Copyright

Passman - pp 197-205

Basic Concepts of Copyright

Copyright = “the right to copy”; aka, “a limited duration monopoly”

Designed to promote the progress of science and useful arts by giving creators exclusive rights to their works for a while.

Copyright protects the WAY a song (et al) is expressed, not the idea behind it.

Copyrightable works have to be original, and of sufficient material to be a work

Decided on a case-by-case basis

History

Romans Act of Queen Anne 1710 (began 1623 when patents

received protection) - a right to benefit financially is articulated, including the right to control. (limited duration)

US Constitution 1789, Article 1, section 8:

Congress shall Power…to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

More History

1790 Act - established at term of 14 years with a 14 year renewal

Over the years amendments added protection to prints, music compositions, dramatic works, photos, fine arts

1909 Act - extended term to 28/28, protected on published works

1976 Act (went into effect 1978) - codified “fair use”, based term on death of author (70 years after death of last surviving author) for works created after 1976, granted exclusive rights when work fixed in tangible form

Issues in Copyright

Copyrightability Exclusive rights and limitations Ownership and formalities Infringement Remedies

Copyrightability

Fixed in a tangible medium of expression? Original? (originality vs. novelty)

Independent origin?

Minimal creativity? Among categories of “works of authorship”?

(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.

Ownership and Formalities

Initial vesting– Generally– Works made for hire– Joint works

Transfers Duration Formalities

– Notice– Registration

Duration - Works Created on or after January 1, 1978 (section 302)

Single Author Works: Life of author plus 70 years

Joint Works: Life of last surviving author plus 70 years

Works Made for Hire and Works by Unidentified Anonymous and Pseudonymous Authors: 95 years from first publication, or 120 years from creation, whichever expires first

Formalities: Notice & Registration

Section 408, Copyright Act:

[T]he owner of copyright or any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section together with the applications and fee [currently $45] registration is not a condition of copyright protection.

http://copyright.gov/

Why Register?

Certificate is prima facie evidence of validity

Prerequisite to infringement action for infringement of exclusive rights

Prerequisite to certain remedies– Attorneys’ fees– Statutory damages

Architecture of Rights & Limitations

Exclusive rights created by copyright law General and specific limitations on exclusive

rights Copyright law seeks to balance the incentive to

create with the need for public access

Copyright’s Exclusive Rights

adaptation distribution

reproduction

Public performance

public display

Exclusive Rights and Limitations

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

• to reproduce the copyrighted work in copies or phonorecords;

• to prepare derivative works based upon the copyrighted work;

• to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

• to perform the copyrighted work publicly;• to display the copyrighted work publicly; and• to perform sound recordings publicly by digital audio

transmission.

Section 115 - Compulsory License

When phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person may . . . obtain a compulsory license to make and distribute phonorecords of the work. A person may obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use.

Compulsory Mechanical Licenses

Mechanical royalties: payment for devices ‘serving to mechanically reproduce sound”

Compulsory Mechanical royalty provision: once a song has been recorded, a copyright owner must license it to:

Anyone who wants to use it and, For a specific payment established by the law Can only receive license if :

- a non-dramatic musical work- previously recorded- public distribution- phonorecord use

Exclusive Rights of Section 106

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

1) to reproduce the copyrighted work in copies or phonorecords;2) to prepare derivative works based upon the copyrighted work;3) to distribute copies or phonorecords of the copyrighted work to the

public by sale or other transfer of ownership, or by rental, lease, or lending;

4) to perform the copyrighted work publicly;5) to display the copyrighted work publicly; and6) to perform sound recordings publicly by digital audio transmission.

“Derivative Work” Defined(§ 101)

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 of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.”

“Performance” Defined (§ 101)

To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

“Public” Performance(17 U.S.C. §§ 101(1)-101(2))

Performance Clause (Clause 1)– To perform in any place open to the public– To perform in any place where a substantial number of

persons outside of the normal circle of a family and its social acquaintances is gathered

Transmission Clause (Clause 2)– To transmit to a place specified in first clause– To transmit to the public, by means of any device or process,

whether the members of the public actually receive it in the same place or in separate places, or at the same time or at different times

Exemptions to Public Performance Right

Face-to-face instructional performances § 110(1) Instructional transmissions § 110(2) Religious performances § 110(3) Nonprofit performances § 110(4) Aiken exemption § 110(5) Performances at agricultural fairs § 110(6) Performances to promote retail record sales § 110(7) Performances for the handicapped §§ 110(8-9) Performances by veterans’ and fraternal organizations

§ 110(10) Secondary transmissions § 111

Copyright Law Issues

Copyrightability Ownership and formalities Exclusive rights and limitations Infringement Remedies

Elements of “Copying”:Modern Approach

Factual SimilarityFactual Similarity: Proof of copying as a factual matter

– Direct evidence– Circumstantial evidence

Access Probative similarities

Infringing SimilarityInfringing Similarity: Proof of copying as a legal matter

– Nature of “things” copied by defendant– Quantity and quality of expression copied by defendant

Section 107: Fair Use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Four Fair-Use Factors ofSection 107

Purpose and character of use Nature of copyrighted work Amount and substantiality of copyrighted work

used Effect of use on economic value of copyrighted

work

Copyright Law Issues

Copyrightability Ownership and formalities Exclusive rights and limitations Infringement Remedies

Civil Copyright Remedies

Equitable relief– Injunctive relief– Affirmative equitable relief

Monetary relief– Actual damages suffered by copyright owner– Profits of infringer– Statutory damages

Miscellaneous– Costs– Attorneys’ fees