Copyright Law Fromer

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Copyright Law
Authors Jeanne C. Fromer
Christopher Jon Sprigman
Text Image of Copyright Law: Cases and Materials (v2.0)
Copyright Law: Cases and Materials (v2.0)
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Contents

Topic 1: Introduction, History, Theoretical Approaches[edit]

United States Constitution: Article 1, Section 8, Clause 8[edit]

To Promote the Progress of Science And useful Arts,By securing for limited Time to Authors and InventorsThe exclusive right to their respective Writings and Discoveries.In the eighteenth century, “science” was a broad term that stood for learning and the first modern copyright law in England was entitled “an act for the encouragement of learning.” By “arts,” the framers meant “artifices” – that is, machines and not fine art.This constitutional statement is both a power and limitation.The United States joins the Berne Convention in 1988. BerneConvention is administered by the Would Intellectual PropertyOrganization (WIPO). The US had always stayed away from the Berne Convention because it was and is hostile to formalities that affect “the enjoyment and the exercise” of copyright rights, whereas US Copyright Law embraced such formalities.The World Trade Organization (WTO) was created in 1994 and along with the Agreement on Trade Related Aspect of Intellectual Property (TRIPS).

The U.S. Copyright Act of 1790[edit]

The Act, entitled “an Act for the encouragement of learning,” applied to map, charts, and books, and provided the copyright owner with the “sole right and liberty of printing, reprinting, publishing and vending” copies for a 14 year term, renewable once for another 14 year team by a surviving author. Infringement is printing, reprinting, or importing.

The U.S. Copyright Act of 1976[edit]

Congress sought to “free the courts from rigid or outmoded concepts of the scope of particular categories.” The 1909 Act still controls old works.Artistic Non-IP areas that survive without intellectual property rights:

  • - The Fashion Industry
  • - Cuisine
  • - Pornography
  • - Stand-Up Comedy
  • - Tattoos

Rivalrous Property: Tangible property that can only be in one place at once.Non-Rivalrous Property: Works that are able to be used by multiple people all at the same time, like consuming a television show. Excludability: You do not lose the IP thing when you sell it or give it away.

Right-Based Theories[edit]

Lockean Labor Theory: John Locke (Natural Rights)[edit]

This theory grows out of the theory of property set out in John Locke’s Two Treatises of Government. Locke’s theory identifies the individual’s contribution of labor as the mechanism by which objects are reduced to property, and it focuses on the harm – in terms of fairness rather than wealth maximization – when another deprives the owner of the fruits of their labor.“… at least where there is enough, and as good left in commons for others…”Locke’s labor-desert theory of property proceeds from the argument that a person who adds his or her labor to resources that are either unowned or held by all in common has a property right in the product of his or her efforts.

Hegelian/Kantian Personality Theory or Personhood Theory[edit]

This theory is found in the idea that because original expression reflects an embodies an author’s personality, respect for creators’ autonomy requires the recognition of property rights in creative works. Property provides an especially powerful mechanism for self-definition, for person expression, and for society’s recognition of the dignity of an individual person.

Utilitarian/Economic Incentive[edit]

The only way to encourage creativity is through money or economic incentives.

Topic 2: Policy Approaches, Fixation and Originality[edit]

17 USC § 102[edit]

Subject Matter of Copyright: In General[edit]

  • (a) Copyright protection [exists] in original works of authorship fixed in any tangible medium of expression, … from which they can be perceived.

Works of Authorship include the following categories:

  • (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; (7) Sound recordings; and

(8) Architectural works.

  • (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.

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period or more than transitory duration.A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if fixation of the work is being made simultaneously with its transmission. (Live performances,Live streams, etc.)

  • (1) embodiment
  • (2) duration
  • (3) must be transmitted

Fixation[edit]

First, the Constitution grants Congress the power to create copyright laws “by securing for limited Times to Authors … the exclusive Right to their … Writings.” Second, only protecting works that are likely to be preserved and therefore more easily disseminated over time and space, furthering the goal of copyright. Third, this serves as an evidentiary function for issues of infringement. Last, what part and amount of the work that is protected is fully established.

White-Smith Music Publishing Co. v. Apollo Co. (1908)[edit]

The issue is whether a piano roll represented a copy of a musical composition. When installed in a piano, the piano reproduced the plaintiff’s composition. The Supreme Court held that the piano roll was not a copy of the musical composition it represented and therefor the plaintiff could not prohibit this type of reproduction by the defendant.

Williams Electronics Inc. v. Artic International, Inc. (1982)[edit]

Artic argues that the modes in the video games don’t satisfy the fixation requirement because the images and sounds are transient in nature and are essentially new each time they are viewed. However, this argument fails because the same sounds and images are repeatedly produced. A sequence of events will always occur and many aspects of the game, such as the background and the attract mode, are not interactive in nature.

Cartoon Network LP, LLLP v. CSC Holdings, Inc. (2008)[edit]

CSC implemented a new DVR system that would allow customers to record tv shows on remote hard drives managed by them. The system would require small segments of each cable program to be sequentially reproduced during a buffering process prior to storage. Infringement of a copyright holder’s reproduction right occurs only if the copyrighted material: (1) is fixed in a tangible form and (2) remains fixed in that form for more than a transitory period. The segmented copies created by the DVR during the buffering process exists for no more than 1.2 seconds and cannot be said to exist for more than a transitory period.

Originality[edit]

The statute is silent as to what an “original work of authorship” is. The legislative history of the 1976 Act provides that: The phrase is purposely left undefined and is intended to incorporate without change the standard of originality established by the courts under the 1909 Act. This standard does not include the requirements of novelty, ingenuity, or esthetic merit, and there is no intention to enlarge the standard of copyright protection to require them.

Burrow-Giles Lithographic Co. v. Sarony (1884)[edit]

Sarony arranged all aspects of a photograph of Oscar Wilde including the background, clothing, pose, and expression. Burrow argues that a photograph is not a writing or other creative product of an author because a photograph merely captures an exact scene that actually existed at the time that photograph was taken. In this case, Sarony carefully orchestrated the scene that was captured. The photograph is thus a novel work of the type intended to be protected.

Bleistein v. Donaldson Lithographing Co. (1903)[edit]

An illustration designed and produced for use as an advertisement is not precluded from copyright protection solely on the basis of its commercial nature. Copyright protection is not reserved exclusively for works of fine art and works possessing broad public appeal are entitled to the same legal protection.

Alfred Bell & Co. v. Catalda Fine Arts, Inc. (1951)[edit]

A copyrighted work need not be unique to satisfy the originality requirement. A reproduction will meet the originality requirement so long as the author made a nontrivial contribution to the work that rendered the work as distinguishable variation of the original. Whether the original work is in the public domain only matters for purposes of determining whether the variation infringes upon on existing copyright.

Feist Publications v. Rural Telephone Service Co. (1991)[edit]

To be granted copyright protection, works must be original, meaning that they entail some minimal degree of creativity. The sweat of the brow doesn’t warrant protection. A phone book was copied exactly.But making the phonebook had no minimal level of creativity.

Topic 3: Derivative Works and Compilations; Idea/Expression[edit]

17 USC § 101[edit]

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting og editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a“derivative work.”A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into collective whole.

17 USC § 103: Compilations and Derivative Works[edit]

  • (a) The subject matter of copyright as specified by section 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. (AKA no permission for use of original work)
  • (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.

L. Batlin & Sons, Inc. v. Jeffrey Snyder (2d Cir. 1976)[edit]

Uncle Sam mechanical banks were in the public domain and party created a plastic copy. Another party made another plastic version of the mechanical bank.A reproduction of a work must contain an original contribution not present in the underlying work of art and be more than a mere copy. To support a copyright there must be at least some substantial variation, not merely a trivial variation as might occur in the translation to a different medium.If there be a point in the copyright law pertaining to reproductions at which sheer artistic skill and effort can act as a substitute for the requirement of substantial variation, it was not reached here.Daniel Schrock v. Learning Curve International, Inc. (7th Cir. 2009) Is a photo of a product a derivative work of that product?The originality requirement for derivative works is no more demanding than the originality requirement for other works. The key inquiry is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the underlying work in some meaningful way.Here, the photos were a highly accurate product photo but contain minimally sufficient variation in angle, perspective, lighting and dimension to be distinguishable from the underlying work; they are not slavish copies. Accordingly, the photos qualified for the limited derivative work copyright.

Fiest Publications, Inc. v. Rural Telephone Service, Co. (1991)[edit]

This was not a derivative work because if the original work didn’t have enough creativity to gain copyright protection, the supposed derivative work didn’t either.

Idea-Expression Distinction[edit]

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.'''''

  1. Process-Expression Distinction

Baker v. Selden (1879)[edit]

Selden obtained a copyright for his bookkeeping/accounting book. The book described Selden’s system of bookkeeping and also illustrated examples by the means of form blanks. Selden brought suit against Baker for reproducing illustrated examples of the system.Selden’s copyright of his book protects the description of his bookkeeping system, but it does not protect the illustrated examples of that system contained in the book. The visual representations of the system represent Selden’s idea itself, and therefore may not be copyrighted.

  1. '''''''' Idea-Expression Distinction

Lars Erickson v. Michael John Blake (D. Ore. 2012)[edit]

The Doctrine of Merger is if a non-protectable idea can be expressed in one way, the resulting expression will also not be protected by copyright; otherwise, the holder of the copyright for that expression would effectively have a copyright over the underlying idea. Merger most often applies to claims of infringement described at high levels of abstraction that blur easily into the ideas behind the expression.Pi is a non-copyrightable fact, and the transcription of pi to music is a non-copyrightable idea. This idea can only be expressed in a finite number of ways. This does not mean the copyright is invalid, only that Erickson may not use his copyright to stop others from employing this particular pattern of musical notes.

  1. '''''''' Historical Fact-Expression Disctinction

Hoehling v. Universal City Studies, Inc. (2d Cir. 2980)[edit]

This litigation arises from three separate accounts of the destruction of Hindenburg in Germany during Hitler’s reign. Hoehling wrote a book about the events presented in a factual account. Ten years later, Mooney published a book written in a literary manner and sold tv show rights to Universal. In works devoted to historical subjects, it is our view that a second author may make significant use or prior work, so long as he does not bodily appropriate the expression of another.

Scenes a Fair[edit]

Stock literary devices, such as stock characters or plots, are noncopyrightable.

Topic 4: Subject Matter Categories[edit]

“Pictorial, graphic, and sculptural works” include two dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.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 shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that such design incorporated pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article.”''''''''''Useful Article Test:

  1. Is it a PGS work?
  2. Does it contain a useful article?
  3. Is the purpose to (1) portray appearance or (2) convey information? If so, it is not a useful article.
  4. Separable? (1) feature can be identified separately from or (2) capable of existing independently from the useful article?
  5. * can be conceptually separable.
  6. If so, Copyrightable.

Mazer v. Stein (1954)[edit]

Mass-produced articles of utilitarian purpose are eligible for copyright protection. Lamps in the shape of human figures. The sculptures that were submitted for registration did not include any lamp components. So long as an artistic expression is original and fixed in a tangible medium, that expression will not be denied protection on the basis of its intended purpose. The patentability of an article has no bearing on whether the article is also entitled to copyright protection.

Varsity Brands, Inc. v. Star Athletica, LLC (2015)[edit]

Cheerleading Uniforms. The Star Athletica test is can the work (1) be perceived as a 2 or 3 dimensional work and (2) would it then qualify for copyright protection if imagined separately. Varsity’s designs were deemed separable from the cheerleading uniforms themselves. [Dissent: The copyrighted designs are conceptually inseparable from the uniforms themselves.]

Architecture[edit]

The 1990 amendment of the Copyright Act added architecture as a subject matter but only applies to buildings built after 1990.

TRIPS Agreement[edit]

This agreement requires the country to sign unto treaties such as the Berne convention which in turn, requires protection for industrial designs/ architecture.What is an “architectural work” according to § 101? The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but not individual standard features.What is a building? The Berne convention doesn’t require protection for buildings not habitable. The house report created a two-part test: (1) Are there original design elements present? (2) If so, are they functionally required? If yes, PGS. If no, architecture.

Limitations on Protection (§ 120)[edit]

Pictorial representations of architectural works are permitted, such as photographs or paintings of buildings. If the copyright of the building is owned by someone other than the owner of the building, the owner of the building can destroy of alter the work.

Thomas Shine v. David M. Childs (S.D.N.Y. 2005)[edit]

There were allegations that Childs took the design of a skyscraper from a Yale student. The court found that there was infringement.(Freedom Tower)

Topic 5: Subject Matter – Computer Software[edit]

A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.Humans write computer instructions in a programming language called source code. Converted code that the computer can “read” or execute is called object code. (0s and 1s)Idea-Expression Distinction in Computer Software

Computer Associates International v. Altai, Inc. (1992)[edit]

Copyright protection extends beyond a work’s literal components to its non-literal components. The courts established a three-part procedure for evaluating whether non-literal elements of an allegedly infringing computer program is substantially similar to the accuser.

  1. Courts should breakdown the program’s structure and isolate each level of abstraction contained within it.
  2. Courts must first filter out components that are:
    1. An uncopyrightable idea or that the designer included due to efficiency, and this are tied to an idea;
    2. Included due to external factors, such as standard techniques that are inherently necessary in any computer program; and
    3. Taken from the public domain.
  3. Once the court strips away all non-protectable aspects of a computer program, it can compare the two programs and determine whether the protectable aspects of the defendant’s program are substantially similar to the protectable aspects of the plaintiffs program.

Abstraction-Filtration-Comparison[edit]

Step One: Abstraction[edit]

Initially, in a manner that resembles reverse engineering on a theoretical plane, a court should dissect that allegedly copied program’s structure and isolate each level of abstraction contained within it.

Step Two: Filtration[edit]

This process entails examining the structural components at each level of abstraction to determine whether their particular inclusion at the level was an “idea” or was dictated by considerations of efficiency, so as to be necessarily incidental to that idea; required by factors external to the program itself; or taken from the public domain and hence is nonprotectable expression.

Step Three: Comparison[edit]

Once a court has sifted out all elements of the allegedly infringed program which are “ideas” or are dictated by efficiency or external factors, or taken form the public domain, there may remain a core of protectable expression.

Compatibility: Lotus Development Corp. v. Borland International (1st Cir. 1996)[edit]

A computer command hierarchy is not copyrightable because it is a method of operation. A method of operation, defined as the means by which someone operates something, is not copyrightable. Even though Lotus made certain expressional choices in choosing the command words (copy, print, etc.), this expression is still part of Lotus’s general method of operation Lotus 1-2-3.

Oracle America, Inc. v. Google, Inc. (2014; Federal Circuit – Specialty IP Court)[edit]

In copyright analysis for computer programs, the originality principle speaks to copyrightability, while the merger and scenes-a-faire principles can be offered as affirmative defenses to infringement. Oracle sued Google for copyright infringement based on the 37 Java packages that Google copied from Oracle’s platform. Here, Google admitted to copyright Oracle’s Java packages, the filtration step is the primary analysis. The fact that the lines are functional and because it became the industry standard after its development.

Topic 6: Authorship and Ownership[edit]

An “anonymous work” is a work on the copies or phonorecords of which no natural person is identified as author.“Copyright owner”, with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.A “joint work” is 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.A “pseudonymous work” is a work on the copies of which the author is identified under a fictitious name.A “transfer of copyright ownership” is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including nonexclusive license.A “work made for hire” is-

  1. A work prepared by an employee within the scope of hir or her employment; or
  2. A work specially ordered or commissioned for use as a contribution to a collective work

As a part of a motion picture or other audiovisual work,As a translation,As a supplementary work,As a compilation,As an instructional text,As a test,As answer material for a test, orAs an atlas,If the parties expressly agree in a written instrument signed by them that the works shall be considered a work made for hire.

  • (a) '''''Initial Ownership. --Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.
  • (b) '''''Works Made for Hire. --In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
  • (c) '''''Contributions to Collective Works. --Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

(d)Transfer of Ownership.--[edit]

  • (1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
  • (2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106 , may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.

(e)''' Involuntary Transfer. --When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11.

The Definition of Authorship Alexander Lindsay v. The Wrecked and Abandoned Vessel RMS Titanic (SDNY 1999)[edit]

An individual will qualify as an author for copyright purposes if he or she exercises a high degree of control over a work’s creation. Lindsay instructed creation and placement of lighting towers, detailing shot angles, and deciding on equipment to be used for the shoot. However, these acts were carried out by others and Lindsay did not capture the footage himself.The individual need not have physically done the work himself if the result was achieved due to his express direction. Lindsay’s high degree of control over the process entitles him to be considered the author of the film within the meaning of the Copyright Act.

Cindy Lee Garcia v. Google, Inc. (9th Cir. 2014)[edit]

An actor may not claim a copyright interest in his film performance. Individual performances within a fil do not qualify for copyright protection. 101 does not say the author has to be the one who fixes it tangibly. She authorized the fixation but did not authorize the inclusion in the movie/youtube video.

Authorship and Ownership in Joint Works Karen Erickson v. Trinity Theatre, Inc. (7th Cir. 1994)[edit]

A party must show intentional collaboration and an independently copyrightable contribution to establish joint authorship. Court choses a test designed by Professor Goldberg. This test requires a party claiming joint authorship to prove an independently copyrightable contribution to the finished work. Trinity fails to satisfy the collaborative intent requirement and has not claim of authorship.

Aalmuhammed v. Spike Lee (9th Cir. 1999)[edit]

A joint work is 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.

  • - Control
  • - Objective evidence of intent
  • - Appeal must result from both contributions inseparably

A valuable and copyrightable contribution to a work does not necessarily constitute authorship as it is defined under the statutory definition of a joint work.Aalmuhammad helped Washington with his role and directed Washington on set ensuring historical and religious accuracy. Aalmuhammed never exhibited any objective manifestations of share intent to be coauthors.

Works Made For Hire Authorship Community for Creative Non-Violence v. James Earl Reid (1989)[edit]

Work For Hire:

  • - Prepared by an employee within the scope of his/her employment
  • - Specially ordered or commissioned work, must be o (1) Designated category: if not in this category, cannot claim work for hire even by contract

o (2) Parties agree in writing

  • 201(b) if work for hire, employer owns

The CCNV hired Rein to create a sculpture to dramatize and publicize the plight of homelessness. Whether the work is created by an employee within the scope of employment is determined by examining several factors:

  • - The hiring party’s right to control the manner and means by which the work is created
  • - The skill required for the job
  • - The source of instruments and tools
  • - Where the work is done
  • - The hired party’s ability to control when and how long to work
  • - The duration of the relationship between the parties
  • - Whether the hiring party has the right to assign additional projects to the hired party
  • - The method of payment
  • - Whether the work is part of the regular business of the hiring party
  • - Whether the hiring party is in business
  • - The hired party’s role in hiring and paying assistants
  • - The provision of employee benefits
  • - The tax treatment of the hired party by the hiring party No single factor is determinative.

Sculptures are not included with the enumerated categories of works for hire. Therefore, he was an independent contractor.

Topic 7: Copyright Formalities[edit]

Berne Art. 5(2)The enjoyment and the exercise of these rights shall not be subject to any formality…Therefore, the US took away formalities but kept incentives for registration. If you don’t register, for example, the innocent infringement defense cannot be used and statutory damages are not available. Berne only goes toward copyrights of non-citizens. A lot of the formalities apply to US right holders and are suggested to non-US right holders.

Golan v. Holder (2012)[edit]

Congress has the authority to grant copyright protection to works previously in the public domain.

Topic 8: Copyright Duration[edit]

1998 Amendment that added 20 years: SC Judges Statements Dissent (Breyer): Just as it would be unfair to the author to shorten the copyright duration, it is therefore unfair to the public to lengthen. There isn’t an incentive for creators by extending. Because we are already basing term on lifespans, those are increasing anyways.Ginsburg: The EU’s rule is what sparked the extention, Congress wanted to give Americans the same protections as Europeans. Extensions should apply qually to those whose copyrights are extant at the time of the extensions, and to those whos copyrights follow.

Topic 9: Copyright Restoration, Renewals[edit]

Terminations of Transfer

Renewals: Stewart v. Abend (1990) (Pre 1978 Works)Authors of derivative works must obtain new permission to distribute derivative works during the renewal term of the original work if the original copyright holder dies prior to renewal.There is a clean slate rule when registration is renewed. There is no clean slate when the renewal is automatic.

Terminations of Transfer[edit]

Designed to (1) acoid windfalls to licenses/transferees due to term extensions and (2) allow for bargaining power shifts. You can terminate (1) at a certain point, (2) with notice, and (3) with exceptions.

Topic 10: Right of Reproduction[edit]

Second Circuit: Ninth Circuit: Others:Ordinary Observe Test Extensive/Intrinsic Test Ab./Fil/Co.

Infringement: * Defendant has to have fixed a copy[edit]

  1. Valid Copyright
  2. Owned by Plaintiff
  3. Copying in Fact – Actual Copying
    1. Admission, Caught in the Act, Direct Evidence
    2. Shown by (1) Access, which according to Bolten can be shown through a widely distributed work, and (2) Probative Simularity.
  4. Improper Appropriate or Copying in Law
    1. Circuit Split!
    2. Second Circuit: The ordinary observer would find the works substantially similar in the copyrightable material.
    3. Ninth Circuit: (1) subjectively, the total look and feel, intrinsic and (2) objectively, you filter out the noncopyrightable elements and dissect, extrinsic, allows expert testimony

HBO case: Graffiti in television show[edit]

A technical violation of a right so trivial that the law will not impose legal consequences.

Lewis Galoob Toys, Inc. v. Nintendo of America (9th Cir. 1992)[edit]

The Game Genie is useless by itself, it can only enhance, and cannot duplicate or recast a Nintendo game’s output.

Topic 11: Derivative Work Right, Characters[edit]

Fictional Characters and the Rights of Reproduction and to Prepare Derivative Works[edit]

Warner Bros Pictures v. Columbia Broadcasting System (9th Cir. 1954) In the character is only a chessman in a game of chess then they are not copyrightable. Only if the character IS the story being told, then is copyrightable.

DC Comics v. Mark Towle (9th Cir. 2015)[edit]

Batmobile Case.

  1. The character has physical as well as conceptual qualities.
  2. The character must be sufficiently delineated to be recognizable as the same character whenever it appears.
  3. The character must be especially distinctive and contain some unique elements of expression.

Topic 12: Moral Rights[edit]

During the life of the author, the author of a visual art has the

  • (1) Right of integrity meaning the right to protect against mutilation or distortion, and
  • (2) Right of attribution meaning the right to be acknowledged as author or to prevent acknowledgement for art she didn’t create.

A work of visual art is a painting, drawing, print, or sculpture, existing in a single copy of limited edition (200 or fewer that are signed and consecutively numbered) or a still photograph produced for exhibition purposes only. (§ 106A and 101)Terry Gilliam v. American Broadcasting Companies, Inc. (2d Cir.

1976)[edit]

TV show was sold and they cut down the show to fit in commercial breaks. In several instances, the climaxes and necessary plot details of jokes were omitted, rendering it confusing. Artists have a legal right to require works attributed to them to be represented without substantial alteration.

Jonathan Cohen v. G&M Realty (SDNY 2018) The Visual Artists Rights Act (VARA)[edit]

Something is a “recognized stature” must show (1) that the visual art in question has stature i.e. is views as meritorious, and (2) that this statute is recognized by art ex[erts, other members of the artistic community, or by some cress-section of society.Vara preserved the right to (1)(A) to claim authorship (3)(A) to prevent intentional distortion, and (3)(B) to prevent destruction of a work of recognized stature.VARA doesn’t apply to works made for hire. If a work that is part of building is removable, the owner must give 90 days notice to artist in case they want to remove it.VARA claims are often not afforded damages since VARA is worded in prevention language.

Topic 13: Distribution Right[edit]

First Sale Doctrine Bobbs-Merril Company v. Isidor Straus (1908)[edit]

Under the first sale doctrine, the legal purchaser of a copy of a copyrighted work has the right to sell that copy without further permission from the copyright owner. Bobbs owned the copyright to the book Castaway and placed a notice requiring a sale price of at least $1. Macy’s sold it for .89$.

Capitol Records, LLC v. ReDigi Inc. (2d 2018)[edit]

The first sale doctrine does not apply to digital music files. Even making a work available on the interest and no one downloads is still a violation of the distribution right (to be in compliance with international treaties.) The file is transferred to new physical objects and therefore the transfer constitutes an infringement of reproduction rights.

Kirtsaeng v. John Wiley & Sons, Inc. (2013)[edit]

There is no geographical limit in determining which works fall under the first sale doctrine. Wiley published textbooks. Kirtsaeng had family buy textbooks in Thailand and ship them to Kirtsaeng, she then sold them for a lower price. Because the textbooks were legally sold in Thailand, the first-sale doctrine applies. “Lawfully Made” means the initial sale was legitimate. “Under This Title” means their creation and sale is in compliance with the copyright act.

Dissent (Ginsburg)[edit]

The dissent argues that because the first sales doctrine says it only applies to copyrights under this title, that because it was an international copyright that was created that the first sale doctrine doesn’t apply. It technically wanted created under the Copyright Law.

Topic 14: Public Performance and Public Display Rights[edit]

ABC v. Aereo (SC 2014)[edit]

Does Aereo infringe by selling its subscribers the ability to watch broadcasted TV over the interest?

  1. Yes. There is performance because they performed by showing the work’s images and playing the works sound.
  2. Yes. The performance is public because it is performed in a place with a substantial number of people outside normal friends and family. Although Aereo’s subscribers receive a dedicated signal, a performance can be public through a set of actions.

In CSC, not everyone is capable of receiving the transmission. (one person) However, in Aereo, everyone has the opportunity to see th performance.

Columbia Pictures v. Redd Horne (3rd Cir. 1984)[edit]

The store that was the business of showing movies is relevant in determining whether a performance is public and no the individual theatre rooms.

Cartoon Network v. CSC Holdings (2d Cir. 2008)[edit]

A DVR does not violate the public performance right because it is not publicly performed.

Perfect10 v. Amazon (9th Cir. 2007)[edit]

Google doesn’t display pictures when searching, it just displays thumbnails. Google argues that it doesn’t even possess the image so it is impossible to display. It is a factor that everyone thought they had the pictures. Because they are not on Google’s server, it doesn’t violate the public performance right. (Thumbnails do violate the display right)

Multiple Performance Doctrine[edit]

One can livestream someone playing guitar to a group of people and therefore a violation or the performance right can be on the person playing guitar and the person livestreaming. There can be multiple layers of performance infringing on a right.

Topic 15: Fair Use[edit]

17 USC 107

  1. The purpose and character of the use;
  2. The nature of the copyrighted work;
  3. Substantiality of the portion used in relations to the copyrighted work;
  4. The effect on the potential market for or value of the copyrighted work.

For purposes such as criticism, comment, news reporting, teaching, scholarship, or researchThe fact that a work is unpublished shall not itself bar a finding of fair use if such a finding is made upon consideration of all of the factors.Look to…

  1. Little harm to the copyright holder; save licensing costs;
  2. Market Failure; parody/criticism
  3. Public Benefit Outweigh the potential disincentives to create

Transformative Use = Productive Different Use, not a mere reproduction

Harper and Row Publishers v. Nation Enterprises (1985)[edit]

Time planned to publish excerpts of President Ford’s autobiography but it was leaked and the Nation wrote an article on it.

  1. They said it was news reporting, but they took the story and published it for commercial reasons w/o consent.
  2. The nature of the work is unpublished with a high value of confidentiality.
  3. Even though they did not quote large sections, they took the most important parts.
  4. This directly harmed Time’s market by competing with the initial reveal of the autobiography.

Campbell v. Acuff-Rose Music, 2Live Crew (1994)[edit]

Fair Use under Parody for Pretty Woman Song.

  1. Although it is commercial, that is not dispositive.
  2. Roy Ordison’s song is clearly copyrightable work.
  3. Heart of the work is necessary to make a parody, it had to be recognizable.
  4. Their market audiences are completely different. (Q. What is they wanted to make a derivative rap version of the work?

Then, it could compete.)Parody is not per se fair use. You still have to go through all four factors.

Cambridge University Press v. Patten[edit]

Georgia State implemented a policy to determine when digital copies of textbooks can be made available to students.

  1. Educational/Non-Profit Use, Not Transformative, Not Commercial Per Se. Favors Fair Use.
  2. Exact Copies, Taking creative works. Against Fair Use.
  3. Whole Sections or Chapters of Work. Against Fair Use.
  4. They didn’t even try to get licenses, missed out profit. Against Fair Use.

The more creative a textbook or work is, the less towards fair use it will be.

Authors’ Guild v. Google (2015)[edit]

Google scans books and posted all of the sections. Google’s making of a digital copy to provide a search function is a transformative use, which argues public knowledge by making information about books…(snippet function)

  1. Transformative purpose, makes a digital copy that allows users to search, some commercial use.
  2. Not a big factor, copyrightable works.
  3. Google only made portions of the book available to the public.
  4. Unlikely that this would compete with the copyrighted work. Fair, noninfringing use.

Topic 16: Secondary Liability[edit]

Indirect Infringement Religious Technology Center v. Netcom On-Line Communication Services, Inc. (N.D. Cal. 1995)

Contributory Infringement: If defendant,[edit]

  1. Knowledge of Infringement
  2. Induces or Causes/Materially Contributes to Infringement

Vicarious Infringement: If defendant,[edit]

  1. Has the right and ability to control the infringer’s act, and
  2. Receives a direct financial benefit from the infringement.

Fonovisa, Inc. v. Cherry Auction (9th Cir. 1996)[edit]

Contributory Infringement:
  1. Cherry Auction had knowledge that there were infringing activities taking place on their premises and it did nothing to stop the activities.
  2. Cherry Auction materially contributed.

Vicarious Infringement:

  1. Cherry Action maintains and organizes the premises while also having the right to exclude a vendor for any reason.
  2. Customers are drawn to the swap meet for low-priced counterfeit goods and Cherry Auction gets an admission fee for every customer.

Liability of Device Manufacturers Sony Corp. (Betamax) v. Universal City Studios (1984)[edit]

Sony created a VCR which allowed customers to record things and watch them later.The sale of articles of commerce does not constitute contributory infringement if the product is widely used for legitimate noninfringing uses. This rule strikes the proper balance sought in copyright law between rewarding a copyright owner’s creative work, whiles also allowing the public to reap the benefits of products that can be used for purposes unrelated to that work.The infringing use that most consumers use the Betamax for, time shifting, is fair use. (Noncommercial and no harm to market.)

MGM Studios v. Grokster (2005)[edit]

One who distributes a device with the object of promoting it suse to infringe copyright is secondarily liable for the resulting acts of third parties direct infringers.Grokster distributed free software that allowed users to share electronic files with each other, including copyrighted materials, without permission. When the distributor actually promotes the infringing capabilities of a product, it may be held liable for resulting infringement. In this case, Grokster promoted its software as having the capability of downloading popular copyrighted music and even responded to requests for help in how to do so. 90% of Groksters use was infringing use. Knowledge is inferred from these facts through willful blindness of bad faith.

Visa case[edit]

An infringing website accepts VISA credit cards.

  • - The ability to expert financial frustrations does not give Visa the right or ability to control the actual infringing activity at issue.
  • - Visa has no right to stop the activity – they cannot stop website from reproducing, altering, or distributing infringing images.
  • - A defendant must have the right and ability to supervise and control the infringement, not just affect it.

Dissent: We should look at materiality of the service (credit cards) to the infringing activity.

Topic 17: OSP Safe Harbor[edit]

Digital Millenium Copyright Act (DCMA) Goals

  1. Limit liability faced by OSPs for actions of users
    1. No damages
    2. Limited Injunctive relief
  2. Help with enforcement by conditioning ….
  • 512 does not EXEMPT OSPs of secondary liability just insulates from certain remedies (monetary) if they follow the rules.

What is a service provider? Courts have interpreted this broadly. Service Provider means any entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.Service Provider means a provider of online services or network access.

§ 512(a)-(d)[edit]

Section 512 provides immunity from secondary infringement liability for an online service provider that extends to the following activities:

  1. Transitory Digital Network Communications
  2. System Caching
  3. Storing information on its systems at the direction of users (hosting)
  4. Providing information location like hypertext links.

General Threshold Requirements to Qualify for Safe Harbor (512(i))[edit]

  1. OSPs must not interfere with “standard technical measures” applied by copyright owners to protect their works. (copyright owners trying to trace infringement)
  2. OSPs must adopt and reasonably implement (aka enforce) a policy providing for termination of repeat infringers, and they must inform their users of this policy. (like three strikes policy) In addition, safe harbors have their own requirements that the OSP must meet to qualify for protection.

Specific Requirements[edit]

  1. Safe Harbor #1: Transitory digital network communications OSP exemption from liability for transmitting or transiently storing infringing material.

The service provider must be an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by user, of material of the user’s choosing, without modification to the content of the material as sent or received.This OSP must just serve as a “mere conduit” for carrying the communication of others.

  1. The transmission of the material was initiated by or at the direction of a person other than the service provider;
  2. The transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
  3. The service provider does not select the recipients of the material except as an automatic response to the request of another person;
  4. No copy of the material made by the service provider in the court of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system for longer period than reasonable necessary for the transmission, routing, or provision or connections, and
  5. The material is transmitted through the system or network without modification of the content.

Example: Facebook

  1. Safe Harbor #2: System Caching

OSPs are exempt when making local copies of web pages so that the pages don’t have to be fetched repeatedly over the Internet. Instead the cached copy is sent to their users.OSP exemption for caching copies of copyrighted material if the material is made available online by a person other than the ESP and transmitted from that person through the OSP’s system or network to a recipient at the recipient’s direction, and the storage by the OSP is automatic and done for the purpose of making the material available to other users of the system or network.The safe harbor applies when an OSP is providing “intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider and:

  1. The material is made available online by a person other than the service provider;
  2. The material is transmitted from this person through the system to another person at the direction of that person; and C. The storage is carried out through an automatic process.

The information must also be passed without modification.Also, the OSP must comply with rules concerning the refreshing, reloading, or other updating of the material when specified by the person making the material available online.(Must be up to date with HTTP Protocols)The OSP must not interfere with the performance. (like making sure the advertisements are up to date and registering the proper # of hits)Another requirement for the safe harbor is that the person receiving the cached information must be entitled to receive it directly. A cache should not provide a way of bypassing an access control system for the material.Example: Google Searches make a Cache Link, you aren’t at the actual page but you see the words that are on the page.

  1. Safe Harbor #3: Stored User Information

OSP exemption for infringing materials, such as photos or sound, that are “hosted” on its servers on behalf of users.

  1. The OSP must not have actual knowledge of the infringing material before it received notice, or must not be “aware of facts or circumstances from which infringing activity is apparent.”
  2. After receiving proper notice, the OSP must act

“expeditiously to remove, or disable access to, the material.”(Notice and Takedown)

Must assign an agent.
  1. The service provider cannot “receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.” (In other words, this safe harbor is available only to service providers that might be contributory infringers but not vicarious infringers.)

What is the knowledge requirement?Must be specific knowledge that that particular file is infringing. There is no affirmative duty to monitor.

  1. Safe Harbor #4: Links (or Directories)

Shelters OSPs that provide links, directories, indices, or other information location tools that reference or direct users to infringing material or activity.

  1. OSP must not have actual knowledge that the material or activity is infringing, or must not be “aware of facts or circumstances from which infringing activity is apparent.
  2. After receiving proper notice, the OSP must act

“expeditiously to remove, disable access to, the material”(Notice and Takedown)

  1. The service provider cannot “receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.”

What is Notice and Takedown? 512(c)3). The notice must identify the specific material alleged to infringe, must provide information sufficient to permit the OSP to locate that specific material (like the link) and must state that the party submitting the notification has a good faith belief that the material is infringing. (substantial compliance)The notifying party must affirm under penalty of perjury that they are the copyright owner or are authorized to act on behalf of them.A user who receives a takedown notice may file a “counter notification” – a notice that the takedown was as a result of mistake or misidentification to be removed or disables. 10 days to sue or the OSP must restore the material.

Lenz v. Universal Music Corp. (9th Cir. 2016)[edit]

Even though Universal argued that fair use is an affirmative defense, the court held that for purposes of the DCMA, fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. Therefore, rightsholders must consider fair use before sending a takedown notice.The willful blindness doctrine may be used to determine whether a copyright holder “knowingly materially misrepresented that it held a good faith belief the offending activity was not fair use.”

Topic 18: Sampling[edit]

Courts have made clear that samples that appropriate de minimum segments of protected material from copyrighted musical compositions are not actionable. But, courts have disagreed over whether the de minimum limitation applies to infringement claims involving samples that are brought by the owners of sound recordings.

VMG Salsoul, LLC v. Madonna (9th Cir. 2016)[edit]

The producer used .23 second segment of someone’s song inMadonna’s song. Therefore, there was actual copying in fact. However, copying must be more than trivial for a finding of copyright infringement.Even if the plaintiff proves that actual copying of material occurred, the copying must be more than trivial, or de minimis, for the copying to qualify as infringement. Copying is considered de minimis if an average audience would not notice the copied material in the allegedly infringing work.Other circuits do not apply the de minimis rule to sound recordings and instead holds that any amount of unauthorized copying, no matter how small, may count as infringement.Dissent: There’s a different between a physical taking vs. an intellectual one. The supreme court has held unequivocally that the copyright act protects only the expressive aspects of a copyrighted work, and the fruit of the author’s labor. (From Fiest)

Topic 19: Copyright Remedies[edit]

Impoundment and Destruction[edit]

Section 503(b) “as part of a final judgement… the court may order the destruction or other reasonable disposition of all copies… found to have been made or used in violation of the copyright owner’s exclusive rights… and other articles by means of which such copies… may be reproduced.Section 504 provides the plaintiffs can receive either actual damages and profits or the statutory damagers in 504©.Section 505 provides that courts may allow the recovery of full costs by or against any party. The court may also award attorney’s fees to the prevailing party.

  1. '''''''' Injunctive Relief (502) Plaintiff must show:
  2. That it has suffered an irreparable injury;
  3. That remedies available at law, such as monetary damages, are inadequate to compensate for that injury;
  4. That, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
  5. That the public interest would not be disserved by a permanent injunction. (societal factors or policy of setting precedent)

eBay Inc. v. MercExchange, LLC (2006)Courts cannot presume irreparable harm based on the mere fact of infringement, and instead a plaintiff must establish the need for injunctive relief according to the test.eBay was a patent infringement case but the court made it clear it was for copyright cases, too.

Phelps & Associates, LLC v. R. Wayne Galloway (4th Cir. 2007)[edit]

Defendant stole architecture blueprints used to build a house. Plaintiff wants an injunction to prevent the sale or lease of house. What is the reach of a copyright infringement injunction?The injunction against sale of the house would be overbroad, as it would encumber a great deal of property unrelated to the infringement.The danger is compulsory licenses which is when you allow a defendant to keep or otherwise use an infringement since he paid damages therefore forcing the plaintiff to license out his copyrighted work.'''''

2. Actual Damages[edit]

In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

Bouchat v. Baltimore Ravens Football Club (4th Cir. 2003)[edit]

Ravens stole some random janitors logo design. Bouchat only presented speculative evidence on the profits gained from the use of the Ravens logo. Frank Music Corp. v. MGM Inc. MGM stole 6min of a play. The act that had the stolen material was 1/10 of the play. What portion of the ticket sales, hotel rooms, bar/casino sales, and merchandise goes to the copyright holder? This is called apportionment and its one of the hardest things to establish. The court looked to the number of minutes that used the infringing material as opposed to the number of acts, which was more accurate.

3. Statutory Damages[edit]

These are only available if you registered prior to the infringement.(Don’t forget you have to register regardless to bring a lawsuit.)Range of Damages in the Copyright Act:Intent: $750-$30,000Innocent $200Willfull: Up to $150,000PER INFRINGMENTInnocent infringement is defeated by putting © copyright notices in your work.There are no separate awards for separate owners of the same copyright. (Owners of the right to distribute, and the right to publicly perform all are decided and given one damage amount.'''''

Capitol Records v. Jammie Thomas-Rasset (8th Cir. 2012)[edit]

Jammie willfully infringed copyrights on 24 sound recordings by engaging in file-sharing on the Internet. The statutory damages were amounted to $9,250 per infringed song.'''''

4. Costs and Attorney’s Fees[edit]

To be eligible, you must register before infringement.Courts usually only grant costs when bad faith.

5. Criminal Copyright Law[edit]

Statute of Limitations: Civil is 2 years, Criminal is 5 years. (runs when plaintiff discovers the infringement, they do have a burden to police the marketplace)Section 506 authorizes criminal liability for any person who willfully infringes a copyright, if the infringement was committed:

  • - Or the purposes of commercial advantage or private financial gain,
  • - By the reproduction or distribution, including by electronic means, during an 180 days period, of 1 or more copies which

have totaled retail value over 1,000, or

  • - By the distribution of a work being prepared for commercial distribution

US v. Julius Chow Lieh Lie (9th Cir. 2013)[edit]

The biggest problem is that for impoundment and destruction, you can only take the infringing material and not the infringing operation. You can only go in and take the textbooks they have copied but not the huge copiers they use for copying.