COPYRIGHTS

PROF. JANICKEJULY 2012

2012 Copyrights 2

CONSTITUTIONAL POWER

• ART. I, SEC. 8 (8):

SCIENCE USEFUL ARTS

AUTHORS INVENTORS

WRITINGS DISCOVERIES

2012 Copyrights 3

REQUISITES FOR PROTECTION:

• ORIGINALITY (i.e. NOT COPIED)

• WORK OF AUTHORSHIP

• FIXATION

2012 Copyrights 4

FIXATION REQUIREMENT

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

• MORE THAN TRANSITORY TIME (§101)

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

2012 Copyrights 5

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

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

2012 Copyrights 6

WORKS COVERED

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

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

(WHICH COULD IN TURN BE BASED ON A POEM)

• THE ARRANGEMENT OF THE MUSIC

2012 Copyrights 7

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

• SINGER, BAND, STUDIO ENGR.?

• USUALLY HANDLED BY CONTRACT

– COPYRIGHT IS OWNED BY THE AUTHOR, UNTIL ASSIGNED

2012 Copyrights 8

GOVERNMENT WORKS

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

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

2012 Copyrights 9

ORIGINALITY REQUIREMENT (§ 102)

• NOT HARD TO MEET

• SLOGAN MAY BE TOO SHORT (TRY TRADEMARK)

• DOESN’T MEAN NEW

• TWO PEOPLE THINK OF THE SAME POEM → TWO VALID COPYRIGHTS

2012 Copyrights 10

ORIGINALITY REQUIREMENT (§ 102)

• EXAMPLE: TAKING A PHOTOGRAPH OF BUILDING

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

2012 Copyrights 11

WHAT IS NOT ENOUGH

• WHITE PAGES OF PHONE BOOK (FEIST

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

(1991)

2012 Copyrights 12

IDEA-EXPRESSION DICHOTOMY

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

• NO PROTECTION FOR IDEAS

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

• ONLY PROTECTION IS FOR HOW YOU EXPRESS THE IDEA

2012 Copyrights 13

IDEA-EXPRESSION DICHOTOMY

• EXAMPLE: I WRITE A BOOK DESCRIBING AND DISCUSSING 10 PHYSICS EXPERIMENTS– YOU CARRY OUT EACH EXPERIMENT

TO THE LETTER -- NOT AN INFRINGEMENT

– YOU PHOTOCOPY THE BOOK – IS AN INFRINGEMENT

2012 Copyrights 14

COMPILATIONS

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

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

2012 Copyrights 15

DERIVATIVE WORKS• PERHAPS THE MOST POWERFUL AND

VALUABLE OF ALL COPYRIGHT RIGHTS

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

Liebestod from Tristan und Isolde)

2012 Copyrights 16

WHERE THE UNDERLYING WORK IS STILL UNDER COPYRIGHT

• DERIVATIVE WORK IS MADE WITHOUT PERMISSION OF COPYRIGHT OWNER: IS AN INFRINGEMENT

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

2012 Copyrights 17

EXAMPLE

• A COPYRIGHTED PLAY

• SOMEONE WITH PERMISSION MAKES A MOVIE

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

2012 Copyrights 18

• SOMEONE COPYING THE MOVIE INFRINGES BOTH COPYRIGHTS

• FACES TWO SUITS

2012 Copyrights 19

WHEN IDEA (UNPROTECTABLE) AND EXPRESSION

(PROTECTABLE) COLLIDE

• SOMETIMES HARD TO TELL WHICH IS WHICH

• CALLED “MERGER”

• IN THAT CASE, PROTECTION FAILS

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

2012 Copyrights 20

RIGHTS

• ARE DIVISIBLE FOR LICENSING OR ASSIGNMENT

• THERE ARE NO REDUNDANCIES

• >>>

2012 Copyrights 21

RIGHTS

• MAKE COPIES (§106(1))

• CREATE DERIVATIVE WORKS (§106(2))

– VERY POWERFUL, ESP. WHEN INFRINGEMENT CLAIM FAILS

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

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

2012 Copyrights 22

RIGHTS

• PERFORM THE WORK PUBLICLY §106(4)

• DISPLAY THE WORK PUBLICLY §106(5)

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

2012 Copyrights 23

A CLOSE CALL?

• SCRIPT FOR A PLAY

• PUBLIC PERFORMANCE IS INFRINGEMENT

• BUT, CARRYING OUT PHYSICS EXPERIMENTS IS NOT

• ??? WHY

2012 Copyrights 24

“MORAL RIGHTS”

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

2012 Copyrights 25

“MORAL RIGHTS”

• ATTRIBUTION §106A (a)(1)

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

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

• INTEGRITY §106A (a)(3)

– DON’T CHANGE MY WORK

2012 Copyrights 26

“MORAL RIGHTS”

• ARE NOT ASSIGNABLE §106A (e)

• TERM: LIFE §106A(d)

2012 Copyrights 27

“MORAL RIGHTS”

• ARE BIG IN OTHER COUNTRIES• IN U.S., PROTECTION BY

COPYRIGHT LAW IS LIMITED TO WORK OF VISUAL ART – PAINTINGS, DRAWINGS, PRINTS,

SCULPTURES– SINGLE, OR LIMITED EDITION OF 200

OR FEWER, SIGNED AND NUMBERED

2012 Copyrights 28

“MORAL RIGHTS”

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

• BIG PUSH FOR EXTENSION OF MORAL RIGHTS, SINCE NO COMPETITION HARM IS NEEDED

2012 Copyrights 29

THE INFRINGING CONTENT:

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

• OR: DID NOT EXACTLY COPY, BUT PRODUCED A SUBSTANTIALLY IDENTICAL WORK AFTER ACCESS

2012 Copyrights 30

SUBJECT TO CERTAIN EXEMPTIONS, THE

INFRINGING ACTS ARE:

• MAKING COPIES

• MAKING A DERIVATIVE WORK

• DISTRIBUTING COPIES PUBLICLY

• PERFORMING WORK PUBLICLY

• DISPLAYING WORK PUBLICLY§106

2012 Copyrights 31

FAIR USE DEFENSE

• COULD BE FOR ANY TYPE OF WORK §107

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

2012 Copyrights 32

THE FAIR-USE FACTORS:

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

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

UNFAIRNESS

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

A SCIENCE HYPOTHESIS THAN FROM A SCULPTURE

2012 Copyrights 33

THE FAIR-USE FACTORS:

• AMOUNT AND SUBSTANTIALITY OF THE PART TAKEN

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

FACTOR BY FAR, IN ACTUAL PRACTICE

2012 Copyrights 34

• THERE IS NO CONCEPT OF FAIR USE AKIN TO “FAIR COMMENT” IN DEFAMATION LAW

• ORIGINAL EXPRESSION IN A BOOK BY OR ABOUT A FAMOUS PERSON IS ENTITLED TO FULL PROTECTION– RANGE OF FAIR USE MAY BE A LITTLE

LARGER

Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)

2012 Copyrights 35

THE PROBLEM OF PARODY AS FAIR USE

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

• MUST TAKE SOME OF TARGET, TO IDENTIFY IT

• TAKING EXCESSIVE AMOUNT IS APT TO BE NOT FAIR

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

2012 Copyrights 36

MANY SPECIAL EXEMPTIONSFROM BASIC INFRINGEMENT

RULES

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

2012 Copyrights 37

EXEMPTION: RIGHT TO SELL YOUR OWN

COPY

• APPLIES TO A LAWFUL COPY § 109(a)

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

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

2012 Copyrights 38

EXEMPTION: HOME-SIZE RADIO/TVBROADCAST PUBLICLY PLAYED AT

PUBLIC BUSINESS LOCATION

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

TRANSMISSION– USUALLY MUST HAVE “PRIVATE HOMES”

TYPE GEAR – MAY BE RESTRICTED TO NON-MUSICAL

WORKS [UNCLEAR TODAY]§110(5)(A)

2012 Copyrights 39

CAVEAT

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

• ONLY BROADCASTS

2012 Copyrights 40

EXEMPTION: CERTAIN ACTS RE. COMPUTER

PROGRAMS

• NOT AN INFRINGEMENT TO: – MAKE A COPY IN ORDER TO USE THE

PROGRAM– MAKE AN ARCHIVAL COPY

§117(a)

2012 Copyrights 41

INCORPORATING THE WORK INTO A USEFUL

ARTICLE

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

2012 Copyrights 42

COPYRIGHT IN SOUND RECORDINGS

• MORE LIMITED THAN COPYRIGHT IN THE UNDERLYING WORK (MUSIC)

• NO RIGHT TO PROHIBIT PERFORMANCE [BY PLAYING THE RECORD] §114(a)

– EXCEPT: DIGITAL AUDIO

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

2012 Copyrights 43

COPYRIGHT IN SOUND RECORDINGS

• SOUND RECORDING COPYRIGHT IS LIMITED TO PREVENTING MECHANICAL REPRODUCTION OF THE RECORDING OR PORTIONS THEREOF

• IMITATING OF STYLE IS NOT AN INFRINGEMENT OF SOUND RECORDING COPYRIGHT

§114(b)

2012 Copyrights 44

COMPULSORY LICENSE TO MAKE SOUND RECORDING OF

ANOTHER’S WORK

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

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

2012 Copyrights 45

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

• CAN SELL THE RECORDS

• MUST NOTIFY THE COPYRIGHT OWNER

• MUST PAY A STATUTORY ROYALTY– ABOUT 1.5 CENTS PER MINUTE OF

PLAYING TIME, PER RECORD

2012 Copyrights 46

CAVEATS:

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

• NO COMPULSORY LICENSE TO RECORD ANYONE ELSE’S RENDITION OF THE WORK

2012 Copyrights 47

A NOTE ON ARCHITECTURAL WORKS:

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

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

2012 Copyrights 48

REMEDIES

• INJUNCTION §502

• DAMAGES §504(a), (b)

• AND D’s PROFITS §504(a), (b)

2012 Copyrights 49

REMEDIES

• IMPOUNDING– DURING LITIGATION §503(a)

• DESTRUCTION– AFTER TRIAL §503(b)

2012 Copyrights 50

STATUTORY DAMAGES

• STATUTORY DAMAGES ARE AVAILABLE AS ALTERNATIVE TO ACTUAL DAMAGES

• $750 – $30,000 PER WORK §504, 505

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

REGISTRATION OCCURRED §412

2012 Copyrights 51

ATTORNEY FEES

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

§ 505

• PROMPT REGISTRATION NEEDED

2012 Copyrights 52

REGISTRATION

• IS NOW PERMISSIVE• NEEDED FOR ATTORNEY FEES AND

STATUTORY DAMAGES §412

• NEEDED BEFORE SUIT CAN BE COMMENCED §411

• NO OTHER MAJOR LEGAL SIGNIFICANCE

• GREAT PRACTICAL SIGNIFICANCE

2012 Copyrights 53

OWNERSHIP

• INITIALLY IS IN THE “AUTHORS”

• FOR WORK MADE FOR HIRE, HIRER IS THE AUTHOR

• >>>

2012 Copyrights 54

WHAT IS A “WORK MADE FOR HIRE”?

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

IF IN THE NINE CLASSES OF WORKS §101

– IN OTHER SITUATIONS, NEED A SEPARATE ASSIGNMENT

• THE UNDERLYING CONTRACT TYPICALLY PROVIDES FOR LATER EXECUTION OF SUCH A DOCUMENT

2012 Copyrights 55

DURATION OF COPYRIGHT

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

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

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

2012 Copyrights 56

NOW YOU SEE IT, NOW YOU DON’T:

REVOCATION/TERMINATION OF COPYRIGHT

ASSIGNMENTS/LICENSES

• STATUTE CALLS IT “TERMINATION” §203

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

2012 Copyrights 57

• POWER OF TERMINATION EXISTS AS TO LICENSES AS WELL

• DESPITE LICENSE TERMS

• NO REASONS NEEDED IN EITHER CASE

• NO SUCH POWER OVER WORKS MADE FOR HIRE

2012 Copyrights 58

TERMINATION RIGHT

• IS NOT PASSABLE BY WILL

• GOES TO PRESCRIBED RELATIVES

§203(a)(2)

2012 Copyrights 59

TERMINATION OF GRANTS FOR NEWER WORKS

• FOR WORKS CREATED AFTER 1977

2012 Copyrights 60

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

AFTER THE GRANT* TO BE TERMINATED

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

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

* = ASSIGNMENT OR LICENSE

2012 Copyrights 61

MORE ABOUT TERMINATION

• TERMINATION RIGHT IS NOT ASSIGNABLE AND CANNOT BE CONTRACTED AWAY

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