Copyright Outline Netanel

Copyrightability:4

Originality/Creativity4

Burrows Giles v. Sarony4

Bleistin v. Donaldson4

Kelly v. Chicago Park District4

Magic Marketing v. Mailing Services of Pittsburgh4

Associated Press v. Fairey5

Merger Doctrine5

Baker v. Seldon5

Lotus v. Borland5

Compilation5

Feist v. Rural Telephone Service5

CCC v. Maclean6

Satava6

Open Source v. Bikram6

Sweat of the Mind v. Sweat of the Brow7

Nash v. CBS7

Standard for Originality for Derivative Works7

Sobhani v. @Radical Media, Inc.7

Batlin7

Alfred Bell8

Alva Studios8

Meshworks v. Toyota8

Ets-Hotkin v. Skyy Spirits8

Useful Articles9

Pivot Points Mara Mannequin case9

Inhale v. Starbuzz9

CHARACTERS10

Anderson v. Stalone10

Warner Bros. v. CBS10

Gaiman v. McFarlane11

Klinger v. Conan Doyle11

SOUND RECORDINGS11

Newton v. Diamond12

Bridgeport Music v. Dimension Films12

Audio Home Recording Act12

Government Works13

Veeck v. Southern Building Code13

content-based restrictions to copyrightability:14

Mitchell Bros case14

Authorship Status; Work for Hire14

Lindsey v. RMS Titanic.14

CCNV v. Reid15

Joint Authorship.15

Gaiman v. McFarlane15

Thomson v. Larson16

Aalmuhammed v. Lee16

Urantia Foundation v. Maheera16

Garcia v. Google17

Right to Make Copies17

Defendant Copied18

Cartoon Network v. Cablevision18

Blackwell Publishing v. Excel Research Group18

Price v. Fox Entertainment Group19

Benay v. Warner Bros.19

Bright Tunes Music v. Harrison19

Arnstein v. Porter20

De Minimus Copying20

Ringgold v. Black Entertainment Television20

Gottlieb v. Paramount Pictures20

Idea/Expression21

Nichols v. Universal Pictures21

Peter Pan Fabrics Case21

Kisch v. Ammirati21

MERGER DOCTRINE:22

Herbert Rosenthal Jewelry v. Kalpakian22

Skyy Vodka Bottle Case22

Approaches to Substantial Similarity22

Steinberg v Colombia Pictures23

CBS v. ABC23

Metcalf v. Boccho23

Swirsky v. Carey23

Funky Films v. Time Warner24

Colombia Pictures v. Miramax Films24

Derivative Works24

Micro Star v. FormGen24

Lee v. A.R.T. Co.25

Futuredontics v. Applied Anagramics25

Horgan v. Macmillan, Inc25

National Geographic v. Classified Geographic26

Sani Films Scenarios26

Moral Rights26

Gilliam v. ABC26

Dastar v. 20th Century Fox27

Carter v. Hemsley Spear27

Public Distribution Right27

London-Sire Records v. Does28

First Sale Doctrine:28

UMG Recordings, Inc. v. Augusto28

Capitol Records, LLC. v. ReDigi, Inc28

Right of Public Performance29

ASCAP v. US :29

Columbia Pictures v. Redd Horne29

Columbia Pictures v. Aveco29

On Command Video v. Columbia Pictures29

Fairness in Music Licensing Act of 1998:29

Cartoon Network LP v. CSC Holdings, Inc.29

ABC v. Aereo (2014):30

Right of Public Performance in Sound Recordingsthere isnt one30

Right of Public Display30

Perfect 10, Inc. v. Amazon :31

Fair Use31

Harper & Row Publishers v. Nation31

Campbell v. Acuff-Rose32

Walt Disney Prods. V. Air Pirates:32

Castle Rock Entertainment v. Carol Publishing:32

Dr. Seuss Enters. v. Penguin Books32

Leibovitz v. Paramount Pictures Corp.32

Suntrust Bank v. Houghton Mifflin Co.33

Bill Graham Archives v. Darling Kindersley Ltd33

Blanch v. Koons33

Rogers v. Koons33

Lennon v. Premise Media34

Calkins v. Playboy Entertainment34

Swatch Group v. Bloomberg34

Salinger v. Colting34

Warner Bros. Entertainment Inc. v. RDR Books34

Gaylord v. US (Fed. Cir. 2010)34

Cariou v. Prince (2d Cir. 2013):34

Seltzer v. Green Day35

Kienitz v. Sconnie Nation LLC35

Perfect 10 v. Amazon35

Vanderhye v. iParadigms35

Authors Guild v. HathiTrust :35

Authors Guild v. Google :35

Fox v. Dish :36

A&M Recordings v. Napster36

BMG Music v. Gonzalez36

Princeton University Press v. Michigan Document Services36

Cambridge Univ. Press v. Patton36

Third Party Liability37

Fonovisa Inc. v. Cherry Auction37

Perfect 10 v. Amazon38

Perfect 10 v. Visa:38

Sony v. Universal (1984):38

A&M Records, Inc. v. Abdallah39

A&M Records Inc. v. Napster, Inc.39

MGM v. Grokster (2005):40

Internet Service Provider Liability and Safe Harbor41

Religious Tech Center v. Netcom On-Line Communication Services41

Perfect 10 v. CCBill (9th Cir.)41

Viacom v. Youtube (2d. Cir.)42

UMG Recordings v. Shelter Capital:42

Copyrightability:

originalitymodicum of creativity

Originality/CreativityBurrows Giles v. Sarony

1. (photographs are copyrightable)

a. D argued that photograph is not a writing, nor production of author

i. Because it was non-texual

b. Holding: photograph required creativity of the arrangement of the objects, costumes, lighting etc. and is therefore afforded copyright protection contains modicum of creativity

Bleistin v. Donaldson

(courts will not make judgment on quality of art)

c. Issue: D made copies of Ps posters

d. Holding; if the work meets the basic standing of art, the court does not look at the PURPOSE for which the art was created (doesnt matter that purpose of posters was for advertising)

i. Judges will not qualify the quality of the art, as long as there is a market for the work, it will be afforded protection under copyright

Kelly v. Chicago Park District

(authors can only be humans)

e. P set up garden and planted specific wildflowers for installation

f. Holding: no protection because natural forces were constantly changing the installation, therefore works that owe their forms to forces of nature are not copyrightable

i. The creative expression must be the product of a human author, cannot be left to intervening natural forces that change the expression (works owing their form to natural forces are not copyrightable)

Magic Marketing v. Mailing Services of Pittsburgh

(single words/short phrases/basic shapes not copyrightable)

g. Issue: can words on an envelope be afforded copyright protection?

h. Holding: NO, despite low threshold of creativity, when expression is wholly the product of functional considerations, it is not protectable

i. Holding otherwise would exclude competition from the market

Associated Press v. Fairey

(Obama pic/ campaign image)

i. Holding: Obamas facial features/expression not part of photographers creative intuition (not like Burrow-Giles where photographer directed the expression of Oscar Wilde) Here, this was a totally random event/occurrence (Obamas expression was his own, not that of the photographers direction)

Merger DoctrineBaker v. Seldon

(merger doctrine : idea/expression dichotomy)

j. Issue: was accounting form copyrightable? Was Bakers system of accounting of slight difference infringing?

k. Holding: NO, merger doctrine says that where there are only a limited number of ways of expressing an idea, the expression will not be afforded copyright protection

i. Ideas cannot be protected by copyright

ii. Blank Form Rule: account books, blank cards, and other forms that are designed for recording information and do not in themselves convey information are not subject to copyright protection

Lotus v. Borland

(merger doctrine idea/expression dichotomy)

l. Issue: Lotus computer program and Borland used Ps commands/macros to make it easier for users to switch to using their program.

m. Holding: commands are uncopyrightable because of merger doctrine: command hierarchy is not a method of operation

i. Merger doctrine applies only where the data is hard data, not where it has been infused with taste or opinion; granting copyright in such a case would prevent the free-flow of data

ii. Also blank form rule rationale- a tool for use rather than conveying information

iii. Maybe more appropriate for patent protection: commands are method of operation, not an expression itself

CompilationFeist v. Rural Telephone Service

(originality in compilation of facts no copyright in facts, but can be copyright in compilation of facts)

n. Feist copied Rurals white pages book and provided that info in their own white pages book

o. Issue: whether rural selected, coordinated, or arranged these uncopyrightable facts in an original way (to constitute a compilation of facts that is protected by copyright law)

p. Holding: no, alphabetical order is standard, mundane and probably dictated by state law, not by Rural (lacks Constitutionally-required modicum of creativity) Section 102

i. Not an original work of authorship because lacks modicum of creativity.

ii. For a compilation to be afforded protection:

1. Must be some creativity in the selection or arrangement

2. Sweat of the brow is not enough

3. No copyright in facts themselves

CCC v. Maclean

(originality in compilation of facts)

q. Issue: Is digital database that includes Redbook data infringing on redbook copyright? (is Redbook afforded copyright protection for their compilation?)

r. Holding: Redbook has thin copyright protection of its work because the valuations and estimates are predictions based on editors expertise rather than preexisting facts merely discovered or aggregated; such expertise invokes sweat of the mind doctrine

i. Redbook displayed amply sufficient originality to pass the low-threshold requirement to earn copyright protection

Satava

(glass jellyfish case) (originality in compilation)

s. Holding: no protection because the form (selection & arrangement) was so life-like that it was deemed not to have modicum of creativity

i. There is no copyright protection for the technique of glass sculpting because it is instead a process more appropriately protected by patent law, not by copyright. The form of expression was dictated by the genre. The jellyfish here is so life-like that it is almost factual in its nature and therefore cannot give copyright protection to factual things.

Open Source v. Bikram

(originality in compilation functional v. expressive goal)

t. Issue: Bikram created book with images of yoga positions to practice hot yoga- Is there copyright protection afforded to selection/arrangement of poses and whether it is choreography or function? Are yoga poses copyrightable?

a. Holding: ineligible for copyright protection

i. No, element not in 102.

ii. Simplicity of the sequence.

iii. Poses in public domain.

iv. System to acquire health benefits so its not a dance. Purpose is functional in nature, not creative.

u. Settled out of court:

i. If yoga serves a functional goal, it is the process for which Bikram was seeking protection (and would likely not be granted protection)

ii. If yoga is seen as an expressive work (like a ballet or other choreographed work), the question turns to originality or creativity

Sweat of the Mind v. Sweat of the Brow

b. Trend toward giving thin copyright protection for compilations that have sweat of the mind component

c. Sweat of the brow not afforded protection because doesnt involve any intellectual creative contribution to the work

Nash v. CBS

(copyright estoppel factual v. fictional)

d. Nash had theory that Dillinger was, in fact, not killed and CBS came out with a show copying Nashs theory

e. Issue: Was Nashs theory an expression protected by copyright when Nash himself held out to the public that this theory was factual/nonfictional?

f. Holding: no copyright protection afforded to Nash.

iii. Fictional elements, or fictionalized versions of factual elements, of an otherwise factual work are protectable under copyright law

iv. But EXCEPTION: copyright estoppel. Once an authors work has been held out to the public as factual, the author-plaintiff cannot then claim that the book is, in actuality, fiction and thus entitled to the higher protection allowed to fictional works.

Standard for Originality for Derivative WorksSobhani v. @Radical Media, Inc.

Cast Away

g. Sobhani used Cast Away film elements to create short films/scripts to sell to ad companies on a freelance basis

h. Holding:

v. Radical Media used his work without telling him and argued successfully that because Sobhanis work was not authorized to use the Cast Away elements he could not be afforded copyright protection and so @RadicalMedias use was permitted

vi. Sobhani not even given protection in his contributions to the new works that were not borrowed from Cast Away because: Copyright protection does not extend to derivative works if the pre-existing work tends to pervade the entire derivative work

1. Burden on infringer to show that the original does not pervade the entire work

i. Professor finds holding HIGHLY QUESTIONABLE:

vii. Whats to keep the studios from ripping off scripts/ideas submitted to them on spec?

1. Implied contract not to steal ideas submitted to them

Batlin

(Uncle Sam Piggy Bank) Majority

viii. Derivative work must exhibit a SUBSTANTIAL VARIATION form the underlying work

1. Variation must come from creative, aesthetic considerations, not functional ones

Alfred Bell

(traced (meso-tints) classic works and someone copied his meso-tints)

ix. Compare derivative work with underlying work and ask whether there is MORE THAN A TRIVIAL VARIATION between them

1. So long as slight variation, can be protected by copyright (Alfred Bell & dissent in Batlin)

Alva Studios

(miniature replicas that are exact copies of works)

x. Even if no creativity or variation in end product, derivative work is sufficiently original so long as LABOR OR SKILL IN PROCESS OF CREATION

1. Special skill and knowledge (equates to sweat of the mind) vs. sweat of the brow (which is not afforded protection)

Meshworks v. Toyota

(digital model of Toyota car was made and Toyota used it in print and tv ads)

j. Issue: is the digital model afforded copyright protection? / Is Toyota not allowed to use them for different purposes?

k. Holding: No copyright protection for model: in assessing the originality of a work for which copyright is sought, we look only at the final product, not the process, and the fact that intensive, skillful and even creative labor is invested in the creation process does not guarantee its copyrightability

xi. There needs to be a substantial variation and that variation needs to be aesthetic, not functional

Ets-Hotkin v. Skyy Spirits

(9th Circuit so substantial variation test)

l. Issue: Is the bottle copyrightable expression? Does a second photograph of a Skyy bottle infringe on another Skyy bottle photograph?

m. Holding:

xii. No, because bottle is useful article

1. Aesthetic elements must be separable from its functional elements

xiii. 2nd photo does not infringe the first because there was a substantial variation between the photographs based on the different lighting and other artistic contributions (angle, perspective, etc.) Each photograph only granted thin protection because of limited ways to photograph a bottle.

xiv. Thin copyright that only would have prevented exact copying because the originality was so minimal and therefore Ds image was not infringed

Useful Articles

n. 2-d and 3-d works of fine, graphic, and applied art, photos, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Mechanical or utilitarian aspects are not covered. Only design that can be identified separately from and capable of existing independently of utilitarian aspects of article.

o. does not include right to prevent making, distribution, or display of pictures or photos of articles lawfully reproduced in useful articles in connection with ads or commentaries.

p. Try to sever the artistic/design aspects of article from functional elements to get copyright protection for the former

xv. Useful article is protected only to the extent that its design incorporates pictoral, graphic or sculptural features that can be identified SEPARATELY from, and are capable of EXISTENCE INDEPENDENTLY of, the utilitarian aspects thereof

1. Conceptual Separability

a. Artistic features primary and utilitarian subsidiary?

b. Useful article marketable simply because of aesthetic qualities?

c. Can conceptually separate out utilitarian function?

d. Artistic design not significantly influenced by functional considerations?

e. Artistic features can stand alone as work of art and useful article would be equally useful without it?

f. Artistic features not utilitarian?

2. Physical Separability

xvi. Design Patent

1. Form or graphic features that are designed to be aesthetically pleasing, rather than determined entirely by function

xvii. Trade Dress

1. The design or packaging of a product that acquires a distinctiveness serving to identify the product with its manufacturer or source

Pivot Points Mara Mannequin case

(2nd Circuit)

xviii. Issue: Whether the hungry-look mannequin is a useful item or not and therefore afforded copyright protection?

xix. Holding: Not a useful article because not motivated by functional considerations

1. Test: Conceptual separability

a. Do not need physical separability if conceptual separability is feasible

Inhale v. Starbuzz

(9th Circuit)

xx. Issue: was hookah water container protectable by copyright or useful article?

xxi. Holding: either physical OR conceptual separability will suffice

1. Functional value of hookah container is overwhelming; no matter how distinctive the shape of the container, not afforded protection

q. Brandier Intl. v. Cascade (2nd Circuit) Bike Rack Case

xxii. Artist created wire sculpture and company wanted to redesign it to enable it to function as a bike rack; artist changed design accordingly

xxiii. Holding: not copyrightable because the ultimate design was determined by functional considerations (authors intent was to create a functional useful item)

CHARACTERS

r. Tests:

xxiv. Specificity:

1. The less developed the character, the less they can be copyrighted

a. Minor characters are more likely to receive copyright protection under this test than under the story being told test

xxv. Story being told:

1. Character can be copyrighted only if the character is the story being told, not a not a chessman in the game of telling the story

Anderson v. Stalone

(Rocky Balboa Case 9th Circuit??)

xxvi. Plaintiff wrote a script for new Rocky movie and sued Stallone for using parts of his script

xxvii. Holding: Stallone had copyright protection of his Rocky characters because they were part of story being told

1. Writer infringed his characters, so Stallone cannot infringe the script because there can be no copyright protection for derivative works that infringe, including uses of copyrighted characters without permission

Warner Bros. v. CBS

(9th Circuit over use of characters when having acquired story from the other studio)

xxviii. Warner Bros. bought some film rights from CBS but did not also buy the exclusive rights to the characters therein

xxix. Holding: WB lost the claim because there was no provision in the acquisition agreement relating to granting of rights to characters

xxx. EFFECT:

1. When buying story from authors, studios will put quitclaim clause in the agmt to say they also own the rights to any characters within the story whether or not they have enough specificity

2. WGA: Creators of characters are entitled to royalties if studios want to use the characters for sequels/prequels/remakes

3. Trend is to give more protection to characters in TV/Film than to give protection to characters in written works

Gaiman v. McFarlane

(comic book artist/ writer ; 7th Circuit)

xxxi. Issue: Gaiman (writer) wanted joint authorship in comic book characters because P had idea but D illustrated

xxxii. Holding: Characters in writings still leave a lot to the imagination whereas graphic characters give a more detailed complete representation

1. Therefore even under specificity test, it will be less likely to grant copyright protection to a written author than to the graphic author

xxxiii. Exception to joint-author test of contributing something independently copyrightableboth contributors contributed something that was not copyrightable expression, but together they created a copyrightable work

Klinger v. Conan Doyle

(7th Circuit; Judge Posner; Sherlock Holmes Case)

xxxiv. Issue: Did characters copyright protection expire when the first story entered the public domain or does protection extend until the final work in the series is completed where the author has altered the character in a subsequent work?

xxxv. Holding:

1. Copyright protection over a character expires with the first work in which the character appears;

2. new works in the series are considered derivative works so only new original elements / character developments added since the original are afforded copyright protection (protection begins anew, but only for the character as further developed)

3. Policy (Posner):

a. More in the public interest to increase what is in the public domain to inspire artists than to extend protection for a single artists creation

b. Ruling otherwise would discourage creativity because it would incentivize the author to continue writing about the same characters instead of creating new works

xxxvi. Industry Response: Rightsholders seek to protect their characters through Trademark to achieve longer protection term (outside of copyright protection)

SOUND RECORDINGS

v. The work that results from the fixation in a tangible medium of expression of a series of musical, spoken or other sounds (but not audiovisual works)

w. Must be original works of authorship and must be fixed in a phonorecord

x. Compulsory Licenses exist to make and publicly distribute phonorecords of nondramatic musical works (only applies to the musical composition, not to the sound recording nor to public performances)

i. The nondramatic musical work must have been:

1. previously recorded; and

2. the phonorecord distributed to the public under authority of the copyright owner; and

3. the nature of the work cannot be changed or modified (basic melody and fundamental character must not change)

Newton v. Diamond

(Beastie Boys case 9th Circuit)

ii. Issue: Newton sought damages from Beastie Boys infringing his underlying musical composition in the sound recording they sampled for use in their songs.

iii. Holding: Copying of Newtons composition was not infringing because it was de minimus (not substantial enough to warrant a remedy for the copyright holder of the composition)

1. So little of the underlying work was copied that the average audience would not recognize where it came from.

iv. NOTE: If Beastie Boys had copied the sound recording without permission, there would not have been a de minimus ruling this defense does not apply to sound recordings no matter how small or unrecognizable the recording is.

Bridgeport Music v. Dimension Films

(2005 6th Circuit)

v. Issue: Dimension films sampled a part of song without obtaining permission

vi. Holding: Any duplication (sampling, in whole or otherwise) is infringement de facto

1. De minimus/ substantial similarity tests do not have any application here

2. Court remanded for consideration of fair use defense because it had been dismissed as noninfringing on SJ

Audio Home Recording Act

vii. No copyright infringement against consumers for noncommercial digital or analog music recordings using audio recording devices or recording medium as described in the act

1. Doesnt apply to computers because theyre general use capabilities, not specifically audio recording devices

viii. Atlantic Recording v. XM Satelite Radio

1. XM Satellite not protected by audio home recording act because XM is acting as a distributor of sound recordings without the permission of the record labels

2. Paid the levy on the manufacturing of the device but since the devices were streaming songs, XM was infringing digital public performance right as well as infringing the public distribution right because the device was capable of making copies of the songs

3. As digital content delivery provider, can still be held liable for infringing copyrights distribution right while being in compliance with the audio home recording act.

4. Professors proposal: have a levy on any product or service whose value is substantially enhanced by peer-to-peer file sharing and allow people to make as many copies as they want and distribute proceeds from levy to record labels according to percentage of content being copied/distributed

Government Works

y. Protection is not available for any work of the U.S. government or its employees/officers

i. Only applies to US Gov, not state governments, though courts have long held that state statutes, regulations, and judicial opinions are not copyrightable

ii. Policy reasons:

1. Public taxes pay for the government workers

2. Public authorship

a. Democratie ountry govt is for the people, so government employees are working for the people

b. Do not need copyright incentive to create the works its for the public benefit

Veeck v. Southern Building Code

(5th Circuit)

iii. Issue: Is a private drafting of public documents/codes afforded copyright protection?

iv. Holding: the law, whether its source being judicial opinions or statutes ordinances or regulations, is not subject to federal copyright law.

1. Law only adopted the codes in the document, not the creative elements that were included therein

2. Policy:

a. do not need copyright protection as incentive to create these laws

b. once the codes are adopted by law, they enter the public domain because citizens are authors of the law

v. Possible Exceptions: standardized codes for particular professions; there are a few cases holding that classifications being created for the use by doctors may be copyrightable even though the government has adopted it

content-based restrictions to copyrightability:

vi. Courts are not going to look into nature of expression (whether its immoral/unethical) and will afford it copyright protection

vii. 1st Amendment: govt may not discriminate against public expression; nothing in copyright act withholds/restricts copyrightability of obscene works

1. counter argument: obscene works by their very definition are not creative works that promote the publics general interest, science, arts, etc. and therefore have no socially redeeming value (as determined by local groups)

Mitchell Bros case

(5th Circuit):

2. Holding: Protection of all writings without regard to content is a constitutionally permissible means for promoting science and arts; Not going to make inquiry into what the content is and will instead grant copyright protection for all writings

z. Mike Tysons tattoo shown in Hangover 2.

i. No copyright protection, in order to be protected the work has to be fixed in a tangible medium of expression and human body cannot constitute a medium of expression.

ii. It would impose an undue burden on the person on whom the tattoo is fixed.

Authorship Status; Work for HireLindsey v. RMS Titanic.

iii. Issue: Whether the director of the film owns the copyright in the creative expression when she in fact did not transcribe the expression.

iv. General rule: the author is the party who actually creates the work that is the person who translates an idea into a fixed, tangible expression.

v. Holding: the crew merely (too minimal) transcribed according to Lindseys instructions and even when the transcriber physically fixes the work in such cases the transcriber is not granted with authorship.

aa. Commissioned works: cannot qualify as work for hire unless the contractor was salaried as an employee and unless it was done at the instance and expense of the commissioning party.

ab. Considered a work for hire if the work fits into any of these categories & a written agreement exists.

i. Contribution to a collective work.

ii. Part of a motion picture.

iii. Translation.

iv. Supplementary works.

v. Compilation.

vi. Instructional text.

vii. Tests.

viii. Answer material for a test.

ix. Atlas.

ac. Term 95 years from 1st publication or 120 years from creation.

ad. Termination rights: allows an author that granted the copyright to a third party to terminate the assignment after 35 years. Doesnt apply if the work was under Work for Hire.

ae. Teachers exception.

i. Universities do not supervise professors works.

ii. Universities are poorly equipped to exploit professors works.

iii. Professors do not write for the university.

CCNV v. Reid

CCNV created the idea of the statue that they then hired Reid to create. CCNV exercised some degree of control over design and formation (rejected certain proposals, mentioned positioning that was preferable), but did not control Reids work hours, tools, location, ability to hire other assistants.

af. Issue: Whether there is an employment/employee relationship? Whether employer owns the copyright in sculptures done by sculpture without any written agreementdepends on employment relationship (employee?)

ag. Holding: independent contractor and not an employee, thus not work for hire. Court applied the Common Law Agency Test.

i. Hiring party has right to control the product.

ii. Tax treatment of hired party.

iii. Providing employee benefits.

iv. Skill required.

v. Whether the hiring party has the right to assign additional projects to the hired party.

vi. Source of tools.

vii. Location and duration of work.

viii. Method of pay.

ix. Whether work is part of hiring partys regular business.

Joint Authorship.

ah. A joint work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or independent parts of a unitary whole.

i. Undivided equal interest.

ii. Exploitation of work without other authors consent.

iii. Pro rata share of profits.

iv. Duration life of last surviving artist + 70 years.

Gaiman v. McFarlane

7TH Cir.

v. Neither author contributed independently Posner: joint authorship was given, otherwise it would be absurd to not grant authorship because individual contributions were not by themselves copyrightable

Thomson v. Larson

2nd Cir.

vi. Whether Larson had joint authorship when hired as dramaturge for Broadway musical Rent.

vii. Holding: court held that Larson never intended co-authorship. (intention is what matters in 2nd circuit)

viii. Objective Criteria Factors to determine intention:

1. Decision-making authority

2. Billing/credits

3. Ability to sign third party contracts

4. How they view themselves any kind of subordination in the relationship?

Aalmuhammed v. Lee

9th Cir.

ix. Issue: Whether Plaintiff had joint authorship when he suggested extensive script revisions, created new scenes with new characters, directed actors on set and edited part on post production in Malcolm X.

x. Holding: no joint authorship

1. Rationale: progress in the arts would be retarded rather than promoted if an author could not consult with others and adopt their useful suggestions without sacrificing sole ownership of the work

xi. Failed the mastermind test: must make fundamental creative decision regarding the workrationale of control

1. P offered extensive script revisions for historical and religious accuracy, directed some actors while on set=technical help and scholarly contributions

xii. WGA requirements are all set in collective bargaining agreement; dont necessarily follow copyright law

1. According to WGA, there is a mandatory arbitration over screen credit when a producer is given writer credit

2. 9th Circuit is more reluctant to adopt a test that is determined by authorship billing b/c in Hollywood, credits are handed out all over the place, so courts dont want to use that as an indicative factor of who owns copyright

xiii. #6 pg 342

Urantia Foundation v. Maheera

(9th Circuit; copying of book/compilation by celestial beings into a CD)

xiv. Book by celestial beings compiled by foundation copied by maaherra into CD

xv. Holding: Court says the work is a compilation by human authors which is afforded copyright protection

1. Because of the way they asked questions to the celestial being and transcribed the answers they determined the order and arrangement of the compilation and therefore original work of authorship

xvi. Factors for determining joint authorship of compilation:

1. Intention, and

2. Contribution of

3. Inseparable or interdependent parts

4. Of Unitary whole

xvii. Conventional human-human interview:

1. Generally regarded as work of joint authorship but usually subject to contractual provisions to change the rights afforded to each party as to credit, licensing rights, everything

2. Each person loses the ability to veto copying of the recording of the interview

Garcia v. Google

(9th Circuit; Anti-islamic video; actress claims copyright in her performance)

xviii. Issue: does actress own copyright in her performance?

xix. Holding: she has copyright to her contribution to the film that is non de minimus; Google forced to take down the videos (injunction granted)

1. But court is reviewing this en banc; will very likely be overturned

a. Implicitly granted the producer the rights to use her performance as he wishes

b. Fails joint authorship test

Right to Make Copies

ai. 101: copies are material objects in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated either directly or with the aid of a machine or device

aj. Fixed: a work is fixed when its embodiment in a copy is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration

ak. Factors for proving copyright infringement:

i. First show Defendant COPIED:

1. Direct evidence (admission by Defendant, eye-witness evidence, video evidence, etc.)

2. Circumstantial Evidence

a. Access:

i. Actual content

ii. Reasonable opportunity for contact (can speculate on this point)

b. Similarity (probative similarity; probative similarity requires expert testimony)

i. If one cannot prove access, can use probative similarities to prove copying and infer access was somehow provided)

1. Striking similarity

a. Where works are so nearly identical that access and copying may be inferred

ii. Then Show the COPYING WAS IMPROPER APPROPRIATION

1. Question for the jury

2. Not just simple and trite copying

Defendant CopiedCartoon Network v. Cablevision

(2nd Circuit; DVR case)

iii. Issue: Is Cablevisions DVR system of data storage on offsite servers of copied programming a violation of Cartoon Networks right to make copies?

iv. Holding: No, buffer data (RAM) are not copies because they do not meet the transitory requirement:

1. Needs to be fixed (embodied in a medium of expression)

2. For more than a transitory duration (not long enough here but were not sure how long is long enough)

a. Distinct from MAI where RAM not at issue but could last until computer was turned off vs. 1.24 seconds

v. Also because customers are initiating the copying of buffer data onto a hard drive and not Cablevision, cannot be held to be making the copies; also customers are the ones initiating the transmissions to themselves by choosing the specific programming to copy

vi. Distinct from Blackwell because:

1. The copy shop provided material to be copied, whereas in Cablevision the customer chooses what content to copy which Cablevision has no control over

2. Copyshop provides complete work to be copied Cablevision merely provides service where the customer has to start copying at beginning of program to get an entire work Cablevision merely bundles channels

3. Blackwell technology is less sophisticated the copy shop employees have to provide more direct assistance = more volition, than Cablevision which provides an automated system should that matter?

Blackwell Publishing v. Excel Research Group

(Michigan)

vii. Professor took some coursepacks to a copy shop and made available a master copy for students to come and make copies for themselves

viii. Issue: whether the copy shop is infringing in the reproduction right of the author

ix. Holding: yes, copy shop infringed

1. Had volitional conduct even though it was the students who, in fact, were pushing the button to copy

2. Copy shop was in control of the master copy and made it available for students and provided the elements needed to make the copies on their premises

Price v. Fox Entertainment Group

(2nd Circuit; writer provided script for Dodge Ball movie to his agent at WME and another of his colleagues had the original script from one of his clients and later fox made a movie using the script)

x. Issue: whether there was circumstantial evidence showing that Fox had access to the script and used it to make the movie

xi. Holding:

1. There wasnt proof that the two agents exchanged the script, but it was enough to show that the defendant had a reasonable possibility of access

2. Circumstantial evidence: The defendant had completed his first draft with unusual speed (within a month of the plaintiff providing his script to his agent) and was substantially similar to Ps script

3. Court denied Ds motion for summary judgment because a jury can find that there was enough circumstantial evidence to determine the D had in fact copied

xii. Inverse Ratio Rule:

1. The stronger the proof of access, the less the proof of similarity is required;

2. The stronger the proof of similarity, the less the proof of access is required

3. 2nd circuit applied to copying in fact

4. 9th circuit applies with no distinction

Benay v. Warner Bros.

(9th Circuit 2010; use of a screenplay w/ samurai)

xiii. Must be substantial similarity between the Ps idea and Ds production

xiv. Holding: No substantial similarity of protectable expression and therefore not copyright infringement as a matter of law (summary judgment)

1. But this case was still sent to jury for judgment on idea theft (submission of ideas)

2. A number of similarities between the works arise out of the fact that both works are based on the same historical events, take place at the same time and in the same country, and share similar themes. These similarities are largely between unprotected elementshistorical facts, characteristics that flow naturally from their shared premise, and scenes-a-faire.

Bright Tunes Music v. Harrison

(2nd Circuit; My Sweet Lord Song)

xv. Harrisons song had the same musical keys and almost identical repetitions of motifs A & B but Harrison said that if he copied the song, it was done subconsciously

xvi. Holding: even subconscious copying is copying in fact; parties settled

Arnstein v. Porter

(2nd Circuit; no longer good law)

xvii. Judges Frank and Hand: no summary judgment for defendant whenever there is the slightest doubt about the facts

xviii. Judge Clark says summary judgment for D unless the P produces credible evidence that would support verdict in Ps favor

xix. Arnstein alleged that Porter broke into his house and stole his music and that his hit song had been number one on the charts

xx. Holding: court adhered to striking similarity standard and didnt find infringement but had initially found them sufficiently similar to not dismiss the case on summary judgment

De Minimus Copying

(defense to substantial similarity; might be considered relevant to the defense of fair use)

al. copying is trivial

am. below a quantitative threshold

an. substantial similarity requires that the copying is quantitatively and qualitatively sufficient to support the legal conclusion that infringement has occurred

ao. 9th Circuit on music sampling: a use is de minimus only if the average audience would not recognize the appropriation

ap. 6th Circuit on music sampling: There is no de minimus defense to copying of a sound recording

Ringgold v. Black Entertainment Television

(2nd Circuit; poster in background of television episode)

i. Poster appeared for total of 26 seconds and at least 80% of the poster was shown in the longest segment

ii. Issue: was the copying de minimus?

iii. Holding: The use was not de minimus

1. Brevity of segment and lack of focus lends to audience not being able to recognize the poster BUT the theme of the poster was well-suited for decoration of black church scene and was clearly visible;

2. Audience had enough time to recognize it and the poster helped define the venue in which the scene was shot, so not de minimus

Gottlieb v. Paramount Pictures

(2nd Circuit; pinball machine used in background of What Women Want movie)

iv. Issue: was it de minimus

v. Holding: despite the brand/name being legible on the machine, the court found there was no qualitative connection between the plaintiffs work and the film (machine was just one of many items suggesting sporty theme in the background, obscured the whole time, occupied less than 5% of frame) AND the pinball was never fully visibleout of focus, blurred or obscured.

1. Work must be sufficiently discernible (subject and style) to establish qualitative connection; work must add/contribute to the set. Presence of two dilutes presence of infringing pinball. Average observer would not recognize the pinball designs as anything other than generic designs in a pinball machine

Idea/ExpressionNichols v. Universal Pictures

(2nd Circuit; copying of theatrical play)

vi. Nichols created a play in 1922 and Universal created a TV movie with 6 sequels (play about quarrel between jewish/irish fathers, marriage of children, birth of grandchildren, reconciliation)

vii. Holding: court determined that the similarities amounted to copying of ideas that were not copyrightable

1. The two plays corresponded in themes and basic plot points, but did not result in copying of expression

2. Relevant question (Pattern test between abstractions of and original work): Whether the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them and regard their aesthetic appeal as the same

viii. Levels of similarity that will be deemed copyright infringement of expressions:

1. Fragmented literal similarity: literal copying or close paraphrasing of dialogue or sentences

2. Comprehensive nonliteral similarity: copying a works overall structure, plot line, sequence of plot incidents, and the like

Peter Pan Fabrics Case

(2nd circuit; if ordinary observer cant tell the difference, then infringement)

ix. Whether the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same

1. If we consider the aesthetic appeal, elements that are unoriginal would be included/contribute, and the uses for which the design is intended, the designs are sufficiently similar.

a. Opens the door for looking at protected and unprotected elements

b. Overlooks variants irrelevant to the purpose for which the design is intended (to be used for garments)

Kisch v. Ammirati

(2nd Circuit; two photographs taken at Village Vanguard with same background, lighting, mood, etc.) pg 632 #4

x. The reproduction of a similar setting can be copying in fact so long as the second photographer has seen the original and intended to recreate it

xi. Holding: enough similarities in tone and mood to leave the question open for jury to determine whether there was infringement of copyrightable expression; denied summary judgment for defendant)

MERGER DOCTRINE:

Herbert Rosenthal Jewelry v. Kalpakian

(9th Circuit; Jewel encrusted bees case)

1. Holding: there are only one or a few ways to express the idea of jewel-encrusted bees so no copyright infringement because saying so would grant a monopoly in the idea when the point of copyright is to only protect the expression

Skyy Vodka Bottle Case

Filtration and Comparison Approach

2. Courts will not protect a copyrighted work from infringement if the expression embodied in the work necessarily flows from a commonplace idea (scenes a faire doctrine)

3. When similar features of a work are standard in a treatment of a given idea, they are treated as unprotected ideas

4. Holding: very limited number of ways to produce photo of a bottle, so court subtracted out the unoriginal elements of the photo and held that the photo was left with only thin protection (against literal copying) so there was no infringement (Filtration and Comparison)

Approaches to Substantial Similarity

Audience Test:

xii. 2nd Circuit: whether the ordinary observer unless he set out to detect the disparities, would be disposed to overlook them and regard their aesthetic appeal as the same (uses probative similarity)

xiii. 9th circuit: whether the ordinary person would find the total impact and effect of Ds work substantially similar to Ps work (uses substantial similarity)

1. Concept & feel appears more in pictorial rather than literary copyright matters.

Extrinsic Test:

objective test that focuses on whether the protectable elements, standing alone, are substantially similar or not (rigorous filtration and comparison test)

xiv. `extrinsic test' is an objective comparison of specific expressive elements i.e. articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in two works.

Intrinsic Test:

subjective test that focuses on audiences reaction to each work as a whole

xv. The `intrinsic test' is a subjective comparison that focuses on `whether the ordinary, reasonable audience' would find the works substantially similar in the `total concept and feel of the works.

Steinberg v Colombia Pictures

(2nd Circuit; New Yorker cover drawing and Moscow on the Hudson movie)

xvi. Issue: Was the Moscow on the Hudson movie poster substantially similar to plaintiffs work on the cover the New Yorker magazine?

xvii. Holding: No summary judgment for defendant:

1. D admitted that he copied in fact

2. Plaintiff would fail the filtration and comparison test

3. While there wasnt literal copying, court applied audience test and held that a jury could find that the total concept and feel are similar

CBS v. ABC

(2nd Circuit 2004) Survivor

xviii. Court employs total concept and feel test but in a more discerning manner

xix. Mindful of uncopyrightable elements

Metcalf v. Boccho

(9th Circuit; P wrote screenplay and treatment of tv show about inner city hospital and pitched it to CBS, which then produced a tv series and pilot episode dealing with predominantly black staff in inner city hospital)

xx. Issue: whether there was substantial similarity between P and Ds works

xxi. Holding: No Summary Judgment for Defendant

1. On SJ, only extrinsic test is relevant because intrinsic test is for jury to decide; here only articulable similarities between plot, themes, dialogue, mood, setting, pace, characters and sequence of events are considered

2. Court admits that individually, protectable elements are not substantially similar

3. BUT the presence of so many generic similarities and common patterns in which they arise help Metcalf satisfy extrinsic test

a. Infringement can be based on original selection and arrangement of unprotectable elements (particular sequence in which an author strings together a significant number of unprotectable elements is itself a protectable element)

Swirsky v. Carey

(9th Cir. 2004) : overturned SJ for D because passed extrinsic test of substantial similarity in musical composition (based on expert testimony) and intrinsic is question for the jury

xxii. Extrinsic test requires "analytical dissection of a work and expert testimony

xxiii. "Analytical dissection" requires breaking the works "down into their constituent elements, and comparing those elements for proof of copying as measured by 'substantial similarity.'" Because the requirement is one of substantial similarity to protected elements of the copyrighted work, it is essential to distinguish between the protected and unprotected material in a plaintiff's work.

Funky Films v. Time Warner

(9th circuit) tv shows about funeral parlor owners found not substantially similar

xxiv. Producers of screenplay sue time warner for producing show on HBO

xxv. Holding: court applies extrinsic test, finding that the protectable elements standing alone were not substantially similar to those elements in Ds work; court prevented discovery to help P demonstrate access occurred because there were not enough similarities to even warrant the access question

Colombia Pictures v. Miramax Films

(9th circuit; Michael Moore trailer for Big One and MIBII)

xxvi. Substantial similarity in the expression of an idea may appear from the mood evoked by the work as a whole

xxvii. Holding:

1. Under extrinsic test, MIB trailer is substantially similar to the expressive ideas in the TBO trailer. The trailers contain a virtually identical theme, format, pace, sequence of events

2. Under intrinsic test: an ordinary viewers would consider the trailers to be substantially similar based on the above comparisons (collapsed intrinsic and extrinsic tests- given all the general elements, protected or unprotected, the viewer may find the trailer to be substantially similar)

aq. 2nd Circuit v. 9th Circuit approaches to summary judgment phase:

i. 2nd Circuit is less inclined to grant summary judgment for D than 9th Circuit is when the protectable elements standing alone are not substantially similar to allow for P to demonstrate that access was granted

1. Because 2nd Circuit takes broader total concept and feel review of the works, rather than 9th circuits approach which applies more rigorous extrinsic test, 2nd Circuit is more likely to permit inquiry into whether there was access to the original work.

2. 9th Circuit applies inverse ratio rule to both

3. 2nd Circuit; broader view, looking at the whole picture (protected and unprotected elements) if a jury might find that the work is substantially similar we are not granting summary judgment.

Derivative WorksMicro Star v. FormGen

(9th Circuit; Duke Nukem Case)

ii. MicroStarr copied and collected levels created by users to create a derivative work and sold them on a CD to the public

iii. Game users are impliedly licensed to create levels so they are not infringing, but Micro Starr was not licensed to do so and cannot use this implied license for commercial gain

iv. Issue: whether MicroStar is infringing Form Gens exclusive right to prepare derivative works

v. Holding: MicroStar created an infringing derivative work because it substantially incorporates protected material from the preexisting work

1. Made a comparison to creating sequels to the game

2. Distinguished the Gottleb v. Nintendo case (which held that there was no infringement because in Nintendo users couldnt save the levels, so no permanent or concrete form)

Lee v. A.R.T. Co.

(7th Circuit; paintings mounted on ceramic tiles and resold)

vi. Doctrine of First Sale: if youve bought a work/copy legitimately, youre allowed to resell that work/copy

vii. Issue: whether D created infringing derivative work

1. Relevant question: whether the mounting of the artwork constituted a transformation that created a copyrightable derivative work?

viii. Holding: Granted summary judgment to D; not infringing because not an original work of authorship since no difference in form or function from displaying a painting in a frame

Futuredontics v. Applied Anagramics

(yahoo banners framed around website held to not create derivative work)

ix. 9th circuit: would ask whether the framing is in a concrete and permanent form

x. 7th Circuit: would ask whether the interaction between the frame and the underlying material is sufficient to qualify as a transformation

Horgan v. Macmillan, Inc

(2nd Circuit; pictures of Nutcracker ballet published in a book)

xi. Issue: Can a photograph of a performance be substantially similar to the performance to constitute infringement? More broadly, whether a different media of expression can infringe the copyright of to prepare derivative works of the original.

xii. Holding: still photos can infringe copyright of choreography

1. Snapshot of a single moment in a dance sequence can communicate a great deal (capture the gesture, composition of dancers bodies and placement on state)

2. Audience test: whether the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them and regard their aesthetic appeal as the same

National Geographic v. Classified Geographic

(2nd Circuit; publisher compiles articles/pictures from national geographic into a book; argued first sale doctrine)

xiii. Issue: whether first sale doctrine enables a Defendant to compile and sell a new work constituting parts of the original

xiv. Holding: Ds use of lawfully purchased Nat Geo magazines constituted an unlawful compilation/adaptation/arrangement

1. Change in form or function from the original constituting a transformation to an infringing derivative work of authorship

Sani Films Scenarios

(software that deletes/fast forwards through obscene scenese of movies)

xv. Makes edited, clean versions of movies on DVDs

1. Violates right to make derivative works

xvi. Software programmed to automatically delete offending scenes

1. Infringing

xvii. Program fast forwards through offending scenes

1. Not violative; original still in tact and user is the one that operates the device to create the derivative work, device just enables them

xviii. Device recognizes profanity and substitutes nonprofane words

1. Selling the device wouldnt infringe, and user would be the one operating device

2. Family Movie Act of 2005- if the device substitutes content for profane words, then it is not permissible under this Act

a. Making the

Moral Rights

ar. Despite being a signatory to Berne Convention, American copyright law does not recognize moral rights or provide a cause of action for their violation, since the law seeks to vindicate the economic, rather than the personal, rights of authors.

i. DGA requires directors credit under name or pseudonym. If the film is butchered, the aggrieved director may appeal to the Build to disown the film by replacing his credit with a standard pseudonym, Alan Smithee.

Gilliam v. ABC

( 2nd Circuit; Monty Python Case)

ii. ABC deleted about of Monty Python scenes to insert commercials and remove offensive scenes for US audience; was not authorized to do this

iii. Issue: whether an unauthorized derivative work constitutes a misrepresentation of the original work in violation of Lanham Act

iv. Holding: Preliminary injunction was granted because substantial likelihood that MP will succeed in proving infringiement of their copyright by ABCs broadcast of edited versions of MP programs

1. Also likely that ABCs cuts to MP program constituted an actionable mutilation of MPs work (deformation of the work)

Dastar v. 20th Century Fox

(S. Ct.; Video Cassettes where authors name was removed)

v. Holding: Lanham Acts prohibition of false designation of origins of goods does not cover proper attribution of an author to the underlying material contained in the tape, only to the tape itself

vi. Result: Lanham Act no longer available to vindicated authors moral rights, undermining holding in Monty Python case (lower courts apply this broadly)

Carter v. Hemsley Spear

(2nd Circuit; artist installation in building couldnt be removed because it would constitute a mutilation of his work)

vii. Issue: whether sculptures incorporated into a building can be protectable by VARA

1. VARA:

a. Artist can claim authorship

b. Artist can prevent intentional distortion, mutilation or other modification of his work that would be prejudicial to his honor or rep.

c. When there has been dist./mut./mod., Artist can prevent use of his name

d. Artist can prevent the destruction of a work of recognized stature

e. Limited to fine arts that exist in a single copy or limited edition of upto 200 copies tht were not works for hire and are not motion pictures

f. Rights can be waived in writing

viii. Holding: the sculpture was protected and preliminary injunction was granted

Public Distribution Right

as. Right to distribute copies or phonorecords of copyrighted work to the public by sale or other transfer of ownership, rental, lease or lending

at. Even if you have a lawfully acquired copy, may not be permitted to redistribute it to the public

i. Discourages people who may not have done the copying from reselling/distributing those copies

ii. Targets copying done outside scope of US CR law i.e. abroad

au. Electronic Transmission: digital phonorecord delivery where user receives digital copy of sound recording

i. XM Satellite Radio case: where user receives digital transmission of sound recording from satellite radio broadcaster, content delivery provider infringed right to distribution

London-Sire Records v. Does

(D. Mass. 2008): P2P file-sharing of sound recordings infringed right of distribution

ii. Issue: whether phonorecord (through P2P network) made available for download without a showing of actual downloads is sufficient to implicate exclusive right to distribute.

1. Yes. Actively transmitting or making copyrighted material available is circumstantial evidence that it is very likely downloading occurredcan rebut this presumption

a. BUT KaZaA case held these jury instructions wrong

2. Electronic transmission that creates a material object at its finish satisfies copyright requirements

3. Creating new ownership rights in another implicates authors ability to control the market for his/her work

First Sale Doctrine:

iii. Limitation to public distribution right by divesting copyright owner of ability to control their work upon legal saleconsistent with policy against restraints on alienation of private property

iv. Vernor v. Autodesk, Inc. (9th Cir. 2010): owners of software held to be licensees and therefore not entitled to resell

1. License, as opposed to sale, when:

a. Labeled as such (notice)

b. CR owner significantly restricts the users ability to transfer or resell good

c. CR owner imposes notable use restrictions

2. Irrelevant whether CR owner ever anticipates regaining possession of good

UMG Recordings, Inc. v. Augusto

(9th Cir. 2011): Ps distribution of promotional CDs labeled as licensed for personal use were held to be a sale

3. Distinct from Vernor:

a. P lacked control over the copies after distributingnever followed up to determine how CDs were used

b. Copies were unsolicited and recipient never gave affirmative assent to license

Capitol Records, LLC. v. ReDigi, Inc

. (2d. Cir. 2012):

v. First sale doctrine does not protect uploading of a copy of a phonorecord where access right is transferred because it is not a particular copy, even when file is deleted from original owners computer

vi. Also the music file made available to new owner is an unauthorized reproductionimplicating distribution

Right of Public Performance

av. Performance is that which can be contemporaneously perceived (i.e. streaming a song is a performance, but downloading a ringtone is not)

aw. Transmission: communication to a different physical location than where the performance originates

ax. Public: means open to the public and is determined by size and composition (semi-public is substantial number outside of circle of family and friends)

ASCAP v. US :

downloaded musical works are transmitted, but not publicly performed therefore does not implicate ASCAP licensing

i. No contemporaneous perceptibility. Downloaded with intention of being listened to at later time

Columbia Pictures v. Redd Horne

(3d. Cir. 1986): D operating video rental store with onsite private viewing room

ii. Entire store was open to the public and movies were performed when employees pressed play

Columbia Pictures v. Aveco

(1986): video store secondarily liable for infringing public performance of videos in store

iii. Here customers were responsible for pressing play, but store authorized the movie and room rental that was open to the public

On Command Video v. Columbia Pictures

(1991): hotel guests ordering video to their room and video could only be viewed in one guest room at a time

iv. Constitutes a transmission and therefore infringes public performance because the guest room is a physical location distinct from where the performance originates

Fairness in Music Licensing Act of 1998:

Performance of non-dramatic musical work (other than direct transmission) with no purpose of direct or indirect commercial advantage is not a public performance for establishments of certain sizes

v. Restaurants and eating establishments fall within this exemption, as do record stores

Cartoon Network LP v. CSC Holdings, Inc.

(2d Cir. 2008):

vi. Issue: whether Cablevision violates Ps right to public performance when users of the remote DVR service viewed programs previously recorded by users

vii. Holding: because the DVR system only makes transmissions available to one user for his/her personal use there is no performance to the public

ABC v. Aereo (2014):

Ds system allowed users to watch broadcast programming by transmitting to individual antennas

viii. Holding: when an entity transmitting the same contemporaneously perceptible images and sounds to multiple people, it transmits a performance to them regardless of the number of discreet communications it makesthis is consistent with the purpose and text of 1976 Copyright Act governing cable companies as it performs the same function

Right of Public Performance in Sound Recordingsthere isnt one

ay. Contrast with musical works, there is a right in the underlying musical composition

az. BUT in 1995

ba. In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission

i. Limitations to 106(6)

1. 114(d)(1) Non-subscription digital broadcasts: no public performance right

2. 114(d)(2)Webcasting (internet radio) and subscription broadcasts (satellite) must pay statutory compulsory license

a. Restrictions: may not publish schedule in advance or broadcast more than prescribed number of tracks from same artist within a given time frame

3. 106(6), 114 (1) Interactive Services, and (2) webcasts or subscription digital broadcasts that fail to comply with 114(d)(1) must obtain copyright owners permission (rationale: facilitate home copying or substitute ownership)

bb. Statutory rates are determined by Copyright Royalty Judges (based on willing buyer willing seller standard) with possibilities of appeal and lobbying congress

bc. Record labels authorized to negotiate with webcasters through Sound Exchange

bd. Direct allocation of statutory license process to recording artists (45-5-50%)

be. Criteria for determining statutory license rates

i. Balance fair income and fair return on creative investment

Right of Public Display

bf. Section 101: to display a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process

bg. Section 109(c): the owner of a lawful copy is entitled to display that copy publicly to viewers present at the place where the copy is located

Perfect 10, Inc. v. Amazon :

P sought injunction for inline linking of full-size images on infringing 3rd party websites and of googles display of thumbnail versions of these infringing copies

i. Because full-size images were not stored on Googles servers, merely framed within their own site, D was not responsible for infringementrejected incorporation test in favor of server test

ii. Thumbnails may be infringinglater held fair use because Googles search function was transformative to be fair use

1. Under server test, Google found to have copiedGoogle does publicly display thumbnails form Googles server

iii. Only violating public display if the entity is displaying the work that it has made a copy of Ps images

Fair Use

bh. Four Factors:

i. Purpose and character of the use

ii. Nature of the Copyrighted Work

iii. Amount and substantiality of the portion used in relation to the copyrighted work as a whole

1. Both quantitative and qualitative

iv. Effect of the use on the potential market for value of the copyrighted work

bi. Market-Centered Approach:

i. Sony v. Universal (1984):

1. Purpose of use was time-shifting, not librarying, and therefore was a non-commercial/personal use

a. Dicta: commercial use presumed to cause harm

b. Dicta: commercial presumption against fair use

2. Holding: sale of copying equipment does not constitute contributory infringement if the product is widely used for legitimate unobjectionable uses; merely capable of substantial non-infringing uses

Harper & Row Publishers v. Nation

(1985): emphasized commercial nature of use when scooping news story

3. Holding: use was not fair use because it was not de minimus, while quantitatively small amount copied, it was qualitatively substantial because it copied the important ideas and distinctive expression

4. Authors right to control the first public appearance of their expression thus copying unpublished works cuts against fair use

bj. Transformative:

i. A use is transformative if the defendant used the copyrighted work for a different expressive purpose from that for which the copyrighted work was originally created or if the defendant used the copyrighted work merely as raw material for substantially new expression that conveys a different message or artistic conception from the copyrighted work

ii. Two-Step Test

1. Does the defendants use have a new different expressive purpose from that of the copyrighted work? Then transformative

2. If the use is transformative, has the defendant copied more than reasonable in light of the transformative purpose?

Campbell v. Acuff-Rose

(1994): Market harm is weighed equally among factors, not most important. The more transformative the use, the more you can take

3. Transformative: whether central purpose of the work is merely superceding the original or adds something new with a further purpose or different character altering the first with new expression, meaning or message.

a. Difference between suppressing demand and usurping the originals market

4. D used only enough of the original as was reasonably necessary to accomplish transformative purpose as parody to conjure up the original

bk. Market-centered v. Transformative/Campbell

i. Fair use is inappropriate unless a reasonable copyright owner [would] have consented to the use given the importance of the material copied. Nature of defendants use is key: whether use is transformative

ii. Sony presumption plus Harper&Row elevation of factor four. All factors weighted equally. Transformativeness of use colors analysis of all factors.

iii. Commercial means failure to pay the customary price.

iv. Whether D took heart of original. If what was taken was necessary/reasonable for transformative use.

v. Broad reading of harm to the potential market. Still broadincludes derivate use marketseven if 4th factor is no longer single most important.

Walt Disney Prods. V. Air Pirates:

decided before Campbell; Ds parody used Disneys drawings beyond what was necessary to make the commentary. Held not a fair use.

Castle Rock Entertainment v. Carol Publishing:

use of Seinfeld material for trivia game was not fair use.

vi. Transformative use was minimal to non-existent because its purpose of entertainment was the same as the shows

Dr. Seuss Enters. v. Penguin Books

(9th Cir. 1997): Court find use of cat in the hat style drawings and word-play to describe OJ Simpson was more of a satire than parody

Leibovitz v. Paramount Pictures Corp.

(2d. Cir. 1998):

vii. Applied : if a viewer could interpret it as a parody (commentary on the seriousness/pretentiousness of the original) that is sufficient to find parodic use

viii. No adverse effect on sale or use of the originaldeflating ridicule must be tolerated

ix. Fact that parody is used in connection with ad may lessen indulgence to which it is entitled but does not itself negate fair use

Barton Beebes An Empirical Study of U.S. Copyright Fair Use Opinions 1978-2005 found that transformativeness was not always addressed (37% found fair use with no transformative analysis)

x. Netanels Research 2005-2010: overwhelmingly fair use cases apply transformative use doctrine

1. Statistically significant increase in rate of Ds winning under transformative fair use analysis

Suntrust Bank v. Houghton Mifflin Co.

(11th Cir. 2001): The wind done gone found to be a fair use parody of Gone with the Wind

xi. Campbell definition of parody: aim is to comment upon or criticize a prior work by appropriating elements of the original in creating a new artistic work.

xii. Although parody is also an expressive purpose, still transformative

Bill Graham Archives v. Darling Kindersley Ltd

. (2d. Cir. 2006): Grateful dead posters in archival book found to be transformative

xiii. Use was for historical purposes not aesthetic/entertainment

xiv. Ask whether secondary work uses material for a different purpose than that for which the original was made

xv. Market analysis does not ask about effect on potential market but says that transformative use implies transformative market and thus beyond scope of originals market

xvi. Cannot prevent others from entering fair use market merely by developing a licensing market for a transformative use

Blanch v. Koons

(2d. Cir. 2006) : evidence of Ds subjective intent is used to determine what the expressive was

xvii. Obliterates the distinction between parody and satire

xviii. Issue: Whether there is a distinction between purpose of creation of original and its use in the defendants

Rogers v. Koons

(2d Cir. 1992): Ds sculpture based on couple holding eight puppies not fair use

xix. Not a fair use because it was a commercial and satirical critique of consumer society rather than parody.

xx. Found likelihood of future harm in market for photographers work

Lennon v. Premise Media

(SDNY 2008): copying 15 seconds of Lennons song Imagine in motion picture film held to be fair use

xxi. Expressive purpose was distinct from the reason it was initially created, thus fair

xxii. Copying without any change can be transformativedidnt have to find that the use was strictly necessary to convey chosen message

Calkins v. Playboy Entertainment

(E.D. Cal. 2008) yearbook photo included in playboy editorial found to be transformative

xxiii. Ds use was for entertainment whereas original was created as part of a gift for family and friends

Swatch Group v. Bloomberg

(2d Cir. 2004): D published Ps conference call with financial analysis discussing reports found to be transformative

xxiv. Bloombergs purpose was to make the materials available to the audience that Swatch had explicitly excluded. News reporting favored fair use

Salinger v. Colting

(S.D.N.Y. 2009): granted injunction against Ds book that depicted Hauldon Caufield 60 years later held not fair use

xxv. D made public statements that it was not a parody, but a tribute thus not transformativenot enough merely to add new expression

Warner Bros. Entertainment Inc. v. RDR Books

(SDNY 2008):

xxvi. Ds lexicon was a transformative use as a reference piece as opposed to a book for entertainment.

xxvii. Not fair use, however, because it repeatedly copied too much of the prosebeyond what was reasonably necessary

xxviii. P had already licensed a companion reference and Ds copying of those was for the same use so not transformative

Gaylord v. US (Fed. Cir. 2010)

Stamps depicting Korean War memorial not fair use

xxix. Both works had expressive purpose of honoring Korean War veterans

xxx. Even if expressive content is altered if the use is not transformative then this is insufficientexpressive purpose must be transformative

Cariou v. Prince (2d Cir. 2013):

Ds paintings using Ps photographs of Rastas found to be transformative

xxxi. Dont need to be commenting or critiquing and did not consider Ds comments on his use. Look only at images.

xxxii. Holding: D gave new expression and employed new aesthetics with creative and communicative results distinct from Carious

Seltzer v. Green Day

(9th Cir. 2013): Ps drawing was made into poster that was plastered all over LA and D used as backdrop in music video

xxxiii. Held: D used image as raw material to send a different message and has a distinct aesthetic (criticized religion vs. representing youth skateboard culture).

xxxiv. Considers aesthetic message that artist meant to convey rather than asking about broad expressive categories

Kienitz v. Sconnie Nation LLC

(7th Cir. 2014): held that mayors image used on tee shirt was transformative and fair

xxxv. Considers fourth factor most important, believes asking if it is transformative overrides protection of derivative works

xxxvi. Because image had been available without charge on website and fundamentally altered the image so much that very little original expression was left

Perfect 10 v. Amazon

(9th Cir. 2007) Revisited : Googles display of thumbnails of Ps copyrighted images

xxxvii. Nature and character is transformative use because it serves a different purpose or function from the original work ,

1. Also its function promotes goals of copyright law and serves the interest of the public so this favors fair use

2. Transformative finding colors analysis of all other factors

xxxviii. Required proof of actual harm even of potential markets, even though Perfect 10 markets thumbnail downloads for mobile

Vanderhye v. iParadigms

(4th Cir. 2009): turnitin plagiarism detection service was a transformative and thus fair use

xxxix. Considered function and purpose of storing entire copies of students papersassignments vs. preventing plagiarism

1. Work need not be altered to be transformative

Authors Guild v. HathiTrust :

copying of full-text books into online searchable database and service for blind both fair use

xl. Fair use of search database: full-text searchable database held to be transformative because it has a different purpose, character, expression, meaning and message from the page from which it is drawn.

xli. Services for users who have disabilities: not transformative because merely facilitates access to text to wider audience BUT consistent with house report using this example as a fair usetransformative finding not necessary for fair use

Authors Guild v. Google :

same basic facts as above BUT Google actually displays some of the text on the page as opposed to just page numbers and is a more commercial entity than a library/university

Fox v. Dish :

motion for preliminary injunction against Dishs autohop (skips over commercials) and primetime anytime service (auto-records primetime programming) found no direct infringement (Dish has not volitional conduct for making infringing copiescustomer responsible) and no contributory liability based on user activity

xlii. Prime-time Anytime is fair use : Non-commercial according to Sony: time-shifting for private home use is a noncommercial nonprofit activity. Users are not librarying

1. Therefore even copying whole programming does not militate against FU

xliii. Atuohop: Elements that are skipped (commercials) do not implicate copyright interest therefore fair use.

A&M Recordings v. Napster

(9th Cir. 2001)

xliv. Nature and character: considers whether the new work merely replaces the object of the original creation or instead adds a further purpose or different character

1. Merely retransmitted in a different medium, not transformative

2. Even indirect economic advantage is commercial: trading infringing copies for other items is financially motivated

xlv. Materially impaired marketability of the work by offering free copies

1. Reduces audio CD sales

2. Raises barriers for P to enter market for digital downloads of music

BMG Music v. Gonzalez

(7th Cir. 2005): user downloaded music files claimed use was merely sampling and later purchased works not fair use

xlvi. Interferes with authors right to decide how to market their worknot for workers to determine

xlvii. Music downloaded for free is a close substitute for purchased works and therefore causes market harm

Princeton University Press v. Michigan Document Services

(6th Cir. 1996): Commercial copyshops sale of coursepacks is not fair use

xlviii. Not a favored use because of 6th Cirs strict reading of classroom safe harbor as the outer limits of fair use

xlix. Failure to pay permissions fees causes market harm to publishers, even if academic authors would allow this use theyre not the ones with the investment in publishing

l. Test of commercial use: using copyrightable expression without paying commercial licensing price

1. Because copy-shop is commercial, then not fair use

Cambridge Univ. Press v. Patton

(11th Cir. 2014): academic eReserves of academic materials distinct from copy-shop casesfavorable to fair use with wider understanding of classroom safe harbor

li. Favored use for teaching purposes even if non-transformative

1. Fails commercial test requiring direct and conspicuous financial rewards from use of Cr material

lii. District court weighed in favor of fair use because CR works were mainly nonfictional and informational

liii. Ask whether quantity and value of materials used are reasonable in relation to the purpose of copying.extent of permissible copying varies with purpose and character of use (consider pedagogical purposes)

1. Overrules district courts strict application of no more than 10% or one chapter

liv. Ds use of small excepts did not affect Ps actual or potential sales of books, and fact that P made it easier to pay (permissions) does not automatically dictate a right to payment.

1. Not all works were available under permission

2. The vice of circular reasoning arises only if the availability of payment is conclusive against fair use.

Third Party Liability

bl. **Supplier of a multiple use consumer good is not liable for user infringements unless the supplier has actively encouraged purchasers to use the good to infringe

bm. Contributory Liability

i. Two requirements

1. Knowledge (of infringing activity)

2. Contribution (induces, causes or materially contributes)

ii. Two basic types

1. Defendant provides the copyrighted work to the infringer

2. Defendant provides the means to infringe

a. More difficult because processes and services have multiple uses that are not exclusively for infringing

b. Difficult when D helps but its aid is not direct (i.e. promoting and advertising a service that infringes)

bn. Vicarious Liability

i. Right and ability to supervise the infringer

ii. An obvious and direct financial interest in the exploitation of the infringing materials

iii. Not vicariously liable: residential landlords

1. Cannot easily control activities going on in property

2. Not financially benefitting from infringing activity, only occupation of premises

3. Distinct from dancehall cases where landlord controls premises and receives financial benefit

Fonovisa Inc. v. Cherry Auction

(9th Cir. 1996): swap meet operator may be contributorily liable even absent knowledge of specific identifiable infringement

iv. Vicariously liable:

1. Right and ability to control the infringing activity by policing vendors and either banning or forcing compliance with their rules and controlled customer access

2. Direct financial interest in infringing activity where they enhance the attractiveness of the venue to potential customers

a. Received rental fees, customer admissions and customers paying for parking, food, and other services

v. Contributorily liable:

1. Sheriff had previously raided for infringement and received letters and yet D did not exercise power to cease infringing conduct

2. D materially contributed to infringement by not exercising control and continuing to provide the environment and servicesspace, utilities, parking, advertising, etc.

Perfect 10 v. Amazon

(9th Cir. 2007) Google sued for adsense program by which it earns money through visits to 3rd party websites

vi. Holding: no vicarious liability because Google did not have a contractual right to control third party websites from posting infringing material and no practical means to police against them given the current technology

vii. Right to discontinue Adsense does not give Google right and ability to stop infringement

viii. No contributory liability because computer system operator must have actual knowledge about specific infringing material on its system and can take simple measures to prevent further damage to copyrighted works and yet continues to provide access to infringing works

Perfect 10 v. Visa:

sued for secondary liability for continuing to process credit card payments for websites that infringed plaintiffs IP in spite of notices

ix. Credit card companies do not materially contribute because they have no direct connection to actual infringement (copying) only provides payment

x. Ability to withdraw financial carrot does not create stick of right ability to controlexerting financial pressure is not enough

xi. Dissent: payment is a necessary part of the transaction, no reason to provide infringing material if no financial benefitrenders financial service material contribution; also things there should be vicarious liability because financial process is the trigger for distribution of infringing material (practical ability not absolute right is the standard)

Sony v. Universal (1984):

seller of off-the-shelf product that some purchasers use to infringe is not contributorily liable so long as the product is capable of a substantial noninfringing usewill not impute knowledge and intent

xii. Sony not contributorily liable for providing copying equipment where the product is widely used for legitimate unobjectionable purposesstaple doctrine

xiii. Staple doctrine: sale of staple article or commodity of commerce suitable for substantial noninfringing use cannot constitute contributory infringement.

1. Strikes a balance between a copyright holders legitimate demand for effective protection of the statutory monopoly and the rights of others to freely engage in substantially unrelated areas of commerce

xiv. Recording a television program for later viewing is fair usegiven this substantial non-infringing use, Sony not contributorily liable for any infringing uses for Betamax

A&M Records, Inc. v. Abdallah

C.D. Cal. 1996): rejects argument that time-loaded cassettes were capable of substantial non-infringing usescannot apply to good made specially for infringement

xv. Number of noninfringing users/uses insubstantial in light of counterfeiting use and circumstantial evidence indicated heavy involvement in facilitating counterfeit business.

A&M Records Inc. v. Napster, Inc.

(9th Cir. 2001): even if a computer system is capable of substantial noinfringing use, the computer system operator is contributorily liable if it has actual knowledge of specific infringing activity and materially contributes to that direct infringement

xvi. Holding: Napster knowingly encourages and assists the infringement of plaintiffs copyrights.

xvii. Contributory:

1. A provider of online service will be liable when there is actual knowledge even when there is a substantial noninfringing use as well (distinct from seller of product with knowledge when noninfringing use)-

2. Contributed by providing the marketplace/site and facility for transfer of copyrighted songs

3. Contributed by failing to remove infringing materials with simple measures available to them

xviii. Vicarious

1. Had right and ability to supervise but didntmust exercise right to police to the fullest extent

a. Duty is cabined by existing system architecture, but Napster could have located known infringing files by searching indice and removing

2. Financial benefit because it made the venue more attractive to potential new customers

MGM v. Grokster (2005):

D distributed free software that allowed individuals to share private e-files without authorization, system encrypted and no central index to policestill liable

xix. Vicarious liability: Grokster had knowledge but no ability to control infringing activity.

xx. Holding: Grokster is contributorily liable because it actively induced users infringement

xxi. One who distributes a device with the object of promoting its use to infringe copyright as shown by clear expression or other affirmative steps taken to foster infringement is liable for the resulting acts of infringement by third parties.

1. Mere knowledge is not enough, nor is tech support or incidental promotional acts

2. Rule based on purposeful, culpable expression and conduct

xxii. Tension between new technology and appropriate copyright protection

xxiii. Distinct from Sony where the issue was imputed intent and the products infring