaintiff. Allowed to stand insofar as it is an equitable alternative to the breach of implied in fact contract claim, but dismissed as an alternative ground for recovery o n the unfair competition and Copyright claims.
