COPYRIGHTS

PROF. JANICKEFALL 2015

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CONSTITUTIONAL POWER

• ART. I, SEC. 8 (8):

SCIENCE USEFUL ARTS

AUTHORS INVENTORS

WRITINGS DISCOVERIES

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REQUISITES FOR PROTECTION:

• ORIGINALITY (i.e. NOT COPIED)

• WORK OF AUTHORSHIP

• FIXATION

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FIXATION REQUIREMENT

• WORK MUST BE FIXED IN A TANGIBLE MEDIUM OF EXPRESSION (§ 102)

• MORE THAN TRANSITORY TIME (§101)

• HENCE, NOT COPYRIGHTED: – MY CLASSES (WITH NO RECORDING)– PASTOR’S UNWRITTEN SERMON

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WORKS COVERED• LITERARY (INCL. SOFTWARE)• MUSICAL (INCL. WORDS)• DRAMATIC (INCL. MUSIC)• PANTOMIME / CHOREOGRAPHY• PICTORIAL, GRAPHIC,

SCULPTURAL• MOTION PICTURES AND OTHER A/V• ARCHITECTURAL WORKS

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WORKS COVERED

• SOUND RECORDINGS (AS SEPARATE WORKS)– RECORD USUALLY HAS MORE THAN

ONE “WORK” ON IT: • THE RECORDING WORK, AND • THE UNDERLYING (E.G., MUSIC) WORK

(WHICH COULD IN TURN BE BASED ON A POEM)

• THE ARRANGEMENT OF THE MUSIC

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– SOMETIMES NOT CLEAR WHO THE “AUTHOR” OF THE RECORDING WORK (“SOUND RECORDING”) IS:

• SINGER, BAND, STUDIO ENGR.?

• USUALLY HANDLED BY CONTRACT

– COPYRIGHT IS OWNED BY THE AUTHOR, UNTIL ASSIGNED

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GOVERNMENT WORKS

• NO COPYRIGHT IF IT IS CREATED BY U.S. GOVERNMENT ACTIVITY §105

• BUT U.S. CAN ACQUIRE OTHERS’ COPYRIGHTS IN THEIR WORKS

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ORIGINALITY REQUIREMENT (§ 102)

• NOT HARD TO MEET• SLOGAN MAY BE TOO SHORT (TRY

TRADEMARK)• DOESN’T MEAN NEW• TWO PEOPLE THINK OF THE SAME

POEM → TWO VALID COPYRIGHTS

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ORIGINALITY REQUIREMENT MET (§ 102)

• EXAMPLE: TAKING A PHOTOGRAPH OF BUILDING

• EXAMPLE: PAINTER COPYING THE MONA LISA [NO PERMISSION NEEDED IN THIS INSTANCE, BECAUSE ORIGINAL WORK IS VERY OLD, IN THE PUBLIC DOMAIN]

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WHAT IS NOT ENOUGH

• WHITE PAGES OF PHONE BOOK (FEIST

PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO., 499 U.S. 340

(1991)

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IDEA-EXPRESSION DICHOTOMY

• THE CENTRAL DOCTRINE OF COPYRIGHT LAW (§ 102(b))

• NO PROTECTION FOR IDEAS

– OTHERS CAN TAKE IT FREELY, USE IT IN THEIR OWN ORIGINAL WORKS

• ONLY PROTECTION IS FOR HOW YOU EXPRESS THE IDEA

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IDEA-EXPRESSION DICHOTOMY

• EXAMPLE: I WRITE A BOOK DESCRIBING THE CONSTRUCTION OF BRIDGES: MATERIALS NEEDED; WORKERS NEEDED; ETC.– YOU BUILD A BRIDGE USING THE INFO

IN MY BOOK – NOT AN INFRINGEMENT– YOU PHOTOCOPY THE BOOK – IS AN

INFRINGEMENT

IDEA-EXPRESSION DICHOTOMY

• EXAMPLE: I WRITE A BOOK ON THE GOOD AND BAD FEATURES OF ELECTION CAMPAIGNS

• YOU PLAN AND CARRY OUT A CAMPAIGN USING MY SUGGESTIONS– NOT AN INFRINGEMENT

• COPYING CHAPTERS OF MY BOOK – IS AN INFRINGEMENT

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COMPILATIONS

• CAN BE “ORIGINAL” WORKS; COPYRIGHTED UPON FIXATION, IF THE PIECES WERE LAWFULLY TAKEN (§ 103(a))

• PROTECTION EXTENDS ONLY TO THE SELECTION OR ARRANGEMENT (I.E., SEQUENCING) (§ 103(b))

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DERIVATIVE WORKS

• PERHAPS THE MOST POWERFUL AND VALUABLE OF ALL COPYRIGHT RIGHTS

• EXAMPLES:– SCREENPLAY FROM A BOOK (2 ©s)– TRANSLATION OF A NOVEL (2 ©s)– ORCHESTRATION OF A SONG/ARIA (e.g.,

Liebestod from Tristan und Isolde)

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WHERE THE UNDERLYING WORK IS STILL UNDER COPYRIGHT

• IF DERIVATIVE WORK IS MADE WITHOUT PERMISSION OF COPYRIGHT OWNER: – IT IS MERELY AN INFRINGEMENT; NO

NEW COPYRIGHT IS CREATED!

• IF DERIVATIVE WORK IS MADE WITH PERMISSION: IS A SECOND COPYRIGHTED WORK

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EXAMPLE

• A COPYRIGHTED PLAY

• SOMEONE WITH PERMISSION MAKES A MOVIE

• A SECOND COPYRIGHT EXISTS, OWNED BY THE MOVIE-MAKER

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• SOMEONE COPYING THE MOVIE INFRINGES BOTH COPYRIGHTS

• FACES TWO SUITS

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WHEN IDEA (UNPROTECTABLE) AND EXPRESSION

(PROTECTABLE) COLLIDE

• SOMETIMES HARD TO TELL WHICH IS WHICH

• CALLED “MERGER”• IN THAT CASE, PROTECTION FAILS

BAKER v. SELDEN, 101 U.S. 99 (1879)

EXAMPLE OF MERGER

• I WRITE AN ARTICLE SAYING JACK SMITH SHOULD RUN FOR GOVERNOR

• YOU MAKE UP CAMPAIGN SIGNS SAYING “JACK SMITH FOR GOVERNOR”

• THE IDEA AND ITS EXPRESSION HAVE MERGED

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CASES

• BAKER v. SELDEN

• LAUREYSSENS

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RIGHTS

• ARE DIVISIBLE FOR LICENSING OR ASSIGNMENT

• THERE ARE NO REDUNDANCIES

• >>>

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RIGHTS

• MAKE COPIES (§106(1))

• CREATE DERIVATIVE WORKS (§106(2))

– VERY POWERFUL, ESP. WHEN INFRINGEMENT CLAIM FAILS

– APPLIES EVEN IF DERIV. WORK IS ORIGINAL AND WOULD BE COPYRIGHTED

• DISTRIBUTING COPIES PUBLICLY, EVEN IF YOU DIDN’T MAKE THEM (§106(3))

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RIGHTS

• PERFORM THE WORK PUBLICLY §106(4)

• DISPLAY THE WORK PUBLICLY §106(5)

– BUT: OWNER OF THE ACTUAL ARTICLE (e.g. PAINTING) OR LAWFUL COPY IS ALLOWED TO DISPLAY PUBLICLY OR AUTHORIZE OTHERS (MUSEUM) TO DO SO§109(c)

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“MORAL RIGHTS”

• WE HAVE THEM, IN THE COPYRIGHT STATUTE, BUT ONLY FOR FINE ART WORKS, WHERE NO MORE THAN 200 NUMBERED COPIES ARE MADE BY THE “AUTHOR”:– PAINTINGS– DRAWINGS– PRINTS– STILL PHOTO PRINTS– SCULPTURE CASTINGS

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“MORAL RIGHTS”

• ATTRIBUTION §106A (a)(1)

– INCLUDES RIGHT OF NON-ATTRIBUTION IF IT’S NOT YOURS

– DON’T SAY IT’S MINE IF YOU’VE CHANGED IT IN ANY WAY

• INTEGRITY §106A (a)(3)

– DON’T CHANGE MY WORK

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“MORAL RIGHTS”

• ARE NOT ASSIGNABLE §106A (e)

• TERM: LIFE §106A(d)

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“MORAL RIGHTS”

• ARE BIG IN OTHER COUNTRIES– FOR ALL KINDS OF WORKS, E.G.,

BOOKS

• IN U.S., PROTECTION BY THE COPYRIGHT LAW IS LIMITED TO WORK OF VISUAL ART

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“MORAL RIGHTS”

• FOR OTHER TYPES OF WORKS, U.S. AUTHORS USE § 43(a) OF THE LANHAM ACT [15 U.S.C. § 1125(a)], SUING FOR UNFAIR COMPETITION

• BIG PUSH FOR U.S. EXTENSION OF MORAL RIGHTS, BUT SEEMS NOT TO BE MOVING IN CONGRESS

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“INFRINGING” MEANS:

• EITHER: COPYING A SUBSTANTIAL PORTION OF PROTECTED MATTER FROM THE WORK

• OR: NOT COPYING EXACTLY, BUT PRODUCING A SUBSTANTIALLY IDENTICAL WORK AFTER ACCESS

CASE

• PARAMOUNT

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THEREFORE, SUBJECT TO CERTAIN EXEMPTIONS, THE

INFRINGING ACTS ARE:

• MAKING “COPIES”• MAKING A DERIVATIVE WORK• DISTRIBUTING “COPIES” PUBLICLY• PERFORMING WORK PUBLICLY• DISPLAYING WORK PUBLICLY§106

“THE RIGHTS”

• A VAGUE TERM IN COPYRIGHT

• GOOD LAWYERS SAY: “SHE ACQUIRED THE RIGHT TO _____”

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FAIR USE DEFENSE

• COULD BE FOR ANY TYPE OF WORK §107

• PURPOSE IS JUST A THRESHOLD ISSUE – USE LEVEL MUST STILL BE “FAIR”

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THE FAIR-USE FACTORS:

• PURPOSE AND CHARACTER OF USE– AN ALTRUISTIC OR SOCIALLY DESIRABLE

PURPOSE HELPS– BUT $$ DOESN’T CREATE PRESUMPTION OF

UNFAIRNESS

• NATURE OF THE COPYRIGHTED WORK– COPYING MORE LIKELY TO BE FAIR IF FROM

A SCIENCE HYPOTHESIS THAN FROM A SCULPTURE

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THE FAIR-USE FACTORS:

• AMOUNT AND SUBSTANTIALITY OF THE PARTS TAKEN

• IMPACT ON POTENTIAL MARKET FOR THE ORIGINAL WORK– SEEMS TO BE THE MOST IMPORTANT

FACTOR BY FAR, IN ACTUAL PRACTICE [OFFICIALLY, NO FACTOR DOMINATES]

– INCLUDES THE DERIVATIVES MARKET

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BOOKS ABOUT FAMOUS PERSONS

• FAIR USE IS NOT LIKE “FAIR COMMENT” IN DEFAMATION LAW

• A BOOK BY OR ABOUT A FAMOUS PERSON IS ENTITLED TO FULL COPYRIGHT PROTECTION

CASE

• HARPER & ROW

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THE PROBLEM OF PARODY AS FAIR USE

• PARODY IS ENCOURAGED FOR POLICY REASONS, EVEN IF IT HURTS MARKET FOR TARGET WORK

• EVERY PARODY TAKES SOME OF THE TARGET WORK, IN ORDER TO IDENTIFY IT

• TAKING EXCESSIVE AMOUNT IS APT TO BE NOT FAIR

Fisher v. Dees, 794 F. 2d 432 (9th Cir. 1986)

CASES

• FISHER v. DEES

• SEGA v. ACCOLADE

• TY INC.

• MGM v. GROKSTER

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MANY SPECIAL EXEMPTIONSFROM BASIC INFRINGEMENT

RULES

• IN ADDITION TO FAIR USE, THE STATUTE PROVIDES VARIOUS NARROWLY TAILORED SPECIAL EXEMPTIONS FROM INFRINGEMENT:– LIBRARIES– CLASSROOM INSTRUCTION– RELIGIOUS SERVICES– STATE FAIRS

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EXEMPTION: RIGHT TO SELL YOUR OWN

COPY

• APPLIES TO A LAWFUL COPY § 109(a)

• CAN ALSO RENT OUT, EXCEPT FOR PHONORECORDS OR COMPUTER PROGRAMS §109(b)

– THESE HAD A BAD HISTORY OF PIRACY, LEADING TO CONG. RESTRICTIONS

• PRIVATE LENDING OF RECORDINGS (e.g., TO FRIENDS) for NO $$, IS OK

– § 109 SAYS LENDING NOT ALLOWED FOR COMMERCIAL ADVANTAGE [“for the purposes of direct or indirect commercial advantage”]

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EXEMPTION 110(5)(A): HOME-SIZE RADIO/TV

BROADCAST PUBLICLY PLAYED AT PUBLIC BUSINESS LOCATION

• PLAYING RADIO AND TV BROADCASTS IN STORES, RESTAURANTS, BARS– CAN’T HAVE ANY CHARGE FOR THE

TRANSMISSION– NO RESTRICTION ON SIZE OF

ESTABLISHMENT, BUT:– MUST HAVE “PRIVATE HOMES” TYPE GEAR – SEEMINGLY COVERS ANY KIND OF WORK

§110(5)(A)

UNCLEAR ABOUT 110(5)(A)

• DOESN’T MENTION ORIGIN OF THE “TRANSMISSION’– COULD IT BE INTERNET STREAMING?– DOES THE ORIGIN NEED TO BE

LICENSED?

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CAVEAT RE. 110(5)

• NO EXEMPTION FOR PLAYING RECORDINGS AT A PUBLIC PLACE, WITHOUT PERMISSION

• 110(5) (A) AND (B) REQUIRE A “TRANSMISSION”

• THEREFORE, ONLY BROADCASTS

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EXEMPTION: CERTAIN ACTS RE. COMPUTER

PROGRAMS

• NOT AN INFRINGEMENT TO:

– MAKE A COPY IN ORDER TO USE THE PROGRAM

– MAKE AN ARCHIVAL COPY

§117(a)

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INCORPORATING THE WORK INTO A USEFUL

ARTICLE

• REMAINS COPYRIGHTED See, e.g., Mazer v. Stein, 347 U.S. 201 (1954) (glass figurines of dancers, used as lamp bases).

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COPYRIGHT IN SOUND RECORDINGS

(PERFORMERS’ RIGHTS)• MORE LIMITED THAN COPYRIGHT IN THE

UNDERLYING WORK (MUSIC)• NO RIGHT TO PROHIBIT PUBLIC PERFORMANCE

OF THE RECORDING (i.e., BY PLAYING THE RECORD) §114(a)– EXCEPT: DIGITAL AUDIO

• RECALL: ANY PUBLIC PERFORMANCE [PLAYING THE RECORD IN PUBLIC PLACE] WOULD INFRINGE THE COMPOSER’S PERFORMANCE RIGHT

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COPYRIGHT IN SOUND RECORDINGS

(PERFORMERS’ RIGHTS)• SOUND RECORDING COPYRIGHT IS

LIMITED TO PREVENTING MECHANICAL REPRODUCTION OF THE RECORDING OR PORTIONS THEREOF §114(b)

• PLUS DIGITAL AUDIO TRANSMISSION OF THE RECORDING (IF WE EVER GET THERE) §§ 106(6), 114(b)

• THEREFORE, MAKING A RECORD IMITATING THE RECORDING ARTIST’S STYLE IS NOT AN INFRINGEMENT OF SOUND RECORDING COPYRIGHT

– WOULD STILL BE INFRINGEMENT OF THE COMPOSER’S COPYRIGHT – “REPRODUCING THE WORK IN … PHONORECORDS” § 106(1)

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COMPULSORY LICENSE TO MAKE SOUND RECORDING OF

ANOTHER’S WORK

• RIGHT TO MAKE A SOUND RECORDING IS INITIALLY RESERVED TO THE COMPOSER

• HOWEVER, ONCE SHE ALLOWS SOMEONE TO MAKE AND DISTRIBUTE A RECORDING IN U.S., THE SITUATION CHANGES >>>

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• ANYONE ELSE CAN THEN PERFORM THE WORK PRIVATELY AND RECORD HER OWN PERFORMANCE §115(a)(1)

• CAN SELL THE RECORDS• MUST NOTIFY THE COPYRIGHT

OWNER• MUST PAY A STATUTORY ROYALTY

– ABOUT 1.5 CENTS PER MINUTE OF PLAYING TIME, PER RECORD

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CAVEATS:

• NO COMPULSORY LICENSE TO DO A PUBLIC PERFORMANCE AND RECORD IT

• NO COMPULSORY LICENSE TO FIX ANYONE ELSE’S PERFORMANCE OF THE WORK § 1101(a)

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A NOTE ON ARCHITECTURAL WORKS:

• NOT AN INFRINGEMENT TO TAKE A PICTURE OF IT, OR MAKE A PAINTING, ETC., IF THE WORK IS IN PUBLIC VIEW § 120

• [NOTE: BOTH WOULD NORMALLY BE FORBIDDEN DERIVATIVE WORKS]

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REMEDIES

• INJUNCTION §502

• DAMAGES §504(a), (b)

• AND D’s PROFITS §504(a), (b)

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REMEDIES

• IMPOUNDING– DURING LITIGATION §503(a)

• DESTRUCTION– AFTER TRIAL §503(b)

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STATUTORY DAMAGES

• STATUTORY DAMAGES ARE AVAILABLE AS ALTERNATIVE TO ACTUAL DAMAGES

• $750 – $30,000 PER WORK §504, 505

• HIGHER IF WILLFUL (TO $150,000)• AVAILABLE ONLY IF PROMPT

REGISTRATION OCCURRED §412

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ATTORNEY FEES

• IN COURT’S DISCRETION, AS PART OF “COSTS”

§ 505

• PROMPT REGISTRATION NEEDED

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REGISTRATION• IS NOW PERMISSIVE• PROMPT REG. NEEDED FOR

ATTORNEY FEES AND STATUTORY DAMAGES §412

• ALWAYS NEEDED BEFORE SUIT CAN BE COMMENCED §411

• NO OTHER MAJOR LEGAL SIGNIFICANCE

• GREAT PRACTICAL SIGNIFICANCE

CASE

• ARTHUR RUTENBERG

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OWNERSHIP

• INITIALLY IS IN THE “AUTHORS”

• FOR WORK MADE FOR HIRE, HIRER IS THE AUTHOR

• >>>

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WHAT IS A “WORK MADE FOR HIRE”?

• A WORK:– BY AN EMPLOYEE; OR – BY WRITTEN COMMISSION, BUT ONLY

IF IN THE NINE CLASSES OF WORKS §101

– IN OTHER SITUATIONS, NEED A SEPARATE ASSIGNMENT • THE UNDERLYING CONTRACT TYPICALLY

PROVIDES FOR LATER EXECUTION OF SUCH A DOCUMENT

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DURATION OF COPYRIGHT

• NORMALLY, LIFE OF AUTHOR + 70 YEARS §302(a)

• IF MULTIPLE AUTHORS, LAST TO DIE + 70 YEARS §302(b)

• WORKS MADE FOR HIRE: 95 YEARS FROM 1ST PUBLICATION OR 120 YEARS FROM CREATION [EARLIER GOVERNS] §302(c)

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NOW YOU SEE IT, NOW YOU DON’T:

REVOCATION/TERMINATION OF COPYRIGHT

ASSIGNMENTS/LICENSES

• STATUTE CALLS IT “TERMINATION” §203

• IT’S REALLY A STATUTORY RIGHT TO RENEGE ON AN AGREEMENT

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• POWER OF TERMINATION EXISTS AS TO LICENSES AS WELL

• DESPITE LICENSE TERMS• NO REASONS NEEDED IN EITHER

CASE• NO SUCH POWER OVER WORKS

MADE FOR HIRE

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TERMINATION RIGHT

• IS NOT PASSABLE BY WILL

• GOES TO PRESCRIBED RELATIVES

§203(a)(2)

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TERMINATION OF GRANTS FOR NEWER WORKS

• FOR WORKS CREATED AFTER 1977

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HOW IT WORKS• OCCURS IN A WINDOW: 35-40 YRS.

AFTER THE GRANT* TO BE TERMINATED

• MUST GIVE NOTICE OF TERMINATION 2-10 YRS. BEFORE IT IS TO HAPPEN

• ∴ FOR EARLIEST POSSIBLE TERMINATION, MUST SERVE NOTICE BETW. 25 AND 33-YRS. AFTER GRANT

* = ASSIGNMENT OR LICENSE

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MORE ABOUT TERMINATION

• TERMINATION RIGHT IS NOT ASSIGNABLE AND CANNOT BE CONTRACTED AWAY

• A GRANT NOTICED FOR TERMINATION CANNOT BE “RENEWED” UNTIL AFTER THE TERMINATION HAPPENS §203(b)(4)