COPYRIGHTS PROF. JANICKE JULY 2010

CONSTITUTIONAL POWER

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ART. I, SEC. 8 (8): SCIENCE AUTHORS WRITINGS USEFUL ARTS INVENTORS DISCOVERIES

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KEYS TO PROTECTION:

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ORIGINALITY (i.e. NOT COPIED)

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WORK OF AUTHORSHIP

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FIXATION

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FIXATION REQUIREMENT

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

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MORE THAN TRANSITORY TIME ( § 101)

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HENCE, NOT COPYRIGHTED:

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MY CLASSES PASTOR’S UNWRITTEN SERMON

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WORKS COVERED

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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

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SOUND RECORDINGS (AS SEPARATE WORKS)

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RECORD USUALLY HAS MORE THAN ONE “WORK” ON IT:

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THE RECORDING WORK, AND THE UNDERLYING (E.G., MUSIC) WORK (WHICH COULD IN TURN BE BASED ON A POEM)

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THE ARRANGEMENT OF THE MUSIC

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

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SINGER, BAND, STUDIO ENGR.?

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USUALLY HANDLED BY CONTRACT

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WORKS COVERED

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ARCHITECTURAL WORKS

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GOVERNMENT WORKS

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NO COPYRIGHT IF IT IS CREATED BY GOVERNMENT ACTIVITY § 105

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

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ORIGINALITY REQUIREMENT ( § 102)

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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)

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EXAMPLE: TAKING A PHOTOGRAPH OF BUILDING

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

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WHAT IS NOT ENOUGH

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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

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THE CENTRAL DOCTRINE OF COPYRIGHT LAW ( § 102(b)) NO PROTECTION FOR IDEAS

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OTHERS CAN TAKE IT FREELY, USE IT IN THEIR OWN ORIGINAL WORKS ONLY PROTECTION IS FOR HOW YOU EXPRESS THE IDEA

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IDEA-EXPRESSION DICHOTOMY

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EXAMPLE: I WRITE A BOOK DESCRIBING AND DISCUSSING 10 PHYSICS EXPERIMENTS

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YOU CARRY OUT EACH EXPERIMENT TO THE LETTER -- NOT AN INFRINGEMENT

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YOU PHOTOCOPY THE BOOK – IS AN INFRINGEMENT

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COMPILATIONS

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

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PROTECTION EXTENDS ONLY TO THE SELECTION OR SEQUENCING ( § 103(b))

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DERIVATIVE WORKS

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PERHAPS THE MOST POWERFUL AND VALUABLE OF ALL COPYRIGHT RIGHTS

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THE TAKING FROM ORIG. MUST BE WITH PERMISSION [UNLESS WORK IS VERY OLD]

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EXAMPLES:

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SCREENPLAY FROM A BOOK (2 ©s)

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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

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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

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ARE DIVISIBLE FOR LICENSING OR ASSIGNMENT

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THERE ARE NO REDUNDANCIES

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>>>

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RIGHTS

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MAKE COPIES ( § 106(1)) CREATE DERIVATIVE WORKS ( § 106(2))

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VERY POWERFUL, ESP. WHEN INFRINGEMENT CLAIM FAILS

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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

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PERFORM THE WORK PUBLICLY § 106(4)

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DISPLAY THE WORK PUBLICLY § 106(5)

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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?

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SCRIPT FOR A PLAY PUBLIC PERFORMANCE IS INFRINGEMENT

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BUT, CARRYING OUT PHYSICS EXPERIMENTS IS NOT

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??? WHY

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“MORAL RIGHTS”

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WE HAVE THEM, IN COPYRIGHT LAW, ONLY FOR FINE ART WORKS

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PAINTING

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DRAWING

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200 NUMBERED PRINTS

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200 NUMBERED STILL PHOTO PRINTS

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200 NUMBERED SCULPTURE CASTINGS

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“MORAL RIGHTS”

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ATTRIBUTION § 106A (a)(1)

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INCLUDES RIGHT OF NON ATTRIBUTION IF IT’S NOT YOURS

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

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INTEGRITY § 106A (a)(3)

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DON’T CHANGE MY WORK

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“MORAL RIGHTS”

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ARE NOT ASSIGNABLE § 106A (e)

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TERM: LIFE § 106A(d)

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“MORAL RIGHTS”

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ARE BIG IN OTHER COUNTRIES IN U.S., PROTECTION BY COPYRIGHT LAW IS LIMITED TO WORK OF VISUAL ART

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PAINTINGS, DRAWINGS, PRINTS, SCULPTURES

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SINGLE, OR LIMITED EDITION OF 200 OR FEWER, SIGNED AND NUMBERED

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“MORAL RIGHTS”

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

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

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THE INFRINGING CONTENT:

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

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

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SUBJECT TO IMPORTANT LIMITATIONS, THE INFRINGING ACTS ARE:

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MAKING COPIES MAKING A DERIVATIVE WORK DISTRIBUTING COPIES PUBLICLY PERFORMING WORK PUBLICLY

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DISPLAYING WORK PUBLICLY § 106

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EXEMPTION - FAIR USE

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COULD BE FOR ANY TYPE OF WORK § 107

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

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THE FAIR-USE FACTORS:

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PURPOSE AND CHARACTER OF USE

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AN ALTRUISTIC OR SOCIALLY DESIRABLE PURPOSE HELPS BUT $$ DOESN’T CREATE PRESUMPTION OF UNFAIRNESS

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NATURE OF THE COPYRIGHTED WORK

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COPYING MORE LIKELY TO BE FAIR IF FROM A SCIENCE HYPOTHESIS THAN FROM A SCULPTURE

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THE FAIR-USE FACTORS:

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AMOUNT AND SUBSTANTIALITY OF THE PART TAKEN

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** IMPACT ON POTENTIAL MARKET FOR THE ORIGINAL WORK

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THE MOST IMPORTANT FACTOR BY FAR, IN ACTUAL PRACTICE

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

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ORIGINAL EXPRESSION IN A BOOK BY OR ABOUT A FAMOUS PERSON IS ENTITLED TO FULL PROTECTION

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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

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

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MUST TAKE SOME OF TARGET, TO IDENTIFY IT

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TAKING EXCESSIVE AMOUNT IS APT TO BE NOT FAIR Fisher v. Dees, 794 F. 2d 432 (9 th Cir. 1986)

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EXEMPTION: LIBRARIES

§

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CAN MAKE 1-3 COPIES FOR CERTAIN NONCOMMERCIAL PURPOSES (REPLACEMENT OF DAMAGED COPY; ARCHIVAL; ETC.) 108

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NO GENERAL EXEMPTION FOR LIBRARIES

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EXEMPTION: RIGHT TO SELL YOUR OWN COPY

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APPLIES TO A LAWFUL COPY § 109(a)

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

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

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EXEMPTION: CERTAIN PUBLIC PERFORMANCES

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CLASSROOM PERFORMANCES § 110(1)

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ANY WORK TRANSMISSIONS BY GOVT. OR NONPROFIT EDUCATION ORG. § 110(2)

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NONDRAMATIC ONLY

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RECEIVED IN CLASSROOM OR HANDICAPPED SPACE

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EXEMPTION: CERTAIN PUBLIC PERFORMANCES

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FOR CHURCH SERVICES

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WITH RESTRICTIONS § 110(3)

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EXEMPTION:CERTAIN NONPROFIT PERFORMANCES

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LITERARY OR MUSICAL WORK

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DRAMATIC OR NONDRAMATIC WORKS

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CONDITIONS:

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FREE ADMISSION NO $$ TO PERFORMERS OR ORGANIZERS; NET PROCEEDS TO CHARITY

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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

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PLAYING RADIO AND TV BROADCASTS IN STORES, RESTAURANTS, BARS

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CAN’T HAVE ANY CHARGE FOR THE TRANSMISSION MUST HAVE “PRIVATE HOMES” TYPE GEAR

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MAY BE RESTRICTED TO NON-MUSICAL § 110(5)(A) WORKS [UNCLEAR TODAY]

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EXEMPTION: RADIO/TV MUSIC WITHIN SMALL BUSINESSES, BUT WITH [SLIGHTLY] BIGGER EQMT.

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MUSIC ONLY – NOT SPORTS

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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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OTHER EXEMPTIONS:

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STATE FAIRS § 110(6)

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PLAYING MUSIC (LIVE OR RECORDED) IN MUSIC STORES 110(7)

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MANY OTHERS, FOR SPECIAL GROUPS, WITH LIMITS

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EXEMPTION: BACKUP TAPES, ETC.

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TV OR RADIO OR CABLE TRANSMITTERS

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INTERNAL USE ONLY § 112

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EXEMPTION: CERTAIN ACTS RE. COMPUTER PROGRAMS

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NOT AN INFRINGEMENT TO:

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MAKE A COPY IN ORDER TO USE THE PROGRAM

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MAKE AN ARCHIVAL COPY § 117(a)

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INCORPORATING THE WORK INTO A USEFUL ARTICLE

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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

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MORE LIMITED THAN COPYRIGHT IN THE UNDERLYING WORK (MUSIC) NO RIGHT TO PROHIBIT PERFORMANCE [BY PLAYING THE RECORD] § 114(a)

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EXCEPT: DIGITAL AUDIO RECALL: ANY PUBLIC PERFORMANCE [PLAYING THE RECORD] WOULD INFRINGE THE

COMPOSER’S

PERFORMANCE RIGHT

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COPYRIGHT IN SOUND RECORDINGS

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SOUND RECORDING COPYRIGHT IS LIMITED TO PREVENTING MECHANICAL REPRODUCTION OF THE RECORDING OR PORTIONS THEREOF IMITATING OF STYLE IS NOT AN INFRINGEMENT OF SOUND RECORDING COPYRIGHT § 114(b)

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COMPULSORY LICENSE TO MAKE SOUND RECORDING OF ANOTHER’S WORK

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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) ,

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PROVIDED SHE

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GIVES NOTICE (BEFORE DISTRIBUTING; W/IN 30 DA. OF MAKING); and

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NEGOTIATES A ROYALTY, OR HAS ONE SET BY:

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AN ARBITRATOR A ROYALTY ARBITRATION PANEL

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ARCHITECTURAL WORKS

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

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[NOTE: BOTH WOULD NORMALLY BE FORBIDDEN DERIVATIVE WORKS]

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REMEDIES

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INJUNCTION § 502

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DAMAGES § 504(a), (b)

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AND

D’s PROFITS § 504(a), (b)

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REMEDIES

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IMPOUNDING

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DURING LITIGATION § 503(a)

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DESTRUCTION

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AFTER TRIAL § 503(b)

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STATUTORY DAMAGES

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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

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IN COURT’S DISCRETION, AS PART OF “COSTS” § 505

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REGISTRATION

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IS NOW PERMISSIVE NEEDED FOR ATTORNEY FEES AND STATUTORY DAMAGES § 412

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NEEDED BEFORE SUIT CAN BE COMMENCED § 411

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NO OTHER MAJOR LEGAL SIGNIFICANCE

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GREAT PRACTICAL SIGNIFICANCE

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OWNERSHIP

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INITIALLY IS IN THE “AUTHORS”

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FOR WORK MADE FOR HIRE, HIRER IS THE AUTHOR

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>>>

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WHAT IS A “WORK MADE FOR HIRE”?

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A WORK:

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BY AN EMPLOYEE; OR BY WRITTEN COMMISSION, BUT ONLY IF IN THE TEN CLASSES OF WORKS § 101

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IN OTHER SITUATIONS, NEED A SEPARATE ASSIGNMENT

• THE UNDERLYING CONTRACT TYPICALLY PROVIDES FOR LATER EXECUTION OF SUCH A DOCUMENT Copyrights 56 2010

DURATION OF COPYRIGHT

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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 1 ST 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

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STATUTE CALLS IT “TERMINATION” § 203 IT’S REALLY A STATUTORY RIGHT TO RENEGE ON AN AGREEMENT

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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

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TERMINATION RIGHT

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IS NOT PASSABLE BY WILL

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GOES TO PRESCRIBED RELATIVES § 203(a)(2)

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TERMINATION RIGHT: (1) VERSION FOR OLDER WORKS

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SEC. 304(c) – WORKS IN THEIR SECOND 28-YEAR TERM AS OF 1978 TERM WAS EXTENDED BY CONGRESS THE TERMINATION WINDOW IS: FIVE YEARS

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BEGINS AT END OF 56 TH YEAR OF PROTECTION; 2 YEARS NOTICE NEEDED

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(2) FOR NEWER WORKS

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FOR WORKS CREATED AFTER 1977

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HOW IT WILL WORK

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OCCURS IN A WINDOW: 35-40 YRS. AFTER THE GRANT* TO BE TERMINATED

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

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FOR EARLIEST POSSIBLE TERMINATION, MUST SERVE NOTICE BETW. 25 AND 33-YRS. AFTER GRANT * = ASSIGNMENT OR LICENSE

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MORE ABOUT TERMINATION

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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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