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Subject matter -- is there a protectable work under copyright? c. Duration & formalities -- as to each work, is it actually protected? d. Rights protected -- what rights have been infringed/are to be utilized e. Ownership & transfer -- who owns the rights? i. transfers have to be in writing now f. Infringement -- is the use infringing? g. Are there valid defenses? i. fair use -- affirmative defense h. Remedies -- what are available i. injunction ii. damages 1. measure of damages 2. Statutory damages? i. Beyond Copyright -- are other claims available II. SUBJECT MATTER IS THERE A PROTECTABLE WORK? a. 1909 Copyright Act (still valid for works created up to 12/31/77) i. includes all writings of an author 1. did not need to be original ii. to secure protection the work needs 1. publication with notice of copyright affixed to each copy or 2. by deposit, with claim of copyright b. 1976 Copyright Act (works created after Jan 1, 1978) i. 102(a) Copyright protection subsists in (i) original works of authorship (ii) 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. 1. Stems from Art. I 8 of the Constitution that gives congress the power to enact laws in order To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; a. Author the person that the work owes its origin; originator; maker b. Writings -- are defined by statute as any physical rendering (could be a picture, recording, sculpture etc) ii. Elements for Protection Fixation + Originality (independent creation + creativity) 1. Fixation a. RULE: Fixation is defined by 101 as the (i) embodiment of a work (ii) by or under the authority of the author in a tangible medium of expression (iii) sufficiently permanent or stable to permit it to be perceived or transmission w/simultaneous fixation for a period of more than transitory duration i. embodiment of work
1. copy or phonorecord a. sheet music copy / CD phonorecord 2. perceivable directly or indirectly w/aid of device or future device ii. by or under the authority of author 1. author does not need to be the one to do the fixation, but needs to give authorization 2. bootlegger at a concert would not have authorization iii. for more than transitory duration a. when computer temporarily copies something into memory yes they are fixed, but 117/501 exempt from being infringing iv. or transmission w/simultaneous fixation (live broadcasts protected) b. Anti-Bootlegging Statute (1101)live concerts -- protected by antibootleg statutes that protect a performance whether it has been fixed in the past or not (whether these are constitutional or not remains a question)= 2. Originality a. General Rule: In order to be original a work of authorship must have been (i) independently created by the author and (ii) contain a modicum of creativity. (Fiest)(holding that a there was no copyright in a telephone book that listed data alphabetically because facts are not independently created by author and alphabetical arrangement not creative enough) i. Independent Creation copyright protection extends only in the elements of the work that the author created 1. Facts & Discoveries are not copyrightable because they do not originate in the mind of an author a. Copyright Estoppel -- if an author purports or presents something to be a fact, it is not protectable even if it is not true, so no infringement if copied b. however, estimates or conclusions based on interpretation of facts may be protectable (see car value cases) 2. NO NEED FOR NOVELTY unlike patent law, the creation just has to be novel to the author, not the world a. if author creates a work where there is a similar in existence there will be protection (but may be infringement if access + sub. similarity is proven) i. if parts of work are commonly used, may not be protection to those parts under scenes a faire ii. Modicum of Creativity 1. low standard that just requires a spark of creativity
2. NO CREATIVITY IN a. listing data in alphabetical order b. numbering pages sequentially c. blank forms d. Slavish Copy: if the intent was to make an accurate copy of someone elses work, and nothing is added no copyright for lack of originality, just a copy regardless of skill or effort put into it (Meshworks v. Toyota) i. if copy is made w/o permission of owner infringement of reproduction right e. mechanical reproduction Xerox, photo of non protectable thing with nothing added to it etc b. Originality in Compilations, Derivative Works i. Compilations: If made up on several elements of PD or Facts ask whether these objects or images are expressed in an original way 1. If yes protection only extends to this original expression (not the separate parts within) 2. look to the work as a whole to see if author added anything, not parts to determine originality a. always look to arrangement, selection and organization to find protective expression ii. Derivative Works: Standard for derivative works is a bit higher author must put in creative choices for aesthetic or artistic purposes (Batlin) 3. small scale model or large statute YES 4. simply changing medium no d/w just copy
c. LIMITATIONS TO COPYRIGHT i. Idea/Expression Dichotomy - 102(b) 1. Rule: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. a. Policy congress does not want to create monopolies of ideas/methods/systems (that is the sum of patent law) 2. No protection for a. Ideas ideas are not the subject matter of copyright, it is a particular expression of the idea that may be protectable b. Systems / Methods of Operation i. if the only way to exercise a function is to copy those words or a paraphrase, then it will not be an infringement 1. no protection for book that copied accounting system in previous book. Protection only extended to the explanation of the system, not the system itself (Baker v. Seldon) 2. c/f protection granted for book that used system to predict baseball outcome, because of authors choice to use 9 factors.however if the book would have TOLD what was outcome then it would have been facts (Craigos 3. Merger Doctrine a. Even if there is an expression of an idea or system, if there is only one or a very limited number of ways of expressing an idea of system, none of those expressions should enjoy protection, even if the particular expression is deliberately adopted, because the idea and expression merge and protection would extend to the underlying idea i. SIMPLE instructions for sweepstakes that were simple, not protected, therefore copying was not infringement. (Morrissey) a. c/f book w/values of cars is protected, because the idea that cars have value is broad and can be expressed in many way b. Function (Useful Object Utilitarian View) i. If the work is something purely useful there will be no protection or very thin protection to only those elements that are separable (physically or conceptually) c. Historical facts / Research / Interpretation of Facts(even if proven not to be true)
i. Works must be original and facts or interpretation of such do not originate w/author ii. sweat of the brow not relevant to determine subject matter of copyright, therefore research is not protectable ii. Other Exceptions things that will prevent copyright protection 1. Scenes A Faire a. General/Common themes in an industry are not protectable 2. Animals a. Copyright will be very thin if any i. Sculpture/photos of animals 1. no copyright in animal 2. no copyright in sculpture (because it is a method) 3. thin copyright in any variation added by sculptor/photographer 3. Government Works a. Federal i. The federal government cannot receive protection for government works or be the initial holder of copyrights 1. government works work that is (i) prepared by a US government employee or officer (ii) as part of official duties 2. EXCEPTION a. fed gov. can get copyright by assignment, transfer etc. b. STATE i. can get protection for works but judicial policy bars protection for inherently public materials 1. laws, court decisions, regulations D. SUBJECT MATTER i. LITRARY WORKS 1. Books, Plays, Literary Characters, Computer Programs etc 2. Limitations a. Fact Based Works: No copyright protections for Facts, Fact Based Research or interpretation thereof because facts do not originate with the author. (Miller v. Universal) b. Ideas/Scenes A Faire: No protection for general plots, themes, characters or Scenes A Faire because until each has been sufficiently delineated you would be protecting an idea, thus granting a monopoly to the author which is against the policy of C i. Abstraction Spectator Test 1. genre 2. plot 3. mood 4. setting 5. Pace
6. relation of characters to dialogue (for expert witnesses) a. sex of characters is immaterial 7. total concept or feel c. Issue: Character Rights i. 2 tests 1. 2nd Circuit: In order for a character to gain copyright protection it must be sufficiently delineated to be more than an abstract idea a. the more developed, the more likely to be protected b. Graphic Characters i. When character is used with visual image (think comic books) it is more likely to be sufficiently delineated. th 2. 9 Circuit: If the character represent the story being told it may be fully protectable, whereas if it is merely a pawn in the chess game it has not been rounded out enough. (Warner v. Columbia Sam Spade) 3. Other considerations a. When an author tries to reuse a character he created, but assigned away, the courts may try to find equity in holding that there was not sufficient delineation b. If character appears first in PD works, then later in protected works, the character can be reused but only in the way it was in PD works 3. Computer Programs (including OS system) a. Definition - a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result i. all computer programs are protectable as literary works, the issue is what portions are protectable (apple v. franklin) 1. OS systems are protectable but only to the extent of their expression of instructions, not the method that the instruction is telling the computer to do b. To determine what is protectable we use abstraction, filtration and comparison test i. abstract the process in reverse order from source code to most basic idea ii. filter out factors 6
1. that are standard in industry (scenes a faire) 2. necessitated by efficiency 3. dictated external factors iii. If expression is there 1. merger 2. utilitarian 3. scenes a fairs iv. what is left is protectable c. remember reverse engineering is fair use to create new programs from unprotect able elements II. PICTORAL, GRAPHIC, SCULPTURAL WORKS 1. Maps a. Major issue is originality because usually rearrangement of facts i. Analyze selection, design and synthesis to find protectable expression 1. plans for development fall into this category and are protectable to the extent that they present original information detailing proposed physical improvements ii. direct observation no longer needed (under rejection of sweat of brow) 2. Photographs a. A photograph is protected under the act so long as it is an original intellectual conception of the author and not just a mechanical reproduction (think Xerox copy). b. Test for Originality Rendition, timing, creativity i. Rendition 1. what the author put into it fx, angles etc ii. Timing (narrow protection) 1. decision to take photo at particular time and place iii. Creativity 1. mental conception choices of lighting, wardrobe, poses etc (Sarony v. Burrow-Giles) a. WATCH OUT Photos of animals are usually held to be non-copyrightable because most of the image is the animal itself b. WATCH OUT Photo of an object may not be copyrightable if entire image is that of an object which is not subject matter of copyright (Skyy Vodka Case) 3. Advertisements copyrightable (if og, fix, creativity), even if purely for commercial purposes (the courts do not judge what is or is not fine art) 4. Works of Art Embodied in Useful Objects a. RULE: The design of a useful article shall be considered a pictoral, graphical or sculptural work only if, and only to the extent that, such design incorporates pictoral, graphic or sculptural features that can be
identified separately from and are capable of existing independently of, the utilitarian aspects of the article. i. Useful object A useful article is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. b. TEST FOR PROTECTION (disjunctive) i. Physical Separability (works for 3d objects) 1. whether the artistic material to be severed physically from the industrial design a. example: Lamp stand was able to be separated from lamp in order to provide the design of it protection (Mazer v. Stein) ii. Conceptual Separability 1. exists when the artistic aspects of an article can be conceptualized as existing independently of their utilitarian function a. Functionalartistic features are primarily/utilitarian features are subsidiary b. Aesthetic Appeal article is marketable to some people solely because of aesthetic design or properties c. article stimulates in mind of beholder a concept separate from the articles utilitarian function-this concept displaces the utilitarian function d. Designer Process the artistic design wasnt significantly influenced by functional consideration (i.e. look at the process) e. whether the design elements can be identified as reflecting the designers artistic judgment exercised independently of functional influences i. design of facial features on mannequin protectable because the artist was not given any specs for the design, therefore solely based on artistic judgment not functional needs. (Pivot Point) f. Usage -- how is the article primarily used g. Stand Alone -- physical separability iii. DRAMATIC WORKS (Including accompanying music) 1. a work that relates a story thru acting or singing rather than narration a. music that tells story is grand rights i. not subject to 115 compulsory licenses and performance rights societies do not license performance -- must be authorized by owner iv. PANTOMINES / CHOREOGRAPHIC WORKS v. MUSICAL WORKS (Including accompanying words) 1. Includes both instrumental component and accompanying words
a. if one person provides lyrics and other music -- joint work issue? 2. Fixation can be accomplished by various media written notation, electronic recording etc 3. Originality (this is what cts look to in order to test for infringement) a. Melody b. Harmony c. Rhythm i. Originality becomes an issue when the musical work 1. derivative work -- inc. sources of PD or 2. merger -- so simple that the genre itself provides and limited number of usable elements 4. Arrangements of musical works are covered by derivative works so long as arranger adds the requisite amount of original authorship 5. distinguished from sound recording a. the author of the lyrics/music is owner of musical work b. producer or engineer (or label is wfh) is author of sound recording c. when sound recording is put on cd/lp/mp3 it is fixed and if copied they have violated both the musical work and sound recording 6. Rights a. Most important is the right to prepare and distribute mechanical reproductions 7. compulsory licensing a. 115 provides that the copyright owner gets first crack at authorizing the creation and dist of phonorecords i. Anyone after can follow the procedures laid out by statute and pay the stat. fees to release cover so long as the new version does not change the basic melody or fundamental character of the work vi. SOUND RECORDINGS 1. Not protected by Fed Act until 2/15/1972 2. who are the authors? a. performers, creative producers etc b. look for wmfh 3. SR is the particular rendition of a music, literary or dramatic work a. limited rights 114 i. reproduction verbatim copying of THAT recording, this includes sampling such as looping 1. Unauthorized duplication is an infringement, however imitation is not. (see 115 compulsory license) ii. derivative rights sampling that embodies original recording but remixes or rearranges iii. distribution b. NO public performance right (except for digital transmission) i. there is no performance royalty due to the owner of the copyright in a sound recording (it is only due to the copyright owner of the song)
4. Fixation -- Phonorecord a. mechanical object that captures music or sound recording b. sound recording and the underlying music work are NOT the same i. the rendition may be a derivative work, created by the performers and engineers 1. the original work is still the copyright of the composer 2. to gain protection, the underlying work must be obtained lawfully 3. performance as well as engineering/mixing selections can meet the standards for originality vii. MOTION PICS / AUDIO VISUAL WORKS 1. series of related images a. Related meant for the same audience i. Do not need to be shown sequentially 1. Ex. Computer game where display is predetermined but order is dictated by player intervention 2. Originality individual objects show do not need to OG, it is their selection, arrangement or organization that must be original viii. ARCHITECTURAL WORKS 1. An architectural work is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. a. Protection extends to i. the structure itself (interior as well) 1. MUST be a building (not a overpass, highway etc) habitable structures and those used by people ii. Architectural plans (including rough plans) 2. TEST for protection a. Work is examined to determine whether there are original design elements present i. Originality is claimed in the overall shape and arrangement of what could be PD or non protectable elements that are Independently created by author and not copied from someone elses work with a dash of creativity. b. If original, then these are evaluated to determine if they are functionally required i. If required conceptual separability tests to determine what is protectable ii. if they are not functionally required the they get copyright protection regardless of physical or conceptual separability 1. therefore the aesthetically pleasing overall shape of an a/w can be protected if it is not functionally required 3. Exceptions a. CR owner cannot prevent the distribution of pics/paintings or photographs of the work if building is located in a place visible to the public.
i. Includes sculptural works that are meant to be part of building place (Leicester no infringement when Batman used film of sculptures that were in front of building but part of overall design plan) ii. However Can prevent distribution of plans, models etc b. Owner of building can make alterations or destroy notwithstanding the CR owners right to make and authorize derivative works i. Can change building w/o permission from copyright owner E. DERIVATIVE WORKS i. Derivative Works Rule: a work based upon one or more preexisting works (that are subject matter of copyright), may be proper subject matter of copyright to the extent of the variations added provided the author ii. Elements 1. based on and incorporate the original copyrighted work; and 2. Fixation (for protection/not for infringement); and 3. Originality comes from modifying, transforming, recasting, adapting original work a. needs a little more creativity than the original work i. Merely changing medium is not enough ii. policy: to protect original authors ability to create future works iii. remember, giving someone the license to create a derivative work DOES NOT mean you have assigned them the right of adaptation, so the ct wants to protect the authors future rights iv. also encourages competition b. something more than trivial, standards have varied i. Batlin - substantial, non-trivial variation 1. difference in size of work (statue to miniature), recasting, adaptation, transformation etc 2. creating an accurate copy with the intent to make a copy will not be a d/w because nothing original was added (Meshworks v. Toyota) 4. Scope: Protection only extends to the variation, not underlying work a. if underlying work is not subject matter of copyright was there an original expression? i. Picture of vodka bottle not d/w because bottle not subject matter of copyright and no original expression added b. if underlying work is pd then no claim to pd elements c. if underlying work is copyrighted, then look for authorization, i. if none violation and not copyright protection because it was unlawfully acquired 5. Unlawful Incorporation a. Protection is withheld for a d/w or compilation that incorporates anothers copyrighted work unlawfully
i. No protection if underlying work runs throughout derivative work 1. but may be able to get partial protection for a compilation 6. PD when underlying work goes into PD i. Original elements of d/w still protected b. When d/w goes into pd but original still protected i. Cts will try to keep out of PD by arguing the original work that is still protected is fused throughout the derivative work 7. Examples a. Art Reproductions i. Changing medium of artwork is not sufficient to meet originality standard to create a new copyright ii. Colorizations derivative work because more than trivial variation iii. Mounting/Framing no derivative work for lack of originality iii. COMPILATIONS 1. Def: work formed by the collection and assembling of materials or data that are selected, coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. a. Include collective works 2. Scope of protection a. Extends only to expression which is the selection, arrangement or organization, not to underlying elements i. Issue when defendant claims he only copied non protectable elements 3. Elements a. Fixation b. Originality i. Authors selection, arrangement or organization must be independently created and possess a minimal degree of creativity 1. Protected works need permission or 2. Could be compilation of PD works 3. non protectable works such as facts a. as long as the facts are selected or arranged in a creative way b. Fiest: phone book company did not arrange facts in a creative way therefore no protection, and defendant could use the facts to create their own compilation and get a copyright on their expression of these facts. a.
III. DURATION & FORMALITIES -- as to each work, is it actually protected? a. Formalities i. NOTICE & PUBLICATION 1. 1909 1977 a. In order to get copyright protection a work must be published with notice. i. Publication 1. general publication -- divested common law and invested federal protection if distributed to the world, who could further distribute (ie. no restrictions on resale or a display with no restrictions on taking pictures) a. if you made a general publication without notice public domain 2. limited publication -- did not divest and still could be protected if done w/o notice a. limited group for limited purpose without rights for further copying or distribution i. limitations can be implied from facts ii. commercial purpose weighs against limited publication 3. PERFORMANCE DID NOT EQUAL PUBLICATION ii. Notice 1. If a work was published without proper notice it was divested of all protection and thrust into the Public Domain a. CAVEAT - some foreign works thrust into PD for non compliance w/notice formalities had their copyrights restored iii. Notice Elements 1. copyright, copr, or (c) or (p) for SR 2. name of proprietor 3. year of first publication 4. position detailed in statute a. generally first page or volume iv. Notice Errors
1. omission pd unless accidental from particular copy/copies 2. if you put down the wrong date by more than 1 year PD 3. if you put an earlier date measure term from notice date 4. error in name pd 5. need to record assignment before using assignee name in notice 2. Published between Jan 1 1978 and Feb 28 1989 (Pre Berne) a. Notice not required to secure protection, but notice is required to publish and keep protection b. Elements i. copyright, copr or (c) or (p) for sound recordings ii. name of owner iii. year of first publication iv. reasonably perceptible position c. Notice Errors i. Published without Notice PD subject to cure 1. small number of copies go out 2. if register work within 5 years upon discovery (when infringement happens or when you make a conscious decision to not include notice or when you realize you havent included notice) and reasonable effort is made to add notice in the US to all future copies 3. reasonable efforts is a strict standard , general notice will not suffice ii. express condition in license but no notice then copyright owner were forgiven) iii. mistake in name no pd but innocent infringer defense stands iv. mistake in date 1. earlier measure from that date 3. Published after March 1 1989 (Berne) a. notice is not required to receive or maintain valid federal copyright protection b. but lack of notice may allow for a reduction in amount of statutory damages for innocent infringer i. if there is proper notice, defense of innocent infringer is barred if infringer had access b. REGISTRATION i. 1909 act required in order to renew copyright (MUST REGISTER BEFORE OR IN 28th year) ii. 1976 not required for c/r but there are benefits 1. you need to register the original, or copy of original a. you cannot make a reconstruction of the original (Beavis and Butthead case) 14
2. BENEFITS a. Prima Facie case of copyright validity i. defendant needs to prove it is not proper subject matter b. Prerequisite to Litigation for infringement 411 - ct cannot entertain the case without registration i. POST BCIA: non-usa works not prerequisite to suit, but you get more damages ii. if there are some works registered and some not in same cause of action, if the ct gets smj over one, they have smj over all, so you only need one to be registered iii. Collective works 1. within a collective work, the notice and registration from the author of the collective work will protect the individual works within, but to bring a cause of action, the individual author must bring the cause of action iv. Derivative work 1. if it is the same author, you can sue on either the underlying work or derivative work assuming both are registered 2. if different parties, you need both authors c. Duration (term of copyright) Created and Copyrighted* before 1978 1909 Act: 28 years + 28 year possible renewal 62-76 year by year extensions from if still c/r in 76 +19 1992 automatic renewal if still c/r in 1998 extended by 20 years for a total renewal of 67 years but not copyrighted before 1/1/78 Same as post 77 works BUT minimum term of at least until 12/31/2002 if published by 12/31/2002 extended to 12/31/2047 Created on or after Jan 1 1978 life + 50, if still c/r in 1998 Sonny Bono extends by 20 to life + 70 wfh/anonymous/pseudo = earlier of 95 years from publication or 125 from creation j/w = 90 years from last surviving author
* Copyrighted means published w/notice or unpublished but registered d. Renewals of Copyright i. 1909 Act 1. work had to be registered and renewal had to be done in 28th year 2. who gets renewal right? a. wmfh -- proprietor b. other works natural author or heirs i. surviving spouse, children, executor (if will), next of kin (if no will) 3. Can you assign renewal term?
a. WMFH proprietor can assign, since they are entitled to renewal right b. Natural Author i. if you make an assignment and it mentions renewal rights, they can vest in assignee 1. if no mention, they vest in original author 2. if you dont renew and assignment does not state renewal rights vest in assignee, then work becomes PD ii. if you made any assignments in first term, then renewed, assignments remain valid even if they run over term iii. If author makes assignment in original term, then dies before renewal vests, assignment is invalid and renewal rights go to successor on first day of 29th year 4. Derivative works? a. abend case exploiting a d/w implicates rights in the preexisting work and infringes if rights lapse (i.e. renewal rights go back to assignors successors) ii. Post 1992 1. automatic renewal, so no vesting, no registration needed for works that were to be renewed in 1992 or later (1964-1977) 2. Exception for Derivative Works a. Prepared by licensee prior to termination or reversion i. For works created on or after 1/1/1978 you can continue to distribute derivative work if a license was granted before first term expired, BUT CANNOT CREATE NEW D/W 1. not sure if a translation is a d/w e. Termination i. NO TERMINATION FOR WORKS FOR HIRE ii. GRANTS BEFORE 1978 304(c)(d) 1. pre-1978 grants of the renewal term made by AUTHOR or anyone entitled to renewal term 2. may be terminated within 5 year window after original 56 year term (publication w/notice) or 5 years after 75 year period (from publication w/notice) a. if notice is too late to cover initial publication NO termination (Siegel Superman case where the initial promos ran more than 56 years before notice) 3. by author, if dead by stat. heirs a. if grant was executed by heir, then that person has the termination right 4. NOTICE: must be given stating effective date of termination and has to be served not less than 2 and not more than10 years of that date, a. must be recorded in C office before effective date 5. CANNOT BE WAIVED EVEN IF AGREEMENT TO CONTRARY a. but if you send notice, you can renegotiate in window b. also if you terminate old agreement POST 1978 and enter into new one post 78 w/substantial consideration, no termination right iii. GRANTS MADE AFTER 1978 203
1. Grants made by author, nobody else 2. can be terminated in 1 5 year window starting 35 years from date of execution of grant by the author (j/a need majority) a. if dead by statutory heirs i. widower interest, children and grand per stirpes ii. must collectively owned more than the authors termination interest 3. NOTICE: must be given stating effective date of termination and has to be served not less than 2 and not more than10 years of that date, a. must be recorded in C office before effective date i. DERIVATIVE WORKS 1. if made before termination, the owner still gets right to use and exploit, just no right to make more f. Restoration (Foreign Works) i. As of January 1 1996 copyright protection is restored by operation of law for all works that have 1. work was published in an eligible country at least 30 days prior to publication in the USA a. if published within 30 days in USA no restoration 2. at least one author that is a domiciliary or national of a member nation; and 3. work has not passed into PD in source country 4. work is in PD because of a. noncompliance with formalities such as i. publication w/o notice ii. failure to renew in 28th year b. lack of national eligibility at time of creation c. SR prior to Feb 15 1972 i. CAVEAT pre 1900 Architectural works do not qualify because of old useful object doctrine ii. Duration 1. as long as would have been protected had it originally been protected iii. Ownership 1. author or right holder if Sound Recording iv. Limitations for Reliance Parties 1. reliance party a. distributes the work thinking it was PD b. made derivative work relying on fact that the original was PD 2. Original Works those who own copies of restored works, or are engaged in exploiting these works before the source country of that work becomes eligible i. qualified immunity from liability for infringement unless copyright owner (i) files a general notice of intention to enforce rights w/copyright office w/in 2 years of the date of restoration; or (ii) serves on the reliance party at any time a specific notice of intention to enforce rights
ii. if notice has been given, then reliance party has one year to effectively liquidate existing inventory (but not make further copies) 3. Derivative Works relied on restored work that used to be PD to make derivative work a. if the work is held to truly be derivative (new expression added to existing one with more creativity than the original work) get a compulsory license i. this party can pay the restored copyright holder reasonable compensation to continue to exploit the d/w for the remainder of the restored copyright b. if parties cannot agree then judicial mechanism to figure out reasonable fees is to determine i. harm to the actual or potential market or value of restored work; as well as ii. the relative contributions of expression the author of the restored work and the reliance party to the derivative work 4. compare with a. English rule which state that the holder of the restored copyright has to buy out the reliance party in order to have them cease to exploit i. if work is valuable you would prefer American rule of licensing ii. if work is not significant then you may prefer to just be bought out v. Exceptions No Restoration if 1. if restored, copyright would go to adversaries of WWII vi. Constitutional? 1. two main arguments against restoration a. there is an argument that restoring copyright is an attempt to chill free speech. however, Ginsberg argues that first amendment rights are protected by idea/expression dichotomy b. violates the principle that works that are in the Public Domain should remain the in PD IV. OWNERSHIP & TRANSFER -- WHO OWNS THE RIGHTS? a. Individual Works i. Initial ownership of the copyright, including all of the 106 exclusive rights in a work vests in the author. The authors of a joint work are co-owners of the copyright in the work. 1. author need not be identified 2. could have worked with others, but controlled the pen b. Works Made For Hire i. ownership of a work made for hire vests in the party who commissioned the work or employer unless the parties have expressly agreed otherwise in a written instrument signed by all parties ii. Under 1976 ACT A work made for hire occurs in two scenarios
1. Independent Contractor: when a work is specially ordered or commissioned for use in one of the 9 specified categories with express written agreement signed by both parties. a. specially ordered or commissioned b. type of work must be i. contribution to a collective work ii. motion picture iii. other audiovisual work iv. supplementary work v. compilation vi. instructional text vii. test viii. answer material for a test ix. atlas c. express agreement i. SOA as to when it must be signed, contemporaneous or before creation or memorialized later in written agreement ii. some cts say that you can have an oral agreement concurrently with creation, but memorialized later in writing 2. Employer/Employee: Initial ownership of the work of an employee within the scope of his/her duties will vest in the employer. a. USSC in CCNV v. Reid held that to determine whether an employer/employee relationship arises the courts are to look to the common law of agency and weigh following factors i. the hiring partys right to control the manner and means by which the product is accomplished* ii. skill required of hired party* iii. existence of employee benefits* iv. tax treatment of hired party * v. source of tools vi. location of work vii. duration of relationship viii. whether hiring party has right to assign further projects ix. extent of discretion of hiring party of when and how long to work x. method of payment xi. who hires assistants and pays xii. whether work is part of regular business of hiring party xiii. whether hiring party is a business 1. NOTE: creative contributions are irrelevant b. scope of employment i. work is type employee is employed to perform ii. work occurs substantially within authorized work hours and iii. whether its purpose, at least in part is to serve the employer iii. 1909 act 0--> works created before Jan 1 1978
1. work for hire occurred where creation was at the instance and expense of the hiring party or in anticipation of employment a. did the hiring party motivate and finance the work? i. Fixed fee favored wmfh ii. Royalties weighs against wmfh 1. 20 Century Fox v. Ent.- ct held that book written by Eisenhower on WWII was a wmfh because publisher persuaded him to write it and paid a lump sum. b. Right to supervise and control iv. ADVANTAGES OF WMFH 1. do not need to get transfer for permission from all parties a. control remake and sequel rights 2. NO TERMINATION RIGHTS because hiring party is held to be author, initial ownership never vested in anyone else 3. TERM 95 years or 125 if not published c. Joint Works (Tenants In Common) i. Initial ownership vests in all of the authors as co owners where there is a joint work. A joint work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole 1. inseparable dont make sense by themselves. 2. interdependent some understanding by itself (lyrics to a song) a. contrast with collective works, which may be separated and intention of merger and unity are lacking ii. Is there a joint work? 1. Independently Copyrightable Contributions a. Caveat if each contribution would not be copyrightable by themselves, but when put together form original expression forego this step. 2. Shared Intent at Time Of Creation (pre 1978 you could show intent afterwards) a. Objective Manifestations i. Written contract is best evidence b. Subjective i. Exercise of control the person who controls the pen is usually the author 1. If there is clearly a dominant party then that is a strong argument against co ownership 2. this test is goo to weed out writer/assistant or writer/editor situations ii. Billing Test in absence of a contract who would be identified as author. iii. Disbursement of funds iv. Audience appeal who contributed the parts that make it popular (Pink Panther Case) 3. Taylor v. Childress ct held no joint work for person who hired playwright because (i) her contributions of ideas and historical research were not independently protectable and (ii) playwright never had the intention at time of writing for work to be co-authored. 20
4. Parties do not need to meet for there to be mutual intent 5. if an author has assigned his work, then it is the intent of the assignee that matters (12th Street Rag) iii. If there is a Joint Work 1. co owners do not need each others permission to grant licenses or exploit work, just need to account to others. a. Caveat cannot assign or give exclusive license w/o express written permission of other owners. d. Collective Works i. copyright in each contribution vests in the author of such contribution, and is separate from the copyright in the work as a whole which vests in the party to compiled. 1. in absence of a express transfer, owner of collective work presumed to have acquired ONLY privilege of a. reproducing and distribution of the contribution as part of that collective work as a whole i. same work b. any revision of the collective work and any later collective work in the same series 1. revision placing in new medium like a cd rom or database only if using same arrangement and compilation. (Tasini) 2. new arrangement like in an electronic database not revision but new collective work ii. later work is same series (taking an article from one edition and placing in another) e. Transfers i. Transfer of Rights or Exclusive license 1. Unless by operation of law (termination rights, intestacy statutes) all transfers or exclusive licenses of the 106 exclusive rights must be (i) in writing and (ii) signed by owner or agent thereof. a. Writing can be simple and does not need to describe the work b. No defense of lunch not contracts ii. Non exclusive license 1. written contract 2. oral contract 3. implied by conduct if a. licensee requests creation of the work b. licensor creates and delivers the work to party that requested it c. licensor intends that licensee will distribute the work iii. What Rights Granted? 1. becomes an issue with new media uses, split in authority a. 2nd circuit favors licensee whether they intended to use in new media b. Other circuits favor licensor if they did not specify new media in transfer, they reserved the rights 2. motion picture rights a. vague, but do not include home video rights
Recordation & Priorities Between Conflicting Grants 1. all transfers of copyright ownership or rights MAY be recorded in the US copyright office a. must specifically identify the work(s) 2. while recordation is not a MUST it is advisable because a. gives constructive notice b. it protects against conflicting transfers i. if exclusive license and recorded within one month it will beat any conflicting transfers ii. if not recorded in one month, first to record prevails if for 1. valuable consideration 2. in good faith and 3. w/o notice of earlier transfer (remember registration that identifies the work gives constructive notice c. non exclusive licenses effective if i. in writing ii. license granted before execution of transfer or taken in good faith without notice of transfer (remember constructive notice
V. EXCLUSIVE RIGHTS PROTECTED -- what rights have been infringed/are to be utilized a. General Rule: Subject to the affirmative defenses, the owner of a copyright has the exclusive right to do and to authorize any of the 106 rights b. Divisibility i. 1909 act -- copyright was not divisible ii. 1976 act -- rights could be divided, subdivided, assigned, licensed, owed and enforced separately c. REPRODUCTION RIGHT i. the owner had the right to reproduce in copies of phonorecords 1. extends to literal copies (Xerox) or non literal copies (copying the protected elements of the work) 2. Fixation in copy of phonograph is enough to violate even if a. no other right is violated b. work in progress and no distribution (Filmation) c. might be less than entire work d. machine readable or short lived fixations e. includes copying for private use f. in different medium ii. Issue: Internet Transmissions 1. temporary copies in digital environment are copies but a. 117(c) protects making temp. copy by activating a computer b. 512 protects ISPs for making transient copies iii. Copying Must be Accompanied By Minimal showing of volition or causation 1. this protects kinkos from allowing someone to come use copy machines and then that person infringes someones copyright
2. protects ISPs when customer uses their service to infringe, but only if they passively store.not if they get involved (see secondary liability). (Costar, Netcom) 3. also no volition or causation when copies are made by instruction of a customer.(Cartoon Network) iv. Limitations 1. Sound Recordings a. only literal copying infringes - one that recaptures the actual sounds fixed in a particular sound recording b. because of 115 compulsory license to make and distribute (even digitally) covers of i. non dramatic musical works ii. after there has been authorized distribution of phonorecords in USA 1. no compulsory license for bootlegged musical work 2. cannot change arrangement or character of musical work 2. Libraries and Archives 3. First Sale 4. Face to Face Teaching 5. Secondary Transmissions 6. home recordings 7. Independent Creation 8. Fair Use d. ADAPTATION RIGHT i. RIGHTS: owner has the exclusive right to do and authorize the making of derivative works based on the copyrighted work 1. 1909 act a. translation b. dramatization c. convert drama into novel d. arrange or adapt a musical work e. to complete or finish a model or work of art 2. 1976 act derivative work is a work that is based upon one or more preexisting works such as a. a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation b. or any other form in which a work may be recast, transformed or adapted ii. LIMITS IN SCOPE OF RIGHT: 1. Derivative Works need more than a modicum of creativity to qualify for new protection, therefore no infringement of adaptation right unless a derivative work is actually created. a. does not give owner the right to control minimal mechanical changes or public evaluation
vi. vii.
i. simply mounting art on a tile or speeding up game play is not sufficient to claim infringement of right to make derivative work. (LEE v. ART Company) ii. Guide books are not d/w because it does not recast, transform or adapt original work. However if it supplements original work it may violate reproduction right because of non-literal copying. (Ty) 1. Cts do not like guide books, so they will find them to violate reproduction right 2. Substantial Similarity needed for infringement FIXATION 1. derivative works need to be fixed for protection, BUT NOT TO INFRINGE a. you could violate the adaptation right by performing an adaptation or a play w/o permission b. ct held Duke Nukem customized levels infringed even though the program did not incorporate any of the protectable elements of the original because it infringed on the right to create sequels of the story itself. USE OF DERIVATIVE WORK MAY INFRINGE UNDERLYING WORK 1. The infringing use of a derivative work, infringes the underlying work as well (subject to fair use defense) 2. if underlying work is in PD then no infringement unless derivative works make use of protected elements added by author of other derivative works 3. if derivative work is in PD (could be because of lack of renewal or publish w/o notice pre 89) but OG is still protected, the owners of the original work may enforce their rights if you make a work based on the PD derivative work. SAMPLING 1. if you sample the actual sound recording (you dont replay it) you have violated the a. adaptation right if you have rearranged remixed or altered in sequence b. reproduction right if just loop 2. hard argument that it is de minimus if recognizable, not de minimus COMPUTER PROGRAMS 1. no infringement if copy or adaptation made for archival or essential step in using NO PROTECTION FOR ANY PORTION OF A DERIVATIVE WORK WHICH USED MATERIAL UNLAWFULLY
e. DISTRIBUTION RIGHT (Right Of First Sale) i. right to (and authorize) distribute copies or phonorecords to the public by sale or other transfer of ownership or by rental, lease or lending ii. Elements for infringement 1. Transfer of Copies/Phonorecords a. making a single unauthorized copy available to public with be infringement (Hotaling) b. electronic transmission sufficient
c. Make Available v. Distribute to Public i. issue arises with P2P or files in the internet 1. majority: need to prove acceptance to constitute an actual distribution 2. Minority: can argue inferred acceptance when a party has completed every step for a public distribution (make available). London Sire Records 2. Intent/Knowledge of infringement not necessary (strict Liability) iii. LIMITS - First Sale Doctrine 1. General Rule: The owner of a lawfully obtained copy can sell or dispose of it as they please without permission of copyright owner. a. provided that they OWN and LAWFULLY made copy, they can sell, lease, display or give it way i. cannot make copies, adapt, distribute ii. if copy was licensed, lent or rented no rights b. copyright owner does not have a right to control resale prices or practices once they have transferred ownership in a single copy (but could do this contractually) i. exception -- record rentals not allowed for commercial profit ii. exception -- computer software rentals not allowed for commercial profit 1. except for video games iv. Importation Right 1. Illegally made goods infringement 2. Legally Made goods manufactured outside USA need permission or infringement under 602 importation statute 3. Legally made goods manufactured in the USA, exported, then imported (ROUND TRIP DOCTRINE SOA as to whether this is an infringement f. PERFORMANCE RIGHT i. right to perform publicly or authorize public performance 1. Performance broadly construed to include playing a cd, streaming a song (musical work right) reading aloud, playing audio visual work in any sequence a. does not apply to architectural, pic, sculptural or graphic works b. sound recordings are limited to digital transmission i. no right in sound recording for playing cd or on radio station. c. but owner of MUSICAL WORK has rights see collective rights organizations who collect these royalties and licensing fees i. BUT have to get GRAND RIGHTS (music that tells story) from author themselves ii. Public Performance 1. if open to public, regardless of how many people are there (Aveco) 2. semi public -- look to composition of audience a. if more than family and acquaintances are present or need to pay cover etc. 3. or if work is transmitted to a public place, semi public place or to public
a. think hotel that transmits videos to all rooms iii. LIMITATIONS 1. Secondary Transmissions a. cable companies that rebroadcast are on the side of the viewer = no infringement 2. Home Use Exemption a. no infringement if type of system used to broadcast secondary transmission is commonly used in private homes unless i. direct charge to view ii. transmitted further to public b. NOTE: congress said Aiken (speakers in fried chicken place) was as far as they would go with this c. FAIRNESS IN MUSIC ACT i. no more than 4 speakers, you can perform musical works w/o permission 3. Face to Face Teaching 4. Distance Learning 5. Religious Services
g. PUBLIC DISPLAY RIGHT i. covers all works except sound recordings and architectural works 1. for motion pics and audio visual is limited to individual images (more would be performance ii. Public = same as performance definition 1. open to public 2. semi public - who was there? 3. transmit to public places iii. Display -- show a copy directly or by means of device or process 1. issue: what constitutes display for ESI? a. rule: a computer owner that stores an image as ESI ands serves that ESI directly to a user -- display -- if no permission -- infringement b. in line linking or framing -- NO display i. JJ thinks this is wrong because it is so technical..if it looks like a duck c. Perfect 10 v. Amazon i. CT held that thumbnails were display and infringement (but subject to fair use because of transformative use for indexing images on internet) but in line linking/framing was not display 1. in line linking may be secondary liability but no direct infringement iv. LIMITS 1. First Sale -- legal owner of a copy has the right to display that copy to viewers in place where the copy is located 2. De Minimus Use
a. if a copyrighted work is displayed but not recognizable (distorted, out of focus), then the use is de minimus and no infringement i. amount of time not relevant because there are different compulsory licensed for background and substantial uses h. PERFORMANCE OF A SOUND RECORDING THROUGH DIGITAL TRANSMISSION i. right to perform sound recording or authorize digitally 1. streaming audio on the internet will implicate both the rights in the sound recording and musical works 2. whereas there is no performance right in sound recording if it is performed analog (cd player, TV, radio station) i. 106A - moral rights i. Under Berne (US does not recognize) -- cannot be negotiated for money 1. right of integrity a. prevent distortion or mutilation 2. right of attribution (Credit) a. claim/disclaim ownership b. disclosure - determine when a work should be published c. withdrawal - to take things out of publication ii. US Equivalents 1. right to derivative works 2. contractual or implied obligation to give credit 3. unfair competition / lanham act -- protects from distortion 4. rights of privacy 5. State Laws Copyright Laws a. NY prevent publication/display of work or reproduction when it has been modified and such display would harm reputation of artist i. protects reputation of artist b. CA -- prevents intentional mutilation of works of fine art and provides for a right to claim/disclaim i. protects work 6. 106a VARA a. protects works of fine art from mutilation b. limited to works of 200 or less copies VI. INFRINGEMENT -- IS THE USE INFRINGING? a. Subject Matter Jx i. Original Jx: The Federal Courts have original and exclusive jurisdiction over actions that arise under the federal Copyright Act 1. an action arises under the fed copyright act if (TB HARMS TEST): a. a complaint is for a remedy expressly granted by the Act (damages/injunction) for infringement of any of the 106 rights i. WATCH OUT: actions contemplating copyright ownership from an assignment, transfer or contract DO NOT arise under. b. asserts a claim requiring construction of the Act i. whether a work is WMFH / Joint Work etc
b. c.
c. presents a case where a distinctive policy of the Act requires that federal principles control the disposition of a claim 2. Well Pleaded Complaint Rule a. Ct cannot dismiss for lack of Jx because of an anticipated defense. If the plaintiffs complaint alleged infringement or threat of infringement of the exclusive rights of 106 and subject matter of copyright it stays in federal court until claims are proven spurious. i. then defendants should move for 12b6 failure to state a claim ii. Pendant Jx: Fed Ct may choose hear state claims if 1. basis is Unfair Competition and federal claim attached is both substantial and related. iii. Supplemental Jx: May hear state claim if they arise out of same case of controversy as federal claim (infringement or threat thereof) 1. BOTH pendant and supplemental are discretionary and the fed ct may decline jx if a. novel or complex issues of state law b. state claim substantially predominates c. all fed claims are dismissed d. other compelling reasons Personal Jx Standing - who can sue i. legal or beneficial owner of one or more exclusive 106 rights at the time of infringement 1. legal owner author, proprietor if wmfh, or party who has been given an exclusive license or assigned ownership 2. beneficial owner one who retain interest (ie. royalties) from exclusive rights a. owner who assigns rights in exchange for royalties retain beneficial interest in musical works. Cortner v. Israel 3. exclusive rights cannot be an non exclusive license 4. at time of infringement you must own or benefit from 106 rights when infringement happened ii. assignment of right to sue does not mean beneficial owner 1. you can only sue if owner of exclusive rights agrees, 2. even if they assign you the copyright as well because you would not have been the owner at time of infringement Registration i. is required as a pre-requisite to litigation and will provide a thin prima facie showing of ownership of a valid copyright ii. exceptions (no registration needed for) 1. foreign works by foreign authors do not need to be registered 2. infringement of 106a visual arts 3. refusal of copyright office SO long as applicant delivered the deposit, publication and fee in proper form a. a defect will bar litigation PREEMPTION
i. General Rule: The Copyright Act will preempt a claim of the violation to ones right of publicity when the rights 1. the claim falls within the subject matter of the Copyright Act a. while ideas themselves are not proper subject matter for copyright protection, they may be proper subject matter for copyright preemption i. ideas that are embodied in a copyrightable work are within the scope of proper subject matter b. the rights asserted are equivalent to those protected under the Copyright Act i. Test: Is there some new element that changed the nature of the claim 2. preempted by Copyright Act a. misappropriation b. unjust enrichment 3. Not preempted (extra element) a. fiduciary duty b. agreement to pay for rights (desney v. wilder) c. agreement to be a partner (maybe) d. ownership of the copyright i. unless interpreting if it is a work made for hire or joint work, the consists of construction of the ACT e. agreement to pay for an idea i. SOA 1. 9th circuit promise to pay for use of idea is not an extra element because it is equivalent to the rights of use that an owner has under the act 2. 6th Circuit promise to pay is sufficient to add an extra element to a claim of breach of implied in fact K, so long as the promise is not merely to pay for the rights protected in the Act a. the copyright act does not require that one pays to use the copyrightable works, just that one needs consent. The added element of a promise and then failure to pay adds an element b. If the promise amounts only to a promise to refrain from reproducing, performing, distributing or displaying the work, then the contract claim is preempted. f. Elements of the Plaintiffs case
i. RULE: To establish infringement the plaintiff must proved (i) ownership of a valid copyright and (ii) copying of protected elements of work that rises to the level of misappropriation. ii. Ownership 1. registration gives presumption but can be rebutted by a. proving not sm of copyright for protection i. lacks originality ii. not fixed in a tangible medium of expression iii. government work iv. utilitarian aspects outweigh creative aspects v. infringes on a previous work b. PD because i. term expired (pre-1924 works) ii. published without notice (pre 1989 works) iii. renewal not filed or not filed by party with rights (pre 1963 works) iii. Direct Infringement 1. Copying -- can be literal or non literal and shown by direct evidence (d admitting or P providing witness) or indirectly by access coupled with a degree of similarity that is probative of copying. a. access i. test: did the defendant see the plaintiffs work or have the opportunity to see the work 1. opportunity to see will suffice (Baltimore Ravens Case) 2. could be subconsciously a. constructive access where work played on TV or radio or was popular where defendant was at time of creation. (Bright Tunes) b. probative similarity (can use non protected elements to prove) i. strikingly similar: the more a work is like another copyrighted work and less like anything in the public domain, the more likely it is that copying occurred. 1. Ty case - ct held that beenie babies that did not look like real pigs were similar to each other therefore inference of access not independent creation. ii. inverse ratio rule -the more similarity the less evidence of access is needed. This does not work in the reverse! 1. this comes up with music cases -- because there are only so many themes or ways to play music so you need to show similarity not just access. 2. Improper Appropriation a. rule: Plaintiff must prove that defendant copied protected elements of work such that the works intended audience will recognize substantial similarity of protectable elements. b. Substantial Similarity i. 2nd circuit - Total feel and concept
1. abstract the work to take out the unprotected elements 2. compare the total concept and feel of what is left to see whether the target audience would find a substantial similarity ii. 9th Circuit - Extrinsic/Intrinsic 1. Extrinsic (can have expert) a. theme b. plot c. sequence of events d. characters e. dialogue f. setting, mood and pace 2. Intrinsic a. ordinary observer would see substantial similarity between the works b. discerning observer -- used for when there is a mix of protected and non protected elements or when there is a specific target audience such as Doctors, Children, Music. c. misappropriation i. was what was taken de minimus? 1. general rule: The law does not care about trivial matters a. sampling -- can argue de minimus (three note sequence held to be de minimus) b. how long was it used and more importantly is it recognizable d. Computer Cases ct in Altai used the following to show substantial similarity i. abstraction 1. look at each level from the basic idea (most abstract)through the flow chart to the specific code ii. filtration 1. remove elements dictated by efficiency 2. external factors 3. PD 4. methods of operation 5. scenes a faire iii. comparison 1. compare the remaining core of expressive materiale. Basically, this case said that what the courts need to do is to sift out all elements of the allegedly infringed program which was ideas of dictated by efficiency or external factors, or taken from the public domain in order to find "a core of protectable expression." At that point the courts should focus on whether there are substantial similarities between any elements within this core in the two programs.
3. Defenses 31
a. Independent Creation i. show that you created before Ps work ii. had no opportunity to access not in any place where the work was around iii. D can argue that the work was copied from PD materials or things that are not subject matter of copyright 1. rebutted by striking similarity. iv. SECONDARY LIABILITY 1. Vicarious Infringement a. Even absent the employer/employee relationship a party will be liable for Vicarious Infringement if they have (i) the right and ability to control the direct infringer and (ii) a direct financial benefit i. right and ability to control 1. right to terminate relationship 2. rent space / control terms of lease ii. direct financial benefit 1. does infringing activity increase attractiveness of venue? a. admission fees b. concession sales c. parking fees 2. does not need to be a royalty or commission from sale of infringing works b. KNOWLEDGE is not necessary, BUT a direct infringement IS 2. Contributory Infringement a. One who directly contributed to anothers infringement is liable if they have knowledge of the infringing activity and (ii) induces, causes or materially contributes to the infringing conduct. i. knowledge of infringing conduct 1. ACTUAL knowledge 2. or constructive if only act is selling technology a. knowledge will not be imputed if the technology has Substantial non-infringing uses Merely need to be capable of commercially significant non infringing uses i. VCRS are used for Time Shifting which is a substantial non infringing use b. BUT Sony defense is not applicable where there is evidence of ACTUAL knowledge ii. induces, causes or materially contributes to infringing conduct 1. providing site and facilities (Fonovisa) 2. substantial participation 3. protecting identity of infringers iii. Direct infringement NEEDED 3. Inducement a. clear expression of intent of infringement and affirmative steps b. MAY NOT NEED DIRECT INFRINGEMENT TO BE LIABLE
4. Secondary Liability for Sale Of Technology a. No vicarious liability because relationship ends at sale therefore NO RIGHT TO SUPERVISE OR CONTROL b. Contributory? i. actual knowledge Grokster case 1. Grokster showed actual knowledge of profiting from technology (selling ad space) that was used for infringing uses by clear expression of intent and affirmative steps (telling people it was the new napster) ii. constructive knowledge of infringing use 1. will not be imputed if technology is capable of substantial non infringing uses 5. Secondary Liability Online (RTC Case) a. Contributory i. reasonably could have had knowledge sufficient 1. notice claiming infringement not enough because there could be valid fair use ii. providing file store and transmission material contribution and may even be substantial participation iii. Direct Infringement b. Vicarious i. control: 1. right to terminate or block accounts ii. Financial Benefits 1. fixed fee not enough for financial benefit 2. but under Fonovisia lax policies may attract infringers iii. Direct Infringement 6. TECH PROTECTION MEASURES a. DMCA b. 512 Safe Harbor i. ISPs no liable for transient storage if 1. initiated by 3rd party 2. ISP does not select material 3. ISP does not select recipients, except at auto reply to 3rd party request 4. No additional copies made or keep longer than necessary 5. ISP does not modify material ii. ISP not liable to system caching iii. ISP not liable for web site hosting if 1. doesnt know infringing 2. if it becomes aware it acts expeditiously to take down or block access 3. no direct financial benefit or cant control 4. complies w/notice and take down c. ANTI - CIRCUMVENTION / TRAFFICKING
i. liable if you circumvent or provide tech that circumvents a tech measure that effectively controls access to a work g. Caveat To All: Extraterritoriality i. Rule: Rights under 106 are not extraterritorial and therefore cannot be enforced for acts that occur entirely outside of the United States. 1. Therefore in what would be an infringing act is authorized in the US, but completed entirely outside of the country there will be no secondary liability because there has been no direct infringement. (Subafilms)(ct held that there was no secondary liability for US company that authorized duplication for home video without permission because duplication/distribution happened entirely in UK) a. NBC case ct held no secondary liability for giving duplications that were authorized to UK company who then duplicated without permission, because what would have been infringing act took place outside USA. 2. however, if infringement begins in the US and is completed outside, then the Court will trace back to the USA 3. also, if there are multiple infringing acts, and one is completed in the USA, the court will allow you to sue on all. (Update Art v. Modeen) h. Conflict of Laws i. Under Itar Tass ownership in copyright is determined by laws of country of origin (because it is a property right), whereas infringement and available remedies are determined by laws of country where act took place. 1. therefore a ownership in a WFH may vest in a European company if it is made in the USA, even though European laws do not recognize WFH. VII. ARE THERE VALID DEFENSES? A. STATUTE OF LIMITATIONS i. 507(b) 3 years after claim accrues 1. claim accrues the moment when the copyright holder has knowledge of a violation or should have reasonably known, 2. if there has been continuing infringements, cts will often allow copyright owner to recover for acts that occurred more than 3 years prior so long as they didnt know or could not have reasonably known a. if you know and dont do shit your out of luck B. FAIR USE 107 i. RULE: Fair use of a copyrighted work, by reproduction in copies or phonorecords, adaptation, public performance, distribution or display is NOT infringement. To determine fair use the court will weigh: 1. The purpose and character of the use a. commercial or not for profit i. not dispositive of unfair use ii. commercial -- monetary gain or whether user will profit without paying customary price
1. newspaper that gets an advance copy of a book and rips it off commercial b. transformative does the new work simply supersede the object of the original work or does it add something new with a new purpose, different character, altering the first with new expression, meaning or message. i. supersedes not transformative but may be a derivative work ii. new purpose transformative 1. parody 2 live crew 2. criticism wind done gone 3. thumbnail images on search engine indexes and enables people to locate whereas original use was that of aesthetic artistic use 4. using pictures in a book w/comments and text transformative use because original was to promote and aesthetic, new use is of historical analysis 2. The nature of the copyrighted work (of Plaintiffs work) a. Creative vs. Fact Based i. creative fictional works strong protection ii. fact based works thin protection b. Published or Unpublished i. unpublished weighs heavily against a finding of fair use (Salinger) 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole (of Plaintiffs work) a. quantitative how much of the work did you rip off? i. pictures usually need to be taken in its entirety ii. parody necessitates a large use b. qualitative is what you ripped off the heart of the copyright meaning the expression in the work or did you just take what was necessary to accomplish transformative use 4. The effect of the use upon the potential market for or value of the copyrighted work a. market that copyright owner is in i. newspapers use of excerpts destroyed a deal w. time magazine for serial. (Harper v. Row) ii. copying and giving out journal articles to researchers above and beyond your license harms market for licensing b. potential market for derivative works i. does not matter if P would ever intend on entering in market c. whether widespread conduct of the sort engaged in would result in a substantially adverse impact on the potential markets d. NO HARM from critical review, unflattering parody II. PARODIES 1. No exception so you have to go through all 4 factors
Parodies are commercial, but may be highly transformative often take from highly creative works take entire work but must do so to conjure it up if transformative, not likely to act as a market substitute even though commercial 2. key issue Target a. a parody must target the work that it has taken from! iii. GUIDE BOOKS 1. THESE MAY BE HELD TO BE FAIR USE, BUT COULD BE HELD TO HARM MARKET FO DERIVATIVE WORKS IV. REVERSE ENGINEERING FAIR USE 1. intermediate copying is infringement, 2. but in reverse engineering the copying is in order to find out how a program works so that you can create a new program thus transformative use a. caveat if you make a new program that copies the protectable elements of the program you reverse engineered boom substantial similarity infringement (reproduction/adaptation) 3. this increases competition and creation of expressive works heart of copyright policy v. POLICIES 1. encourages creation of new works using preexisting materials heart of copyright law is to encourage creative expressions 2. promote wide dissemination 3. benefit to society outweighs the costs and harm to the author
a. b. c. d.
VIII. REMEDIES A. PRELIMINARY INJUNCTION I. IRREPERABLE HARM AND 1. Prima Facie case of infringement (copying + misappropriation) presumption of irreparable harm II. LIKELIHOOD OF SUCCESS OR SERIOUS QUESTION GOING TO THE MERITS & BALANCE OF HARDSHIPS TIPS DECIDEDLY IN MOVANTS FAVOR 1. Paramount v. Carol a. ct granted preliminary injunction when D wrote a book about star trek that outlined the plot lines and characters because prima facie case of infringement that created a presumption of irreparable harm. Not fair use because not transformative, no parody because point was not to make fun of Star Trek and harmed potential market for derivative works even though Star Trek did not already license this type of work. B. PERMANENT INJUNCTION i. but when already published + distributed + ongoing relationship = likely to impose a licensing fee C. DAMAGES 36
I. MEASURE OF DAMAGES 1. Actual Damages (Lost profits, defendants profits, defendants indirect profits) a. determined by the loss in fair market value of the copyright as measure by the profits lost due to infringement is the value of use of the copyright to the infringer i. lost profits ii. profits of infringer iii. indirect profits b. Two steps i. Must show a casual link between the infringement and the damages sought, then it is up to the defendant to weed out what is attributable (But for causation) 1. expert testimony as to fair market value 2. indirect profits of infringer by using the work such as sales from a trade show where the work was shown as part of promotional materials (Timex v. Polar Bear) ii. Defendant then has the burden of weeding out those profits that are not attributable or expenses that are deductable II. STATUTORY DAMAGES 1. copyright must be registered prior to infringement suit 2. each work that is infringed is ONE infringement = 1 award of stat damages a. show a work 15 times one infringement b. show a series each work in series is a separate infringement c. CD containing 12 songs i. cd is a compilation ii. if D made cd 12 infringements / if P made it with authority 1 infringement III. PREJUDGMENT INTEREST IV. ATTORNEYS FEES AND COSTS


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