Copyright III Class Notes: January 29, 2003 Law 507 | Intellectual Property | Spring 2003 Professor Wagner

Copyright IIICopyright III

Class Notes: January 29, 2003Class Notes: January 29, 2003

Law 507 | Intellectual Property | Spring Law 507 | Intellectual Property | Spring 20032003

Professor WagnerProfessor Wagner

1/29/031/29/03 22Law 507 | Spring 2003Law 507 | Spring 2003

Today’s AgendaToday’s Agenda

1. The rights of copyright owners.


The Rights of Copyright OwnersThe Rights of Copyright OwnersThe exclusive rights of copyright owners:The exclusive rights of copyright owners:

1. The right to make copies2. The right to make derivative works3. The right to distribute copies4. The right to publicly perform or

display5. (Moral rights)


The Right to Make CopiesThe Right to Make CopiesBasic components of copyright Basic components of copyright

infringement:infringement:1. Copying2. Improper Appropriation

Arnstein v PorterArnstein v Porter (2nd Cir. 1946) (2nd Cir. 1946)• What evidence is necessary to show copying?

o Direct evidence?o Circumstantial evidence?

– Note the sliding scale analysis . . .o Is intent an element of copying? (Or of

infringement?)


The Right to Make CopiesThe Right to Make CopiesNichols v Universal PicturesNichols v Universal Pictures (2nd Cir. (2nd Cir.

1930)1930)• What test does the court use?• Note the 9th Circuit analysis:

o Objective test: sort out the © from the resto Subjective test: analyze similarity of © parts

How much must be taken to infringe?How much must be taken to infringe?

What is the proper standard by which to What is the proper standard by which to analyze similarity?analyze similarity?



Right to Make CopiesRight to Make Copies

Steinberg v Columbia PicturesSteinberg v Columbia Pictures (SDNY (SDNY 1987)1987)• Why doesn’t the court separately

analyze copying and improper appropriation?oRecall . . . circumstantial evidence of

copying:– Access– Similarity


Right to Prepare Derivative Right to Prepare Derivative WorksWorks

Anderson v StalloneAnderson v Stallone (CD Cal 1989) (CD Cal 1989)• Why is Anderson’s work a derivative work?• Can Anderson keep the copyright for the

non-copied portions of the work?

1.1. Do we need to protect derivative works? Do we need to protect derivative works? (Won’t standard infringement suffice?) (Won’t standard infringement suffice?)

2.2. Does the derivative work right create Does the derivative work right create incentives? (Good or bad?)incentives? (Good or bad?)

3.3. Why allow Stallone to take Anderson’s Why allow Stallone to take Anderson’s entire work?entire work?


Right to Distribute CopiesRight to Distribute Copies17 USC 106(3): 17 USC 106(3):

© owners have the exclusive right to distribute their works

Important limitation: first sale doctrine Important limitation: first sale doctrine (FSD)(FSD)• The FSD allows a lawful owner of a particular

copy to determine what happens to that copy• Typically the copy must stay in the same form

Consider:Consider:• Does the FSD swallow the distribution right?• Is this right necessary? (Won’t distribution

infringe the right to make copies?)


Public Performance & Display Public Performance & Display RightsRights

Public performance: Public performance: • if it moves (movies, plays, dances, readings,

etc.)• Making the work perceivable

Public display: Public display: • if it is still (photos, paintings, sculptures, etc.)• Display is allowed “where the copy is located”

Note: no public performance rights for Note: no public performance rights for analog sound recordings (but a right in analog sound recordings (but a right in the musical compositions)the musical compositions)


Public Performance & Display Public Performance & Display RightsRights

What is “Public”?What is “Public”?• Open to those beyond family and social

acquaintances• Any sort of broadcasting

Limits on Public Performance/Display Limits on Public Performance/Display RightsRights• Public interest exceptions• Compulsory licenses


Moral RightsMoral RightsVisual Artists Rights Act of 1976:Visual Artists Rights Act of 1976:• Right to claim authorship• Right to prevent use of artist’s name• Some rights related to

modification/destruction

Note that other theories (trademark, etc.) Note that other theories (trademark, etc.) are also used to try to establish moral are also used to try to establish moral rightsrights


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Copyright III Class Notes: January 29, 2003 Law 507 | Intellectual Property | Spring 2003 Professor Wagner