Transcript INTELL. PROP. SURVEY COPYRIGHT SEGMENT 1: WORKS …

COPYRIGHTS
PROF. JANICKE
JULY 2008
CONSTITUTIONAL POWER
• ART. I, SEC. 8 (8):
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SCIENCE
USEFUL ARTS
AUTHORS
INVENTORS
WRITINGS
DISCOVERIES
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KEYS TO PROTECTION:
• ORIGINALITY
• WORK OF AUTHORSHIP
• FIXATION
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FIXATION REQUIREMENT
• WORK MUST BE FIXED IN A
TANGIBLE MEDIUM OF EXPRESSION
(§ 102)
• MORE THAN TRANSITORY TIME
(§101)
• NOT COVERED: MY CLASSES;
PASTOR’S UNWRITTEN SERMON
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WORKS COVERED
•
•
•
•
•
LITERARY (INCL. SOFTWARE)
MUSICAL (INCL. WORDS)
DRAMATIC (INCL. MUSIC)
PANTOMIME / CHOREOGRAPHY
PICTORIAL, GRAPHIC,
SCULPTURAL
• MOTION PICTURES AND OTHER A/V
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WORKS COVERED
• SOUND RECORDINGS (AS
SEPARATE WORKS)
– RECORD HAS MORE THAN ONE
“WORK” ON IT:
• THE RECORDING WORK, AND
• THE UNDERLYING (E.G., MUSIC) WORK
(WHICH COULD IN TURN BE BASED ON A
POEM)
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– SOMETIMES NOT CLEAR WHO THE
“AUTHOR” OF A SOUND RECORDING
IS:
• SINGER, BAND, STUDIO ENGR.?
• USUALLY HANDLED BY CONTRACT
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WORKS COVERED
• ARCHITECTURAL WORKS
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GOVERNMENT WORKS
• NO COPYRIGHT IF IT IS CREATED
BY GOVERNMENT ACTIVITY §105
• BUT U.S. CAN ACQUIRE OTHERS’
COPYRIGHTS IN THEIR WORKS
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ORIGINALITY
REQUIREMENT (§ 102)
• NOT HARD TO MEET
• SLOGAN MAY BE TOO SHORT (TRY
TRADEMARK)
• DOESN’T MEAN NEW
• TWO PEOPLE THINK OF THE SAME
POEM → TWO VALID COPYRIGHTS
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ORIGINALITY
REQUIREMENT (§ 102)
• EXAMPLE: TAKING A PHOTOGRAPH
OF BUILDING
• EXAMPLE: PAINTER COPYING THE
MONA LISA
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WHAT IS NOT ENOUGH
• WHITE PAGES OF PHONE BOOK (FEIST
PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO., 499 U.S. 340
(1991)
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IDEA-EXPRESSION
DICHOTOMY
• THE CENTRAL DOCTRINE OF
COPYRIGHT LAW (§ 102(b))
• NO PROTECTION FOR IDEAS
– OTHERS CAN TAKE FREELY, USE IN
THEIR OWN ORIGINAL WORKS
• ONLY PROTECTION IS FOR HOW
YOU EXPRESS THE IDEA
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IDEA-EXPRESSION
DICHOTOMY
• EXAMPLE: I WRITE A BOOK
DESCRIBING HOW TO DO 10
PHYSICS EXPERIMENTS
– YOU CARRY OUT EACH EXPERIMENT
TO THE LETTER -- NOT AN
INFRINGEMENT
– YOU PHOTOCOPY THE BOOK – IS AN
INFRINGEMENT
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COMPILATIONS
• CAN BE “ORIGINAL” WORKS;
COPYRIGHTED UPON FIXATION, IF
THE PIECES WERE LAWFULLY
TAKEN (§ 103(a))
• PROTECTION EXTENDS ONLY TO
THE SELECTION OR SEQUENCING
(§ 103(b))
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DERIVATIVE WORKS
• PERHAPS THE MOST POWERFUL OF ALL
COPYRIGHT RIGHTS
• AGAIN REQUIRES THAT THE TAKING
FROM ORIG. IS LAWFUL
• EXAMPLES:
– SCREENPLAY FROM A BOOK (2 ©s)
– TRANSLATION OF A NOVEL (2 ©s)
– ORCHESTRATION OF A SONG/ARIA (e.g.,
Liebestod from Tristan und Isolde)
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WHEN IDEA (UNPROTECTABLE)
AND EXPRESSION
(PROTECTABLE) COLLIDE
• SOMETIMES HARD TO TELL WHICH
IS WHICH
• CALLED “MERGER”
• IN THAT CASE, PROTECTION FAILS
BAKER v. SELDEN, 101 U.S. 99 (1879)
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RIGHTS
• ARE DIVISIBLE FOR LICENSING OR
ASSIGNMENT
• THERE ARE NO REDUNDANCIES
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RIGHTS
• MAKE COPIES (§106(1))
• CREATE DERIVATIVE WORKS (§106(2))
– VERY POWERFUL, ESP. WHEN
INFRINGEMENT CLAIM FAILS
– APPLIES EVEN IF DERIV. WORK IS
ORIGINAL AND WOULD BE
COPYRIGHTED
• DISTRIBUTING COPIES PUBLICLY,
EVEN IF YOU DIDN’T MAKE THEM
(§106(3))
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RIGHTS
• PERFORM THE WORK PUBLICLY
§106(4)
• DISPLAY THE WORK PUBLICLY §106(5)
– BUT OWNER OF THE ACTUAL ARTICLE
(e.g. PAINTING) OR COPY CAN DISPLAY
PUBLICLY OR AUTHORIZE OTHERS
(MUSEUM) TO DO SO§109(c)
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A CLOSE CALL?
• SCRIPT FOR A PLAY
• PUBLIC PERFORMANCE IS
INFRINGEMENT
• BUT, CARRYING OUT PHYSICS
EXPERIMENTS IS NOT
• ??? WHY
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“MORAL RIGHTS”
• WE HAVE THEM, IN COPYRIGHT
LAW, ONLY FOR FINE ART WORKS
– PAINTING
– DRAWING
– 200 NUMBERED PRINTS
– 200 NUMBERED STILL PHOTO PRINTS
– 200 NUMBERED SCULPTURE
CASTINGS
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“MORAL RIGHTS”
• ATTRIBUTION §106A (1)
– INCLUDES RIGHT OF NONATTRIBUTION IF IT’S NOT YOURS
• INTEGRITY §106A(2)
– DON’T SAY IT’S MINE IF YOU’VE
CHANGED IT
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“MORAL RIGHTS”
• ARE NOT ASSIGNABLE §106A (e)
• TERM: LIFE §106A(d)
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“NEIGHBORING RIGHTS”
• DUE TO INTERNATIONAL AND
MODERNIZING PRESSURES, CONGRESS
HAS BEEN RESORTING TO THE
COMMERCE CLAUSE FOR NEW RIGHTS
• EXAMPLE: DATABASE PROTECTION;
DIGITAL TRANSMISSION OF LIVE
PERFORMANCE (NON-FIXED)
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“MORAL RIGHTS”
• ARE BIG IN OTHER COUNTRIES
• IN U.S., PROTECTION BY
COPYRIGHT LAW IS LIMITED TO
WORK OF VISUAL ART
– PAINTINGS, DRAWINGS, PRINTS,
SCULPTURES
– SINGLE, OR LIMITED EDITION OF 200
OR FEWER, SIGNED AND NUMBERED
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“MORAL RIGHTS”
• FOR OTHER TYPES OF WORKS,
AUTHORS USE § 43(a) OF THE
LANHAM ACT [15 U.S.C. § 1125(a)],
SUING FOR UNFAIR COMPETITION
• BIG PUSH FOR EXTENSION OF
MORAL RIGHTS, SINCE NO
COMPETITION HARM IS NEEDED
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THE INFRINGING
CONTENT:
• EITHER: COPIED A SUBSTANTIAL
PORTION OF PROTECTED MATTER
FROM THE WORK
• OR: DID NOT COPY LITERALLY, BUT
PRODUCED A SUBSTANTIALLY
IDENTICAL WORK AFTER ACCESS
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SUBJECT TO IMPORTANT
LIMITATIONS, THE
INFRINGING ACTS ARE:
•
•
•
•
•
MAKING COPIES
MAKING A DERIVATIVE WORK
DISTRIBUTING COPIES PUBLICLY
PERFORMING WORK PUBLICLY
DISPLAYING WORK PUBLICLY
§106
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EXEMPTION -FAIR USE
• COULD BE FOR ANY TYPE OF
WORK §107
• PURPOSE IS JUST A
THRESHOLD – USE LEVEL
MUST STILL BE “FAIR”
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THE FAIR-USE FACTORS:
• PURPOSE AND CHARACTER OF USE
– AN ALTRUISTIC OR SOCIALLY DESIRABLE
PURPOSE HELPS
– BUT $$ DOESN’T CREATE PRESUMPTION OF
UNFAIRNESS
• NATURE OF THE COPYRIGHTED
WORK
– COPYING MORE LIKELY TO BE FAIR IF FROM
A SCIENCE HYPOTHESIS THAN FROM A
SCULPTURE
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THE FAIR-USE FACTORS:
• AMOUNT AND SUBSTANTIALITY OF
THE PART TAKEN
• ** IMPACT ON POTENTIAL MARKET
FOR THE ORIGINAL WORK
– THE MOST IMPORTANT FACTOR BY
FAR
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• THERE IS NO CONCEPT OF FAIR
USE AKIN TO “FAIR COMMENT” IN
DEFAMATION LAW
• ORIGINAL EXPRESSION IN A BOOK
BY OR ABOUT A FAMOUS PERSON
IS ENTITLED TO FULL PROTECTION
– RANGE OF FAIR USE MAY BE A LITTLE
LARGER
Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)
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THE PROBLEM OF PARODY
AS FAIR USE
• PARODY IS ENCOURAGED FOR POLICY
REASONS, EVEN IF IT HURTS MARKET FOR
TARGET WORK
• MUST TAKE SOME OF TARGET, TO IDENTIFY
IT
• TAKING EXCESSIVE AMOUNT IS APT TO BE
NOT FAIR
Fisher v. Dees, 794 F. 2d 432 (9th Cir. 1986)
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EXEMPTION:
LIBRARIES
• CAN MAKE 1-3 COPIES FOR
CERTAIN NONCOMMERCIAL
PURPOSES (REPLACEMENT OF
DAMAGED COPY; ARCHIVAL; ETC.)
§ 108
• NO GENERAL EXEMPTION FOR
LIBRARIES
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EXEMPTION:
RIGHT TO SELL YOUR OWN
COPY
• APPLIES TO A LAWFUL COPY § 109(a)
• CAN ALSO RENT OUT, EXCEPT FOR
PHONORECORDS OR COMPUTER
PROGRAMS §109(b)
– BAD HISTORY OF PIRACY
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EXEMPTION:
CERTAIN PUBLIC
PERFORMANCES
• CLASSROOM PERFORMANCES §110(1)
– ANY WORK
• TRANSMISSIONS BY GOVT. OR
NONPROFIT EDUCATION ORG. § 110(2)
– NONDRAMATIC ONLY
– RECEIVED IN CLASSROOM OR
HANDICAPPED SPACE
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EXEMPTION:
CERTAIN PUBLIC
PERFORMANCES
•
FOR CHURCH SERVICES
– LITERARY WORK (NONDRAMATIC ONLY):
•
•
•
•
POEMS
SPEECHES
ESSAYS
ETC.
– MUSICAL WORKS (DRAMATIC OR NONDRAMATIC)
•
•
•
•
JESUS CHRIST SUPERSTAR
HYMNS
POPULAR SONGS
ETC.
– DOES NOT COVER PLAYS
§110(3)
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EXEMPTION:CERTAIN
NONPROFIT PERFORMANCES
• LITERARY OR MUSICAL WORK
• [DRAMATIC OR] NONDRAMATIC ONLY
• CONDITIONS:
– FREE ADMISSION
– NO $$ TO PERFORMERS OR ORGANIZERS;
NET PROCEEDS TO CHARITY
– COPYRIGHT OWNER HAS RIGHT TO OBJECT,
BUT DOESN’T HAVE TO BE NOTIFIED (!)
§110(4)
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EXEMPTION: HOME-SIZE RADIO/TV
AT SMALL BUSINESSES
• PLAYING RADIO AND TV
BROADCASTS IN STORES,
RESTAURANTS, BARS
– CAN’T HAVE ANY CHARGE FOR THE
TRANSMISSION
– MUST HAVE “PRIVATE HOMES” TYPE GEAR
– MAY BE RESTRICTED TO NON-MUSICAL
WORKS [UNCLEAR TODAY]
§110(5)(A)
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EXEMPTION: RADIO/TV MUSIC
WITHIN SMALL BUSINESSES, BUT
WITH [SLIGHTLY] BIGGER EQMT.
• MUSIC ONLY – NOT SPORTS
– NON-FOOD/DRINK PLACE:
• < 2,000 SQ. FT. – ANY GEAR
• > 2000 SQ. FT. – 6 SPEAKERS, 4 TVs (3 SMALL)
– FOOD-DRINK PLACE:
• < 3,750 SQ. FT. – ANY GEAR
• > 3,750 SQ. FT. – 6 SPEAKERS, 4 TVs (3 SMALL)
• NO CHARGE FOR THE MUSIC
§110(5)(B)
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EXEMPTION: PERFORMING
MUSIC AT THE STATE FAIR
• BY GOVERNMENT ENTITY
• BY NONPROFIT AG ORGANIZATION
• INDIVIDUAL PERFORMERS ARE
STILL LIABLE!
§110(6)
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EXEMPTION:
MUSIC IN MUSIC STORES
• SOLELY FOR PURPOSE OF
PROMOTING THE SALE OF
RECORDS OR MUSIC; OR FOR
SELLING TVs OR STEREOS
§110(7)
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EXEMPTION: NONPROFIT
TRANSMISSIONS TO THE
BLIND OR DEAF
• HAS TO BE BY
–
–
–
–
GOVT., or
EDUC. BROADCAST STATION, or
RADIO SUBCARRIER AUTH., or
CABLE SYSTEM
• NON-DRAMATIC WORKS ONLY
§110(8)
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EXEMPTION: A PLAY FOR
THE BLIND
• PUBLISHED 10 YRS. BEFORE
• CAN ONLY PERFORM IT ONCE PER
PRODUCER / PERFORMERS
• NONPROFIT
• MUST USE RADIO SUBCARRIER
§110(9)
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EXEMPTION: MUSIC FOR
V.F.W., ELKS, ETC.
• CLOSED SOCIAL FUNCTION
• VETERANS OR FRATERNAL ORG.
• INVITEES CAN’T BE THE
PROMOTERS [PERFORMERS?]
• COLLEGE GREEK EVENTS DON’T
QUALIFY UNLESS EVENT IS
CHARITABLE
§110(10)
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EXEMPTION:
BACKUP TAPES, ETC.
• TV OR RADIO OR CABLE
TRANSMITTERS
• INTERNAL USE ONLY
• DOES NOT APPLY TO MOVIES
§112
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EXEMPTION: CERTAIN
ACTS RE. COMPUTER
PROGRAMS
• NOT AN INFRINGEMENT TO –
– MAKE A COPY IN ORDER TO USE THE
PROGRAM
– MAKE AN ARCHIVAL COPY
§117(a)
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EXEMPTION:
BOOKS [RECORDS] FOR THE BLIND
• OK IF THE BOOK HAS BEEN PUBLISHED
• NON-DRAMATIC WORKS ONLY
• COPIES HAVE TO BE MADE BY A
NONPROFIT WHOSE PRIMARY MISSION
IS ASSISTANCE TO THE BLIND
• NO ROYALTIES NEED BE PAID
• NO QUANTITY LIMITS
§ 121
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INCORPORATING THE
WORK INTO A USEFUL
ARTICLE
• IS AN INFRINGEMENT See, e.g., Mazer v.
Stein, 347 U.S. 201 (1954) (glass figurines of dancers, used
as lamp bases).
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COPYRIGHT IN SOUND
RECORDINGS
• MORE LIMITED THAN COPYRIGHT IN THE
UNDERLYING WORK (MUSIC)
• NO GENERAL RIGHT OF PERFORMANCE
[PLAYING THE RECORD] §114(a)
– EXCEPT: DIGITAL AUDIO
• RECALL: ANY PUBLIC PERFORMANCE
WOULD INFRINGE THE COMPOSER’S
PERFORMANCE RIGHT
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COPYRIGHT IN SOUND
RECORDINGS
• SOUND RECORDING COPYRIGHT IS
LIMITED TO PREVENTING
MECHANICAL REPRODUCTION OF
THE RECORDING OR PORTIONS
THEREOF
§114(b)
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COMPULSORY LICENSE TO MAKE
SOUND RECORDING OF
ANOTHER’S WORK
• NORMALLY, RIGHT TO MAKE A SOUND
RECORDING IS KEPT FOR THE
COMPOSER [SEE §106(1): “TO
REPRODUCE THE …WORK IN …
PHONORECORDS.”]
• HOWEVER, ONCE SHE ALLOWS
SOMEONE TO MAKE AND DISTRIBUTE A
RECORDING IN U.S., THE FUTURE RIGHT
IS RESTRICTED
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• ANYONE ELSE CAN THEN PERFORM THE
WORK (PRIVATELY) AND RECORD HER
OWN PERFORMANCE §115(1),
• PROVIDED SHE
– GIVES NOTICE (BEFORE DISTRIBUTING;
W/IN 30 DA. OF MAKING); and
– NEGOTIATES A ROYALTY, OR HAS ONE
SET BY:
• AN ARBITRATOR
• AN ARBITRATION ROYALTY PANEL
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ARCHITECTURAL WORKS
• NOT AN INFRINGEMENT TO TAKE A
PICTURE OF IT, OR MAKE A
PAINTING, ETC. § 120
• [NOTE: BOTH WOULD NORMALLY
BE FORBIDDEN DERIVATIVE
WORKS]
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REMEDIES
• INJUNCTION §502
• DAMAGES §504(a), (b)
• AND D’s PROFITS §504(a), (b)
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REMEDIES
• IMPOUNDING
– DURING LITIGATION §503(a)
• DESTRUCTION
– AFTER TRIAL §503(b)
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STATUTORY DAMAGES
• STATUTORY DAMAGES ARE
AVAILABLE AS ALTERNATIVE TO
ACTUAL DAMAGES
• $750 – $30,000 PER WORK §504, 505
• HIGHER IF WILLFUL (TO $100,000)
• AVAILABLE ONLY IF PROMPT
REGISTRATION OCCURRED §412
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ATTORNEY FEES
• IN COURT’S DISCRETION, AS PART
OF “COSTS”
§ 505
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REGISTRATION
• IS NOW PERMISSIVE
• NEEDED FOR ATTORNEY FEES AND
STATUTORY DAMAGES §412
• NEEDED BEFORE SUIT CAN BE
COMMENCED §411
• NO OTHER MAJOR LEGAL
SIGNIFICANCE
• GREAT PRACTICAL SIGNIFICANCE
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OWNERSHIP
• INITIALLY IN THE “AUTHORS”
• FOR WORK MADE FOR HIRE, HIRER
IS THE AUTHOR
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WHAT IS A
“WORK MADE FOR HIRE”?
• A WORK:
– BY AN EMPLOYEE; OR
– BY WRITTEN COMMISSION, BUT ONLY
IF IN THE TEN CLASSES OF WORKS §101
– IN OTHER SITUATIONS, NEED A
SEPARATE ASSIGNMENT
• THE UNDERLYING CONTRACT TYPICALLY
PROVIDES FOR LATER EXECUTION OF
SUCH A DOCUMENT
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DURATION OF COPYRIGHT
• NORMALLY, LIFE OF AUTHOR + 70
YEARS §302(a)
• IF MULTIPLE AUTHORS, LAST TO
DIE + 70 YEARS §302(b)
• WORKS MADE FOR HIRE: 95 YEARS
FROM 1ST PUBLICATION OR 120
YEARS FROM CREATION [EARLIER
GOVERNS] §302(c)
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NOW YOU SEE IT, NOW YOU
DON’T:
REVOCATION/TERMINATION
OF COPYRIGHT
ASSIGNMENTS/LICENSES
• STATUTE CALLS IT “TERMINATION”
§203
• IT’S REALLY A STATUTORY RIGHT
TO RENEG
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• POWER OF TERMINATION EXISTS
AS TO LICENSES AS WELL
• DESPITE LICENSE TERMS
• NO REASONS NEEDED IN EITHER
CASE
• NO SUCH POWER OVER WORKS
MADE FOR HIRE
• DOES NOT APPLY TO COPYRIGHTS
LEFT TO LEGATEE BY A WILL
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TERMINATION RIGHT
• IS NOT PASSABLE BY WILL
• GOES TO PRESCRIBED RELATIVES
§203(a)(2)
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TERMINATION RIGHT:
(1) VERSION FOR OLDER
WORKS
• SEC. 304(c) – WORKS IN THEIR
SECOND 28-YEAR TERM AS OF 1978
• TERMINATION WINDOW: FIVE
YEARS
– BEGINS AT END OF 56TH YEAR OF
PROTECTION
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HOW IT WORKS
• APPLIES TO ANY ASSIGNMENT OR
LICENSE
• DOES NOT APPLY TO WORKS MADE
FOR HIRE [EMPLOYER IS
“AUTHOR”]
• TWO-YEAR NOTICE REQUIRED
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(2) FOR NEWER WORKS
• FOR WORKS CREATED AFTER 1977
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HOW IT WILL WORK
• OCCURS IN A WINDOW: 35-40 YRS.
AFTER THE GRANT* TO BE TERMINATED
• MUST GIVE NOTICE OF TERMINATION 210 YRS. BEFORE IT IS TO HAPPEN
• ∴ FOR A MINIMUM-NOTICE, MUST SERVE
BETW. 33-YR. POINT AND 38-YR. POINT
* = ASSIGNMENT OR LICENSE
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MORE ABOUT
TERMINATION
• TERMINATION RIGHT IS NOT
ASSIGNABLE AND CANNOT BE
CONTRACTED AWAY
• A GRANT NOTICED FOR
TERMINATION CANNOT BE
“RENEWED” UNTIL AFTER THE
TERMINATION HAPPENS §203(b)(4)
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