Copyright Basics
What is copyright protection?
A copyright protects a literary, musical, dramatic, choreographic, pictoral or graphic, audiovisual, or architectural work, or a sound recording, from being reproduced without the permission of the copyright owner. 17 U.S.C. §102. The copyright in a work vests originally in the author(s) of the work. The author(s) may transfer the copyright to any other party if she(they) choose(s) to do so. 17 U.S.C. §201.Subject to certain limitations, the owner of a copyright has the sole right to authorize reproduction of the work, creation of a work derived from the work, distribution of copies of the work, or public performance or display of the work. 17 U.S.C. §106. This right lasts for the life of the author plus fifty years; or in the case of a copyright held by an entity, for seventy-five years. 17 U.S.C. §302.
What sources of law govern copyright in the U.S.?
Copyright Law in the U.S. is governed by 17 U.S.C. §§ 101-1101, commonly known as the Copyright Act, as interpreted by court decisions.
What may be copyrighted?
In order to be copyrightable, a work must be:
1. fixed in a tangible medium of expression ; and
2. Original.
Copyrights do not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries: they only protect physical representations. 17 U.S.C. § 102(b). Anything unrecorded is not copyrightable, in as much as it is not "fixed;" for example, dances and improvisations themselves are not copyrightable: only visual recordings or written descriptions of them are. Say I go to a jazz concert and listen to a soloist's improvisation. If I have the musical equivalent of a photographic memory, I may be able to reproduce that improvised solo in my own concert on the following night. If that solo exists nowhere but my memory (i.e. the original concert was not recorded) I may play it with impunity, because it is not "fixed" and therefore not copyrightable. But, if the original concert was recorded (e.g. taped, videoed, transcribed on paper), even by an amateur, I am barred from playing my version of the solo. Even a bootleg recording (for which the recorder can be punished under section 1101 of the copyright act) qualifies for copyright protection: a work need not be formally published in order to be "fixed;" it need only be saved in a tangible form. 17 U.S.C. § 104.
The originality requirement of 17 U.S.C. §102 demands that a work, in order to be copyrighted, be independently created by the author. In order to be original, a work need not necessarily have novelty, artistic merit, truth, or lawful content. For example, a replica of a painting in the public domain may not be novel, but it is copyrightable. An item of sculpture designed to be used as a pipe for smoking marijuana may not be designed for legal ends, but it is copyrightable. A false biography is copyrightable, although it may well also be cause for defamation litigation.
Who may hold a copyright?
A copyright ordinarily vests in the creator or creators of a work (known as the author(s)), and is inherited as ordinary property. Copyrights are freely transferrable as property, at the discretion of the owner.17 U.S.C. §201(a), (d). In some cases, however, the actual creator is not considered the author of the work for copyright purposes: if a work is created by an employee in the regular course of her employment, it is considered a "work for hire" and the employer, not the employee, is considered the "author" of the work for copyright purposes. For example, in the absence of an agreement to the contrary, a staff writer for a newspaper does not hold the copyrights in her product, the newspaper does. This only applies to works created in the ordinary course of employment: if the same reporter writes a novel in her spare time, she herself owns that copyright.
Certain commissioned works may also be considered works for hire. 17 U.S.C. §201(b); Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). The term "work for hire" is defined in 17 U.S.C. §101.
Note: In Mike Lessor & Ben Williams v. West Fargo, the court determined that defendant's were indeed trying to copy the essence of Northside but, finding that the Northside essence can never be duplicated, the court encouraged defendants to keep trying if they wished. No injunction was granted against the posers.
-Justice Learned Hizand wrote a separate concurrence in which he famously penned "... seriously, West Fargo is for punks. If the defendants wish to track down and make the essence of Northside their own, we invite them to attempt to do so, however I have no doubt that the Northside will continue to do work all over the Fargo-Moorhead area son... Also, go Spuds."
What constitutes copyright infringement?
Subject to certain defenses, it is copyright infringement for someone other than the author to do the following without the author's permission:
1. copy or reproduce the work
2. create a new work derived from the original work (for example, by translating the work into a new language, by copying and distorting the image, or by transferring the work into a new medium of expression)
3. sell or give away the work, or a copy of the work, for the first time (but once the author has done so, the right to sell or give away the item is transferred to the new owner. This is known as the "first sale" doctrine: once a copyright owner has sold or given away the work or a copy of it, the recipient or purchaser may do as she pleases with what she possesses.) 17 U.S.C. §109(a).
4. perform or display the work in public (this right does not apply to visual art) without permission from the copyright owner. 17 U.S.C. §106. It is also copyright infringement to violate the "moral rights" of an author as defined by 17 U.S.C. 106A. Moral rights are discussed at this location.
What defenses are there to copyright infringement?
The primary defense to copyright infringement is "fair use." 17 U.S.C. §107. The fair use doctrine allows the reproduction and use of work, notwithstanding the rights of the author (17 U.S.C. §§ 106 and106A), for limited purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use may be described as the privilege to use the copyrighted material in a reasonable manner without the owner's consent. In deciding whether a copier's actions were fair, judges will consider
1. the purpose and character of the copying (certain types of educational copying is allowed)
2. the nature of the original (originals made for commercial reasons are less protected from copying than their purely artistic counterparts)
3. the amount and substantiality of the portion copied (one may not copy the "heart" of a work without the author's permission); and
4. the effect that such copying may have on the market for the original (copying may be permitted if it is unlikely to cause economic harm the original author).
Examples of activities that may be excused as fair use include: distributing copies of a section of an article in class for educational purposes; providing a quotation in a book review; and imitating a work for the purpose of parody or social commentary.
1. Work must be original to qualify for protection: (1) author must have engaged in some intellectual endeavor and not just copied from a preexisting source; and (2) the work must contain a minimal amount of creativity.
2. mere compilations of data are not copyrightable
3. de minimis "works" are not copyrightable (words, short phrases, slogans, etc.)
4. facts are discoverable, not created, therefore they are not subject to copyright (however, an author's original method of expressing facts is coyrightable)
5. "sweat of the brow" theory rejected
6. Feist v. Rural Telephone Services
a. Rural would not give Feist a license to publish phone numbers, so Feist just copied Rural's white pages
b. compilations of facts are generally not copyrightable
c. a work must be original to the author
d. Even a directory that contains no protectable written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement.
e. Alphabetical arrangement of names is not original enough to be protected
f. To establish infringement, two elements must be proven
g.ownership of a valid copyright
h.copying of constituent elements of the work that are original
7. Roth Greeting Cards v. United Card Company
a. Background: Roth copyrighted greeting cards, and United is selling similar greeting cards, and Roth sues them for copyright infringement
b. Rule
i. The White-Smith Music Pub. Co. v. Apollo Co. test
-“[W]hether the work is recognizable by an ordinary observer as having been taken from the copyrighted source?”< /span>
- United failed this test, they were too similar, so Roth won
c. The art and text were not copyrightable in and of themselves, but the combination of the art and text was copyrightable
d. Dissent: If neither the art nor text is copyrightable, then the combination is not copyrightable
II. Fixation requirement
1. Copyright Act of 1976 - a work is fixed "when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration."
2. Contemporaneous fixation takes care of fixation
3. State law can protect unfixed works
III. Expression (not ideas)
1. Cannot just be a movie plot, but has to be a thought you have come up with and expressed, written down, ext.
What is NOTconsidered copyrightable:
1. useful articles (conceptually separable): Must distinguish btw aesthetic elements (protectable) and utilitarian elements (no protectable)
a. Brandir International, Inc. v. Cascade Pacific (bike rack)
i. "industrial designs not subject to copyright protection"
ii."the dominant characteristic of industrial design is the influence of non-aesthetic, utilitarian concerns"
iii. Ribbon bicycle rack developed from sculptures
iv. Bicycle rack was not conceptually separable from the sculpture
v. Bicycle rack was a useful item, not copyrightable
2. NOT scenes-a-faire: (incidents, characters, settings, or other elements that are indispensable, or at least standard, in the treatment of a given topic) creative works not protected when they are mandated or customary to the genre
Subject Matter
17 USC 102: Spans the broad spectrum of artistic and literary expression
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; musical works (including lyrics); dramatic works (includes music); pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works (this list is not meant to be exclusive)
2. Some works might be encompassed by more than one category
a. Literary works (includes computer databases): includes the story and characters (the less developed they are, the less protected they are) and to non-literal elements such as structure, sequence, and organization
b. Characters are in that they cannot be revealed in other creative works
c. Musical works: protects both the author and the performer; subject to compulsory licensing under sect 115 once they have been released to the public.
d. Dramatic works: cannot copyright simple steps or conventional gestures
e. Pictorial, graphic and sculptural works:
includes two-dimensional and three-dimensional works of fine, graphic, and applied art: photographs; prints and art reproductions; maps; globes; charts; diagrams; models; technical drawings; and "works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned."
f. Motion pictures and other audiovisual works
f. Soundtracks are treated as integral part of motion pictures and are protectable
h. Architectural works
Exceptions:
i. can take pictures
ii. can make alterations to buildings
iii. Owner of the building does not need permission to destroy the building from the copyright holder
h. Derivative Works and Compilations
i. Derivative works - works based upon one or more preexisting works, such as translations, musical arrangements, dramatizations, fictionalizations, motion picture versions, art reproductions, etc.
ii. Compilations - works formed by collecting and assembling preexisting materials or data.
Extends only to the work contributed by the author, as distinguished form the preexisting material employed in the work
Keep a strong interest in anything that stems from the original work, book, then movie, then TV show, then toy, still has an interest in the toy
Gives the ability to license others to sell in different markets
NOT words and short phrases
i. Baker v. Selden
Background
ii. Selden got a valid copyright of a book that’s purpose was to explain a specific system of bookkeeping
ii. Baker wrote book of forms using Selden's method
RULE
1. “The novelty of the art or thing described or explained has nothing to do with the validity of the copyright.”& amp; amp; amp; amp; amp; lt; /span>
2. Trying to get IP rights on something such as a system of bookkeeping, is a patent claim, not a copyright
ii. Morrissey v. Procter & Gamble
Background
ii. Morrissey created/copyrighted a “ sweepstakes” game for people to play for a chance to win a prize
ii. Procter and Gamble created an almost identical “sweepstakes” game with an almost identical rule
RULE
1. The court found that this matter was too simple, and therefore there was no infringement of the subject matter
2. Some ideas are so narrow that there are only a few ways to describe them
3. Granting a copyright would grant an unfair monopoly
OWNERSHIP
Doctrines Relating to Joint Creation - Overview
Joint Works
If a work is deemed "joint," each author has undivided ownership in the work as intellectual property, and none of the authors can unilaterally sell or license the work for use. In order to be considered "joint," a work must be "prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C. § 101. Courts have interpreted this to mean that all putative joint authors must intend to make a joint work at the time of the creation of that work. See Childress v. Taylor, 945 F.2d 500, 505-507 (2d Cir. 1991).
In order to be considered a joint work, each author's work must be
(1) independently copyrightable (for example, mere "editing" creates a "derivative" work, not a "joint" work). See Ashton-Tate v. Ross, 916 F.2d 516 (9th Cir. 1990) but also
(2) inseparable from the whole. (If it is separable, the work is "collective.")
For a thorough overview of the Joint Author doctrine, see Laura G. Lape, A Narrow View of Creative Cooperation: The Current State of Joint Work Doctrine, 61 Alb. L. Rev. 43 (1997).
Collective Works
A collective work is a copyrightable collection of independently copyrightable works. 17 U.S.C. § 101. The archetypal example of a collective work is an anthology; other examples include a series of film shorts or a magazine containing articles by freelance authors.
Works For Hire
If a work is deemed a "work for hire," copyrights in the work belong not to the creator, but instead to the creator's employer. A work is "for hire"
(1) if it is created "by an employee in the regular scope of employment" or
(2) if it is one of 9 types of commissioned works created by an independent contractor if the parties have agreed in writing that it is a work for hire:
(a) collective work
(b) motion picture or other audiovisual work
(c) translation
(d) supplementary work
(e) compilation
(f) instructional text
(g) test
(h) answer to a test
(i) atlas
Courts have not decided whether web sites should be included in section (b) "audiovisual work." The seminal "work for hire" case, CCNV v. Reid, 490 U.S. 730 (1989), explored the meaning of the work-for-hire doctrine's first prong.
Under Reid, the designation of a work created "in the ordinary course of employment" depends on a set of factors, including: the hiring party's right to control the substance of the work; skill required to create it; source of the materials used in creation, location and hours of the labor, the duration of the relationship and right of the hiring party to assign additional work; method of payment; business of the hiring party; and employee benefits and tax treatment. Using that test, the Court in Reid decided that a sculpture commissioned by CCNV was not a "work for hire" because only one of the factors identified clearly leaned in favor of CCNV; but that the sculpture may have been a joint work between CCNV and Reid.
In an interesting exception, Professors who work full-time for universities do not sacrifice copyrights in the fruits of their research, although that research and the writings that result are done in the course of their employment at universities.
Derivative Work
A derivative work is one "based" on an original, like a translation of a work into a new language or medium of expression. 17 U.S.C. § 101.
Contractual Rights
One way for an employer or web site organizer to ensure ownership of rights is simply to require an assignment of rights by all employees and independent contractors. This will avoid many of the "authorship-ownership" issues discussed above. In order to be effective, language of assignment of copyright rights must be in all employee and outside contractor contracts. To fulfill the requirements for an assignment under the Act, the assignment must in writing and signed by the party making the assignment. It is permissible to provide that a commissioned work is both a "work for hire" and also to assign the rights in the same document.
Breakdown of the Overview
I. Joint Works: basically can do something without asking permission in a joint work, but potentially have to pay royalties
1. Aalmuhammed v. Lee
i. Background
a. For the movie “Malcolm X,” Plaintiff submitted evidence that he directed the actors during certain scenes, he created 2 scenes, translated subtitles, supplied his own voice for voice-overs, and edited during post production
b. He was paid for his services, but was not given a writing credit, so he sued for copyright infringement.
RULE - Per, Statutory Language, the 3 requirements for a “joint work” is:
1. Copyrightable work
2. Two or more authors
3. The authors must intend their contributions be merged into inseparable or interdependent parts of a unitary whole
c. Nothing the Plaintiff did showed that he was in charge, or that he was the “inventive or master mind” of the movie
1. Therefore, Plaintiff loses.
III. Works for Hire:
Must qualify under one of two circumstances:
1. employment: created by an employee in the regular course of employment
2. commission, if both requirements met:
i. "work for hire" agreement in writing
ii. one of 9 categories of works
1. collective work
2. motion picture or other audiovisual work
3. translation
4. supplementary work
5. compilation
6. instructional text
7. test
8. answers to test
9. atlas
Community for Creative Non-Violence et al. v. Reid
1. Background
a. Artist was hired by an organization to create a sculpture, but after it is made, they reach a disagreement and the artist won’t return it
b. They are contesting the determination of copyright
c. Sculpture was of the Nativity featuring homeless people
d. CCNV wanted to take sculpture on tour, Reid wanted to take it on a smaller tour
i. Reid sought copyright to prevent CCNV's tour
2. RULE
a. Copyright Act of 1976: Copyright ownership “ vests initially in the author or authors of the work”
b. If it is a work for hire, “The employer or other person for whom the work was prepared is considered the author” and owns the copyright. EXCEPTION: if there is a written agreement to the contrary
c. Copyright Act of 1976: A work is for hire under 2 sets of circumstances
i. It is prepared by an employee within the scope of his or her employment, or
ii. 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 text, 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
d. If someone is hired for only one specific task for a small amount of time, worked in their own workplace with their own materials, and is skilled at it, they are an independent contractor, not a work for hire
e. Artist wins
IV. The Right to Prepare Derivative Works:
Anderson v. Stallone
1. Background
a. “Rocky IV” (“I must break you) case
b. Plaintiff wrote/copyrighted a script for Rocky IV, which he claims Stallone used
2. RULE
a. Per Nichols v. Universal Pictures: Copyright protection is granted to a character if it is developed with enough specificity so as to constitute protectable expression
b. Per § 17 USC § 106(2): When one creates a derivative work based upon characters created by someone else without permission, no copyright protection is given
c. He didn’t even have a claim, plus they said that his script wasn’t similar enough
V. Government Works:
1. Court has ruled that the government can’t obtain a copyright, but the government can hold a copyright if it acquired by another means
2. Copyright Act does not expressly limit the protectability of works created by state government officers or employees in their official capacities
3. courts have held that certain types of government works, such as statutes, opinions, etc. are inherently part of the public domain
VI. DURATION, NOTICE, DEPOSIT, and REGISTRATION:
Duration
1. [life of the author] + 70 years
2. author unknown: (1) if published, 95 years, and (2) if unpublished, 120 years
PERIOD OF PROTECTION
Works Created on/after January 1, 1978, the following rules apply:
• General rule is “life plus 70” with copyright enduring from creation of the work and terminate 70 years after the author’s death. For joint works, the 70 years runs from the death of the last surviving author.
• For works made for hire, anonymous works, and pseudonymous works the term is “95 years from the dare of its first publication, or a term of 120 years from the year of its creation, whichever expires first.
Works Prior to January 1, 1978:
• Work published before January 1, 1978, the general rule is that the work has an effective term of 95 years from publication.
• For works created but unpublished and unregistered on January 1, 1978, the term is at least until 2047.
NOTICE
Works Published Between 1909 and Dec. 31, 1977 [really, this is anything prior to 1977]:
• When 1909 Copyright Act was in effect, federal copyright applied primarily to published works and state copyright could potentially apply to unpublished works.
• Federal copyright protection was generally secured by placing a property copyright notice on copies of the work when it was first published.
• Some failures to comply with the notice requirement were excused under 1909 Act:
o Where copyright owner sought to comply, the omission by accident or mistake of the prescribed notice from a particular copy or copies did not invalidate the copyright.
o In order to come within this provision, the proprietor must have attempted to comply
o Copyright owner could not recover damages from an innocent infringer who relied on the lack of notice.
o Courts held “forfeiture” required a general publication, meaning the work be made available to members of the public without regard to their identity or what they intended to do with the work.
o There was no forfeiture by a limited publication
Works Published Between January 1, 1978 and February 28, 1989:
• Subject matter of copyright was expanded to include both published and unpublished material
• Copyright began as soon as the work was fixed in a tangible form
• Continued the rule requiring copyright notice on the publication, but it was less harsh.
• Although Author would not lose copyright, she would not be able to collect damages from an innocent infringer who relied on a copy with not copyright notice.
Works Published After March 1, 1989:
• Congress did away with the requirement of notice as a condition for copyright.
• Although there is no longer a requirement of copyright holders to use copyright notices, it continues to occur in practice
• Copyright notice identified the owner and makes clear that the person claims those rights.
• Notice serves as a warning to potential infringers and serves as a guide to potential licensees
• When a work consists predominantly of works of the U.S. government, the copyright notice must identify the portions that embody protected material.
REGISTRATION
• Copyright protection does not require registration
• Copyright owner may register the work at any time during the copyright term
• Both published and unpublished works may be registered.
• Advantages of Registration:
o An action for infringement of the copyright in a United States work cannot be brought until the copyright holder registers the copyright.
o Registration is also a prerequisite for certain remedies for infringement [register before you bring suit]
Statutory damages and attorney’s fees are generally available only for infringement of registered works
NOTE: copyright registration is a condition for filing an infringement action, but it need not precede the infringement, only the filing of the subsequent lawsuit.
Registration must precede the infringement [or registration must occur no later than three month after publication] for statutory damages or attorney fees to be awarded.
• If you register the published work within the first three months of publication, you will get statutory damages from any person who infringes.
• After not registering for those three months, you will only get statutory damages for infringements which occurred after you registered.
• Regardless, you may only bring suit once you registered the copyright.
DEPOSIT
• Copyright owners that register works must make a deposit with the U.S. Copyright Office.
• Copyright owners of published works are also required to deposit two copies or phono-records with the Library of Congress.
• Copyright owner is permitted to use the Library of Congress deposit to also fulfill the registration deposit requirement
• Copyright owners that neither register nor publish have no deposit requirement.
• All copies that are deposited become the property of the U.S. Government
Restoration of Lost Copyrights for Foreign Authors:
The United States agreed to restore some of the foreign copyrights due to failure to comply with U.S. formalities requirements. Under Trade-Related Aspects of Intellectual Property Agreement, certain copyrights of foreign authors were restored.
Restoration applies if the following conditions are met:
1) Work was first published in an eligible country at least 30 days before U.S. publication
2) The work has not passed into the public domain in its source country due to expiration of the period of protection
3) The work is in the public domain in the U.S. due to failure to comply with formalities, due to lack of protection before 1972 in U.S. for sound recording, or due to lack of national eligibility, AND
4) The author was a national of an eligible country.
INFRINGEMENT
1. Non literal infringement
1. Copying
1. Direct Evidence of Copying
2. Indirect Evidence
1. Access
2. Substantial similarity
2. Improper
1. Substantial similarity
2. Ordinary observer standpoint
3. Expert testimony sometimes
4. Quality of portion taken
5. Scenes-a-faire copying ok
2. Arnstein v. Porter
a. Arnstein sued Cole Porter for copyright infringement for copying some of his songs
b. Arnstein argued Porter could have stolen a copy of a song from his room, or had someone else do it
copying
c. improper appropriation
d. Background: Plaintiff is suing, claiming that 3 of their songs was plagiarized by D
Rule – NON-LITERAL INFRINGEMENT
To prove a non literal infringement, 2 elements are required
1. That D copied from P’s copyrighted work
1. An admission OR
2. Circumstantial evidence
1. Access or Substantial Similarity
2. That the copying went so far as improper appropriation
1. Requires standard from an ordinary observer
2. Expert testimony
3. Quality
4. The greater the proportion the percentage of the P’s work was taken means that there is an increased likelihood of infringement
1. Increased percentage of D’s work comprises of P’s work is not relevant
2. These are issues of fact, and this case was remanded to a jury
3. Nichols v. Universal Pictures Corporation
1. Background
1. P created/copyrighted a play about a Jewish family living in New York and a child gets married to a catholic
2. D created a movie that was very similar
2. Rule
1. When the theme (in this case, the families in NY of Jewish and Catholic faith that have children that marry) is only a part of the copyrighted idea, it is not enough.
2. Basically ones copyright of a written work does not cover absolutely everything that can be drawn from it
4. Selle v. Gibb
1. Chicago band sued the Bee Gees for copying one of their songs
2. Songs had been played in the Chicago area a few times, band sent demo tapes to 11 record companies
3. Jury found for the Chicago band, judge entered j.n.o.v. for the Bee Gees
5. Steinberg v. Columbia Pictures Industries, Inc.
1. Background
1. New Yorker cover/”Moscow on the Hudson” case
2. “Moscow on the Hudson” poster was very similar to and influenced by a New Yorker cover
2. RULE
1. With regards to the 2nd Element from Arnstein
1. It is satisfied when the two works could easily be mistaken for one another
2. It is also satisfied when something can only be explained by copying
2. In this case, they believed that each of the prior two lines were true
1. Fair Use
Four Factor Test
1. the purpose and character of the use (including whether such use is of a commercial nature or is for nonprofit educational purposes)
1. Is it commercial?
2. Public interest
3. Is it transformative or superseding? If transformative, this favors fair use. If superseding, this favors a finding against fair use. Fair use test on TRANSFORMATIVE vs. SUPERCEDING “the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”< /span>
4. If there is a licensing mechanism, weighs in favor of fair use (Texaco case)
2. the nature of the copyrighted work
1. Fact/fiction - fiction gets more protection than factual wks
2. published/unpublished - unpublished gets more protections than published b/c of right to control 1st publication
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole
1. a lot or a little? qualitatively important?
4. the effect on the market for the copyrighted work
1. Direct substitution: people bought this from you rather than me
2. Derivative wks: even if your good doesn't complete directly w/mine, you deprived me of the opportunity to sell my good
2. Presumptive fair use (sec 107): teaching, news reporting, criticism, scholarship, research
3. Harper & Row, Publishers, Inc. et al. v. Nation
1. Background
1. The Nation Magazine received from an undisclosed source an unpublished manuscript of Gerald Ford's autobiography that Time Magazine was going to soon publish
2. The Nation quickly published it before the Time did, Time sued for copyright infringement
2. RULE
1. They applied the four factor rule
2. You need infringement
3. There’s nothing you can do with copyright doctrine to prevent the publication of facts,
4. Fair Use is about our “ideas” of what is fair
4. Sony Corporation of America v. Universal City
1. Background
1. Universal is suing VCRs because people could record shows, create libraries, and skip through commercials
2. They claim Sony is liable for guilty contributory infringement
2. RULE
1. You have to prove that your copyrighted work is devalued
2. One making a product has a chance of being used to infringe, does not make them liable for contributory infringing
3. VCRs were used mainly for time-shifting, not archiving
5. American Geophysical Union, et al. v. Texaco Inc.
1. Background: Texaco employed 500 research scientists who photocopied scientific journals to support their research
2. RULE
1. Failed the four factor fair use assessment
1. The following actions contribute to a violation of Fair use
1. Multiplying the number of available copies
2. Using the works substantially
3. Established a personal library of the copyrighted works
4. Showing substantial harm to the plaintiff’s copyrights, one is guilty
2. License
1. implied
2. express
3. Statute of Limitations = 3 years
REMEDIES
CIVIL REMEDIES
1. Damages: lost profits plus additional defendant's profits
1. statutory damages
1. neither willful nor innocent = $750-$30,000
2. willful = up to $150,000
3. innocent = down to $200
2. fees and costs
3. impoundment and destruction
4. injunction
CRIMINAL SANCTIONS
1. DMCA
1. safe harbor: a service provider shall not be liable for monetary relief, or . . . for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider
2. anti-circumvention: Exemptions are granted when it is shown that access-control technology has had a substantial adverse effect on the ability of people to make non-infringing uses of copyrighted works.
Moral rights in copyright law are rights personal to authors, and as such viable separate and apart from the economic aspect of copyright. The modern conception of moral rights is based on the European, particularly French, notion of an author’s right to protect the integrity and paternity of their work. A moral right generally requires the author of a work to be attributed for that work and to control all derivative works.
1. VARA, 17 USC 106A, provides certain moral rights to visual artists
2. i.e. A painter may sue the owner of his/her painting (under certain circumstances) for destroying it even if the owner lawfully owned it
3. State legislatures and judicial decisions have created limited moral rights protection
4. Moral rights include
1. Right of attribution
2. Right to have work published anonymously
3. Right to the integrity of the work
1. bars work from
1. alteration
2. distortion
3. mutilation
II. Collective Works: work that is put together: i.e., newspaper, album.