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Copyright Outline Prof. Harrison
Overall goal of copyright regime: Art I, Sec. 8 of Constitution: “to promote the progress of the useful arts by securing for limited times the exclusive right to their respective writings”
- goal of economic incentive in form of monopoly right given for limited time
- Natural Law theory- person’s moral right to reap the fruits of his own labor, because the author created it, he should have the right to control it
- Utilitarian- copyright law as an incentive system designed to produce optimal quantity of works, thus enhancing the public welfare. (affirmed in Mazer v. Stein- to encourage individual effort through personal gain.
Copyright Law Development: Common Law ©- state laws which often confer © at time of writing (since 1906 only copyrighted at publication) 1909 Act- published works Common Law Copyright- unpublished works (until 76) 1976 Act…the focus of this course Sonny Bono Extension of 1998- Eldred v. Ashcroft SC approved congress’ power to regulate copyright, including the ability to lengthen time limits
Pre-76 Lack of Notice: would forfeit if published w/o notice can be cured by 405 within 5 years of the error
Subject Matter of ©
102(a) “…original works of authorship fixed in any tangible medium of expression…” (b) denies protection to any “idea, procedure, process, system, method of operation, concept, principle, or discovery…” Copyright springs into existence when both of these occur…
FIXATION 101- “fixed” work in tangible medium of expression when its embodiment in a copy or phonorecord, or by authority of the author in a sufficiently permanent or stable to be perceived, reproduced, otherwise communicated for more than a period of time of a transitory duration.
- Must take a physical form that must have a more or less permanent endurance.
- mere performance of a work (say improv) cannot be copyrighted merely by performance
- the Constitution calls for “Writings” so this is the natural extension of that language
- SOUNDS are fixed on PHONORECORDS
- EVERYTHING ELSE is fixed in COPIES
Common Law Copyright- unfixed works…
- Hemingway v. Random House- reporter conducted interviews with Ernest Hemingway, wrote down quotes, and wrote a book. Hemingway’s estate sued, lost. - The speaker should at least mark off the utterance from common speech to demonstrate that he meant to adopt it as a unique statement and control its publication.
- MLK Speech
- advanced copies were distributed to the media, question was whether speech was in public domain because of general publication…
- if limited publication- no (say distribution to news media)
- if general publication yes (tangible copies distributed to general public which allows general public to control, or displayed in a way to permit unrestricted copying
- Performance does NOT equal publication!!
- remanded to determine outcome
ORIGINAL WORKS OF AUTHORSHIP
Authorship
- “author” is anything that to whom owes its^ Originality; originator; maker.^ (Burrow Giles Lithographic v. Sarony) - requires human authorship- aided by machine is OK, but if machine randomly creates, it is not…
- Original authorship presumes independent creation , the author must at least add a minimal amount of creativity to be an author.
- NO ASTHETIC STANDARD: Copyright applies without artistic merit! It is not up for the law to be the judges of what gets protection and what doesn’t based on artistic merit. Aesthetic value is not an issue! (Bleistein v. Donaldson Lithographing Co.- the circus posters case, © also extends to advertisements the same as fine art, so long as the requirements are met)
Originality
- De Minimis Standard:
- (^) “independent creation plus a modicum of creativity” (Feist- facts not ©) ■ Feist constitutionalized originality
- No novelty required (this is not patent law) (Alfred Bell v. Catalda Fine Arts- mezzotint engraving technique – more than trivial variation (includes accidental works)) - Italian Book Co v Rossi- Sicilian sailor wrote a song using a large part of old Sicilian folk songs in public domain, his song was then copied, court held that infringed the © of sailor to copy his song, even if part came from public domain, his expression
- Independent creations- that are exactly the same both have © protection if they are completely independently created!
CATEGORIES OF COPYRIGHTABLE SUBJECT MATTER
102(a): literary works; musical works, including words; dramatic works, including music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and a/v works; sound recordings; and architectural works. 103- compilations and derivative works also copyrightable works can fall into more than one category… Literary Works-
- expressed in words or numbers, or other verbal or numerical symbols or idicia, regardless of the nature of the material objects
- goes beyond mere “literature”, includes computer programs, since it is essentially instructions to your computer to bring about a certain result. Musical Works (including accompanying words)
- distinction bw music and sound recordings- a recording would be both the musician’s copyright and possibly the recorder’s as well Dramatic Works (including accompanying music)- often overlaps with literary work Pantomimes and Choreography- often overlaps with dramatic works Pictorial, Graphic, and Sculptural- important distinction when talking about pictures on useful articles-
aesthetic feature must be physical severability (SEE BELOW!!)
- Unlike derivative works, the author does not recast, reform, or change the underlying materials, but instead compiles or assembles them in his own manner
- (^) Collecting, Assembling, Selecting.
- Facts NOT Copyrightable! Facts simply exist, there is no reward for discovering them.
- Copyright extends only to author’s judgment in selecting and arranging the included materials or data.
- Feist Pubs v. Rural Telephone -
- no sweat of the brow doctrine!
- protection of compilations does NOT extend to the facts within…only creative the selection and arrangement of them.
- Chinatown Directory- makes no difference what percentage or how many facts are taken from plaintiff’s work so long as the compilation doesn’t appropriate the selection or arrangement of the prior work (Here, Chinese business directory did not infringe the general business directory that it took from.)
- Yellow Pages- yellowpages classifications are too obvious, typical, and commonplace. (ex- dividing churches by denomination isn’t copyrightable originality)
- Originality in Selection: if the data is selected in an original way, then the arrangement can be commonplace! (ie Chinese directory is commonplace like a phonebook, but the selection is original)
- Originality in Arrangement: if arrangement is original (say a pitching performance chart) and isn’t obvious and mechanical. Of course highly specialized arrangements are of little value and thus if they are that unique there is often little issue as to whether they are copyrightable because no one else will care!
- Computer Databases: automated databases are compilations! but there have been problems
- Mathew Bender v West Pub – West star pagination not protected because not arrangement/selection, just result of book form, to show where the real pages begin and end, not expression. More taste-infused judgment is more protected. Courts are trying to hold onto the “sweat of the brow” concept via “compilation of ideas”
Collective Works - a work such as a periodical issue, anthology, or encyclopedia in which a number of contributions constituting separate and independent works in themselves, are assembled into a collective whole. 101.
- A species of compilation, but different, in that Collective work is copyrightable for its selection and arrangement and editing, and any original works contained within, however, the copyright in the included materials which are independent works themselves to the collective work is held by the original author ONLY.
- 201(c) guarantees individual contributors to the collective work retain the copyrights in their works, absent a written statement stating the contrary.
- The author of a collective work has the express revision and reproduction right to the work, meaning he can edit and reissue later editions.
- Problem: Tasini v. NY Times – freelance authors sued for placing their articles on online databases. - SC said that republishing of the articles online was NOT a “revision”, but instead a separate exploitation, and the authors were due their royalty - in order for it to be a revision, the articles cannot be individually disembodied from the overall work. - SC said ok if it appeared in its “original context” - Problem largely eradicated now because of smarter contract drafting! (but problem persists for a few years worth of articles!
Non-Copyrigtable Subject Matter - idea/expression dichotomy
102b- 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.
- Once the author reveals his work to the public, he injects his IDEA into the public domain and only controls the FORM in which the idea is expressed!
- Copyright doesn’t limit others from using ideas or info revealed in a work, since ideas, discoveries, info, etc are freely accessible by the public, and to confer property status upon them would hinder, rather than promote “the progress of the useful arts”, undermining the philosophy of copyright.
- once an abstract idea is revealed to the public, it is of no consequence how much the author expended to get it.
IDEA vs EXPRESSION
- Functional Works are limited! This is so that there is not a de facto monopoly over the utilitarian aspects of the work. - Baker v. Selden (1879)- accounting ledger not ©. SC said that ledger was utilitarian object, not expressive work. Court said monopolies over systems or processes should be extremely hard to obtain (and that’s what patent is for!). Patents last a short time, whereas copyright lasts a very long time!
- MERGER DOCTRINE - (baker) Where the use of an idea requires the copying of the work itself, such copying will not constitute infringement! (so in Baker, the idea of the accounting ledgers could not be used without using the actual ledgers themselves) - i.e.- If the underlying idea (or system, process, operation) can effectively be expressed in only ONE way, the idea and expression are said to have MERGED! - idea and expression are inseparable- you have copyright problems - Morrissey v. Procter & Gamble- contest instructions were allowed to be verbatim copied because there existed a very limited number of ways to express this. Copyrighting would exhaust all future contests! - Herbert Rosenthal Jewelry v. Kalpakian- bee shaped pin is not copyrightable, since it would confer a monopoly upon them. - such things like the keys on keyboard, menus on front of VCR, menus at top of program are not copyrightable.
Tests for Useful Articles :
- Physically separate
- conceptually separate (belt buckle, actually operates as an aesthetic object to some)
- perception test- does one perceive it as physically separate? (can be regardless of intertwining of form and function!)
- process test (in process of making it)- did you make something useful and anything artistic was bounded by the usefulness, or did you make something artistic using something utilitarian?
- Mazer v. Stein (1954) Balinese dancer statuettes used for bases of table lamps were copyrightable as to their FORM, but not their function - can copyright form but NOT mechanical/utilitarian features
■ L Hand did a thorough comparison of two plots (jewish and catholic marrying etc) ■ (^) as for plot, there are so many ways to write a story, when the things occur in such a way that is the same as another work, it appears that it was copied ■ two aspects of character protection
- he infringed character must be sufficiently delineated
- infringing character must closely imitate the infringed character
- Abstractions: the line must be clearly drawn between mere ideas sketching the general nature of the character, and more fully developed characterization! (or sketching of plot, and more developed plot, etc) very much a you know it when you see it test…
- Seldon v MGM- story and play book. death scene very similar, and there are many ways to portray a death scene, so Hand thinks it was copied. historical research
- Nash v CBS- if a historian holds out the events as a factual matter, even if they are hypothetical, or even made up. (CBS took Nash’s theory about the killing of John Dillinger, and made a series about it, not infringement)
- Copyright in Computer Programs
- Apple Computer v. Franklin Computer- Franklin copied Apple OS to make apple compatible pc, allowing apple progs to be used on Franklin pc. copyright in Operating system even though lower court found it as system/process because instructions were protected – software copyrights here to stay! ■ Copyright exists in Computer Program expressed in Code: 102 says that computer progs are literary works, even though unintelligible to the average person, the computer understands! ■ ROM sufficient for fixation! ■ court rejects merger argument- will not allow to capture and idea when there is only one way, or limited ways to express
Infringement
Elements
- (1) Ownership of Valid copyright in the work
- (2) copying by the defendant
- (3) defendant’s copying constitutes “improper appropriation”
What is “Copying”?
- proved through circumstantial evidence of access and probative similarity
- thus, if defendant had access to the plaintiff’s work and the defendant’s work appears to have made use of the plaintiff’s work, there is high probability that the D copied.
- Access and Similarity: ■ no amount of proof of access will suffice to show copying if there is no similarity (arnstein)
- Similarity:
- Substantial similarity - (esp 9th^ Cir)- when copying isn’t really an issue, but whether the two works are similar to prove improper appropriation
- Probative Similarity - similarities referring to indirect copying
- Access
- defendant had reasonable opportunity to view or copy the work (reasonability of access)
■ can be inferred from situations, work was in poss of 3d pty, ptys did business before, work avail to employees, etc ■ (^) however, possibility of access is not enough to make a circumstantial case
- Subconscious Copying: ■ George Harrison Case: claimed George Harrison copied a popular song he heard at a concert, Harrison denied copying, court found access because of its popularity ■ Michael Bolton Case: subconscious copying, Bolton was a fan growing up of the music group he copied, inferred access
- Striking Similarity to Infer Access: plaintiff must show similarities that could only be explained by copying rather than by coincidence, independent creation, or use of a prior common source. ■ (^) however, when the works are similar but resemble commonplace or trite sources, this doesn’t work
IMPROPER APPROPRIATION:
- Substantial Similarity
- defendant copied substantial amount of the protectable elements of the plaintiff’s copyrighted work as to render the two substantially similar (obviously requires access)
- must be a substantial and material taking, can be established in two ways:
- Verbatim Similarity ■ required for “near’ public domain materials ■ (^) even copying one sentence can be copying, depending on the sentence taken
- Pattern Similarity ■ paraphrasing in same overall pattern not ok! even if no showing of verbatim or literal copying. ■ this keeps the “clever plagiarist” from carefully paraphrasing works and taking off with them. ■ ultimate issue: whether defendant has appropriated the author’s copyrightable ■ Abstractions Test (Defining Pattern Similarity) - Nichols v Universal (Hand compared the plots and characters, having a similar plot line, similar characters is not infringement, so long as there are differences, but if things start to mirror each other too much problems) - stock characters can be copied, and the ideas of characters are not copyrightable, only the specific expression of them! (A superhero that flies and wears a cape isn’t copyrightable, but perhaps one with every detail of superman is…MAYBE) - There come a point where defendant’s use of the general theme combines with similarities in details, scenes, sequence of events, characterization, and interplay of characters to constitute infringement. - (^) Test is a continuum with pure idea at one end and pure expression at the other. As the idea travels along the continuum, it gathers concrete detail and becomes more complex. No longer a vague set of generalities, it cannot be summed up in a few words. A taking at this point is a taking of the author’s expression. - Sheldon v MGM- (also Hand) there are only a certain number of ways to eastablish a plot, so general plot lines are not copyrightable, however, when you get down to the same sequence of events in a death scene,
- problem: this can lead the jury to find copying in works legitimately independently created! Also, jury might not distinguish between copying of idea vs expression
- (^) Arnstein v. Porter – ■ bifurcated approach: - (1) whether there was copying - jury examines work in detail, dissecting them as to protectable and unpredictable parts- IDEAS AND EXPRESSION are fair game, thus harder to get to the next step - expert testimony can be used in this step - (2) if copying, improper appropriation? - ordinary observer test to determine improper appropriation - however, “audience” refers to a group of people with specific tastes, skills, or knowledge as compared to the lay observer. (sometimes you look at from lay observer view, but it all depends on the type of work at issue)
- Intrinsic/ Extrinsic Test (9 th^ Circuit):
- Extrinsic- jury compares the works for similarity of ideas ONLY. similar to arnstein of analytical dissection and use of experts
- Intrinsic - expression decided by ordinary observer test and total concept and feel, meaning more emphasis on the expressive elements
- Copyright in Computer Programs
- Computer Associates v Altai (2d)- non-literal elements of a computer program ■ abstractions- how much of this is even ©?
- word processor- wp that records, formats, communications w/ printer- hell no
- breaks down to “if this then this if this then this” ■ Harrison thinks this is more a useful articles question… ■ TEST: ABSTRACTIONFILTRATIONCOMPARISON - (^) Abstraction: each task has subtasks, etc. when you get down to the source code, which is what really matters, THAT is what is ©! Everything above it is kinda like the plot line, general descriptions of characters in a play! The source code is the dialogue of the play…but you must still filter out things that arnt “dialogue” - Filtration: - filter out things that are there for efficiency - filter out that which is required for the medium you are working in - filter out what is in public domain - (^) Comparison - after filtering, compare the two programs and see if they infringe!
- Lotus v. Borland- menu command hierarchy not © ■ ct doesn’t care how creative you are, this is a method of operation , no need to look to see if it has original elements or not ■ there is no severability ■ if it was © then every program would have to have its own hierarchy, which would just be unworkable and ridiculous! Would be like every typewriter having to arrange its keys differently!
Sound Recordings
- there is a separate interest n the act of sound recordings
- someone writes a song and records it
- (^) you can copy their actual words in your own way (more than just covering)
- you can sample it (written and recording)
- Bridgeport- small snip of George Clinton song taken and played over and over
- no need for similarity test since it’s the actual and SAME THING!
- PER SE RULE AGAINST TAKING ANY PORTION OF SOUND RECORDING W/O PERMISSION! Performance Rights
- Fortnightly- licensee of movie said cable co picked up TV signal movie was licensed to and broadcast it, violating its performance rights!
- no violation, if you are watching someone perform it’s a violation
- (^) Aiken- shops with radio on, calling it performance would be creating a law impossible to enforce! shops do it all over the country- reasonable standard that allows for reasonable use for non directly commercial purpose
- 110- limitation on exclusive rights, teaching or non profit edu classrooms ok
- subsection 3- religious nature ok
- subsection 5- no violation for communication of transmission of tv, radio, on SINGLE receiving apparatus commonly used in private rooms, unless you charge for it!
Contributory infringement (betamax, grokster)
- Contributory infringement: A held liable for B’s infringement if defendant has actively induced the infringement, or with knowledge of the infringement, supplied the means to infringe
- Betamax case: SC held that Sony was not liable of contributory infringement for off-air taping of live TV - two non-infringing uses: - authorized time shifting - unauthorized time shifting for later use in the home- fair use - the VCRs were not made for the purpose of infringing, and had many non-infringing uses, thus Sony’s participation was less (same way Xerox isn’t liable because there are many non-infringing uses for copy machines)
- Napster (9 th^ 2001) the direct infringers were the individuals who uploaded and downloaded, however, the court found Napster liable because it operated a centralized indexing system listing all the files available for download! Done with the knowledge and participation of Napster
- Aimster (7 th^ 2003)- revised Sony test that would permit service provider to avoid liability if it demonstrates actual, not merely potential, non-infringing uses of its service. aimster violated still
- MGM v. Grokster - (2005)
- SC held that file-sharing co’s might be liable for infringement if their products ENCOURAGE consumers to illegally swap copyrighted works.
- Grokster didn’t have a centralized file index like Napster did, once they distributed their software, they had no further way to control its use!
- To this, the Court said one who distributes a device with the object of promoting its use to infringe ©, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting infringement by third parties!
- (^) Grokster promoted its software for its infringing use, offered itself as a substitute for Napster, made no attempt to filter out copyrighted material,
- Universal City Studios v Crowley – company published a print magazine and maintained a website geared towards hackers. Company posted on website a copy of the computer
Sec 107 factors- for uses of criticism, comment, news reporting, teaching (including mult. copies for classroom use, scholarship, or research… and then apply factors
- (^) Purpose and Character of the Use, including whether commercial or non-profit
- Nature of the Copyrighted Work
- Amount of the Copyrighted Work used in relation to the original as a whole
- Effect upon the potential market for copyrighted work The protected uses are :
- PRODUCTIVE AND TRANSFORMATIVE!
- add value by creating new information, aesthetics, insights, understandings
- non-productive use (reproductive use)- copies material for the same intrinsic purpose for which the copyright owner intended it to be used PURPOSE AND CHARACTER OF USE
- (^) non-profit uses more likely to be fair use than commercial, less inclined to harm market
- not a license for corporate theft!- presumption against commercial use NATURE OF © WORK
- fair use privilege more extensive for works of information (scientific, biography, historical works) than for works of entertainment
- unpublished works have greater protection, but unpublished isn’t a bar to fair use! AMOUNT USED
- whether the infringer took more than is reasonably necessary
- excessive copying not commensurate with the purpose of the use loses the privilege of fair use
- even small takings can infringe if the essence of work is taken (Harper&Row) EFFECT ON MARKET
- if the market for the © owner’s work is harmed, incentives for creativity that the © monopoly is designed to encourage wont work!
- incentives are most threatened when infringing use tends to diminish the potential sale of the work, tends to interfere with marketability, or fulfills the demand for the original
- Thumbnails of images did not take away the market, since they did not supersede the need for full-sized originals, and directed people where they could buy them! Served entirely different function.
- Harm is potential, not actual
SC handling of 107-
- Betamax- time shifting was fair use [exception to the protected uses in 107, meaning they aren’t exclusive?!] - purpose- reproductive use, but non commercial and non profit seeking - nature of work- depended on the program, but many were very protected works - amount copied was entire work - but undercutting all this was the fact that it was broadcast for FREE to the viewers, so it affected the potential market by ZERO!
- Harper & Row v Nation- even favored use like news reporting cannot trump fair use where other factors weigh heavily in other direction - Nation magazine got stolen copy of President Fords autobiography before publication, and printed verbatim quotations of about 300 words (of a 200,000 word book). As a result, Time canceled its agreement to print excerpts, COURT SAID NO FAIR USE! ■ Purpose: news reporting (favored) but also commercial (to sell more mags!) ■ Nature of work- factual work (less protected) ■ Amount copied: but portion taken was “heart of the book” and didn’t need to take the protected expression since it was facts
■ Market harm- specific harm, loss of prepublication licensing revenue from Time
- Campbell v. Acuff-Rose Music (pretty woman case)- Parody is a fair use!
- (^) changed lyrics of Pretty Woman ■ Parody Fair Use- a parody must take some of orginal to make its point. Parody is a transformative use, meaning defendants added independent creative material to it - Nature of work: highly protected creative work - amount taken- no more than necessary to make commentary - market harm- n/a! even a scathing parody, like a scathing theater review, cannot produce harm recognizable for © infringement! - HOWEVER, verbatim copying in entirety for commercial purposes has a presumptive market harm!
photocopying
- Texaco- infringement to photocopy articles for their records, should buy journals, not transformative use!
- CoursePacks- course materials to students by copying service NOT fair use, fourth factor clearly favored the plaintiff
educational use, CCC- you can pay for the use now to CCC Parody (see acuff rose above)
- (^) transformative use
- also acts as criticism
- taking no more than necessary for the favored use
- not making use of a specific market that the copyright owner would have exploited Extent of Commercial Exploitation Non-commercial commercial Public benefit of the use Productive (transformative)
Strongest cases for fair use
Hard cases- parody
Reproductive Hard cases- betamax Weakest case for fair use
Ownership of Copyright
201(b)- work for hire- employer or other person fr whom work was prepared is considered the author, unless the parties have expressly agreed otherwise in a signed written instrument 101- work for hire = (1) work prepared by employee within the scope of employment OR (2) a work specially ordered for use as a contribution to a collective work if parties agree in written instrument signed saying it is a work for hire, such as movie, translation, supplemental work, a/v work, instructional text, test, answer material to test, atlas.
works for hire
- initial ownership vests in the employer, who is considered the author of the work
- works for hire © protection for 95 years from publication, or 120 years from creation, whichever is LESS! (302c)
- when work is created by employee within scope of employment, presumed to be made for hire unless agreed otherwise
Duration/Renewal/Termination
Terms through the acts 1909- gave 28 year period followed by another renewable 28 year period 1976- life plus 50 (98 sony bono act extended to life plus 70; and extended 1909 act works second term from 47 to 67 years
Date of protection Nature of term Length of term Works published before 1923
n/a n/a Work now in public domain
Published 1923-
When published w/ notice
Dual term 28 year first term Renewal term of 67 years but only if renewal was properly obtained Published 1964-
When published w/ notice
Dual term 28 year first term Automatic renewal term of 67 years (renewal registration optional, but incentives attach to renewal registration Created but not published before 1/1/
Fed. protection began 1/1/
unitary Basic Term: Life of author plus 70 Alternative term for anonymous, or work for hire: 95 years from publication or 120 years from creation, whichever less -If work remains unpublished by 12/31/2002, ‘78 standard. -if work published before 1/12/2003 then expires 12/31/ Created on or after 1978
Work fixed in a tangible medium of expression
Unitary Basic Term: Life of author plus 70 Alternative term for anonymous, or work for hire: 95 years from publication or 120 years from creation, whichever less
Eldred v. Ashcroft, SC said extension ok, SC said it would defer to Congress in copyright matters!
renewal/termination of derivative works (stewart v abend) What happens when a license to make a derivative work for the first term exceeds the original work’s first term?
- Stewart v Abend (1990)- author of short story assigned movie rights to a production company, along with the movie rights in the renewal term. A movie was made by Jimmy Stewart and Hitchcock, “Rear Window.” The author died in 1968 before he could renew his ©, and in 1969 executor of author’s estate renewed the copyright and assigned the renewal term to Abend. On the re-release of the movie, Abend sued for © infringement, claiming the right to use the film version terminated with author died before renewing ©.
- SC HELD (OConner) when the grant of rights in the preexisting work lapses, the right to use parts of it in the derivative work ceases, and its continued work will infringe the preexisting work! (HELD FOR ABEND)
- you can’t license what you don’t yet own! author died before the renewal, and you don’t have ANY right to the second renewal period unless you actually renew. Since the rights passed to the heirs before the renewal took place, they were under no obligation to honor the prior agreement!!
- derivative work author still owns the original elements added to the underlying work and continue to use those as he wishes, unless it would infringe the underlying work.
TERMINATION RIGHTS
Copyright grants are terminable after a certain period of time…unwaivable right, serves much the same purpose as the renewal term of the 1909 act
- a paternalistic approach, to benefit authors that sold their rights and then missed out on a great windfall when the work gained popularity
- allows author and family a second chance to reap the benefits
- in both cases, Congress made sure that the authors had the first chance at the windfall, not the licensees
- termination effected by WRITTEN and signed notice on grantee or successor, with copy of notice filed with © office.
- HOWEVER, derivative works prepared BEFORE the termination may continue to be exploited under the terms of the grant! (doesn’t negatively affect Abend, this is different issue)
304(c-d)- Works in their Second Renewal as of 1978
- 304(c) allows author or successors to terminate transfers made before 78 in order to recover the 39 years of the extended renewal term (19+20)
- 304(d) allows author or successors to terminate transfers who did not exercise their 304(c) rights, but still could get 20 years back (added in 1998 sonny bono amendment) - can only be used if the termination rights under 304(c) expired before the effective date of 1998 amendments
203 - transfers made on or after 1/1/78, may be done ONLY during 5 year window starting at the end of 35 years from the date of execution of the grant [2013- first year this will even be an issue! after 35 years you can et back your assignment.]
Exclusive Rights
Reproduction Right
- owner of © has sole right to make copies of the copyrighted work 106(1)
- copies are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, directly or with the aid of a machine or device ■ a saved copy of a poem on a disk is still a copy of the poem, even if a person cant look at a disk directly and see a poem!
- defendant can infringe reproduction right by making a copy and not distributing it! (would be hard to know that though)
• ONCE THE WORK IS LAWFULLY SOLD OR TRANSFERRED, THE ©
OWNER’S INTEREST IN THE MATERIAL OBJECT IS EXHAUSTED! THE
OWNER OF THAT COPY CAN DISPOSE OF IT AS HE SEES FIT!
- Greeting Cards on Ceramic Plates- transferred designs to plates, sold commercially ■ ct held immunized by first sale doctrine, reproduction and adaptation rights not infringed!
- IMPORTING anything that violates a copyright into the US is a violation by section 501!!! Quality King Distributors v L’anza- SC case!!
Performance Right
- 106(4)- literary, musical, dramatic, and choreographic works, pantomimes, and other AV works have the exclusive right to perform the work publicly
- © owner can control ONLY Public performances of the work!
- SC held that cable retransmission of TV signals was not infringing performance right(broadcast for free anyways!)
UNFORSEEN USES
- Boosey & Hawkes: fantasia music now public domain in US for failure to follow formalities. Contract said “any manner, medium, or form” which Disney claims includes home video format. Was small home video market at the time and the reservation clause didn’t say no videotapes, and still in same “medium” so Disney can keep using it. Maybe court wrong because said publicly perform, which doesn’t sound like VCRs. Canons –grant should be construed against grantor and contract should be construed against draftor and matter/medium/ form is very broad. Would have settled it out (Coase) if court went the other way.
- Tasini (see elsewhere)
MORAL RIGHTS
- Right of Integrity- right that the work not be mutilated or distorted
- Right of Paternity- right to be acknowledged as author of the work
- Gilliam v ABC (Monty Python Case)- ABC obtained license to air Monty Python episodes, but edited them down - court held that plaintiff’s right to prevent the distortion of his work was protected under both the © act and unfair competition - violated the plaintiff’s adaption right, and violated Lanham Act 43(a) because the abridged version constituted a false designation of origin by deforming the work and presenting plaintiff as author of a work not his own…
- Lanham Act 43(a)
- Passing Off- one author places another author’s name on the work (as ABC did when it misrepresented that origin of the edited Monty Python show)
- “Reverse Passing Off”- author takes credit for another author’s work (civil plagiarism)
- (^) Dastar v. 20 th^ Century Fox- (2003) – defendant took public domain TV show and repackaged it without attribution to original author, def sued under 43(a) - SC held that phrase “designation of origin” refers only to the source of tangible goods and not to the originator of ideas or creative works contained in those goods - ALLOWS COPYING AND DISTRIBUTION WITHOUT ATTRIBUTION OF EXPIRED © WORKS!
- VARA- Visual Artists Rights Act (106A)
- (^) confined to the protection of works of fine art!!!
■ includes works in a single copy to those number NO MORE THAN 200 copies!
- What’s NOT included: ■ (^) poster, map, globe, chart, technical drawing, diagram, model, applied art, movie or AV work, book, magazine, newspaper, periodical, database, electronic info service or publication ■ any mechanizing item or advertising, promotional, descriptive, covering, or packaging material or container ■ WORKS FOR HIRE DO NOT COUNT!! - Carter v. Helmsley-Spear – large walk-through sculpture as part of a building lobby was not work for hire thus would violate VARA to remove it! But 2 nd^ Cir reversed on appeal, holding that it was a work for hire and thus could be mutilated and removed!! - plants from Chicago city park not considered fixed medium
- museum would be liable under VARA if it failed to ID the creator of a work or if it intentionally destroyed it!
- site specific works are not protected under VARA
- RIGHTS UNDER VARA: ■ Attribution Right: - right to claim authorship - (^) prevent the use of name as author of any visual work author did not create - prevent use of name as author of the work in the event of distortion, mutilation, or other modification of the work that would be prejudicial to author’s honor or reputation ■ Integrity Right - prevent any intentional distortion, mutilation, or other modification of the work that would be prejudicial to author’s honor or reputation - prevent any destruction of a work of “recognized stature” by an intentional or grossly negligent act - (^) what is “recognized stature”?? ■ meritorious ■ acknowledged as such by art experts and other members of the art community or by some cross-section of society - Martin v City of Indy- work of monumental sculpture, which won best of show award and other acclaim, favorable write-ups, met criteria for “recognized stature”
- Pollara v Seymor- public display of work not required in order to qualify it for “recognized stature”
- 43(a) Lanham Act- false designation of origin
- (^) Smith v Montero- Italian actor in Italian movie, released in US under different name- he has right to proper attribution [“reverse passing off”- one author takes credit for another author’s work
- Dastar- SC held that designation of origin refers to only the source of tangible goods and not to the originator of ideas or creative works contained in those goods, no duty to credit public domain work authors!
- Gilliam- Monty Python- plaintiff had right to prevent distortion of his work [passing off-one author putting another’s name on the work
- Right of Publicity
- Haelan Labs v Topps- first recognized right of publicity
