Editing Entertainment Law
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Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001)—A combination of fashion, photography, humor, and visual and verbal editorial comment on classic films and famous actors and any commercial elements ‘inextricably entwined’ with expressive elements cannot be separated out and are afforded First Amendment protection of the whole | Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001)—A combination of fashion, photography, humor, and visual and verbal editorial comment on classic films and famous actors and any commercial elements ‘inextricably entwined’ with expressive elements cannot be separated out and are afforded First Amendment protection of the whole | ||
WHO OWNS PUBLICITY AND ITS VALUE | == WHO OWNS PUBLICITY AND ITS VALUE == | ||
Allison v. Vintage Sports Plaques (11th Cir. 1998): D mounted pictures and such of Hershiser and Allison on plaques and then sold them to collectors—First Sale Doctrine prevents liability under Copyright/Trademark; no ROP claim due to licensing | Allison v. Vintage Sports Plaques (11th Cir. 1998): D mounted pictures and such of Hershiser and Allison on plaques and then sold them to collectors—First Sale Doctrine prevents liability under Copyright/Trademark; no ROP claim due to licensing | ||
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Keller… First Amendment is not a defense to the use of former players’ ROP because the use of such is “far from the transmogrification of the Winter bros.” and the game’s setting was identical to where the public would find the players (on the field) | Keller… First Amendment is not a defense to the use of former players’ ROP because the use of such is “far from the transmogrification of the Winter bros.” and the game’s setting was identical to where the public would find the players (on the field) | ||
COPYRIGHT PROTECTIONS | == COPYRIGHT PROTECTIONS == | ||
ELEMENTS OF COPYRIGHT PROTECTION—Constitution Article 1 §8 Cl. 8—"To promote the progress of Science and useful Arts…” | ELEMENTS OF COPYRIGHT PROTECTION—Constitution Article 1 §8 Cl. 8—"To promote the progress of Science and useful Arts…” | ||
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POLICY: Dichotomy to be solved is: Whether current doctrine provides the correct blend of private property and public use to generate optimal incentives for consumer welfare Authors’ economic rights vs. Public’s right and incentive to create | POLICY: Dichotomy to be solved is: Whether current doctrine provides the correct blend of private property and public use to generate optimal incentives for consumer welfare Authors’ economic rights vs. Public’s right and incentive to create | ||
ORIGINALITY; FIXATION | == ORIGINALITY; FIXATION == | ||
ORIGINALITY: (1) Independently created; (2) Modicum of creativity ||| FIXATION: (a) Embodiment; (b) Duration | ORIGINALITY: (1) Independently created; (2) Modicum of creativity ||| FIXATION: (a) Embodiment; (b) Duration | ||
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CBS v. DeCosta (1st Cir. 1967): “Have Gun Will Travel” guy…Did CBS copy the character/elements? | CBS v. DeCosta (1st Cir. 1967): “Have Gun Will Travel” guy…Did CBS copy the character/elements? | ||
INFRINGEMENT—ACCESS, SUBSTANTIAL SIMILARITY | == INFRINGEMENT—ACCESS, SUBSTANTIAL SIMILARITY == | ||
Copyrights are violated only if the prior work has been copied, not necessarily duplicated—Copyright law does not prohibit independent creation and sale of an identical work by a subsequent author | Copyrights are violated only if the prior work has been copied, not necessarily duplicated—Copyright law does not prohibit independent creation and sale of an identical work by a subsequent author | ||
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Copeland v. Bieber (4th Cir. 2015): Songs are sufficiently similar such that a reasonable juror could find songs to be intrinsically similar Intrinsic similarity involves qualitative/subjective analysis—not purely quantitative analysis | Copeland v. Bieber (4th Cir. 2015): Songs are sufficiently similar such that a reasonable juror could find songs to be intrinsically similar Intrinsic similarity involves qualitative/subjective analysis—not purely quantitative analysis | ||
UNPROTECTABLE STORY PARTS (Scenes-a-Faire, Characters, Ideas) | == UNPROTECTABLE STORY PARTS (Scenes-a-Faire, Characters, Ideas) == | ||
Scenes-a-Faire Doctrine: Incidents, characters, or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic (quoting Alexander v. Haley (SDNY 1978)) | Scenes-a-Faire Doctrine: Incidents, characters, or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic (quoting Alexander v. Haley (SDNY 1978)) | ||
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Folsom v. Marsh: STORY: “look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects of the original work” | Folsom v. Marsh: STORY: “look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects of the original work” | ||
TRANSFORMATIVE: | == TRANSFORMATIVE: == | ||
(1) Taking the work and changing it, modifying it—different and original; | (1) Taking the work and changing it, modifying it—different and original; | ||
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Who is capable of receiving the performance? | Who is capable of receiving the performance? | ||
FAIR USE ON THE INTERNET | == FAIR USE ON THE INTERNET == | ||
DMCA (Digital Millennium Copyright Act): Made it clear that the transmission of recordings online must be licensed not just by songwriters, but also by record companies when the music is played by webcasters in that function, in effect, as digital jukeboxes and Internet radio | DMCA (Digital Millennium Copyright Act): Made it clear that the transmission of recordings online must be licensed not just by songwriters, but also by record companies when the music is played by webcasters in that function, in effect, as digital jukeboxes and Internet radio | ||
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Capitol Records, LLC v. ReDigi, Inc. (SDNY 2013): ReDigi does not have a fair use defense that allow its users to upload/download purchased files to and from the Cloud Locker incident to sale Space-Shifting | Capitol Records, LLC v. ReDigi, Inc. (SDNY 2013): ReDigi does not have a fair use defense that allow its users to upload/download purchased files to and from the Cloud Locker incident to sale Space-Shifting | ||
NOT Fair Use: | == NOT Fair Use: == | ||
(1) Nothing new is added, nothing is transformed; use is undoubtedly commercial | (1) Nothing new is added, nothing is transformed; use is undoubtedly commercial | ||
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FIRST SALE DOCTRINE: 17 USC §109—provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display, or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. | FIRST SALE DOCTRINE: 17 USC §109—provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display, or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. | ||
PERFORMANCE RIGHTS IN SONGS | == PERFORMANCE RIGHTS IN SONGS == | ||
Twentieth Century Music v. Aiken (US 1975): “Passive transmission” of music b/c radio station playing songs already had license to perform—Can’t hold listeners accountable for performance on the radio; Restaurant doesn’t have control either | Twentieth Century Music v. Aiken (US 1975): “Passive transmission” of music b/c radio station playing songs already had license to perform—Can’t hold listeners accountable for performance on the radio; Restaurant doesn’t have control either | ||
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Jarvis v. A&M Records (Dist. of NJ 1993): Summary Judgment denied for Ds who verbatim sampled parts of P’s song | Jarvis v. A&M Records (Dist. of NJ 1993): Summary Judgment denied for Ds who verbatim sampled parts of P’s song | ||
WORKS MADE FOR HIRE | == WORKS MADE FOR HIRE == | ||
§201(1)(a) of the Copyright Act says initial ownership lies with the author | §201(1)(a) of the Copyright Act says initial ownership lies with the author | ||
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COURT: Rejected the “right to control the product” it would de facto eliminate the distinction between works of employees for hire and works of contractors for hire | COURT: Rejected the “right to control the product” it would de facto eliminate the distinction between works of employees for hire and works of contractors for hire | ||
JOINT AUTHORSHIP | == JOINT AUTHORSHIP == | ||
§101 Joint Work: 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 | §101 Joint Work: 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 | ||
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Aalmuhammed v. Lee (9th Cir. 2000): A Joint Work is one that was intended by both parties to be a joint work | Aalmuhammed v. Lee (9th Cir. 2000): A Joint Work is one that was intended by both parties to be a joint work | ||
COPYRIGHT LICENSING | == COPYRIGHT LICENSING == | ||
§201(d) of the Copyright Act covers “Transfer of Ownership” – (1) Can be transferred in whole or in part by any means of conveyance (including intestate succession); (2) Any of the exclusive rights, and subdivisions thereof, can be transferred the same, and owned separately. Owner of a particular right can enforce it independently! | §201(d) of the Copyright Act covers “Transfer of Ownership” – (1) Can be transferred in whole or in part by any means of conveyance (including intestate succession); (2) Any of the exclusive rights, and subdivisions thereof, can be transferred the same, and owned separately. Owner of a particular right can enforce it independently! | ||
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Cohen d/b/a Bizarre Music v. Paramount Pictures Corp. (9th Cir. 1988): License did not authorize distribution of copies of the movie to the public by sale or rental—VCRs were not invented at the time the license was executed—the license reserved to P all rights except those specifically granted, so P had the rights to distribute videocassettes | Cohen d/b/a Bizarre Music v. Paramount Pictures Corp. (9th Cir. 1988): License did not authorize distribution of copies of the movie to the public by sale or rental—VCRs were not invented at the time the license was executed—the license reserved to P all rights except those specifically granted, so P had the rights to distribute videocassettes | ||
LICENSING: PRESENTATION OF THE WORK THROUGH A NEW MEDIUM | == LICENSING: PRESENTATION OF THE WORK THROUGH A NEW MEDIUM == | ||
Manners v. Morosco (US 1920): Author of a play had granted D the “sole and exclusive license and liberty to produce, perform, and represent the play” – D was not entitled to turn it into a silent motion picture (derivative work) | Manners v. Morosco (US 1920): Author of a play had granted D the “sole and exclusive license and liberty to produce, perform, and represent the play” – D was not entitled to turn it into a silent motion picture (derivative work) | ||
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Brown v. 20th Century Fox Film (D.D.C. 1992): James Brown, in connection with appearance on TV, assigned to the producers the right to “exhibit, transmit, reproduce, distribute, broadcast, and exploit and license or permit others to do so…all or any portion of the film in all media means whatsoever” TV producers entitled to license clips of appearance | Brown v. 20th Century Fox Film (D.D.C. 1992): James Brown, in connection with appearance on TV, assigned to the producers the right to “exhibit, transmit, reproduce, distribute, broadcast, and exploit and license or permit others to do so…all or any portion of the film in all media means whatsoever” TV producers entitled to license clips of appearance | ||
WHETHER ORIGINAL LICENSE TO CREATE MOVIE OR OTHER DERIVATIVE WORK CONVEYS RIGHT TO SEQUELS | == WHETHER ORIGINAL LICENSE TO CREATE MOVIE OR OTHER DERIVATIVE WORK CONVEYS RIGHT TO SEQUELS == | ||
Goodis v. United Artists Television (2nd Cir. 1970): Author of Dark Passage sold exclusive right and entire motion picture rights to broadcast and transmit any photoplay produced by process of TV to Warner Bros—Warner Bros. produced movie by same name and licensed the right to produce a TV series based upon book—license for TV series covered by agreement | Goodis v. United Artists Television (2nd Cir. 1970): Author of Dark Passage sold exclusive right and entire motion picture rights to broadcast and transmit any photoplay produced by process of TV to Warner Bros—Warner Bros. produced movie by same name and licensed the right to produce a TV series based upon book—license for TV series covered by agreement | ||
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'''Eldred v. Ashcroft''' (US 2003): CTEA (Copyright Term Extension Act) did not violate the [[US Constitution]] and Congress acted within its authority to grant extension to existing and future copyrights and it does not violate the First Amendment. | '''Eldred v. Ashcroft''' (US 2003): CTEA (Copyright Term Extension Act) did not violate the [[US Constitution]] and Congress acted within its authority to grant extension to existing and future copyrights and it does not violate the First Amendment. | ||
DAMAGES | == DAMAGES == | ||
§§502, 503 of the Copyright Act entitles a Plaintiff to temporary and final injunctions as relief for infringement | §§502, 503 of the Copyright Act entitles a Plaintiff to temporary and final injunctions as relief for infringement |