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Mass Media Law18th Edition
Don Pember
Clay Calvert
Chapter 14Copyright
McGraw-Hill/Irwin © 2013 McGraw-Hill Companies. All Rights Reserved.
14-2
Immaterial Property Law
• Copyright – An area of the law that deals with intangible
property—property that a person cannot touch or hold or lock away for safekeeping
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Immaterial Property Law
• Patents– Gives the inventor a monopoly on selling the product
for 20 years– Three kinds of patents include:
• Patents on inventions with utility• Patents on designs• Patents that protect plants
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Immaterial Property Law
Trademark – Any word, symbol or device (or combination of the
three) that differentiates an individual’s or company’s goods and services from competitors
• The function of trademark law is to stop confusion in the marketplace
• Brand names, shapes, slogans, telephone numbers and colors can all be trademarked
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Immaterial Property Law
Trademarks– Main Functions of Trademarks and Service Marks
1. Distinguish one seller’s goods from another’s2. Signify all goods bearing the trademark or service mark
come from a single source3. Signify all goods bearing the mark are of an equal quality
level4. Serve as a prime instrument in advertising and selling
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Immaterial Property Law
Trademark– To establish a trademark the applicant must:
• Submit a registration application to the U.S. Patent and Trademark Office
• Conduct a search to determine originality• Pay a registration fee for the trademark
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Immaterial Property Law
• Trademark– Anyone who claims the right to a trademark
can use the TM designation with the mark to alert the public
– It is not necessary to have a registration or pending registration to use the TM mark
– Under the law, it is the firs person to use the mark, not the first to register it who is protected
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Immaterial Property Law
• Plagiarism– The act of taking ideas, thoughts or words
from another and passing them off as your own
– Plagiarism cases arise from news stories, but also from books, motion picture and television scripts and other media
– Most plagiarism cases are resolved outside of the legal system
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Roots of the Law
What May Be Copyrighted – Six Rights under Copyright Law
1. The right of reproduction of the work2. The right of preparation of derivative works3. The right of public distribution of the work4. The right of public performance of the work5. The right of public display of the work6. The right of public digital performance of a sound recording
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Roots of the Law
What May Be Copyrighted – Materials that can be copyrighted include:
1. Literary or musical works2. Dramatic works, including accompanying music3. Pantomimes and choreographic works4. Pictorial, graphic and sculptural works5. Motion pictures6. Sound recordings
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Roots of the Law
What May Be Copyrighted– Materials that cannot be copyrighted include:
1. Trivial materials such as titles or slogans2. Ideas3. Facts4. Utilitarian goods5. Methods, systems, mathematical principles, formulas
and equations
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Roots of the Law
Copyright and Facts – Facts cannot be copyrighted– No one can claim ownership of facts; anyone can
broadcast or publish them
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Roots of the Law
Copyright and Facts– Telephone Books and Databases
• Feist Publications, Inc. v. Rural Telephone Service Co., Inc. (1991)
– The U.S. Supreme Court rejected the “sweat of the brow” doctrine advanced by Rural Telephone
– While some new compilations of facts may be protected by copyright, the Court said, there was no novelty or originality in the compilation of these materials (a telephone book)
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Roots of the Law
Copyright and Facts– Telephone Books and Databases
• Feist Publications, Inc. v. Rural Telephone Service Co., Inc. (1991)
– Only those databases (electronic or print) in which factual items are organized or selected or coordinated in some novel or artful manner will be protected by copyright law
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Roots of the Law
Copyright and Facts – News Events
• Copyright law protects the expression of the story—the way it is told, the style and manner in which the facts are presented
• Copyright law does not protect the facts in the story; other journalists may use the facts you have gathered to write their news story
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Roots of the Law
Copyright and Facts – Research Findings and History
• The courts have ruled that the finder of a fact in history does not own that fact so it may not be copyrighted
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Roots of the Law
• Misappropriation– A tort also called unfair competition– It is intended to stop:
1. A person trying to pass his or her work off as the work of someone else
2. A person trying to pass off the work of someone else as her or her own work
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Roots of the Law
• Duration of Copyright1. Works created before January 1, 1978 are protected by
copyright for 95 years2. Works created after 1978 are protected by copyright for the life
of the author or creator plus 70 years3. Works created by more than one person are protected by
copyright for the life of the last living creator plus 70 years4. Works for hire are protected by copyright for 95 years after
publication
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Roots of the Law
• Duration of Copyright– After a copyright expires, a work falls into the public
domain and may be copied by any person for any reason without payment of royalty to the original owner
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Fair Use
• Fair Use– Permits limited copying of an original creation that has
been properly copyrighted and has not yet fallen into the public domain
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Fair Use
• Factors To Be Considered In Determining Fair Use1. The purpose and character of the use
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use on the potential market for or value of the copyrighted work
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Fair Use
Purpose and Character of Use– Categories of use that may be protected
under fair use include:• Criticism and comment• Teaching• Scholarship and research
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Fair Use
• Purpose and Character of Use– Copying for educational use should be:
1. Brief—under 1,000 words2. Spontaneous, with no time to get permission3. Not occur more than 9 times a term, with limited copying
from a single author4. Labeled with a copyright notice5. Used in a way that does not substitute for the original work
and costs a student no more than the actual copying
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Fair Use
• Nature of Copyrighted Work– In determining the nature of the work, courts ask:
1. Is the copyrighted work still available?
2. Is the copyrighted work a consumable work?
3. Is the work an informational work or a creative work?
4. Is the work published or unpublished?
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Fair Use
• The Portion or Percentage of a Work Used– The amount of a work used is not as important as the
relative proportion of a work used– This proportion includes exact copying and
paraphrased material
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Fair Use
• Effect of Use on Market– This is often the most important of the four criteria– The inability of the plaintiff to demonstrate an adverse
economic impact from the copying can frequently in and of itself sustain a fair-use ruling
– When evaluating economic impact, the court considers not only direct impact, but also the impact on derivative works
14-27
Copyright Protection and Infringement • Copyright Notice
– Until 1989, the failure to affix a copyright notice (Copyright © 2009 by Jane Adams), meant the automatic loss of most copyright protection
– Today, a copyright notice is not required to protect a work
– Once a work is created it is protected
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Copyright Protection and Infringement• Copyright Notice
– A copyright notice should include:• The word “copyright,” the abbreviation “copr.”, or
the symbol ©• The year of publication• The name of copyright holder or owner
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Copyright Protection and Infringement• Registration
– To register a copyrighted work with the federal government, the owner must:
• Fill out the proper registration form• Pay a $45 fee• Deposit two complete copies of the work with the Copyright
Office
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Copyright Protection and Infringement•Infringement
–Three criteria to Determine Copyright Infringement1. Is the copyright on the plaintiff’s work valid?2. Did the defendant have access to the plaintiff’s work prior to
the alleged infringement?3. Are the two works the same or substantially similar?
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Copyright Protection and Infringement• Infringement
– Originality of the Plaintiff’s Work• Originality is not determined when a copyright is granted,
only when a lawsuit arises• Can the author claim this work is sufficiently original or
novel?
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Copyright Protection and Infringement• Infringement
– Access• The plaintiff must convince the court that the defendant had
access to the copyright work
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Copyright Protection and Infringement• Infringement
– Copying and Substantial Similarity• There must be more than minor similarities between the
works; there must be substantial similarity
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Copyright Infringement and the Internet• The Internet has challenged copyright law
because digitized information can be copied quickly, easily and cheaply, and the copy is every bit as good as the original
• Once the original is copied, it can easily be distributed via the Web to others who can also make copies
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Copyright Infringement and the Internet• Digital Millennium Copyright Act
– Prevents the circumvention of technological measures that control access to copyrighted works—so-called encryption codes
– Outlaws the manufacture, importation or sale of devices used to circumvent such protections
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Copyright Infringement and the Internet• File Sharing
– The theft of recorded music via the Internet wasn’t a serious problem until the late 1990s because it took so long to download a song
– By late 2009 file sharing had ceased to be a primary issue in copyright litigation
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Copyright Infringement and the Internet• File Sharing
– RIAA• Access to legal downloads has become relatively
commonplace
• At the end of 2008 the RIAA announced it would cease suing individual file sharers, and instead work with Internet service providers to cut abusers’ access if they ignore repeated warnings
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Copyright Protection and Infringement• Film and Television
– Illegal downloading of movies has been a problem for several years
– The use of camcorders in theaters accounts for most piracy
– Many video products are stolen or copied during the production process
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Copyright Protection and Infringement• Politics and Copyright
– Candidates are increasingly using the Internet to spread their political messages
– Candidates are discovering that some copyright holders are using provisions in the 1998 Digital Millennium Copyright Act (DMCA) to block their messages
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Freelancing and Copyright
Rights a Publisher May Purchase From a Freelancer:
1. All rights—ownership of the complete story or photograph2. First serial rights—the right to use the piece for the first time in a
publication3. First North American rights—the right to use the piece for the first
time in a North American publication4. Simultaneous rights—the right to print the material at the same
time as other publishers5. One-time rights—the right to use a piece just one time
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Damages
• A Plaintiff May:– Ask the court to assess the defendant for any damage they have
suffered– Ask for the reimbursement of profits made by the infringer from
pirating the protected work– Receive statutory damages – damage amounts prescribed by
the statute
