Editing Copyright Law/Outline

:''To see information regarding Wiki Law School's copyright policies, go to [[Wiki Law School:Copyrights]].''
{{Infobox General Outline
| subject         = Copyright
| book_one        = Copyright Law: Cases and Materials Fromer
| book_two        = Copyright: A Contemporary Approach
| book_three      = copyright law in nutshell
| book_four       =
| related        = 
}}
==Introductory Materials==
'''Early History and Principles of US Copyright Law:'''
{|class="wikitable"
|''Wheaton v. Peters''33 U.S. (8 Pet.) 591
|SYNOPSIS OF RULE: There is NO common law copyright which would offer protection in perpetuity.
|-
|''Emerson v. Davies ''8 F. Cas. 615
|SYNOPSIS OF RULE: The nature of authorship requires some freedom to build on certain aspects of past works:
|-
|''Folsom v. Marsh ''9 F. Cas. 341
|SYNOPSIS OF RULE: Using selections from preexisting work fairly did not constitute an infringement of copyright. This marked the beginning of the fair use doctrine in US copyright law.
|}
'''Types of Works Covered by Copyright Act of 1976''''''<sup><strong><sup>[1]</sup>'''</strong></sup>''' as per Section 102(a):'''
{|class="wikitable"
|-
|(1) literary works(2) musical works, including any accompanying words(3) dramatic works, including any accompanying music(4) pantomimes and choreographic works
|(5) pictorial, graphic, and sculptural works(6) motion pictures and other audiovisual works; and(7) sound recordings(8) architectural works
|}
'''Exclusive rights granted by Copyright Act of 1976 as per Section 106:'''
* (1) the right to '''reproduce''' (copy),
* (2) the right to create '''derivative works''' of the original work,
* (3) the right to '''sell''', lease, or rent copies of the work to the public,
* (4) the right to '''perform the work publicly''' (if the work is a literary, musical, dramatic, choreographic, pantomime, motion picture, or other audiovisual work), and
* (5) the right to '''display the work publicly''' (if the work is a literary, musical, dramatic, choreographic, pantomime, pictorial, graphic, sculptural, motion picture, or other audiovisual work)
==The Elements of Copyrightable Subject Matter==
'''Introduction to Copyright Law '''
'''Basic Requirements to Qualify for Copyright Protection:'''
{|class="wikitable"
|-
|'''Constitutional Basis''' Art. I, §8, cl. 8:
|''“The Congress shall have the Power ...To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and ''''Discoveries.”''
|-
|'''Statutory Basis''' Copyright Act, §102
|'''Subject matter of copyright: In general:'''(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now know or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device(b) 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.
|}
Therefore, in order to be copyrightable subject mater, a work must be:
* '''Fixed''' <sup><sup>[2]</sup></sup> in a tangible medium
* Be an '''original''' work of '''authorship'''
However, regardless of whether the first two elements are met, copyright protection does not extend to:
* Elements of the work that constitute ideas, procedures, and the like.
# ''' ''''''Fixation - 8 pgs. '''
NOTE: The US is unique in its fixation requirement. The Berne Convention leaves the decision to member country. Neither the WIPO Copyright Treaty nor the TRIPS Agreement mention it. Is there a constitutional basis for this (...''Writings''...)? ''White-Smith Publishing Co. v. Apollo Co. -''OVERTURNED BY COPYRIGHT ACT OF 1967209 U.S. 1 (1908)FACTS: The Supreme Court held that a player-piano roll was not a “copy” of the musical composition.SYNOPSIS OF RULE: In order for a “copy” of a musical composition to violate the copyright statute (since amended) it must be “a written or printed record of it in intelligible notation” - i.e. intelligible to a human reader, not simply to a machine such as a player piano.''Williams Electronics, Inc. v. Artic International , Inc. ''685 F. 2d 870(3d Cir. 1982)FACTS: Williams Electronics, Inc (“Williams”), P, make coin-op arcade games including most recently DEFENDER.''MAI Systems Corp. v. Peak Computer, Inc.''991 F.2d 511 (9<sup>th</sup> Cir. 1993)FACTS: MAI Systems Corp. (MAI) made computers, designed software for them, and serviced their computers. Peak Computer (Peak) services computers for its clients, including MAI computers. In 1991, a number of MAI employees went to work for Peak as service technicians depriving MAI of some business. The use of a MAI computer necessarily creates a temporary copy of some files into the computers RAM (random access memory). MAI claimed that this temporary copying, which was the result of Peak's technicians booting up the computer, amounted to a “copying of protectable expression” beyond the scope of a license.” The MAI software license specifically prohibited 3<sup>rd</sup> parties from by third partiesDISCUSSION: The Peak technicians loading of software into the RAM creates a copy under the Copyright Act because the work was “fixed [into the RAM in a way that] can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” The court held that despite the fact that RAM is wiped when a compute powers down, it was still sufficiently fixed because it was “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. As this copy was not authorized by the copyright holder, MAI, this constituted a violation under the Act.''Cartoon Network LP v. CSC Holdings, Inc.''536 F.3d 121 (2d Cir. 2008)FACTS: Cablevision offered a service whereby they were splitting their feed. Half went directly to the customers. The other half went into a 1.2 second buffer, whereby, if the customer elected, it would be stored in their dedicated server space. If it wasn't directed to the server's memory it would be constantly overwritten by new data.SYNOPSIS FOR RULE: In order for copy to qualify as '''fixed''' under the Act, two requirements must be met:
# The work must be embodied in a medium such that it can be perceived, reproduced, etc. from that medium either by man or machine
# The work must remain thus embodied “for a period of more than transitory duration”
DISCUSSION: The court held that programming data stored in the buffers were '''not fixed''' because it wasn't there for a period of more than transitory duration. The court here says that MAI was inapplicable because the court in ''MAI'' did not sufficient address the “transitory period” requirement. In dicta, they suggest that even if they did, because it was stored in the RAM for “several minutes” it probably would not have been disqualified for being merely “transitory.” The court reads ''MAI'' as being for the proposition that loading a program into a computer's RAM can result in copying that program (as defined by the act), but is not in and of itself evidence of such.'''Live Broadcasts''':Copyright Act, Sec. 101 states that “a work consisting of sounds, images, or both that being transmitted <sup><sup>[3]</sup></sup>, is 'fixed' for the purposes of this title if a fixation of the work is being made simultaneously with its transmission.”
# '''Originality – 10pgs. '''
According the legislative history of the 1976 Act:''“The phrase 'original work of authorship,' which is purposely left undefined, was intended to incorporate without change the standard of originality [previously] established by the courts...This standard does not include requirements of novelty, ingenuity or esthetic merit, and there is no intention to enlarge the standards of copyright protection to require them.”''''Feist Publications, Inc. v. Rural Telephone Service Co. ''499 U.S. 340FACTS: Rural Telephone Service Company, Inc. (Rural) was a public utility providing telephone services in northwest Kansas. State law required them to publish an annual telephone directory, a white pages for residential numbers and a yellow pages whereby they could sell advertising space to businesses. Feist Publications (Feist) was a competing, private telephone directory publisher who specialized in creating directories for much larger geographical areas, including Rural's along with ten other telephone companies. Because they competed for yellow pages advertising space, Rural was reluctant to license their white pages listings. Feist then proceeded to use the information without Rural's consent (including the four fictional listings which Rural had inserted to detect copying.) Feist also included additional information which supplemented Rural's; for example they included street addresses.SYNOPSIS OF RULE:
# Facts are not copyrightable.
# Compilations of facts generally are copyrightable, based on their possession of the requisite originality. Originality can be found in the way that facts are selected and arranged. This originality requirement is not particularly stringent. A compiler may settle upon a selection or arrangement that others have used; novelty is not required.
# “Original...means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. The requisite level of creativity is extremely low, even a slight amount “no matter how crude, humble or obvious” will suffice.
HELD: Feist's compilation of facts did not meet the minimum standard of originality.''Burrow-Giles Lithographic Co. v. Sarony ''111 U.S. 53FACTS: Sarony, P, sues Burrow-Giles, D, for violating his copyright in a photograph of Oscar Wilde.ISSUE: Is a photograph, which is “a reproduction on paper of the exact features of some natural object of some person,” copyrightable?DISCUSSION: It cannot be said that the image in question is lacking in originality because the plaintiff “made [a “useful, new, harmonious, characteristic and graceful picture] entirely from his own original mental conception, to which he gave visible form by '''posing''' '''the said Oscar Wilde''' in front of the camera, '''selecting''' '''and''' '''arranging''' '''the''' '''costume''', draperies, and other various accessories and '''disposing the light and shade''', suggesting and '''evoking the desired expression''', and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit”''Bleistein v. Donaldson Lithographing Co.''188 U.S. 239 (1903)FACTS: “The alleged infringements consisted on the copying in reduced form of three chromolithographs prepared by employees of plaintiff for advertisements of a '''circus''' owned by Wallace”SYNOPSIS OF RULE:
# You may not copyright a persons likeness. “Others are free to copy the original [physical person]. They are not free copy the copy [an image, photograph or drawing of the physical person]”
# Posters, ads, etc. are copyrightable and are not precluded from protection under the Act merely because they are not of the highest artistic merit. <sup><sup>[4]</sup></sup>
'''Categories of Originality Requirements'''
{|class="wikitable"
|-
|UK and Ireland
|Required only that “the work originate from the maker and not be copied from another source”
|-
|Italy, France, et Al.
|Required that “the work be of an author's personal expression”
|-
|Germany
|Required works to pass additional “qualitative or aesthetic tests
|-
|Japan
|Required a relatively high level of originality in which “thoughts or sentiments are expressed in a creative way” and “fall withing the literary, scientific, artistic or musical domain.”
|}
# ''' Idea/Expression Dichotomy – 18pgs. '''
Both TRIPS and the WIPO Copyright Treaty state that copyright protection extends to “expressions and not ideas, procedures, methods of operation, or mathematical concepts as suchSection 102(b) seems to have two purposes:
# To define the line between what is eligible for copyright protection and what belongs tot he public domain; and
# To define the line between copyrightable and patentable subject matter
''Baker v. Selden''101 U.S. 99 (1879)FACTS: Selden obtained a copyright in a book entitled “Selden's Condensed ledger, or Book-keeping Simplified,” which provided a detailed explanation of Selden's new ledger system. He brought suit against Bake for an alleged infringement of his copyright in an to the book. Baker says that Selden's ledger system is not copyrightable.DISCUSSION: Systems or methods for creating accounting sheets are not copyrightable, but the books themselves are protectable. The holding regarding no copyright protection for systems is codified in 102(b). The court here is cautious not to grant copyright to the accounting system because of fear that the accountant would secure the exclusive right to make, sell, and use account-books. Court found the ledger to be a utilitarian object rather than an express work. The court found that it should not allow a creator of inherently patentable subject matter (i.e. a system or a process) to use CR law to circumvent the patent system. '''Blank forms are not copyrightable ''''''<sup><strong><sup>[5]</sup>'''</strong></sup> (also found in §202.1 Material not subject to copyright)'''Merger ''''''<sup><strong><sup>[6]</sup>'''</strong></sup>''': '''If only a limited few ways exist to express an idea, the idea and expression merge into an uncopyrightable whole.''Morrissey v. Procter & Gamble Co., ''379 F. 2d 675 (1<sup>st</sup> Cir. 1967)FACTS: The court examined whether instructions for a sweepstakes contest could be copyrightable.SYNOPSIS OF RULE: “When the uncopyrightable subject matter is very narrow, so that 'the topic necessarily requires' if not only one form of expression, at best only a limited number to permit copyrighting would mean that a party...by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance.”'''Fiction v. Non-fiction and Idea/Expression'''''A.A. Hoehling v. Universal City Studios, Inc. ''618 F.2d 9722 (2d Cir.), (1980)FACTS: A.A. Hoehling, P, published a book entitled “Who Destroyed the Hindenburg?” which was a factual account, written in an objective, reportorial style. This book fingered Eric Spehl as the most likely saboteur of the airship. Mooney eventually published a book called “The Hindenburg” which was “more literary than historical.” It centered around the “Spehl-as-saboteur” theory. Mooney concedes that he consulted Hoehling's book. Universal City Studios, D,bought the film rights to Mooney's book. Hoehling's principal claim is that Mooney and Universal copied the Spehl as saboteur theory.SYNOPSIS OF RULE:
# “Absent wholesale usurpation of another's expression, claim of copyright infringement where works of history are at issue are rarely successful.
# Interpretation, including theories and plots, of an historical event are not copyrightable as a matter of law unless there is a verbatim reproduction of another work
# “Scenes à faire, that is, “incidents characters or settings which are as a practical matter indispensable in the treatment of a given topic are not copyrightable as a matter of law.”
''American Dental Association v. Delta Dental Plans Association ''126 F.3d 977 (7<sup>th</sup> Cir. 1997)FACTS: The ADA created the ''Code on Dental Procedures and Nomenclature ''which classified into groups all dental procedures. Delta Dental published a work entitled ''Universal Coding and Nomenclature'' that includes most of the numbering system and descriptions from the ADA's'' Code''. Delta argues that the'' Code ''is not copyrightable. They lose.ISSUE: Is a taxonomy copyrightable? The court says yes.DISCUSSION: A taxonomy may be a collection of facts , however, “ facts do not supply their own principles of organization. A taxonomy is not as system. It does not come with instructions for use, and instead can be put to an infinite number of uses. While any dentist may use the notations outlined in the ''Code'', Delta may not copy the ''Code'' or make and distribute a derivative work based on the Code.''Southco, Inc. Kanebridge Corp.''390 F. 3d 276 (3d Cir. 2004)FACTS: D, a competitor of P in the fastner business was copying P's part numbers in their catalogs. Plaintiff argued that its part numbers were highly creative, explaining that in its system of numbering each component of the part number represented a different aspect of each product (e.g. type of fastener, size, material, etc.DISCUSSION: The court held that the part number in plaintiff's catalog were not original because the numbers were “rigidly dictated byt eh rules of P's system.”
# ''' ''''''Introduction to Copyright Theories – 18pgs. '''
# ''' ''''''Authorship – 18pgs. '''
Section 201 of the Copyright Act recognize three kinds of authorship :
# Sole authorship
# Joint or co-authorship
# “Works made for hire” <sup><sup>[7]</sup></sup>
'''Sole Authorship'''''Lindsay v. The Wrecked and Abandoned Vessel R.M.S. Titanic ''52 U.S.P.Q.2d 1609FACTS: P, under contract with a British television company, directed a documentary film chronicling D's third salvage of the Titanic. P worked with the ships crew to create a film which he conceived. He is suing D for licensing footage to The Discovery Channel.SYNOPSIS OF RULE: An author need not have himself created the work, so long as it is the product of their own “original intellectual conceptions.”DISCUSSION: “Where the P alleges that he exercised such a high degree of control over a film operation – including the type and amount of lighting used, the specific camera angles to be employed, and other detail-intensive elements of a film – such as the final product duplicates his conceptions and vision of what the film should look like, the plaintiff may be said to be an “author” with in the meaning of the Copyright Act.'''Joint Authorship'''''Joint Work''''<sup>'''<sup>[8]</sup>'''</sup>'''':''“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.” 17 U.S.C. § 101''Erikson v. Trinity Theater, Inc.''13 F.3d 1061 (7<sup>th</sup> Cir. 1994)FACTS: Karen Erickson prepared three plays for Trinity Theatre, which she helped to found. There was a dispute and Trinity stopped paying Erikson royalties claiming that it was a joint author and co-owner of the copyright. They made this assertion based on the fact that Trinity actors had made suggestions which Erikson incorporated into her play.DISCUSSION: Courts have applied two tests to evaluate contributions of authors claiming joint authorship:
{|class="wikitable"
|-
|''De minimis ''Test (not favored by courts):Requires that only the combined product of joint efforts must be copyrightable
|''Copyrightability ''Test (favored by courts):Requires that '''each author's contribution must be copyrightable''' independently
|}
''Aalmuhammed v. Lee''202 F. 3d 1227 (9<sup>th</sup> Cir. 1999)FACTS: Spike Lee was engaged to make a film based on the book ''The Autobiography of Malcolm X''. Lee askked Jefri Aalmuhammed to assist him in making the movie because he knew a great deal about Malcom X. In the course of his help. Aalmuhammed suggested extensive script revisions in order to ensure religious and historical accuracy. Aalmuhammad then asked for a co-writing credit but was denied and brought suit claiming joint authorship.SYNOPSIS OF RULE: For a work to be a “joint work” there must be”:
# A copyrightable work
# Two or more “authors” (see ''Erikson'')
# The authors must intend <sup><sup>[9]</sup></sup> their contributions be merged into inseparable or interdependent parts of a unitary whole.
DISCUSSION: The Court concludes that while Aalmuhammed's contributions were copyrightable, he was not a “joint author” under the definition of the statute. Relying on ''Thomson v. Larson ''the court said that neither Aalmuhammed, nor Spike Lee, nor WB made any objective manifestation of intent to be coauthors. In fact, Lee was required to create the work as one “made for hire”''Thomson v. Larson''FACTS: Jonathan Larson was a playwright who created a modern version of ''La Boheme'', a musical called ''Rent''. In the course of creating the musical, Larson engaged Lynn Thomson for “dramaturgical assistance and research” and crediting her as “dramaturg.” After Jonathan Larson died of AIDS, Thomson sued to be recognized as a joint author.DISCUSSION: The Second Circuit held that because she had never sought nor was billed as co-author, that there was no intent on behalf purported author to be joint authors with Thomson.'''Works Made for Hire'''Pursuant to § 101 of the 1976 Copyright Act, a''“work made for hire” is:''
* (1) A work prepared by an employee within the scope of his or her employment; or
* (2) A work specially ordered or commissioned for use as a contribution to '''a collective work.'''..(''see page 124'')
''Community for Creative Non-Violence v. Reid''490 U.S. 730 (1989)FACTS: The Community for Creative Non-Violence (CCNV) wished to participate in the annual Christmastime Pageant oPeace by sponsoring a display to dramatize the plight of the homeless. They envisioned a sculpture reminiscent of the Nativity, only it would feature the modern homeless perched upon a steam-gate pedestal. CCNV contacted James Earl Reid, a sculptor from Baltimore, and discussed the project with him. No formal written agreement was ever entered into. CCNV agreed to pay Reid in installments to complete the work. They arranged for him to meet with local homeless families to serve as models. They also vetoed his desire to cast the sculpture in bronze do to funding constraints. The regularly checked up on the work and received sketches of the work either to raise funds, or to approve them. After the piece was initially exhibited Reid took control and refused to return it to CCNV when requested. He filed the work with the copyright office, as then did CCNV, contending that it was a work made for hire under the copyright statute and that Reid was an employee. The court concluded in light of the factors below that Reid was not an employee but rather an independent contractor.SYNOPSIS OF RULE: “In determining whether a hired party is an employee...[the court considers] among other factors:
{|class="wikitable"
|-
|1. The skill required2. The source of the instrumentalities and tools3. The location of the work4. The duration of the relationship between the parties5. Whether the hiring party has a right to assign additional projects to the third party6. The extent of the hired party's discretion over when and how long to work No factor will be dispositive.
|7. The method of payment8. The hired party's role in hiring and paying assistants9. Whether the work is part of the regular business of the hiring party10. Whether the hiring party is in business 11. The provision of employee benefits, and12. The tax treatment of the hired party.
|}
''Aymes v. Bonelli''980 F.2d 857FACTS: Bonelli (B) hired Aymes (A) to create computer programs for B's swimming pool business. There was no written agreement. A did most of his programming at B's offices and using their computers. Despite not being able to program, B dictated what he wanted but A had considerable autonomy. He was often paid by the hour, but occasionally submitted invoices. A received no health benefits.SYNOPSIS OF RULE: The following factors will be given more weight <sup><sup>[10]</sup></sup>than the remaining factors:
# '' ''The hiring party's right to control the manner and ''4. ''The tax treatment of the hired party
 means of creation ''5. ''Whether the hiring part has the right to assign
# '' ''The skill required additional projects to the hired party.
# '' ''The provision of employee benefits

==Statutory Rights of Copyright Owners==
# '''Introduction to International Copyrightable -10pgs. '''
{|class="wikitable"
|-
|BerneConvention:
|Imposed certain minimum standard that it's members had to meet; Called for national treatement; Provided that copyright enjoyment couldn't be subject to formalities; Protected new kinds of works like architecture
|-
|TRIPSAgreement:
|Covered all major categories of IP including patents, copyright and trademark; member countries could enact measure which exceeded TRIPS minimum requirements; Incorporated the Berne Convention under Art. 9 (but doesn't require recognition of moral rights); Provides an enforcement mechanism through WTO
|-
|World Trade Organization
|Provides a forum for negotiations between member states, Dispute Settlement Understanding (DSU); All members agree to binding internation settlement process; Dispute heard by panels which will then report to the Dispute Settlement Body (DSB); There is additionally an appellant panel
|-
|World IPOrganization
|One of the specialized agencies of the UN; Sponsored the WIPO Copyright Treaty which the US ratified (recall the database cases); Questions still exist as to how TRIPS and WIPO treaties deal with one another.
|}
# '''Protected Works -2 pgs. '''
* 102. “Works of authorship include the following categories:”
{|class="wikitable"
|-
|'''Categories:'''
|'''Examples'''
|'''Significance of the designation?'''
|'''Defining characteristics?'''
|-
|(1) literary works;
|Short stories, novels, letters, computer programs
|None.
|Expressed in words, numbers, or other verbal or numerical symbols regardless of the medium in which they are stored
|-
|(2) musical works, including any accompanying words
|Songs (but not the technical recordings of those songs)
|Where a song has been publicly distributed they are subject to compulsory licensing under §115. This means people are free to “cover” the song as long as they pay royalties and notice.
|A work can qualify as a musical work irregardless of genre It is not required that they conform to traditional notions of rhythm, harmony or melody. If a song has new lyrics over an old melody, only the new element is copyrightable.
|-
|(3) dramatic works, including any accompanying music
|Plays, screenplays, teleplays (also sometimes choreography)
|While a work may qualify as both a musical work and a dramatic work, if it is also the latter, it is not subject tothe compulsory licensing requirement
|The dramatic actions contained therein are “intended to be preformed,” as opposed to being narrated or described.
|-
|(4) pantomimes and choreographic works;
|Ballet, mime, choreographed professional wrestling matches.
|None.
|Composition and arrangement of dance movements. Dance movements are a combination of static and kinetic movements in a certain rhythm and spacial relationship.They need not tell a story
|-
|(5) pictorial, graphic, and sculptural works
|Sculpture, painting, photographs, architectural designs, belt buckle design, vodka bottles
|If a work is sculptural, it is necessary to consider the “separability requirement” for “useful articles”
|“two-dimensional or three-dimensional works of fine, graphic or applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings including architectural plans.
|-
|(6) motion pictures and other audiovisual works;
|Movies, TV shows, video games, multimedia slideshows, animated cartoons
|The definition of “work made for hire” specifically includes such things as screenplays, soundtrack compositions and other works made as part of motion pictures. Therefore a screenwriter loses his right to terminate the transfer of copyright in the screenplay to the producers of the movie.
|Requires the use of a machine or device like a projector or electronic screen to show it. The images must be related but they need not be in any particular order. Even if the content of the images is dictated partly by the user of the program (such as the player who guides the character in a video game)
|-
|(7) sound recordings
|Vinyls, CDs, MP3s, Bookson-tape, Recorded lectures
|Pre-1972 sound recordings are excluded from federal copyright protection, although state protection may still apply. Only literal (exact) copies of sound recordings are barred. Copyright holders for sound recordings do not have public performance control rights (although the holder of the copyright in the underlying musical work does.)
|“Results from the fixation of a series of musical , spoken, or other sounds,” regardless of the media in which it is fixed, be it “ disks, tapes, or otherphonorecords”
|-
|(8) architectural works
|Blueprints
|If publicly viewable, anyone can photograph, and owner can change
|The design of buildings (does not include interiors or stores in malls, or bridges, etc)
|}
# ''' Elements of Infringement – 2pgs. '''
* 106 Exclusive rights in copyrightable work:
# to reproduce the copyrighted work in copies or phono records;
# to prepare derivative works based upon the copyright work;
# to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending
# in the case of literary, musical, dramatic and choreographic works, pantomimes and motion picture... to preform the copyrighted work publicly
# in the case of literary musical dramatic and choreographic work, pantomimes and pictorial graphic or sculptural work including individual images of a motion picture or other audio visual work, to display the work publicly
# in the case of sound recordings to perform the copyright work publicly by means of digital audio transmission.
The ''prima facie ''case of infringement:
# Plaintiff must prove ownership of a valid copyright. Registration of the work with the copyright office is prima facia evidence of both its ownership of copyright and its validity.
# Plaintiff must prove defendant violated one of the exclusive rights reserve to the copyright owner. <sup><sup>[11]</sup></sup>
Proving copying in fact <sup><sup>[12]</sup></sup>:
# Evidence of '''direct copying, '''OR
# Circumstantial evidence suggesting that defendant had '''access''' to the plaintiff's work, AND
# The degree of '''similarity''' between the two works so great that it is circumstantial evidence.
# '''Reproduction Rights '''
# ''' Copying in Fact – 9 pgs. '''
Three Boys Music Corp. v. Michael Bolton212 F. 3d 477 (9th Cir. 2000)FACTS: In 1966, the R&B group the Isley Brothers released a song called “Love is a Wonderful Thing.” It reached 110 in a chart title “Bubbling Under the Hot 100” but never was listed on any other top 100 charts. In early 1990, Michael Bolton and songwriting partner Andrew Goldmark wrote a song called “Love is a Wonderful Thing” which finished 49 <sup>th</sup> on Billboard's year end pop chart. Three Boys Music Corp, P, owners of the copyright in the Isley Brother's song sued Bolton for copyright infringement.SYNOPSIS OF RULE: Circumstantial evidence of access is proven in one of two ways:
# a particular chain of events is established between P's work and D's access to that work (such as through dealing with a publisher, agent or record company)
# the plaintiff's work has been widely disseminated
DISCUSSION: The court relies on the analysis set forth in ''ABKCO Music''. P proffer the argument that (1) Bolton grew up listening to groups such as the Isley Brothers, (2) DJ's testified that the Isley Brothers were widely disseminated in the area where Bolton grew up (CT), (3) Bolton confessed to being a fan of the Isley Brothers, (4) in the work tapes proved by Bolton show that he was concerned that he might have been infringing on a song by another R&B singer, Marvin Gaye. The court refused to overturn the jury's determination that Bolton had copied the Isley Brother's work.''ABKCO Music, Inc. v. Harrisongs Music, Ltd.''722 F. 2d 988 (2d Cir. 1983)FACTS: The Second circuit affirmed a jury's verdict that George Harrison subconsiously copied The Chiffons' “He's So Fine” when he wrote “My Sweet Lord.DISCUSSION: Harrison admitted to having heard “He's So Fine” in 1963. The court said that this alone was not proof in and of itself that there was access. However, this coupled with significant similarity was sufficient to find and infringement.''Selle v. Gibb''741 F.2d 896 (7<sup>th</sup> Cir. 1984)FACTS: Ronald Selle sued the Bee Gees, alleging that their hit song “How Deep is Your Love” had infringed the copyright of his song “Let It End. While the jury found infringement, the court granted a motion for JNOV. Selle sent tapes of his song to eleven music publishers. Eight returned the tapes and three did not respond. At trial a professor of music at Northwestern testified that “the two songs had such striking similarities that the could not have been written independently of one another,” but declined to say that the similarities could only have resulted from copying. The court upholds the JNOV.DISCUSSION: “No matter how great the similarity between the two works, it is not their similarity ''per se'' which establishes access; rather...there must be at least some other evidence which would establish a reasonable possibility that the complaining work was available to the alleged infringer.''Sheldon v. Metro-Goldwyn Pictures Corp.''81 F.2d 49DISCUSSION: Judge Learned Hand famously stated: “If by some magic a man who had never know it were to compose anew Keats' “Ode on a Grecian Urn,” he would be an 'author.' and, if he copyrighted it, others might not copy his poem, though they might of course copy Keats'”''Bouchat v. Baltimore Ravens, Inc.''241 F. 3d 350 (4<sup>th</sup> Cir. 2001)FACTS: Plaintiff alleged that the Baltimore Ravens copied a logo design that he had submitted to the chairman of the Maryland Stadium Authority (MSA). He could not prove definatively that the specific piece of paper that he had sent was passed along, but instead based his claim on the circumstantial evidence of the routine practice of the MSA's office to forward documents received to the chairman's law office and their, the law office's regular contact with the team's owner.SYNOPSIS OF RULE: Under the '''corporate receipt doctrine ''''''<sup><strong><sup>[13]</sup>'''</strong></sup>, possession of a work by one employee of a corporation implies possession by another employee who infringes the work.
# ''' Improper Copying '''
# ''' The Classic Cases – 7pgs. '''
Copying is a violation of §106(1). A plaintiff must show that
* (1) the D copied copyrightable elements of the work (i.e not elements that are in the public domain, ''scenes à faire, ''), and
* (2) that they copied “too much.”
''Nichols v. Universal Pictures Corp.''45 F.2d 119 (2d. Cir. 1930)FACTS: P work a play called, “Abie's Irish Rose.” Universal Pictures, D, released a motion picture entitled “The Cohen's and the Kellys” which D alleged infringed on his work. Both plays are, broadly speaking, about one Jewish and one Irish Catholic family, who's children fall in love and marry in secret to the chagrin of their players.DISCUSSION: Learned Hand sets forth what is called the abstraction test, which he uses to decide whether a defendant has copied protected expression. All works can be described in increasingly general levels of abstraction (for example Romeo and Juliet could be described as: a love story between a Montague and Capulet that ends in the man poisoning himself and the woman stabbing herself. Compared to two kids of feuding families who fall in love and kill themselves. Compared to, a tale of forbidden love.) No infringement results if a second author copies all those general elements but expresses them in a different form. To copy at a much more specific level is taking protected expression ''Arnstein v. Porter''154 F.2d 464 (2d Cir. 1946)FACTS: Arnstein, P, alledged that a numb of his works have been plagiarized by Cole Porter, D. Some of P's works have been sold, others played on various radio stations, others P claimed were taken from his apartment when it was burglarized.SYNOPSIS OF RULE: On the issue of whether there was “too much” copying, the test is the response of the ordinary “lay hearer” and expert testimony or “dissection” will not be determinative (although admissible) “The question...is whether defendant took from plaintiff's work so much of what is pleasing to the ears of lay listeners, who comprise the audience fro whome such popular music is composed, that defendant wrongfully appropriated something which belongs to the plaintiff.
# ''' Contemporary Developments 1. Second Circuit -13 pgs '''
''Steinberg v. Columbia Pictures Industries, Inc.''663 F. Supp. 706 (S.D.N.Y. 1987)FACTS: Steinberg, an artist who created a famous ''New Yorker'' cover entitled ''View of the World'', alleges that Columbia Pictures, D, infringed on his copyright with their promotional poster for the film ''Moscow on the Hudson''. The executive art director for Columbia admitted that he specifically referred to Steinberg's poster and directed the artist of the promotional poster to use Steinberg's poster to achieve a more recognizable New York look.SYNOPSIS OF RULE:
# The definition of “substantial similarity” in the Second Circuit is “whether an average lay observer would recognize the alleged copy as having be appropriated form the copyrighted work.”
# “A copyright infringement may occur by reason of a substantial similarity that involves only a small portion of each work.”
DISCUSSION: A defendant can not be held liable for for using the ''idea'' of a map of the world from an egocentric myopic perspective. The fact that Moscow in the poster was depicted in substantially large size than the far off objects in Steinberg's illustration are not enough to prove dissimilarity. “'Substantial similarity' does not require identity, and 'duplication or near identity is not necessary to establish infringement'.” Defendants claim that the substantially similar elements (namely water towers, buildings, etc.) are unprotected ''scenes à faire'', however the court determines that it's not the D's inclusion of these elements that makes the work substantially similar, but rather their copying of the P's ''expression'' of those elements.''Boisson v. Banian, Ltd.''273 F.3d 262 (2d Cir. 2001)FACTS: Boisson, P, created two alphabet quilts called “School Days I” and “School Days II” which she believes Banian, Ltd., D, copied in violation of her copyright. The court ultimately finds infringements by at least one of Banian's quilts.SYNOPSIS OF RULE:
# '' '''''The “More Discerning” Observer Test''': A “more refined analysis” is required where a plaintiff's work is not “wholly original,” but rather incorporates element from the public domain...What must be shown is substantial similarity between those elements and only tohose elements, that provide copyrightability to allegedly infringed compilation. “ However,
# '' '''''The “Total Concept and Overall Feel” Test''': If there are non copyrightable elements in the work which it is alleged was infringed, the court '''may not''' dissect the work, removing those components and only comparing the copyrightable components. Instead, in order to find infringement, the “total concept and overall feel created by the two works [must] be said to be substantial similar.”
''Mannion v. Coors Brewing Company''3777 F. Supp. 2d 44 (S.D.N.Y. 2006)fFACTS: Mannion was a photographer who was known for photographing celebrities, including Kevin Garnett which is the subject of the case at bar. Defendant Carol H. Williams Advertising used the Garnett photograph in one of their advertising proposals (a so called “comp board”) which they used to solicit bids for the Coors advertisements. The resulting billboard was similar to the comp, including a black man's muscular torso who is wearing a lot of “ice”, albeit not KG.SYNOPSIS OF RULE: A photograph may be original in three respects:''(1) Rendition'': Camera angle, light and shade, exposure, effects achieved by use of filters, developing techniques, etc. ''(2) Timing'': Being in the right place at the right time (i.e. ''Catch of the Day'' salmon leaping into a bears mouth.)''(3) Creation'' of the Subject: Posing and costuming a subject or arranging scenery or props.“If the points of dissimilarity not only exceed the points of similarity, but indicate that the remaining point of similarity are, within the context of plaintiff's work, of minimal importance...then no infringement results.”DISCUSSION: “The defendants... appear to have '''recreated much of the subject''' that Mannion had created (through use of similar dress and pose) and then , through imitation of angle and lighting, '''rendered''' it in a similar way. The similarities here thus relate to the Garnet Photograph's originality in the rendition and the creation of the subject and therefore to its protected elements.”On the question or similarity vs. dissimilarity, the court finds that a reasonable jury could go either way and therefore no summary judgement could be granted.
# ''' Ninth Circuit – 14 pgs. '''
''Roth Greeting Cards v. United Card Co. ''429 F. 2d 1106 (9<sup>th</sup> Cir. 1970)FACTS: Roth, P, sues United Card Co. for allegedly infringing on Roth's greeting card designs.DISCUSSION: The court says that the “total concept and feel of the cards of United are the same as the copyrighted cards of Roth. The court accepts United's argument that “the textual matter of each card...was not original to Roth and therefore not copyrightable.” However, “proper analysis... requires all of the elements of the card , including (1) text, (2) arrangement of text, (3) artwork, (4) [interplay] between artwork and text...(5) mood they portray, (6) arrangement of words, and (7) lettering.” The court finds that taken as whole the works are substantially similar.DISSENT: Judge Kilkenny, believes that if the text is not copyrightable and the art is similar but not infringing (two points which he and the majority are in agreement on), than their arrangement cannot create something greater (and copyrightable) than sum of non-copyrightable parts.''Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp. ''562 F.2d 1157 (9<sup>th</sup> Cir. 1977)FACTS: Plaintiffs Sid and Marty Krofft created a children's TV show called H.R. Pufnstuf. McDonald's advertising firm Needham, Harper & Steers, Inc. created a television ad campaign which involved fantastical characters in a make believe world called McDonaldland. Plaintiffs sued McDonald's for infringing on elements of their show.DISCUSSION: The test for significant similarity should be an intrinsic one, because the subject matter is directed to an audience of children. Court also adopts a “total concept and feel” test (Roth Greeting Cards) to find for plaintiff:
* (1) Extrinsic Test (basically a “copy in fact” test) – Trier of fact compares the works for similarity of ideas depends not on the responses of the trier of fact, but on the specific criteria which can be listed and analyzed, specifically expert testimony. This is inappropriate here because the audience the two works are directed at are children. There
* (2) Intrinsic Test (“total concept and feel” test ) – trier of fact must respond to the works as an ordinary observerr without any analytic dissection or use of expert testimony, to determine whether defendant took enough of what is pleasing to the audience (in this case children) to be held liable
''Cavalier v. Random House''297 F. 3d 815 (9<sup>th</sup> Cir. 2002)FACTS: Plaintiffs Cavaliers created a children's book which featured a character called Nicky Moonbeam.. They submitted their materials to defendants Random House and the Children'sTelevision Workshop on multiple occasions. After taking a meeting with Random House, they were rejected. Soon after Random House and the CTW releases two books entitled: ''Good Night, Ernie'' and ''Good Night, Elmo. ''The trial court granted summary judgement for the defendant's saying that the two works were not substantially similar.SYNOPSIS OF RULE:
# The extrinsic test focuses on “articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in the two works.” put another way, the extrinsic test “encompasses all objective manifestations of ''expression''.'' ''Only those elements which are protectable will be compared.
# The intrinsic test is a subjective comparison that focuses on 'whether the ordinary, reasonable audience” would find the works to be substantially similar in the “total concept and feel of the works.”
DISCUSSION: The appeals court agreed with the trial court that when considering the literary work as a whole, there was no question of triable fact which need be left up to the jury. Many parts of the work (including the talking moon, the night sky as a setting, etc.) constituted'' ''and therefore were not copyrightable. Removing those elements, the court found significant difference in tone, plot and pacing, even when considering, as is required with works intended for child audiences, the “total concept and feel” of the work. The court then considered the individual art works. They find that there are triable issues of fact in at least two elements (the nightlight shape and the stars sleeping on the clouds during the day.)''Swirsky v. Carey''376 F.3d 841 (9<sup>th</sup> Cir. 2004)FACTS: The dispute is between plaintiff Swirsky, writer of the song “One of Those Love Songs,” preformed by Xscape and Mariah Carey, who's song “Thank God I Found You” P believes infringes on their copyright. Swirsky employed the expert testimony of a musicology professor from UCLA who said that the musical structure of the two works created “the impression of similarity.” The trial court found the professor's methodology flawed and granted summary judgment for Carey. The court here ultimately determines that after their extrinsic test, there was enough similarity to send it to the jury to evaluate the intrinsic similarities.SYNOPSIS OF RULE: Courts should only consider “D's appropriation of the song's compositional elements and must remove from consideration all the elements unique to plaintiff's performance” ''Newton v. Diamond'' 349 F.3d 591(2003)DISCUSSION: The court again uses the Extrinsic/Intrinsic test. The court says that the testimony of the professor correctly evaluated the work extrinsically, by examining the structural context of the “harmony, rhythm and meter.” The court said the trial court erred in that they were too objective in their measure by measure analysis. For example, the rhythm (½, ½, ¼, ½, ¼) is objectively different from (whole, ¼, ¾) however, depending on the emphasis placed on each note, the two rhythms can be made remarkable similar so that only a expert upon hearing the whole work would see the similarity. (However, this is still considered an extrinsic test). In music, for elements to be ''scenes à faire ''they must be unique to genre.
# ''' The Exact Copy – 11 pgs. '''
The Four Types of Exact Copying Cases:
{|class="wikitable"
|-
|1. '''Piracy''': A fairly straight forward case where D burned1,000 exact copies of an audio CD for distribution
|2. '''Fair Use''' Exact Copies: These cases concern instances of exact copying which D asserts are fair use under §107, because for example they were produced for a library.
|-
|3. '''Automatically Created''' Exact Copies: These cases involve exact copying as a result of an automated process such as loading a software program into a computer's RAM (''see MAI Systems v. Peak Computer Corp, ''§117 exceptions for '''owners '''and 3<sup>rd</sup> party service orgs. like MAI, not '''licensees''')
|4. '''“Innocent” '''Exact Copies: Where D relied on the absence of a copyright notice, and believed that their copying was therefore protect. (''see ''17 U.S.C. §405(b) transcribed in full on page 338)
|}
Section 114(b) says that sound recording copyright holders only have protection against direct duplications of the recorded sounds, and NOT “sound alikes,” and neither reproduction rights nor derivative work rights can be extend to the “making of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recordings.”''Newton v. Diamond''388 F.3d 1189 (9<sup>th</sup> Cir. 2004)FACTS: P Newton recorded a song called “Choir.” Newton then sold the sound recording copyright to ECM Records, while retaining the copyright to the underlying musical composition. Later the Beastie Boys, D, would license the first 6 second of the sound recording for “Choir” from ECM to use in their song “Pass the Mic.”. They never licensed the use of the underlying musical composition. They The trial court granted D summary judgement as allowable ''de minimis ''use. SYNOPSIS OF RULE:
# Fragmented literal similarity exists where the defendant copies a potion of the plaintiff;s work exactly or nearly exactly, without appropriating the work's overall essence or structure.
# Because the degree of similarities is high in such cases, the dispositive question is whether the copying goes to trivial or substantial elements.
# Substantiality is measured by considering the qualitative and quantitative significance of the copied portion in relation to the plaintiff's <sup><sup>[14]</sup></sup> work as a whole.
DISCUSSION: The court allows the Beastie Boys to prevail on their motion for summary judgement because they said that quantitatively, the three note sample, which only appeared once in ''Choir'', constituted only two percent of the entire work. Qualitatively, it is no more significant than any other portion of the work.''Bridgeport Music, Inc. v Dimension Films''410 F.3d 792 (6<sup>th</sup> Cir. 2005)FACTS: Bridgeport claim to own the musical composition and sound recording copyrights in “Get Off Your Ass and Jam” by George Clinton. Defendant's No Limit Films released the film ''I Got The Hook Up'' which included in its soundtrack, the song “100 Miles and Running” which featured a sample from “Get Off Your Ass and Jam.” Bridgeport entered into a Release and Agreement with the group that created “100 Miles” granting them sample use rights.SYNOPSIS OF RULE: “A s'''ound recording''' owner has the '''exclusive right '''to “sample” his own recording.” <sup><sup>[15]</sup></sup>DISCUSSION: Unlike in ''Newton'', this is a case of infringing only the musical composition (as ECM owned the sound recording copyright.). Bridgeport and Westbound owned both the musical composition and sound recording copyrights.
# ''' Derivative Works '''
# ''' Originality in Derivative Works – 21 pgs. '''
''Alfred Bell & Co. v. Catalda Fine Arts, Inc.''191 F.2d 99 (2d Cir. 1951)FACTS: An engraver creates mezzotints of old masters oil paintings. Through extraordinary and meticulous attention to detail, uncommon to the standard mezzotint production process, the engraver manages near identical copies of the works (which are in the public domain and therefore not subject to copyright protection.)SYNOPSIS OF RULE: A copy of something in the public domain may itself be copyrighted if the author thereof contributes something of his own to the copy, that is, something more than a “mere trivial” variation. “No large measure of novelty is not required.”''Bridgeman Art Library, Ltd. v. Corel Corp.''36 F. Supp. 2D 191 (S.D.N.Y. 1999)FACTS: Bridgeman, P, had been authorized to prepare reproductions of artworks held in private collections. They alleged that Corel copied their reproductions which they claimed copyright in.SYNOPSIS OF RULE: This was a different rationale than Alfred Bell: court says the important thing is what it looks like in the end, not the creative process that you put into it – here: end product not sufficiently differentDISCUSSION: The found for defendant, calling Bridgeman's reproductions, “slavish copies: of public domain works of art which lacked sufficient originality for copyright protection. Only a “distinguishable variation” on public work (i.e. a reproduction altered to an extent beyond change of media or technical variation) will render a reproduction of a public work original. One reason for lack of copyright protection for the photos of the works of art is that, although it required skill and effort, it does not require a spark of originality Would result in monopolization of a public domain work''Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc.''528 F.3d 1258 (10<sup>th</sup> Cir. 2008)FACTS: Toyota engaged Meshwerks to create digital models of its cars for their advertising campaign. While the first step in the digitization process is fairly non-labor intensive, the remaining work of “sculpting” more intricate elements of the automobile was an artisanal process involving nearly 80 to 100 hours of work per vehicle. Meshwerks sued Toyota because they had contracted only for a one time use of its models. The district court granted summary judgement for Toyota.SYNOPSIS OF RULE: “In assessing the originality of a work for which copyright protection is sought, we look only at the final product, not the process and the fact that intensive, skillful, or even creative labor is invested in the process of creating a product does not guarantee its copyrightability.DISCUSSION: The court does not believe that Meshwerks digital wire frame sculptures constituted independent creations, rather they were very good copied of Toyota's vehicles. The court, at Meshwerks' behest, relies on ''Ets-Hokin v. Skyy Spirits, Inc.'' There, while the subject of the photographs were merely utilitarian objects (namely vodka bottles), the court decided that elements of the pictures constituted enough originality for them to qualify for protection; the plaintiff had made decisions regarding lighting, shading, angle, background and so forth. When the case came back before the court of appeals it was because the trial court had found that the only element common to both images was the vodka bottle itself which was non-copyrightable. The court here in ''Meshwerks,'' said that the only common element here was the “car as car” and there were no discernible decisions made by the plaintiff (absent were lighting,, shading, coloring, etc.)
* 103. Subject matter of copyright: Compilations and derivative works
* (a) The subject matter of copyright as specified by §102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
* (b) The copyright in a compilation or derivative work '''extends only to the material contributed by the author''' of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
Definitions:''Derivative Work:'' a work based upon one or more preexisting works...which as a whole, represent an original work of authorship.
# '' Batlin & Sons, Inc. v. Snyder''
536 F.2d 486 (2d Cir.)(1976)FACTS: Snyder had arranged for an overseas company to make and import plastic Uncle Sam banks to the U.S. He received a copyright on the item as a sculptural work. Based on this copyright, U.S. Customs stopped a shipment of similar banks from coming into the U.S., banks which had been order by Batlin. Because the idea of the Uncle Sam bank is in the public domain, and this idea is what Snyder admittedly based his own design, Batlin challenges the grant of copyright.DISCUSSION: The court found that Snyder's work was not sufficiently original to constitute a copyrightable work. Court cites ''Alva Studios ''case about the “Hand of God”, applying the “sweat of the brow” <sup><sup>[16]</sup></sup> <sup><sup>[17]</sup></sup>: principle to afford protection. Court held the standard of originality was not met because the variations were merely trivial and that the physical skill and special training to convert the cast iron bank were insufficient to support copyright.DISSENT Disagrees with the majority's determination that the changes were trivial because they were dictated my material/engineering concerns. The dissent rightly points out that even miniscule, inadvertent changes from the original work would be enough to establish originality (''see Alfred Bell'')''Entertainment Research Group, Inc. v. Genesis Creative Group''122 F. 3d 1211 (9<sup>th</sup> Cir. 1997)FACTS: ERG designed and created 3D inflatable costumes based on 2D cartoons (for example, a costume of Cap'n Cruch). ERG entered into an agreement with Genesis to market and distribute their costumes, however, when Genesis entered into an agreement with one of ERG's competitor, ERG sued for violation of copyright in the costumes. District court found for DSYNOPSIS OF RULE:''Durham ''test
# To support a copyright, the original aspects of a derivative work must be more than trivial
# The original aspects of a derivative work must reflect the degree to which it relies on preexisting material and must not in any way affect the scope of any copyright protection in that preexisting material.
Also, in evaluating originality, any differences that exist because of functional or mechanical considerations should not be considered.DISCUSSION: P wanted court to apply '''the ''Doran ''test''': Where a derivative work is based on a work in the public domain, the proper test for copyright-ability is whether the form of the original work and that of the derivative work differ substantially (from 2D drawing to 3D inflatible sculpture, etc); if so, the derivative work is copyrightable The court rejected this test, because unlike in ''Doran,'' the underlying work here was not in the public domain. Instead the court relies on the ''Durham ''test (which involved the copyright-ability of 3D reproductions of Disney characters: court held the toys did not display sufficient originality because copying from one medium to another requires nothing more than physical as compared with artistic skill).''Pickett v. Prince''207 F.3d 402 (7<sup>th</sup> Cir. 2000)DISCUSSION: §103 of the Copyright Act grants exclusive rights to copyright owner to prepare derivative works. Pickett could not make a derivate work (a guitar) based upon the Prince symbol w/o Prince’s permission, even if the new work had some originality. Furthermore, Prince is the exclusive owner of any unlawfully prepared derivative works (i.e. gets a copyright on the Prince symbol guitar.
# The Right to Prepare Derivative Work - 24 pgs.
Section 103(a) of the Copyright Act makes clear that derivative works meeting the statutory standards of § 102 are themselves independently copyrightable and the examples in the definition supplied by §101 indicates that the ''de minimis ''transformation of the underlying work can result in a derivative work.Per House Report accompanying the 1976 Act:''To constitute a violation of section 106(2), the infringing work must incorporate a portion of the copyright work in some form; for example, a detailed commentary on a work or a programmatic musical composition inspired by a novel would not normally constitute infringements under this clause.''''Castle Rock Entertainment, Inc. v. Carol Publishing'' ''Group, Inc. ''150 F.3d 132 (2d Cir. 1998)FACTS: Plaintiff Castle Rock is the copyright owner of the television series Seinfeld. Defendant Beth Golub wrote a book of Seinfeld related trivia questions called “The Seinfeld Aptitude Test.”DISCUSSION: The court employees the Quantitative/Qualitative test of substantial similarites. They find that quantitatively the work borrows enough copyrightable elements to pass the ''de minimis ''threshold. Qualitatively, the work also meets the threshold set forward by the test. It can not be said, the court determines, that the test was merely a collection of “facts” because the questions come from :facts: which “owe their origin to an act of authorship.” The defendants urge the court to employee the Total Concept and Fell test, arguing that works don't have similar plots (the trivia book has no plot), pacing, theme, etc. However, the court says that these differences necessarily result from the difference in genre and media. To allow these differences to be dispositive would undermine the “derivative works” right.''Warner Bros. Entertainment, Inc. v. RDR Books''575 F. Supp. 2D 513 (S.D.N.Y. 2008)FACTS: J.K Rowling owns the U.S. copyright in the book series ''Harry Potter''. Warner Bros. obtained from Rowling the exclusive motion picture rights based on the series. Rowling also published (and owns the copyright) in two companion books which serve to catalogue various creatures and characters from the series. Defendant RDR Books was hoping to publish a book called “The Lexicon” which was to be basedon Seven Vander Ark's website of the same name. The website was a encyclopedic collection of information from the site including a list of spells, or characters, magical creatures, etc. Vander Ark was initially hesitant about publishing a book based on the website, believing that it might infringe on Rowling's copyright, however, he was assured by RDR (and later indemnified) that it would not be a violation. Many of the entries on the lexicon's website are word for word quotes, sometimes without attribution, or very similar paraphrasing of the source text.DISCUSSION: The court employes the qualitative/quantitative analysis. The court finds that plaintiff's have met the ''prima facia ''case of infringement. Quantitatively, the companion books are reproduced almost in their entirety. Qualitative, while an arrangement of facts is protectable (''Feist''), a collection of fictional facts by a third party, without the authorization of the copyright holder is not protectable.While the court agrees that there is an infringement of reproduction rights, there is not, as the plaintiffs assert, a violation ofthe derivative work rights. The court place a good amount of emphasis on the statutory language “A work is not derivative...simply because it is “based upon” the preexisting works.” Guides, which unlike the one in ''Twin Peaks ''(i.e.which don't provide an elaborate recounting in their plot synopsis”'','' “don't ''recast, transform, or adapt'' the things which they are guides.” “By condensing, synthesizing, and reorganizing the preexisting material in an A-Z reference guid, the Lexicon '''does not recast the material in a medium to retell the story of ''Harry Potter'', but instead gives the copyrighted material another purpose..'''.to give readers a ready understanding of individual elements in the elaborate world of ''Harry Potter''. The Lexicon no longer '''represents the original work of authorship''' and is therefore not a derivative work.''Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.''964 F.2d 965 (9<sup>th</sup> Cir. 1992)FACTS: Lewis Galoob Toys manufactured the Game Genie device for use with the NES. The Game Genie operated by blocking bits of code from the NES cartridges and replacing it with a new value.ISSUE: Does a derivative work need to be fixed in order to infringe?DISCUSSION: Derivative works do not require fixation. The court holds that the Game Genie does not create a derivative work because the resulting “work” is not fixed. These alterations, occurring in the computer’s processor, remained unfixed, did not modify the data in the game cartridge, and produced effects that were only temporary. The court found no violation of §106(2) - the game wasn’t recast, transformed, or adapted and the Game Genie did not incorporate a portion of the CR work in any form. These enhancing works do not replace the need for the original, unlike the example of derivative works listed in the statute. Because they cannot stand on their own, they do not harm the author. The device merely enhances the audiovisual display from Nintendo’s game. The fact that there was a large market for the device does not enter into the analysis and has no bearing on whether it’s an infringing work
# ''' DMCA Rights – 18pgs '''
Prohibitions found in 17 U.S.C. § 1201:
{|class="wikitable"
|-
|

|'''''Access ''protection measures ''''''<sup><strong><sup>[18]</sup>'''</strong></sup>''' '''
|'''''Rights'' protections measures ''''''<sup><strong><sup>[19]</sup>'''</strong></sup>
|-
|Individual acts of circumvention
|Prohibition: §1201(a)(1)
|Prohibition: None
|-
|Manufacturing or offering devices that circumvent
|Prohibition: §1201(a)(2)
|Prohibition: §1201(b)
|}
Section 1201(a)'s ban on circumvention of access controls is subject to a grant of rule making authority that allows the Librarian of Congress, in consultation with the Copyright Office and the Department of Commerce, to declare exemptions if it finds that particular users are “adversely affected by the prohibition under [§1201(a)(1)(A)] in their ability to make noninfringing uses of a particular class of copyrighted works. Rule making will occur every three years:2000 rules:
# Literary works whose storage formats had malfunctioned or become obsolete
# lists of filtering criteria employed by vendors of software designed to filter undesirable Internet content 2003 rules:
# Computer programs and video games in obsolete formats that require the original media or hardware as a condition of accessible
# literary works distributed in ebook format when all existing ebook editions containted access controls that prevent the enabling of special access feature for the blind or visually impaired.
2006 rules:
# Audiovisual works included in libraries of college or university film/media studies departments... for “education use in the classroom by media studies or film professors”
# Computer programs that enable mobile phones to connect to wireless telephone networks, “when circumvention is accomplished for the sole purpose of lawfully connecting” to a network other than the one for which the phone was originally programmed.
# Audio and audiovisual works distributed in CD format...when circumvention is accomplished for food faith testing, investigating and correcting security flaws.
''Chamberlain Group, Inc. v. Skylink Tech., Inc.''381 F.3d 1178 (Fed. Cir. 2004)FACTS: The technology at issue was a copyrighted "rolling code" computer program that constantly changed the transmitter signal needed to open a garage door with the owner's garage door opener (GDO). The competitor's product was a transmitter that activated the owner's GDO using this rolling code.SYNOPSIS OF RULE: 17 U.S.C. §1201 prohibits only forms of access that bear a reasonable relationship the protections that the Copyright Act otherwise affords copyright owners (taking into consideration fair use exceptions to those rights).A plaintiff alleging a violation of §1291(a)(2) must prove:
# Ownership of a valid ''copyright'' on the work
# Effectively controlled by a ''technological measure'', which has been circumvented
# That third parties can now ''access''
# ''Without authorization'', in a manner that
# Infringes or facilitates infringing a right ''protected'' by the copyright because of a product that
# The defendant either (1) ''designed or produced ''primarily for circumvention, or (2) made available despite only ''limited commercial significance'' other than circumvention; or (3) ''marketed ''for use in circumvention of the controlling technological measure.
DISCUSSION: The appellate court held that the competitor's accused device enabled only uses that copyright law explicitly authorized, and was therefore presumptively legal. The owner neither proved nor alleged a connection between the competitor's accused circumvention device and the protections that the copyright laws afforded the owner that were capable of overcoming that presumption. The owner also failed to show the necessary fifth element (of the above ''prima facia ''case) of its claim, the critical nexus between access and protection.''Lexmark International, Inc. v. Static Control Components, Inc. ''387 F. 3d 522 (6<sup>th</sup> Cir. 2005)FACTS: Lexmark manufactures printers with two programs on the (1) the toner loading program and the (2) Printer Engine Program which is stored in the printer itself. Neither of the programs were encrypted. They also manufacture two types of toner cartridges, one significantly cheaper than the other because it comes with a shrink wrap agreement that says depleted cartridges must be sent back to Lexmark to be refilled exclusively by them. In order to guarantee that their customers adhere to this, there is a authentication sequence between printer and cartridge. Static Control Components, D, manufactures chips that replicate this “secret code” as well as containing the Toner Load ProgramDISCUSSION: The DMCA requires that technological measure “control access ''effectively''” and thus it seems clear that this provision does not naturally extend to a technological measure that restricts one form of access but leaves another route wide open. In order to be covered by the DMCA a technological measure restricting use must be a use that creates a protected expression, not a purely functional output.The Toner Loading Program was not protectable under Copyright. In concurrence, this is not a narrow holding. Companies cannot use the DMCA to create monopolies on replacement parts.
# ''' Distribution and Importation Rights – 19pgs '''
''Capitol Records, Inc. v. Thomas''579 F. Supp. 2D 1210 (D. Minn. 2008)FACTS: Defendant Jammie Thomas was sued for allegedly downloading and distributing copyrighted sound recordings owned by plaintiff Capitol Records on the peer-to-peer application known as Kazaa. The jury in the trial court found that Thomas had violated both plaintiff's distribution right and reproduction rights and granted statutory damages. The jury instruction which they received said that “The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owner, violates the copyright owner's exclusive right of distribution, '''regardless of whether actual distribution has been shown.'''”''' '''The only evidence of distribution that the plaintiff produced was that it's agent, MediaSentry copied songs from defendant. Defendant argued that “dissemination to an investigator acting as an agent for the copyright owner cannot constitute infringement.SYNOPSIS OF RULE:
# The lawful owner of a copyright cannot infringe its own copyright. ''Olan Mills, Inc. v. Linn Photo Co.''
# However, a copyright owner's authorization of an investigator to pursue infringement does “not authorize the investigator to validate the 3<sup>rd</sup> party's unlawful conduct.
# Plain meaning of '''distribution:''' the court says that Congress' decision not to include offers to [sell, transfer ownership, rent, lease, etc] or the making available of the work indicates its intent that an actual distribution or dissemination is required in §106(b); the plain meaning of distribution does not mean “make available”
DISCUSSION: The court rejects the holding in ''Hotaling'', opting instead for the plain meaning articulated above which does not mean “make available.” The court stresses that P won't be without redress under this reading, as an uploader may still be found liable for indirect infringement, and the downloader still be found liable for direct infringement (subject to fair use defenses). The ''Charming-Betsy'' doctrine is inapplicable because theWIPO treaty is not self executing other than through the Copyright Act.''Hotaling v. Church of Jesus Christ of Latter-Day Saints''SYNOPSIS OF RULE: “A library distributes a published work, withing the meaning of the Copyright Act, when it places an unauthorized copy of the work in its collection, included the copy in its catalog or index system, and makes the copy available to the public.”'''First Sale Doctrine '''17 U.S.C. §109(a)If you purchase (as opposed to license) a copyrighted work, the first sale doctrine permits you to resell that book or load it to another, despite the copyright owner's distribution right. <sup><sup>[20]</sup></sup>'''Unauthorized Importation''' 17 U.S.C. §602Requires the authorization of a the domestic copyright holder in order to import of copyrighted materials. This prevents arbitrage (buying in one country at a low price that seller set in expectation that the buyer would distribute in that country and reselling in another country for a higher price.)''Vernor v. Autodesk, Inc.''2009 WL 3187613 (W.D. Wash. Sept. 30, 2009)FACTS: Vernor sold stuff on eBay. He bought a number of AutoCAD packages from Cardwell/Thomas Associates (“CTA”). CTA had purchased from Autodesk, who later sold CTA an updated version at a discount. As part of that deal, CTA agreed to destroyed the originals, which they did not do. The parties disagreed over whether Mr. Vernor has a first sale right to resell the Auto-CAD packages, and they disagree over whether Mr. Vernor's sale are contributory copyright infringment.The court found for Vernor on both questions.SYNOPSIS OF RULE:
# '' Wise'': The court found ownership in each instance in which:
# The transferee could, at his election, retain possession of of the transferred copy indefinitely, and
# The copyright holder had no right to regain possession <sup><sup>[21]</sup></sup>
DISCUSSION: Use of a software product can be licensed while the copies themselves are sold. <sup>22</sup> The court uses two test:
# '''''Wise'' View''': Designating an agreement as a “license” does not determine whether it transfers ownership. Although an agreement that fails to include a clause reserving title in the transferred copy to the copyright holder is suggestive of an ownership transfer, that failure is not dispositive. Similarly, a single, up-front payment by the transferee for a particular copy is suggestive of a transfer of ownership, but not dispositive. An agreement requiring the transferee to destroy transferred copies is not dispositive of whether ownership is transferred. There was one exception in ''Wise'' was the Redgrave contract. The court found that of all the agreements that the ''Wise'' panel analyzed, the License is most analogous to the Redgrave Contract, and thus the licensor transferred ownership in the copy.
# '''The ''MAI'' Trio''': The court finds the holding in the MAI trio to be irreconcilable with ''Wise'', and therefore follows follows ''Wise''.
''UMG Recordings, Inc v. Augusto''558 F. Supp. 2D 1055 (C.D. Cal. 2008)DISCUSSION: The court looked past the copyright owner's characterization of the transaction as “license” to the “economic realities of the transaction” in line with the ''Wise ''holistic approach.
# ''' Performance and Display – 17pgs '''
“The right of public performance is granted to copyright owners of “literary, musical, dramatic, and choreographed works, pantomimes, and motion pictures and other audiovisual works.” 17 U.S.C. §106(4)Section 101 defines “public performance” as”''To perform or display a work “publicly means” (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public ''''<sup>'''<sup>[22]</sup>'''</sup>'''', by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.''EXCEPTION: Copyright owners of sound recordings are not granted a general public performance right, but instead are granted a separate public performance right under §106(6); a public performance rights limited to digital audio transmissions.''Cartoon Network LP v. CSC Holdings, Inc.''536 F.3d 121 (2d Cir. 2008)FACTS: Cablevision unveiled a new service called “Remote Service DVR.” Before the service, content providers would transmit their content to Cablevision who would retransmit to their customers. The new service passed the transmission stream through two buffers, neither of which maintained the information in them for more than two seconds. At the DVR subscriber's election, the stream could be redirected to Cablevision's Arroyo servers, a partition of which was allocated to each subscriber. Cartoon Networks, one of Cablevision's content providers, alleged that Cablevision's RS-DVR service would directly infringe their exclusive right to both reproduce (both in the buffer and once memorialized on the Arroyo server) and publicly perform their copyrighted work. The court ultimately finds for Cablevision.SYNOPSIS OF RULE: The use of a unique copy may limited the potential audience of a transmission and is therefore relevant to whether that transmission is made “to the public” <sup><sup>[23]</sup></sup>DISCUSSION: With regards to the alleged reproduce violation, the court said that the buffer copy was not “fixed” for more than a transitory duration. With regards to the Arroyo reproductions, these were said to be made by the Cablevision customers because only they provided the volitional conduct that caused them to be created. Employing the rule above, the court held that “because the RS-DVR system, as designed, only makes transmission to one subscriber using a copy made by that subscriber, we believe that the universe of people capable of receiving the RS-DVR transmission is the single subscriber whose self-made copy is used to create the transmission.'''Public Display'''Section §106 grants the right of public display to copyright owners of literary, musical, dramatic, and choreographic works. Additionally, individual images of a motion picture are protect by this right. Section §101 defines display as”''To display a work means to show a copy of it , either directly or by means of a film, slide, telvision image, or other device or process or, in the case of a motion picture or other audiovisual work to show individual images nonsequentially.''For example, in ''Ringgold v. Black Entertainment Television'', Plaintiff Ringgold sued because a poster of her work was used in the background of a television set, and thus photographed as part of the television program. This was clearly a violation of her public display rights. However, in ''Triangle Publications Inc. v. Knight Ridder Newspaper, Inc, ''the court held that the owners of TV Guide could not prohibit a publisher of a competing guide from incorporating images of the TV Guide in their advertisements because “the First Amendment encourages comparative advertising of the sort at issue.”Section §109(c) allows the owner of a particular lawfully made copy of a work to, without the authority of the copyright owner, “display their copy publicly to viewers present at the place where the copy is located.” This is how museums get by.''Perfect 10, Inc. v. Amazon.com, Inc.''508 F.3d 1146 (9<sup>th</sup> Cir. 2007)FACTS: Google image search allows users of Google to search for images on the internet. The results of the images search are displayed as thumbnails. When a user clicks on the image, the use is directed to whichever 3<sup>rd</sup> party computer is hosting that image. Google's servers do not house any copies of the images. However, when the 3<sup>rd</sup> party site is displayed, it is done so with a Google image search frame above the 3<sup>rd</sup> party site. Google also offers a “cache” search. Google stores caches of previous versions of websites HTML code. It does not cache images from sites. However if the owner of the cached site has removes the image from their current version of the site, but not the image hosting location, cached HTML code could “retrieve” the image and display it.SYNOPSIS OF RULE: Neither directing users to other image hosting servers nor providing the cached HTML instructions is not equivalent to showing a copy.DISCUSSION: The court concluded that Google's display of thumbnail images was fair use. It went on to say that Google's activities do not violate Perfect 10's right to display (a full sized image image) because Google transmit or communicates only an address which directs a user's browser to the location where a copy of the full-size image is displayed. While in-line linking and framing may cause some computer users to believe that they are viewing a single Google webpage, the Copyright Act, unlike the Trademark Act, does not protect a copyright holder against acts that cause consumer confusion.''United States v. ASCAP''485 F. Supp. 2D 438 (S.D.N.Y. 2008)SYNOPSIS OF RULE: The court expressly rejected ASCAP's argument that downloading constituted a public performance, instead characterizing such activity as a reproduction.
# ''' Application of Reproduction and Derivative Work Rights to Specific Works '''
# ''' Characters – 8pgs '''
''Metro-Goldwyn-Mayer, Inc. v. American Honda Motors Co.''9900 F. Supp. 1287 (C.D. Cal. 1995)FACTS: Honda, D, created an ad campaign for the Del Sol vehicles which features a spy character with a British accent escaping from a man who appears to have metal arms that was chasing the spy in a helicopter. MGM, P, argues that Ds violated their copyright in the James Bond characters ''as expressed and delineated in P's sixteen films'', not in the character itself. P contends that D's commercial infirnges in two ways (1) by reflecting specific scenese from the 16 films, and (2) by the male protagonist's possessing James Bond's unique character traits as developed in the film.SYNOPSIS OF RULE:
# '' ''''Story Being Told test'': A character is protectable if they “constitute the 'story being told'” but not “if the character is only the chessman in the game of telling the story.” ''Warner Bros. Pictures, Inc. v. Columbia Broadcasting System, Inc. ''[aka the ''Sam Spade'' case.]
# '' ''''Character Delineation test'': Graphic characters are subject to a less stringent test for protectability because “as a practical matter, a graphically depicted character is more likely to be sufficiently fleshed out.” ''Walt Disney Productions v. Air Pirates''
DISCUSSION: With regards to the claim of scenes being too similar, the court found that P was likely to succeed in it's claim, because while the idea of a helicopter chase is not protectable, D's expression is substantially similar to P's. “A plaintiff who holds copyrights in a film series acquires copyright protection as well for the expression of any ''significant ''characters portrayed therein.” The court holds, therefore, that P's satisfy the “ownership” prong of the test. The court holds that “the James Bond character is a copyrightable character under either the story being told test of the character delineation test because James Bond has certain traits which have been developed over time throught the sixteen films in which he appears ad the fact that so many actors have played him, contrary to D's assertions, emphasizes how the character is bigger than any one man, and thus sufficiently developed.''Titan Sports, Inc. v. Turner Broadcasting Systems, Inc.''981 F. Supp. 65 (D. Conn. 1997)FACTS: Titan Sports, Inc. runs the WWF; TBS owns the WCW. The WWF employed Scot Hall and created a character for him to portray called Razor Ramon. Razor Ramon had a specific style of dress, moves, and personality created by Plaintiff. They also employed Kevin Nash, creating for him the alter-ego of Diesel The court decided that there could be a set of facts for which relief could be granted and therefore denied the motion for summary judgement.DISCUSSION: The owner of a copyright in various works embodying a character can acquire copyright protection for the character itself. However, a plaintiff must still demonstrate that the character was distinctively delineated in the plaintiff's work, and such delineation was copied in the defendant's work. The protection is limited to the character as defined by performances in the copyrighted works. Only a uniquely developed character with some degree of novelty is copyrightable. Copyright law does not protect characters which are as a practical matter indispensable, or at least standard, in the treatment of a given subject.''Warner Bros. Pictures, Inc. v. Columbia Broadcasting Systems, Inc.''216 F.2d 945 (9<sup>th</sup> Cir. 1954)DISCUSSION: “If Congress had intended that the sale of the right to publish a copyrighted story would foreclose the author's use of its characters in subsequent work for the life of the copyright, it would seem that Congress would have made specific the provision therefor.''Walt Disney Productions v. Air Pirates''581 F.2d 751 (9<sup>th</sup> Cir. 1978)DISCUSSION:Graphically depicted characters, those that are drawn, garner a kind of graph work protection. Visually depicted characters in movies employing actors to portay the character may have more difficulty in obtaining protection (''see Titan Sports'')
# ''' Compilations and Databases ''''''<sup>25</sup> – 19pgs '''

25 The EU Database Directive is aimed at protecting substantial investments (or “sweat off the brow”) expended in creating a database. It establishes a two tiered system of protection:
# Requires EU Member States to provide copyright protection for databases that “by reason of the selection or
'''Rule''': The copyrightability of a compilation of facts depends on the selection and arrangement of those facts. However, even when the arrangement or selection of data is sufficiently original, copyright protection in factual compilations is described as “thin,” meaning that in order to infringe, the defendant must copy the compilation's original elements (i.e, its selection or arrangement) exactly or almost exactly.''Bellsouth Advertising & Publishing Corp. v. Donnelley Information Publishing, Inc. ''999 F. 2d 1436 (11<sup>th</sup> Cir. 1993)FACTS: Bellsouth, P, published a yellow pages for the Miami area. Donnelley published a competing yellow pages for the same metropolitan region. In order to expand their business, Donnellely engaged Appalacian Computer Services, Inc. (“ACS”) to create a sales lead list based on the Bellsouth directory. ACS created a database by taking every business listed in the Bellsouth directory and coding it by business name, address, telephone number, business type and size of advertisement purchased in the Bellsouth directory.SYNOSIS OF RULE: - “To establish its claim of copyright infringement, Bellsouth must prove (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original... BAPCO must prove that Donnelley, by taking the material it copied from the BAPCO directory, appropriated BAPCO original selection, coordination or arrangement”DISCUSSION: The Court didn’t find sufficient originality in the structure of the compilation headings to be protectable as it could characterize as obvious, typical or commonplace. “The primary objective of copyright is not to reward the labor of the author [sweat off the brow] but 'to promote the Progress of Science and the useful Arts.'”''CCC Information Services, Inc. v. Maclean Hunter Marketing Reports, Inc. ''44 F.3d 61 (2d Cir. 1994)FACTS: Maclean Hunter (“Maclean”) publishes the Red Book every few week which sets forth certain projections for the value of used cars based on make, model, year, condition, etc. CC Information Services (“CCC”) operates a database which averages the Red Book projections and “Blue Book” projections, from a separate publisherSYNOPSIS OF RULE: Ideas fall into one of two categories, one protectable and one not:
# Those ideas which undertake to advance the understanding of phenomena or the solution of problems
(such as the identification of the symptoms most useful to diagnosis a particular disease)
# Those that do not undertake to explain phenomena or furnish solutions, but are infused with the author's taste or opinion (such as the effect of a pitcher’s form on whether a game will be won or lost, or the valuations herein.)
DISCUSSION: The court disagrees with CCC that the Red Book is merely a collection of facts which only has a thin copyright. The court also disagrees with the assertion that the valuations are uncopyrightable “facts.” The court says that the valuations are unlike the phone numbers in ''Feist'', but involved weigh a number of competing factors in order to arrive at the ultimate valuation. Thus, the court says, these valuations are the original creation of Maclean. The fact that an arrangement of data responds logically to the needs of the market for which the compilation was prepared does not negate originality;Other aspects of the Red Book listings which the court said were sufficient original to pass ''Feist's'' ''de minimis ''threshold including: (1) the selection and manner of presentation of optional feature for inclusion; (2) the adjustment for mileage by 5,000 mile increments (as opposed to using some other breakpoint and interval); (3) the use of the abstract concept of the “average” vehicle in each category as the subject of the valuation; and (4) the selection of the number of years' models to be included in the compilation.''CDN Inc.v. Kapes''197 F.3d 1256 (9<sup>th</sup> Cir. 1999)FACTS: Kapes runs a coin shop, which trades in antique coins for collectors. He generated and posted a retail price list online which was based on calculations involving certain wholesale prices that CDN Inc. has created. The court says thatCDN's prices, which are compilations of data chosen and weighed with creativity and judgment, show sufficient originality.arrangement of their content, constitute the author's own intellectual creation.
# Establishes a new right to prevent unauthorized extraction or re-utilization of the contents of the database.
SYNOPSIS OF RULE: If prices are determined through the use of judgment and expertise, to distill and extrapolate from factual data, then the prices are sufficiently original to be copyrightable.''Matthew Bender & Co. v. West Publishing Co.''158 F.3d 693 (2d Cir. 1998)FACTS: Matthew Bender & Company Inc. manufactures judical opinions stored on CD-ROMs. West publishes printed compilations of federal and state judicial opinions. Bender included West's star pagination in their digital copies of the opinions. West argues that this allows users of P's CDs to “perceive” West's copyrighted arrangement of cases. The court finds for Plaintiff Bender.DISCUSSION: West concedes that the pagination of its volumes is determined by an automatic computer program. Therefore, because they lack any degree of creativity, the page numbers themselves are not copyrightable. West argues that theoretically one could use the pagination to reconstruct their copyrightable arrangement. The court rejects this because it's not fixed on the CDs in this manner and that the arrangement can only be perceived after a person uses the machine to rearrange the material.
# ''' Pictorial, Graphic and Sculptural Works – 14pgs '''
''Mazer v Stein''347 U.S. 201 (1954)FACTS: Stein produced a sculpture of a nude which he registered with the Copyright Office as a “work of art.” The statuette was later mass reproduced as used as the base of a lamp. Mazer later copied the statuette and Stein sued for copyright infringement. Mazer argued that the statuette when mass reproduced and used as a lamp base, wasn't the proper subject matter of copyright.SYNOPSIS OF RULE: “A subsequent utilization of work of art in an article of manufacture in no way affects the right of the copyright owner to be protected against infringement of the work of art itself.”'''Useful Articles and Determining Separability'''Congress sought to codify ''Mazer'''s holding in the 1976 Act's definition of ''“''pictorial, graphic, and sculptural works.” Section 101 states in part:'''''Such works shall include works of artistic craftsmanship '''''''insofar as their form but not their mechanical or utilitarian aspects are concerned; '''the design of a useful article ''''''''''<sup><strong><sup>[24]</sup>'''</strong></sup>'''''''...''''''' shall be considered a pictorial, graphic, or sculptural work only if,...design incorporates pictorial, graphic, or sculptural features '''that can be identified separately from, and are capable of existing independently of , the utilitarian aspects of the article. '''''According to the House Report:“The test of separability and independence from the utilitarian aspects of the article” does not depend upon the nature of the design – that is, even if the appearance of an article is determined by esthetic (as opposed to functional) considerations, '''only elements, if any, which can be identified separately from the useful article as such are copyrightable.''' And even if the three-dimensional design contains some such element (for example, a carving on the back of a chair or a floral relief design on silver flatware), copyright protection would extend only to that element, and '''would not cover the over-all configuration of the utilitarian article as such.”'''Summary of Separability Theories:
# Physical Separability – elements, either alone or in combination, which are capable of independent existence as a copyrightable pictorial, graphic or sculptural work apart from the utilitarian aspect
# Conceptual Separability – if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable form the utilitarian aspects and vice versa (''Kieselstein'', ''Carol Barnhart'')
# Design Process – separability only if the designer is able to make aesthetic choices that are unaffected by functional considerations. (''Brandir'')
''Kieselstein-Cord v. Accessories by Pearl, Inc.''632 F. 2d 989FACTS: Kieselstein-Cord (“KC”) designs handcrafted belt buckles which have been displayed in the Met, and were registered with the Copyright Office as “jewelry.” Pearl copied the belt buckle and was sued. They argue that the KC's buckles were not copyrightable because of lack of separability from utilitarian and aesthetic elements.SYNOPSIS OF RULE: Separability may be either “physically or conceptually.”DISCUSSION: “We see in appellant's belt buckles conceptually separable sculptural elements, as apparently have the buckles' wearer who have used them as ornamentation for parts of the boy other than the waste. The primary ornamental aspect of the Vaquero and Winchester buckles is conceptually separable from their subsidiary utilitarian function...Pieces of applied art, these buckles may be considered jewelry, the form of which is subject to copyright protection...The basic requirements of originality and creativity, which the two buckles satisfy and which all works of art must meet to be copyrighted, would take the vast majority of belt buckles wholly out of copyright-ability”''Carol Barnhart Inc. v. Economy Cover Corp.''773 F.2d 411 (2d. Cir. 1985)FACTS: Barnhart created plastic forms of the human torso for displaying clothing, etc. Economy Cover Corp. copied Barnhart's forms. The court determines that the forms do not “posses aesthetic or artistic features which are physically or conceptually separable from the forms use as utilitarian objects to display clothes.”DISCUSSION: “What distinguishes those buckles [in ''Kieselstein-Cord''] from the Barnhart forms is that the ornamented surfaces of the buckles were not in any respect required by their utilitarian functions; the artistic or aesthetic features could thus be conceived of as having been added to, or super imposed upon, an otherwise utilitarian article”DISSENT: “For the design features to be “conceptually separate” from the utilitarian aspects of the useful article that embodies the design, the article must stimulate in the mind of the beholder a concept that is separate from the concept evoked by its utilitarian function...I think the relevant beholder must be that most useful legal personage – the ordinary reasonable observer”''Brandir International , Inc. v. Cascade Pacific Lumber Co. ''834 F.2d 1142 (2d Cir. 1987)FACTS: Steven Levine formed a sculptural piece from wire. That piece later inspired him to create the “Ribbon Rack,” a functional and aesthetic bike rack. He tried to copyright it, and was denied by copyright office.SYNOPSIS OF RULE: The court applies the '''Denicola test''' of conceptual separability:
# If design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable form the utilitarian aspects and vice versa.
# Alternatively, if the design elements reflect the designer’s artistic judgment independent of functional considerations, there is conceptual separability.
DISCUSSION: The Ribbon rack is not copyrightable because its aesthetic aspects are just a product of industrial design, therefore, no conceptual separability exists. Court found the form of the rack was significantly influenced by functional concerns so that the artistic elements were not conceptually separate from the utilitarian Even though the rack may be admired for its aesthetic qualities alone, it remains nonetheless a product of industrial designForm and function were inextricably intertwined in the rack, and its form was dictated as much by utilitarian choices as by aesthetic concernsDISSENT: The dissent would have applied the same test the dissent in Carol Barnhart used, consider how a reasonable person would view the conceptual separability. Put another way, whether the design of a useful object, however intertwined with its functional aspects, is perceived as an aesthetic concept not related to the article’s function
# ''' Computers – 14pgs '''
'''The literal text of source and object code are protected by copyright'''. Courts say the “non-literal aspects” of a program are protectable, in a similar way to literary works (i.e. protected both literally and abstractly) (''see CA, Inc.'' quoting ''Nichols'') ''Computer Associates International, Inc. v. Altai, Inc.''982 F. 2d 693 (2d Cir. 1992)FACTS: Computer Associates (“CA”) created a program called CA SCHEDULER. With this program was a module called ADAPTER which allows CA SCHEDULER to interface with various operating systems. A programer left CA to go work for Altai and took some of his code along with him. He modified Altai's version of CA SCHEDULER, ZEKE, to interface with other operating by using a modified version of ADAPTER, OSCAR. The Altai programs were not literally similar.SYNOPSIS OF RULE:
# '''Abstraction''': Dissect the allegedly copied program's structure, in a manner that resembles reverse engineering, and isolate each level of abstraction contained there in (at each module).
# '''Filtration ''''''<sup><strong><sup>[25]</sup>'''</strong></sup>: Examine the structural components at each level of abstraction to determine if they:
## Were dictated by consideration of efficiency <sup><sup>[26]</sup></sup>, so as to be necessarily incidental to the idea.
## Required by factors external to the program itself <sup><sup>[27]</sup></sup>, or
## Taken from the public domain and are hence non-protectable expression
# '''Comparison:''' Comparing the residual elements, after filtration, of the program at each level of abstraction. In computer cases, it is up to the trial court whether experts can be used and ''Arnstein's ''layperson rule'' ''doesn't apply.
DISCUSSION: Before getting into the test above, the court first addresses the idea v. expression dichotomy in light of ''Baker v. Selden'' (about the accounting forms) and ''Whelan. ''The court recognizes that computer programs present a unique challenge. “The line between idea and expression may be drawn with reference to the end sought to be achieved by the work in question. In other words, t''he purpose or function of a utilitarian work would be the work's idea, and everything that is not necessary to the purpose or function would be part of the expression of the idea.”'' Ultimately the court finds this idea/expression unworkable in the context of computer programs. The court then creates the three step test above.''Softel, Inc. v. Dragon Medical and Scientific Communications, Inc. ''118 F. 3d 955 (2d Cir. 1997)FACTS: Softel, P, and Dragon Medical and Scientific Communication, Inc., D, were in a long term business relationship in which P created certain programs for D. The relationship ended up souring and the parties parted ways. After separating, Dragon created its own programs which P believe were significantly similar to their programs.SYNOPSIS OF RULE: Even if, in applying the “abstraction-filtration-comparison” test a program is found to be made up of wholly unprotectable individual elements.modules, their organization can be protected.DISCUSSION: The court uses the ''Altai'' “abstraction-filtration-comparison.” The test, the court says, shows that “allegations of infringement based on similarities in architecture cannot be ignored merely because many or all of the design elements that make up that architecture are not protectable when considered at the lower level of abstraction.” “Even if there were a few ways to design such a program, it does not seem likely that Dragon would have to use an identical structure and copy approximately fifteen out of fifteen comands.” They held that the trial court erred in not conducting the ''Altai'' analysis at the highest level of abstraction. They say, “an original arrangement of uncopyrightable or public domain works – even facts – is as a compilation in the computer context as it is elsewhere in copyright law. Thus, individual program elements that are “filtered” out at one level may be copyright when viewed as part of an aggregate of elements at another level of abstraction.” Here, “the court credited Dragon's expert testimony that each of the four design elements was pervasively used in the industry, but did not address the issue of whether the choice and combination of the elements was commonplace.”
== Direct, Contributory and Vicarious Infringement ==
# Traditional – 34pgs
{|class="wikitable"
|-
|Direct Infringement
|Strict liability
|-
|Contributory Infringement
|A defendant will be a guilt of contributory liability if they:1. Have '''knowledge''' of the infringing activity; and2. Induce, cause or '''materially contribute (''Visa)''''' to the infringing conduct of another.
|-
|Vicarious Infringement
|A defendant will be a guilt of vicarious liability if they:1. Have the '''right and ability to control '''the infringing activity; and2. Have a '''direct financial interes'''t <sup><sup>[28]</sup></sup>in such activity.
|}
NOTE: In ''UMG Recordings, Inc.'' the court expressed disfavor with liability for vicarious support of vicarious infringers.''Religious Technologies Center v. Netcom On-Line Communication Services, Inc. ''907 F. Supp. 1361 (N.D. Cal. 1995)FACTS: Plaintiff Religious Tech Center own the copyright in publications related to Scientology. Defendant Erlich was critical of the church and shared his criticism on a internet bulletin board system (“BBS”). Erlich also posted parts of the copyrighted work on the BBS run by Defendant' Klemesrud called “support.com.” Klemesrud's BBS connected to the internet through Defendant Netcom.SYNOPSIS OF RULE:
# '' ''Direct infringement doesn't require intent or particular ''mens rea'', but willfulness affects the award of stat. damages.
# '' ''That there are infringing copies of the work stored on D's system which are retransmitted to other servers, does not evidence direct infringement by the BBS operator of the right to ''reproduce'' the work if uploaded by a 3<sup>rd</sup> party
''Fonovisa Inc. v. Cherry Auction, Inc.''76 F.3d 259 (9<sup>th</sup> Cir. 1996)FACTS: Cherry Auction, Inc, D, ran a large swap meet. Vendor's paid D a fee to rent stalls at the meet; shoppers paid an entrance fee; and D covered the expense of providing parking, etc. A number of vendors were selling infringing copies of Fonovisa's sound recordings.SYNOPSIS OF RULE:
# '' ''Even in the absence of an employer-employee relationship one may be '''vicariously liable''' if he has the '''right and ability to supervise''' the infringing activity and also has a '''direct financial interes'''t in such activities.
# '' ''“[O]ne who, with '''knowledge''' of the infringing activity, induces, causes or '''materially contributes''' to the infringing conduct of another, may be held liable as a contributory infringer.” ''Gershwin''.
DISCUSSION:With regards to the first element of vicarious liability, the court says that D had the right to terminate vendors for any reason whatsoever and through that right had the ability to control the activities of vendors on the premises. With regard to financial interest, the court said that “the sale of pirated recordings and Cherry Auction swap meet is a “draw” for customers, [just as] the performance of pirated music in the dance hall cases and their progeny. Plantiff have stated a claim for vicarious copyright infringement.The court then examines the claim of contributory infringement. On the element of material contributions, the court says: “it would be difficult for the infringing activitiy to take place in the massive quantities alleged without the support service provided by the swap meet. These services include, ''inter alia,'' the provision of space, utilities, parking, advertising, plumbing and customer.” The element of knowledge was not contested. The court says this is therefore sufficient to establish contributory negligence.''Perfect 10, Inc. v. Amazon.com, Inc. ''508 F. 3d 1146 (9<sup>th</sup> Cir. 2007)SYNOPSIS OF RULE:
# '' ''Contributor Liability: “A computer system operator can be held contributory liable if it 'has ''actual'' knowledge that ''specific ''infringing material is available using its system, and can 'take simple measure to prevent further damage' to copyrighted works, yet continues to provide access to infringing works.” ''Napster, Netcom''
# '' ''''Vicarious Liability'': “A plaintiff must establish that the defendant exercises the requisite control <sup><sup>[29]</sup></sup> over the direct infringer and that the defendant derives a direct financial benefit from the direct infringement.”
DISCUSSUION: “One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conducts of another may be held liable as a 'contributory' infringer.” ''Gershwin Publishing Corp. v. Columbia Artists Management, Inc.''“If a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement.” ''Napster. ''Here the court said that if Google had knowledge of the infringement, the fact that the directed customers to the 3<sup>rd</sup> party sites met the burden of “material contribution.With regard to the vicarious liability charge, the court said that Google did not have the requisite legal authority to stop 3<sup>rd </sup>party infringers. Nor, said the court did they have the practical ability. The current technology did now allow Google to compare the allegedly infringing images against a database of copyrighted works to determine if there was infringement.''Perfect 10, Inc. v. Visa International Service Association''494 F.3d 788 (9<sup>th</sup> Cir. 2007)FACTS: Perfect 10, Inc., P, is suing Visa, D, because Visa because the process payment for websites which are infringing P's copyright. P had previously alerted D of the infringing sites. P hopes to hold D liable for contributory and vicarious infringement.DISCUSSION: With regards to the contributory infringement, the court says that there is insufficient evidence of material contribution. “Perfect 10 has not alleged that any infringing material passes of P's payment networks, or that D's systems are used to alter or display the infringing images, nor are D's systems used to locate the infringing images (like in''Amazon.com'')...While P has alleged that D makes it easier for websites to profit from this infringing activity, the issue here is reproduction, alteration, display and distribution., which can occur without payment. Even if infringing images were not paid for, there would still be infringement. [Thus] there is an additional step in the causal chain...D makes it easier to for infringement to be profitable, which tends to increase financial incentive to infringe, which in turn tends to increase infringement.” The court says that this is not sufficient to prove material contribution, or in turn contributory liability.”With regards to the allegation of vicarious copyright infringement, the court says that D did not have the right and ability to control the infringing activity. Relying on ''Amazon.com'', the court says that Google's right to terminate an AdSense partnership does not give Google the right to stop direct infringement by third party websites. Likewise here, D has no ability to directly control the activity, and the mere ability to withdraw a financial “carrot” does not create the “stick” of “right and ability to control” that vicarious infringement requires.'''Employer/Employee Liability'''According to ''Nimmer'' ''on Copyright'', an employee is not personally liable for infringement if the infringing “act was required of him as a part of the duties of his employment, and if, further, he was not permitted to exercise discretion, judgement or responsibility in the conduct of such duties. However, an employee who in the exercise of his authority commits or determines that his employer (corporate or otherwise) shall commit an act that constitutes an infringement will be held jointly and severally liable with his employer.'''Device Manufactures and Liability for Inducing Infringement'''
{|class="wikitable"
|-
|''Sony Corp. of America v. ''''Universal City Studios, Inc.''464 U.S. 417 (1984)
|“The sale of copying equipment does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial non-infringing uses.”
|-
|''A&M Records, Inc. v. Napster, Inc.''
|“Once Napster had been notified of specific infringing files being traded on its system, it could be held contributorily liable for infringing the copyrights in those works...Absent
|-
|239 F.3d 1004 (9<sup>th</sup> Cir. 2001)
|specific information which identifies infringing activity, a computer system operator cannot be liable for contributory infringement merely because the structure of the system allows for the exchange of copyright material.”
|-
|''In re Aimster Copyright ''''Litigation''334 F. 3d643 (7<sup>th</sup> Cir. 2003)
|Aimster's encryption-based strategy amounted to willful blindness, and could not be used to avoid contributory infringement liability. In light of Aimster's software tutorial, which the court characterized as an “invitation to infringement,” Aimster had the burden to show that its service currently had substantial non-infringing uses, and to provide “evidence concerning the frequency of such uses. However, the court suggested that even if Aimster produced sufficient evidence of non-infringing uses, to avoid liability it also would need to “show that it would have been disproportionately costly to eliminate or substantial reduce the infringing uses.
|}
''Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. ''545 U.S. 913 (2005)FACTS: In the wake of Napster's demise, two companies began to create replacement programs, namely Grokster and Morpheus. The companies sent targeted ads to former Napster users highlighting the similar functions and uses of their products and Napster's.SYNOPSIS OF RULE:
# “Advertising an infringing use or instructing how to engage in an infringing use, shows an affirmative intent that the product be used to infringe, and a showing that infringement was encouraged overcomes the law's reluctance to find liability when a defendant merely sells a commercial product suitable for some lawful purpose.”
# “One who distributes a device with the object of promoting its use to infringing copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by thirds parties.” <sup><sup>[30]</sup></sup>
DISCUSSION: “Nothing in ''Sony'' requires courts to ignore evidence of intent if there is such evidence, and the case was never meant to foreclose rules of fault-based liability derived from the common law.” “Where an article is 'good for nothing else' but infringement...there is no legitimate public interest in its unlicensed availability and there is no injustice in presuming or imputing an intent to infringe.”
# ''' Section 512 – 14pgs '''
Generally, §512 establishes “safe harbors” that provide immunity <sup><sup>[31]</sup></sup> from infringement liability under certain circumstances for a s “service provider” <sup><sup>[32]</sup></sup> that engages in the following activities:
{|class="wikitable"
|-
|

|To avoid liability...
|-
|1. Transitory digital network communications Section §512(a)
|(a) The transmission must be initiate by someone other than the OSP and must be carried out through an automatic process(b) The OSP must not select the recipient except through an automatic process(c) The OSP must not maintain a copy accessible to anyone other than the recipients (d) The OSP must transmit the material without modifying its content.
|-
|2. System cachingSection §512(b)
|(a) The cached material must be made available by someone else, transmitted from that person to the recipients at the recipient's direction and the storage is automatic, AND(b) The OSP must further comply with “conditions” imposed by the copyright owner (including password protection and deadlines for refreshing or updating the cached copy), AND(c) The OSP must disable access to cached material upon notice that a court has ordered the cached material removed from the originating website.
|-
|3. Storing information on its systems at the direction of users Section §512(c)
|(a) The OSP must designate an agent to receive notification of claimed infringement from copyright owners <sup><sup>[33]</sup></sup>, file that designation with the Copyright Office, and make it publicly available.(b) The OSP must not have “actual knowledge” that the material is infringing or “awareness of facts or circumstance from which infringing activity is apparent.(c) If the OSP does have knowledge, they must act quickly to remove/disable access to the material.(d) The OSP must not obtain a “financial benefit directly attributable to the infringing activity, in a case in which the service provide has the right and ability to control such activity.
|-
|4. Providing information location tools like hypertext linksSection §512(d)
|(a) The OSP must designate an agent to receive notification of claimed infringement from copyright owners, file that designation with the Copyright Office, and make it publicly available.(b) The OSP must not have “actual knowledge” that the material is infringing or “awareness of facts or circumstance from which infringing activity is apparent.(c) If the OSP does have knowledge, they must act quickly to remove/disable access to the material.(d) The OSP must not obtain a “financial benefit directly attributable to the infringing activity, in a case in which the service provide has the right and ability to control such activity.
|}
Responsibilities under §512:
{|class="wikitable"
|-
|Complaining Party
|OSP
|Subscriber
|-
|Notice of infringement to OSP must include contact information for the complaining party; must identify the allegedly infringing material with information sufficient to permit OSP to locate it; and must state that the complaining party “has a good faith belief” that the material is unauthorized.
|Upon receipt of a notice from the complaining party, the OSP must move expeditiously to remove the infringing material. If the OSP decided to remove the material, it must take reasonable steps to promptly notify the subscriber of the removal. §512(h) provides a subpoena mechanism to get subscriber information by court order. <sup><sup>[34]</sup></sup>Upon receipt of a counter notification, the OSP must notify the complaining party and must restore the material within 10 business days unless it first receives notice that a lawsuit has been filed.
|If the subscriber wishes, he or she may furnish a counternotification that identifies the material; states under penalty of perjury that the subscriber has a good faith belief that it was removed by mistake
|}
== Fair Use and the First Amendment ==
# ''' Introduction '''
'''Statutory Limitations on Exclusive Rights:'''
{|class="wikitable"
|-
|Simple Bright Line Rules
|Complex and Technical Bright Line Rules:.
|Fair Use:
|-
|Examples:1. Section §114(a): The reproduction and derivative work rights belonging to the copyright owner of a sound recording do not include “sound alike recordings”2. Section §109: The first sale doctrine says that the right of public distribution does not include the subsequent sales or, for most works, rentals, after the copyright owner has parted with title to a particular copy of a work.
|Examples:1. Section § 110(5)(B): which allows certain small businesses to play nondramatic musical works by turning on the radio or television despite the public performance right.2. Section § 114(d): Which allows certain types of digital audio transmissions of sound recording despite the rights granted in §106(6)3. Section § 111: Which allows for certain broadcast retransmissions despite the public performance right.4. Section § 512: Which allows for certain temporary copies to be created by ISPs.
|Examples:Section §107 confers upon the cours the ability to decide whether a particular activity should be within the copyright holders rights or if that particular use is subject to “fair use exceptions”
|}
''Folsom v. Marsh''9 F. Cas. 342 (C.C.D. Mass. 1841)FACTS: P had written a twelve volume, 7,000 page biography of President Washington D had copied 353 pages from P's work to create a two volume work. The court rejected a “fair abridgment” claim and in doing so laid the foundation of the US fair use doctrine.DISCUSSION: “In short, we must often, in deciding questions of this sort, look to the nature and objects o the selections made, the quantity and value of the material used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”Section §107. Limitation on exclusive rights: Fair use:''Not withstanding the provision of section 106 and 106A, the fair use of a copyrighted work...'''for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, '''is not an infringement of copyright. In determining whether use made of a work is any particular case is a fare use the factor to be considers shall include:''
# '' ''''the '''purpose and character of the us'''e, including whether such use is of a commercial nature or is for nonprofit education purposes –'' ''MOST IMPORTANT''
# '' ''''the '''nature of the copyrighted work'''''
# '' ''''the '''amount and substantiality''' of the portion used in relation to the copyrighted work as a whole; and ''
# '' ''''the '''effect of the use upon the potential market '''for or value of the copyrighted work.-MOST IMPORTANT''
# ''' Public Discourse '''
''Harper & Row, Publisher, Inc. v. Nation Enterprises ''471 U.S. 539 (1985)FACTS: After President Ford left office he entered into a publishing agreement with Harper Row, P, for his autobiography.As his memoirs were nearing completion, P, negotiated a prepublication licensing agreement with Time magazine, whereby Time would have the exclusive right to publish approximately 7,500 words of the autobiography in their magazine before publication. Before this occurred, however, The Nation, a competing publication receive the advance copy of the memoirs and published certain sections about the Watergate scandal and Ford's pardon of Nixon. This caused Time to cancel the purposed prepublication and not pay the $12,5K advance they had agreed to.DISCUSSION:'''Purpose of Use:''' The Nation when beyond simple reporting uncopyrightable information and actively sought to exploit the headline value of its infringement, making a “news event” out of its unauthorized first publication of a noted figure's copyrighted expression. The Nation's use had not merely the incidental effect but the ''intended purpose'' of supplanting the copyright holders's commercially valuable right of first publication. “Fair use presupposes 'good faith' and 'fair dealing''''Nature of Work: '''The fact that the plaintiff's work is unpublished...is a factor tending to negate the defense of fair use. <sup><sup>[35]</sup></sup> The authors right to control the first public appearance of his expression weighs against such use of the work before its release. The fact that the author is a public figure does not create a special fair use exception. The law generally recognizes a greater need to disseminate factually works than works of fiction or fantasy.'''Amount Used: '''The Nation took what was essentially the heart of the book. A taking taking may not be excused merely because it is insubstantial with respect to the ''infringing work''. In view of the expressive value of the excerpt ant their key role in the infringing work, SCOTUS could not agree with the CoA that the “magazine took a meager, indeed infinitesimal amount of Ford's original language.”'''Effect upon Potential Market ''''''<sup><strong><sup>[36]</sup>'''</strong></sup>''': '''To negate fair use one need only show that if the challenged use “should become widespread, it would adversely affect the ''potential ''market for the copyrighted work. This inquiry must take account not only of harm to the original but also of harm to the market for derivative works.''Castle Rock Entertainment v. Carol Publishing Group, Inc. ''150 F. 3d 132 (2d Cir. 1998)DISCUSSION:'''Purpose of Use ''''''<sup><strong><sup>[37]</sup>'''</strong></sup>''':''' The ''The SAT's'' use is commercial, at most, “tends to weigh against a finding of fair use.” ''Campbell.'' The court said that any transformative purpose possessed by ''The SAT'' is slight to non-existant. ''The SAT's ''author, described th trivia quiz book not as a commentary or a ''Seinfeld'' research tool, but as an effort to “capture Seinfeld's flavor in quiz book fashion. A secondary work need not necessarily transfrom the original work's expression to have a transformative purpose.'''Nature of Work: '''The scope of fair use is narrower to fiction works, such as ''Seinfeld'', than to factual work.'''Amount Used ''''''<sup><strong><sup>[38]</sup>'''</strong></sup>''':''' The facts here weigh against fair use.'''Effect upon Potential Market ''''''<sup><strong><sup>[39]</sup>'''</strong></sup>''': '''Unlike parody, criticism, scholarship news reporting, or other transformative uses, ''The SAT'' substitutes for a derivative market that a television program copyright owner such as Castle Rock “would in gneral develop or license other to develop. Although Castle Rock has evidence little if any interest in exploiting this [''Seinfeld ''trivia] market...the copyright law must respect that creative and economic choice.''Núňez v. Caribbean International News Corp. (El vocero de Puerto Rico'') 235 F. 3d 18 (1<sup>st</sup> Cir. 2000)FACTS: Núňez, P, was a photographer and took modeling pictures of Miss Puerto Rico, including one nude. There pictures leaked and there was an intense public debate regarding the appropriateness of this conduct my Ms. Puertor Rico. ''El vocero ''published the pictures without permission.DISCUSSION:'''Purpose of Use:''' ''El Vocero'' did not manufacture newsworthiness, as it sought not to “scoop” appellant by publishing his photograph, but merely to provide news reporting to a hungry public. ''El Vocero'' did not merely “supersede the objects of the original creation,” but instead used the works for “a further purpose” giving them a new “meaning or message” It is this transformation of the works into news – and not the mere newsworthiness of the works themselves – that weighs in favor of fair use under the first factor of §107. Appellee's good faith also weighs in its favor on this prong of the fair use test...(1) ''El Vocero'' attributed the photographs to P, (2) ''El Vocero ''obtained each of the photographs lawfully. In sum, the highlighting of the photograph on the front cover of ''El Vocero'' exposes the commercial aspect of the infringing use, and counts against appellee. However, the informative nature of the use, appellee's good faith, and the fact that it would have been difficult to report the news without reprinting the photograph suggest that on the whole, this factor is either neutral or favors a finding of faire use. '''Nature of Work: '''The photos could be categorized either as factual or creative. Given the difficulty of characterizing the “nature” of the photographs, the court find that the impact of their creativity on the fair use finding is neutral. The works were not “unpublished” in the same way as ''Harper & Row'', they were hardly confidential or secret, as was Ford's manuscript.'''Amount Used:''' ''El Vocero ''admittedly copied the entire picture; however, to copy any less than that would have made the picture useless to the story. As a result, this factor was of little consequence to the Court's analysis. '''Effect upon Potential Market: '''Because the only discernible effect of the publication in ''El Vocero'' was to increase demand for the photograph, and because any potential market for resale directly to the newspaper was unlikely to be developed, this factor favors a finding of fair use.''Bill Graham Archives v. Dorling Kindersley Ltd.''448 F.3d 605 (2d Cir. 2006)FACTS: Dorling Kindersley (“DK”) published a visual retrospective of the Grateful Dead called ''Greatful Dead: The Illustrated Trip''. Dk attempted to license a handful of posters from Bill Graham Archives (“BGA”) but they two parties couldn't agree on a price <sup><sup>[40]</sup></sup>. DK then proceeded to use the posters anyways.DISCUSSION:'''Purpose of Use:''' DK's actual use for each image is transformatively different from the original expressive purpose. Courts have frequently afforded fair use protection to the use of copyrighted material in biographies, recognizing such works as forms of historical scholarship, criticism, and comment that require incorporation of original source material for optimum treatment of their subjects. The fact that DK significantly reduced the size of the reproduction weighs in favor of a fair use finding. DK's collage layout ensures that the images at issue are employed only to enrich the presentation of the cultural history of the Grateful Dead, not to exploit copyrighted artwork for commercial gain... BGA's images constitute an inconsequential portion of ''Illustrated Trip''. The extent to which unlicensed material is used in the challenge work can be a factor in determine whether a biographer's use of original material has been sufficiently transformative. Regarding the fact that ''Illustrative Trip'' was a commercial use, the issue is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.'''Nature of Work: '''The creative nature of artistic images typically weighs in favor of the copyright holder, but when it is used for transformative purposes, this factor is less significant.'''Amount Used:''' Even though the copyrighted images are copied in their entirety, the visual impact of their artistic expression is significantly limited because of their reduced size.'''Effect upon Potential Market: '''Impairment must be demonstrated to a traditional market, not a transformative market. A copyright holder cannot prevent others from entering fair use markets merely “ by developing or licensing a market for parody, news, reporting, education or other transformative uses of its own creative work. ''Castle Rock''.NOTE: In ''Ty, Inc. v. Publications Int'l Ltd. ''the court held that complementary copying is fair but substitutional is not.
# ''' Transforming Creative Works '''
''Campbell v. Acuff-Rose Music, Inc.''510 U.S. 569 (1994)FACTS: Roy Orbison write a song called “Oh Pretty Woman” and sold the copyright to Acuff-Rose Music, P. Campbell, D, was a member of the rap group 2 Live Crew. They, D, initially approached P to get a license to do a parody version of the song, to which P refused. After they were rebuffed, they went ahead and published their parody version anyways.DISCUSSION: The fair use doctrine ...requires courts to avoid rigid application of the copyright statute when...it would stifle the very creativity which the law is designed to foster. The four statutory factors [may not] be treated in isolation, one from another. All are to be explored, and the results weighted together, in light of the purposes of copyright.'''Purpose of Use ''''''<sup><strong><sup>[41]</sup>'''</strong></sup>: Parody has an obvious claim to transformative value. However, if the commentary of the “parody” has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's imagination, wheras satire can stand on its own two fee and so requires justification for the very act of borrowing. The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character.'''Nature of Work''': The court doesn't think this factor has any significance in the analysis.'''Amount Used''''''<sup><strong><sup>[42]</sup>'''</strong></sup>: When parody takes aim at a particular original work, the parody must be able to “conjure up” at least enough of that original to make the object of its critical wit recognizable, but it is importance that “no more was taken than necessary.'''Effect upon Potential Market''': The court says that the proper inquiry hear is the potential effect of 2 Live Crew's parodic rap song on the market for non-parody, rap versions of “Oh, Pretty Woman.” A parody may very well harm the market for a work that it's critiquing (“lethal parody, like a scathing theater review”), however this is not a harm cognizable under the Copyright Act. The effect on P's ability to license the rights for a parodic version of the song is not the proper inquiry because of the unlikely hood that creators of an imaginative work will license critical reviews or lampoons...removes such uses from the very notion of potential licensing markets.
# ''' Research, Private Use '''
''Perfect 10, Inc. v. Amazon.com, Inc.''508 F. 3d 1146 (9<sup>th</sup> Cir. 2007)SYNOPSIS OF RULE: Use of thumbnail images is a fair use primarily based on the transformative nature of a search engine, its benefit to the public, and lack of harm to the potential markets.DISCUSSION:'''Purpose of Use''': Google's use of thumbnails is highly transformative because Google's use servet ad different function than Perfect 10 – improving access to information on the internet versus artistic expression. With regard to the fact that Google benefits from its AdSense program, the court says that the significantly transformative nature of Google's search engine, particularly in light of its public benefit, outweighs Google's superseding and commercial uses of the thumbnails in this case '''Nature of Work''': The fact that the Perfect 10 works are creative in nature as opposed to fact based, weighs slightly to P '''Amount Used''': This factor favored neither party'''Effect upon Potential Market''': Because thumbnails were not a substitute for the full-sized images, they did not harm the photographer's ability to sell or license his full-sized images.''Sony Corporation of America v. Universal City Studios, Inc. ''464 U.S. 417 (1984)FACTS: Sony Corp., D, developed the BetaMax, a video tape recorder which was used by some consumers to record broadcasts of Plaintiff Universal's programs. P sued for copyright infringement under the theory of contributory infringement.SYNOPSIS OF RULE: A challenge to a noncommercial use of copyrighted work requires proof either (1) that the particular use is harmful, or (2) that if it should become widespread, it would adversely affect the potential market for the copyright work. Actual present harm need not be show. Nor must future harm be shown with absolute certainty, only a preponderance of the evidence.DISCUSSION: Under the Patent Act, “the sale of copying equipment does not constitute contributory infringement if the product is widely used for legitimate unobjectionable purposes. The court must only consider whether a ''significant'' number of uses would be non-infringing. The court determined that by far the most popular use of the BetaMax was “time shifting.” The court considers this use in two manners:''Authorized Time-Shifting'': The court notes that there a large number of television shows of which viewers are authorized to copy as they see fit. Notably, Mr. Rodgers and representatives of the MLB, NFL, NBA and NHL said they had no objection to the recording of their programs for time-shifting purposes. The court stresses that while this is evidence that there are a potentially significant number of non-infringing uses, it in no way provides carte blanche to time shift programs for which authorization has not been granted. Third pary conduct would be wholly irrelevant in an action for direct infringement.''Unauthorized Time-Shifting'': The court notes that §107 makes certain “fair use” exceptions to the exclusive rights listed in §106. Among the factors that would suggest fair use, the court focuses on the “non-profit character of an activity” and the “effect of the use upon the potential market.” The court is generally unpersuaded by Universal's claims that (1) library building cuts into their home video market, and (2) reduces the number of views of the “live” broadcast and therefore decrease ad revenue. The court holds, on §107 and public policy grounds, that “home timeshifting is fair use.”DISSENT: The dissent would employ the ''productive'' use test, requiring some added benefit to the public (a “socially laudable purpose”) in order to receive fair use protection.Market Failure Theory (see page 588): Copyright markets will not always function adequately and market flaws might preclude achievement of desirable consensual exchanges. In those cases, the market cannot be relied on to mediate public interest in dissemination. There are three types of market failure:
# ''Market Barriers'': Where transaction costs exceed the benefits of a bargain, thus no transaction. (i.e. “home use”)
# ''Externalities'': Where the benefits to the public exceed the means of the user to negotiate (i.e. “research use”)
# ''Anti-Dissemination motives'': Where the copyright owner has an incentive to prevent licensing (i.e. “criticism”) ''American Geophysical Union v. Texaco, Inc.''
60 F.3d 913 (2d Cir. 1995)FACTS: Texaco was sued by 83 publishers of scientific and technical journals. During the suit the parties agreed that they would take one Texaco scientist, Chickering (“C”), at random as a representative sample. The facts show that C photocopied approximately eight articles from the ''Journal of Catalysis''. The record shows that the articles were not used, but rather were primarily made just for “future retrieval and reference;” or rather the purpose of adding to C's office “library.” The court finds for the publishers primarily on justification of effect upon the potential market and purpose of use.DISCUSSION:'''Purpose of Use''': The court says that because Texaco was not gaining directly or immediate commercial advantage from the photocopying at issue in this case, it would not be accuarate to conclude that Texaco's copying of eight particular ''Catalysis ''articles amounted to “commercial exploitation. Texaco's photocopying is more appropriately labeled an “intermediate use.” However, the court need not ignore the for-profit nature of Texaco's enterprise. The photocopying could be labeled “a factor of production” and thus weighs slightly toward publishers. The court rejected Texaco's argument that the use was transformative, stating that it was merely materially transformative.'''Nature of Work''': The court recognizes that the works at issue are predominantly factual and thus favors Texaco.'''Amount Used''': Texaco argues that the photocopying of each separate article amounted only to a minimal copying from the entire journal. The court dismisses this stating that each work is independently copyrightable because it is a discrete “original work of authorship.” While Texaco copied the entire article, this does not preclude a fair use finding.'''Effect upon Potential Market ''''''<sup><strong><sup>[43]</sup>'''</strong></sup>: The court says that the publishers complaints about lose journal subscriptions is of only a minimal harm to them. The court however is more persuaded by the publisher's claims of lost revenue from individual photocopying licenses (provided for through a licensing clearinghouse, CCC) <sup><sup>[44]</sup></sup>. They say “the publishers have demonstrated a substantial harm to the value of their copyrights through Texaco's copying.''Princeton Univ. Press v. Michigan Document Services, Inc.'' (MDS) 99 F.3d 1381FACTS: Professors were using a commercial copy shop to create reproduction of excerpts of copyrighted material from a number of sources as part of course packs for students. The court found that this was not protected by fair use.SYNOPSIS OR RULE:
# '' ''Professors may make ''single'' copies of book chapters, newspaper and periodical articles, short stories, and drawings in the previously mentioned sources for “scholarly research or use in teaching or preparation to teach a class”
# '' ''Professors may make ''multiple'' copies for classroom use provided they meet spontaneity and brevity requirements:
## '' ''Copying is spontaneous if the “inspiration and decision to use the work and the moment of its use for maximum teach effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.”
## '' ''Limits copying from the same author, collective work or periodical volume
## '' ''There shall not be more than nine instances of multiple copying during one class termination
## '' ''Each copy must contain a copyright notice
## '' ''The student may not be charged more tha the cost of copying
## '' ''The copying must not substitute the purcahse of books, publisher's reprints or periodicals.
''DISCUSSION: The “Agreement on Guidelines for Classroom Copying''…” was incorporated by Congress into the legislative history of the 1976 Act. “
==Formalities & Duration==
The Copyright Act of 1790 required compliance with certain formalities in order to receive copyright protection. These formalities were (1) publication; (2) notice; (3) registration; and (4) deposit with a designated entity. However, the Berne Convention expressly prohibits member countries form conditioning copyright protection on adherence to formalities.'''Formalities by Act'''
{|class="wikitable"
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|Copr. Act of...
|Publication <sup><sup>[45]</sup></sup>
|Notice <sup><sup>[46]</sup></sup>
|Registration <sup><sup>[47]</sup></sup> <sup><sup>[48]</sup></sup>
|Deposit
|-
|1790
|Yes
|Publishes a copy of the records of copyright received fro the clerk in at least one domestic newspaper within two months from the date of record and continuing for four weeks thereafter.
|Title of the work only to the clerk's office in the district court.
|The work itself did not need to be deposited.
|-
|1909
|No, if not reproduced for sale and registered. Spec. mentions lectures, plays music and motion pictures
|Required proper notice of copyright attached to the work itself in the form of “Copyright” or “Copr.” followed by the name of the claimant. Print, musical and dramatic material also required the year to be attached. All other works could use the © symbol but the full name had to appear on the work somewhere.
|Registration was optional during the first term, failure to register was a bar to any copyright infringement action. The claimant also had to register to renew for second term.
|Required prompt deposit of “two complete copies of the best “published” edition” of the work with the Copyright Office. The CO could demand deposit and fine and forfeit claim if failed to comply.
|-
|1976(Eff.Date ofJan. 1,1978)
|No. Replaced publication requirement with a fixation requirement.
|Requirements similar to 1909, however, protection would not be lost by failing to include a copr. notice if only a few copies were distributed without notice, or if registration occurred within 5 years and a reasonable effort to cure omission
|Optional, however, like1909, required registration before an infringement suit could be initiated. Could occur throughout term.
|Same as 1909, however, failure to comply only resulted in a fine, NOT forfeiture of the copyright. Deposit for registration also satisfied this req.
|-
|Berne Conv.ImplimtAct of1989
|

|Works published after March 1, 1989 no longer required a copyright notice. However, presence of a notice would defeat a defendant assertion of innocent infringement.
|For works of BerneCon. members (but not US) an infringe. suit can occur without first registering the work. However, w/oregistration, no stat.Damages or attny fees.
|

|}
'''Duration by Act:'''
{|class="wikitable"
|-
|Works...
|Duration
|-
|First Published Before January 1, 1978
|

|-
|Created but Unpublished before January, 1, 1978
|

|-
|Works Created on or After January 1, 1978
|As modified by the Sonny Bono Copyright Term Extension Act:• If created by a single author, the term is the life of the author plus 70 years.• If created by joint authos, the term is the life of the last surviving author plus 70 yrs.• Anonymous works, a pseydonymous work, or a work made for hire endures for a term of 120 years from the year of creation or 95 years from the year of publication, which ever expires first.
|}
'''The Policy Behind Copyright Duration:'''The Constitution requires that the exclusive rights granted to authors be for limited times. However, the lengthening duration of CR results in the slower entry of works into the public domain and as a result of the Sonny Bono Term Extension Act, no additional works of authorship will enter the public domain until January 1, 2019. The shift in duration from a dual term to a unitary term resulted from an increased desire to harmonize U.S. law with CR protection schemes in other countries. Berne requires a minimum term if protection of life plus 50 years'''Renewals''': the 1909 Act’s duration scheme applies to works created before the effective date of the 1976 Act; the renewal terms of these works will be in force until the year 2072 (1977 + 95)
# ''Works published or copyrighted before January 1, 1978'': 1909 Act set up statutory protection for two consecutive terms: a first term of 28 years, measured from the date of publication, and a second or renewal term of 28 years = total of 56 years. The renewal term reverted to the author automatically, if he properly filed for renewal registration during the 28th year. Failure to comply with renewal formalities resulted in the forfeiture of copyright to the public domain
# Changes to renewal registration requirement under the 1976 Act:
## Second term of the copyright was lengthened from 28 to 47 years (§304(a)) – is now 67 years after the 1998 amendments.
## 1992: automatic renewal for all works. So for works published between 1964 and 1977, an author will enjoy a full (95 years) term, without having to file for renewal during the 28th year
## Works in their second term as of January 1, 1978: found in works in their second or renewal terms between December 31, 1976 and December 31, 1977. The second term lasted 47 years, 19 years longer than the 28 year renewal term of the 1909 Act. Extension of the term was automatic, and the CR owner needed to do nothing to receive the extra 19 years
## With the passage of the CTEA in 1998, 20 years are added to the 47 year renewal term. With the renewal term extended to 67 years, the term of CR for 1909 Act works now totals 95 year
''Stewart v. Abend'': If an author dies before the renewal period, then the assignee may continue to use the original work only if the author’s successor transfers the renewal rights to the assignee. So long as the pre-existing work remains out of the public domain, its use is infringing if one who employs the work does not have a valid license or assignment for use of the pre-existing work. Thus, continued distribution of the derivative work violated the rights of the owner of the pre-existing work because his rights are not extinguished in the renewal period even if the work is incorporated into a derivative work.
== Transfers and Terminations ==
# ''' Transfer '''
Section §204. Execution of Transfers and other Documents(a) A transfer of copyright ownership <sup>51</sup>, other than by operation of law, is not valid unless an instrument of conveyance <sup>52</sup>, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agentSection§205(d) sets forth the order for determining which claim prevails between two conflicting transferees:As a preliminary matter, the transfer first executed and recorded withing one month of its execution (or withing two months if executed outside the U.S.), and that satisfies the requirements of §205(c)(registration of the work and proper identification of the work) prevails. The first transfer will still prevail if, notwithstanding expiration of the time frame, it is nevertheless recorded before a later transfer. The later transfer will prevail if the recipient (1) properly recorded it before the earlier transfer was recorded; (2) took the transfer in good faith, for valuable consideration, or on the basis of a promise to pay a royalty; and (3) had no notice of the earlier transfer. Finally, §205 provides that whether recorded or not, a nonexclusive license prevails over a conflicting transfer of copyright ownership if the license is in writing and signed by the owner of the rights or her duly authorized agent, so long as the license was taken (1) in good faith before the conflicting transfer was recorded and (2) without notice of the conflicting transfer.'''Security Interests:'''Authorities generally agree that to perfect a security interest in a copyright, the secured party should file with the Copyright Officer. The Ninth Circuit said however that because the Copyright Act provides “constructive notice” only for registered copyrights, the UCC governs perfection and priority of security interest in unregistered works. A least one case held that even when the collateral is not the copyright itself, but rather the royalties generated by the copyright, the filing should still be made with the Copyright Office.''Asset Marketing Systems, Inc. v. Gagnon''542 F.3d 748 (9<sup>th</sup> Cir. 2008)FACTS: Gagnon was an at-will, independent contractor for Asset Marketing Systems (AMS). In the course of their relationship, Gagnon created various computer programs for AMS. The only signed document between the parties was a Technical Services Agreement (TSA) which said that “[Gagnon] will provide [AMS] with specific add-on products to enhance [AMS].” The TSA expired <sup>53</sup> but the relationship continued for a little while before it soured and Gagnon sued to prevent AMS from continuing to use the programs.SYNOPSIS OF RULE: An implied license is granted when:
# The licensee request the creation of a work
# The licensor makes that particular work and delivers <sup>54</sup> it to the licensee who requested it,
# The licensor intends that the licensee-requestor copy and distribute his work. <sup>55</sup>
DISCUSSION: The court looks to ''Effects Associates, Inc. v. Cohen, ''whereby a film producer hired Effects to create some footage for them. The court there found an implied license had been granted because the footage was generated at producer's request with the intent that it be used in the film with no warning that use of the footage would constitute infringement. The relevant intent is the licensor's objective intent <sup>56</sup> at the time of creation and delivery of the software as
* 51 Because of the broad definition of “transfer of ownership” contained in §101, the Copyright Act's writing requirement applies not only to a complete transfer of copyright ownership, but also to exclusive license of some or all of the §106 rights and to the use of the copyright as security for a loan.
* 52 There are benefits to recording this transfer with the Copyright office, namely Recordation establishes a priority of ownership in the event of conflicting claims
* 53 Though exclusive license must be in writing, grants of nonexclusive licenses need not be in writing.
* 54 Delivery is not dispositive, but one factor that may be relied upon in determining if an implied license has been granted.
* 55 This prong is not limited to copying and distribution, but may include use, retention, and modification rights.
* 56 The First and Fourth Circuits consider the following factors to determine intent:
* (1) Whether the parties were engaged in a short-term discrete transaction as opposed to an ongoing relationship;
* (2) Whether the creator utilized written contracts...providing that copyrighted material could only be used with the creator's future involvement or express permission
* (3) Whether the creator's conduct during the creation or delivery of the copyrighted material indication that use of the material without the creator's involvement or consent was permissible.
manifested by the parties' conduct. A nonexclusive license supported by consideration is a contract and therefore irrevocable.'''Unspecified Duration in Implied License'''The case law on duration and revocability of implied licenses is muddled. At least one court has held that an unspecified duration means a minimum duration of 35 years should be implied'''Sub-licensing and Implied Licenses'''In ''Gardner v. Nike, Inc. ''the Ninth Circuit held that an exclusive licensee may not transfer the licensed rights without the consent of the original licensor because §201(d)(2) only conferred the 'protections and remedies' afforded a copyright owner under the 1976 Act, not the rights.” A logical implication from ''Gardner'' is that rights obtained pursuant to any license, including an exclusive license, may not be sub-licensed without authorization from the copyright owner.''Boosey & Hawkes Music Publishers, Ltd. v. The Walt Disney Company ''145 F.3d 481 (2d Cir. 1998)FACTS: Disney made a film called ''Fantasia ''which synched animated films over classical musical works including Stavinsky's ''The Rite of Spring'' (“Work”). The Work was in the public domain in the US, but in order for Walt Disney to exploit internationally, they secured the rights from Stavinsky “to [the]...use...of the musical composition in synchronism or timed-relation with the motion picture” in :in any, manner, medium or form.” When Walt Disney released the film on home video, Stavinsky's estate sued saying that home video use was not transferred.SYNOPSIS OF RULE: Licensee may properly pursue any uses which may reasonably be said to fall within the medium as described in the license <sup><sup>[49]</sup></sup>” ''Bartsch v. Metro-Goldwyn-Mayer, Inc.'' 391 F.2d 150 (2d Cir. 1968)DISCUSSION: There are two approached to future uses:
# '' ''According to the first view, “a license of rights in a given medium (''e.g. '''motion picture rights') includes only such uses as fall within the unambiguous core meaning of the term (''e.g.'', exhibition of motion picture film in motion picture theater) and excludes any uses that lie within the ambiguous penumbra (''e.g.'' exhibition of motion picture on television). ''Cohen v. Paramount Pictures Corp.''
# '' ''The second view, preferred by Nimmer, is that “the licensee may properly pursue any uses that may reasonably be said to fall writing the medium as described in the license.” “When a license includes a grant of rights that is reasonably read to cover a new use (at least where the new use was foreseeable at the time of contracting), the burden of excluding the right to the new use will rest on the grantor.” ''Bartsch v. Metro-GoldwynMayer, Inc.''
The court concludes that the burden fell on Stravinsky, if he wished to exclusde new markets arising from subsequently developed motion picture technology, to insert such language of limitation in the license, rather than on Disney to add language that reiterated what the license already stated. Neither the absence of a future technologies clause in the Agreement nor the presence of the reservation clause alters that analysis. The reservation clause stands for no more than the truism that Stravinsky retained whatever he had not granted....''Random House v. Rosetta Books, LLC''150 F. Supp. 2D 613 (S.D.N.Y. 2001)FACTS: Random House had entered into a number of publishing agreements with authors such as William Styron and Kurt Vonnegut to “print, publish and sell the work in book form.” Rosetta entered into agreements with the same authors for publishing of ebooks. Random House sued for infringement claiming that they had the exclusive right to publish ebooks.DISCUSSION: The court engages in construction of the agreement and found that “the most reasonable interpretation of the grant in the contracts at issue to 'print, publish and sell the work in book form' does not include the right to publish the work as an ebook. In New York, a written contract is to be interpreted so as to give effect to the intention of the parties as expressed in the contract's language. The court must consider the entire contract and reconcile all parts, if possible, to avoid an inconsistency. Because the authors specifically reserved certain rights, it evidences an intent by these authors not to grant the publisher the broadest rights in their works. “A reasonable person 'cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business” also would tend to believe that “book form” is not synonymous with ebooks. In ''Field v. True Comics'', the court held that “the sole and exclusive right to publish, print and market ''the book''.” ''Bartsch'' can be distinguished on four grounds:
# '' ''The language conveying the rights in ''Boosey ''and ''Bartsch'' was far broader than here.
# '' ''The “new use” in those cases – ''i.e. ''display of a motion picture on television or videocassette – fell squarely withing the same medium as the original grant. (“videocassettes and laser discs as “subsequently developed methods of distributing a motion picture”)
# '' ''The licensees in the motion picture cases have actually created a new work [incorporating] material from the licensor.
# '' ''The courts in ''Boosey ''and ''Bartsch'' were concerned that any approach to new use problems that “tilts against licensees [here, Random House] gives rise to anti-progressive incentives,” insofar as licensees “would be reluctant to explore and utilize innovative technologies.” However, in this action, the policy rationale of encouraging development in new technology is at least as well served by finding that the licensors – i.e. the authors – retain these rights to their works.
{|class="wikitable"
|Reproduction and Distribution in Phonorecords
|Other Reproduction.Creation of Derivative Works
|Public Performance.
|-
|''Musical Works''
|'''Statutory right: '''§106(1) & (3)
|'''Statutory right: '''§106(1) & (2)
|'''Statutory right: '''§106(4)
|-
|'''Specific limitations on §106 rights:'''§115 – Compulsory license <sup><sup>[50]</sup></sup>§1001-1008 - Audio homeRecording Act (AHRA)
|'''Specific limitations on §106 rights:'''None
|'''Specific limitations on §106 rights: '''§110 – Various limitations
|-
|'''Rights administered by:'''- Music Publishers- Copright Office (§115;AHRA)- Harry Fox Agency
|'''Rights administered by: '''- Music Publishers
|'''Rights administered by: '''- ASCAP, BMI, SESAC
|-
|''Sound ''''Recordings''
|'''Statutory right: '''§106(1) & (3)
|'''Statutory right: '''§106(1) & (2)
|'''Statutory right: '''§106(6)
|-
|'''Specific limitations on §106 rights:'''§114(b) – “Sound alikes” notcovered§1001-1008 - AHRA
|'''Specific limitations on §106 rights:'''§114(b) – Actual sounds must be reproduced
|'''Specific limitations on §106 rights: '''§106(6) & 114(a) – digital transmissions only§114(d)-(j) exemptions
|-
|'''Rights administered by:'''- Record Labels- Copright Office (AHRA)
|'''Rights administered by: '''- Record Labels
|'''Rights administered by:'''- Record Labels- Sound Exchange (§114 statutory license)
|}
# ''' Termination & Damages '''
Grants made after 1/1/1978. §203Not available for works for hireAfter 35 years can be revisited/renegotiatedDerivative works can continue to be exploitedGrants made before 1/1/1978. §304(c).Term after 1998: 28 +67 (28+19+20)=95Can terminate once: after the end of the 28 yearsIf in to the 19 years when the Sony Bono Copyright Extension Agreement adopted can terminate before 20<sup>th</sup> yearWho can terminate?
# ''Sole Authorship'': Termination can be authorized by the author, or if dead, his widow (or majority of kids and widow).
# ''Joint Authorship:'' If more than one author, a majority of the authors, (majority of authors) no idea on if only two authors.
'''Remedies and Relief:'''Civil Remedies are granted under:1976 Act: §§502-505VARA: §§502-05 DMCA: §1203'
{|class="wikitable"
|-
|Injunctions§502, 1203(b)(1)
|An author may be granted a temporary restraining order (TRO) or a preliminary injunctions. Parties seeking the injunction will have to prove (1) irreparable harm, and either (2a) likelihood of success on the merits, or (2b) sufficiently serious question points to the merits and the balance of hardships tips to the case for an injunction.To be granted permanent injunctions, parties must show:1. Irreparable harm (may be presumed, see ''eBay v. MercExchange, L.L.C.'')2. Remedies at law are inadequate3. Balance of the hardships4. Public interest not dissevered.''Abend v. MCA'' (1998)The CoA said that they would not issue an injunction because they think that the work that was produced is not merely the primary contribution of Abend, and they don't want to deny access to the public merely because there is a need to get permission from the author. It will be sufficient to get damages for Abend. (which sounds like a compulsory license). See also ''Campbell v. Accuff-Rose'''Impoundment and Disposal: Authorized by §503, 1203(b)(2) & (6)
|-
|Actual Damages & Disgorgement of Profits§504, 1203(b)(3)&(c)
|'''Actual Damages''': This may include market harm, lost license revenue, etc.'''Profits''':''Frank Music v. ''MGM: Frank Music owned the rights to ''Kismet''. The MGM Grand, a Vegas casino, preformed the songs from ''Kismet ''as part of a review called “Hallelujah Hollywood.” The court said that in addition to a pro-rated amount (reflecting the percentage of the revue made up by ''Kismet'' songs) Frank Music additionally gets part of the “indirect profits” (i.e. a portion of the gambling proceeds.
|-
|StatutoryDamages,PunitiveDamages andAttorney's Fees
|'''Statutory Damages: '''Provide a mechanism to recover damages even where actual damages are insufficient. This provides a strong incentive to restrain from infringing. Recall registration requirements though.'''Punitive Damages: '''Punitive Damages are extremely controversial. Some courts say if you get statutory damages, you are absolutely precluded from recovering punitive damages.Attorney's Fees” The prevailing party get's attorney's fee's.
|}
The Statute of Limitation for all copyright infringement cases is 3 years.