Limitations of Copyright protection a. Does not protect against independent creation of the same or similar work b. A CR does not protect the systems explained in a work nor to discrete facts contained within the work c. Anyone may copy the ideas from a copyrighted work (CR only protects the particular expression of ideas) 2. Is the work covered under Copyright Subject Matt er? (§102) a. Does not have to be one of the enumerated items to be protected. (Pictures/movies protected) 3. Can I get a copyright? a. Fixation => sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a
1.
period of more than transitory duration . 1) public performances are protected under §1101 (cannot fixate without permission, not done under A.I.Sec.8, CC) 2) §117 allows for copying and fixating a digital program for the purpose of using the program with a computer (RAM) 3) protection only starts once the work is fixed. 4) More than one work maybe fixed in the same copy.
b.
Originality
=> created not copied from someone else 2) Creativity=> Feist standard for compilations, Some minimum level of creativity (No sweat of brow) Is it an (idea/fact/system) (idea/fa ct/system) or an expression I am trying to protect? (§102(b) a. Merger: when subject matter is narrow so that only at best only a limited number of expressions exist to permit copyrighting would mean that a party by copyrighting a mere handful of forms , could exhaust all possibilities of future use of the substance b. Thin-Copyright: only the exact forms and words are protected by copyright, and slight variation of the forms forms would not be a copyright violation(protects against verbatim copying) c. Cannot copyright simple sayings that would not allow anyone else to perform the art or express the idea. (Morrissey) d. directions/ingredient lists cannot cannot be protected because because they are processes (Publications Intl Ltd) e. F acts acts and theories are not protected (Nash) Is the work a Blank form? (§102(b)) a. blank forms with no information are not protected by Copyright (Baker) b. blank forms may be copyrighted if they are sufficiently innovative that their arrangement of information is itself informative. 1)
4.
5.
Authorship
(Still a thin-copyright protection, protection, only protects verbatim verbatim copying) (ABR Benefits Services Inc)
6.
7.
I s
the work a Compilation or a F actual actual work? (§103) a. Must have a creative, non-standard/obvious arrangement in order to have protection and protection only extends to the material added by the author. (how the author compiled used is creative) i. alphabetical compilations lack the a threshold level of creativity b. The only thing copyrightable for compilations are the selection, coordination and arrangement of the preexisting material and it must be original/lack merger. c. Sweat of the Brow: Authors should be rewarded for their hard work in putting together compilations, so broad protection was given to them. (overturned by Feist) d. Feist: (1) only those items that are origi nal(independently created) are protected (2) there must be some level of creativity(low threshold) e. While individual parts of a work might not be protectable, the work in its entirety might be protectable (Ross Greeting Cards) a compilation (but usually only when the whole is greater than its parts a way to get around merger) f . Courts try to get around Fiest, by using the process of coming up with the facts/numbers and the then compilation of them as enough to meet the requisite level of creativity . (CCC Information Services) Is the work a Derivative Work? (§103) (authors have the right to all derivative works, §106) a. Derivative Works can get CR protection if: (1) authorship and (2) creativity (3) distinguishable characteristics i. Courts under Baltin: endorses a standard of originality for authorized derivative works that is arguable stiffer than that for original works
b. Rule for Originality from SCHROCK: (1) the originality requirement for derivative works is not more demanding than the originality requirement for other works (2) whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the underlying work in some meaningful way
(3) Copyright in a derivative work is thin, extending only to the incremental original expression contributed by the author of the derivative work
c.
8.
Problems with DW:
hard to know if the infringer was copying from the derivative protected work, or the public
domain original . i. if the original copying was unauthorized => no protection for the D W d. Pictures that are DW can get the requisite level of originality by the functional selections of the photographer (lenses, angles, lighting, etc.) Is the Work a Computer Program? a. Source code: written language readable by humans, Object code: 0 and 1s unreadable by humans (both protected) - Apple Computer Inc.
b. CP code doesnt have a problem of merger because code can be written in many different ways c. If specific words are essential to operating something, then they are part of a method of operation and as such are unprotectable (it really is merger and functionality combined) - Lotus Development Corp 9. Is the work a Pictorial, Sculptural or Graphical Work? (Protection under §113 and VARA) a. Pictorial i. Before Fiest: all photos were protectable, now they still have to meet a minimum level of creativity . ii. R: Decisions about film, camera and lens bear on whether the image is original , but not what is protected by the photo Protection derives from the features of the work itself , not the effort that goes into it (Fiest extension) iii. A photo may be original by (1) rendition (2) timing (3) creation of the subject b. Useful Articles (only available to P SG works) i. Separability (physical or conceptual) in order for protection, the design must be se parable from the useful article. (1) only that what is separable is protectable (2) once the art is removed, the function must remain ii. Functionality: If you cannot separate the form from the function, copyright loses and you can't protect it iii. Four part analysis re-outlined in Pivot Point (1) artistic features secondary or primary (2) the marketability of just the aesthetic features (3) Stimulates in the mind a concept separate from the utilitarian function of the article ( 4) Artistic design was not influenced by functional consideration (K does not like these approaches)
c. Physical Separability: Remove the design elements, does the article retain its function d. Rule From Pivot(2004): extent to which the work reflects artistic expression uninhibited by functional considerations, if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements e. Copyright of Typeface Designs i. undecided, but problems of mergercan copyright the underlying code for the typeface 10. Is the work an Architectural work? (Rights §120) a. In order to qualify it must be able to house humans at a minimum (Kiosks not covered) b. The design and arrangement can be protected if ( 1) the designs are original to the author (2) creative (3) have non-functional aspects 11. Are the characters in the work protected? a. Characters can be protected if described adequately b. Protectable if: (1) they are the story being told (2) fully delineated or (3) sufficiently distinctive when the character is given physical form c. People are free to draw from the stock character that the character builds on 12. Is the work a Sound Recording? a. Sound recording is only the sound fixated (not the underlying music composition) b. Most works have a Sound Recording copyright and a musical composition copyright c. Authorship is usually the producer and the performers d. CR protection is much narrower for SR under 102 rd 13. Was the work performed by the Government? ( Fed Gov. cannot create CR, but can receive CR from 3 parties) a. Other gov. works in order to not be copyrightable: (1) whether the entity or individual who created the work needs an economic incentive to create or has a proprietary interest in creating the work (and) (2) this particular work to have notice of the law
b.
Statutes
rd
Whether the public needs notice
Drafted by 3 parties that becomes law: No Copyright Protection (Notice problem, goal of being adopted by gov. as law)
of
Was the work Obscene? a. Contraband gets no protection but courts should not look at the nature or value of the work 15. Who is the Owner of the Copyrighted Work(201)? a. The author is usually the one who fixates that work, but it need not be so (Lindsay) b. Joint-Owner: with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole i. Each joint author can exploit the work in any way, but only is accountable economically to the other i i. ii. To get joint-ownership: (1) party made independently copyrightable( IC ) contributions to the work and (each contribution must be independently copyrightable) (2) fully intended to be co-authors (mutual intent to be both authors) - Thomson iii. Intent: (1)billing and credit(2) decision making (3) right to enter into contracts c. Works Made for Hire: (1) employment (2) contractual/commissioned i. Scope of employment: (1) the work was of the type which the individual was hired to perform ii. (2) his or her creation of the work occurred substantially within the authorized time and space limits of the job (3) 14.
the work was actuated, at least in part, by a purpose to serve the interests of the putative employer iii. Employee or Independent Contractor: Factor test, but failure to pay roll taxes and no benefits usually results in a finding of independent contractor. iv. Commissioned work: (1) specially ordered or commissioned (2) falls into one of the enumerated categories(NOT books or PSG or computer programs)(3) the parties sign an agreement designating it to be a work made for hire (when the contract is formed) v. Work for Hire is different than assigning over copyright at the point of contract.
vi. Works made for hire are not subject to the termination clause 16. Transfer of Ownership (201(d), § 204 , § 201(c)) a. can transfer all or some of (§106) rights (those who own an exclusive right, can sue for infringement) Divisible Rights b. §204 => Need a contract that is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent. (For a valid transfer) c. §201(c), Collective works: the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as (1) part of that particular collective work , (2)any revision of that collective work, and (3)any later collective work in the same series d. Recordation of Transfer(205(a)): Recording Transfer at the Copyright Office gives Constructive Notice if ( 1) specific identification of the work (2) registration of a claim to copyright the work (205(c))
(1) Recordings get a one month domestic (two months international) grace period to record (2) First Transferee will prevail if subsequent (race-notice) transferee had notice of the earlier transfer or otherwise was not in good faith or had not taken his or her transfer (3) Non-exclusive Licensing need not be recorded (205(f)), first transfer has the rights 17. What is the Scope of the Grant? a. Standard contract interpretation will be used to determine if licensee is entitled to after arising technology . 18. What Law controls ? a. State law controls to determine if a contract was granted, Federal copyright law if damages for copyright infringement occurs
Was there a transfer by operation of law? a. Beneficial Owner: an author who has parted with legal title to copyright in exchange for a percentage royalties based on sales or license fees i. A beneficial owner may bring an infringement action under 501(b) to protect his interest ii. A beneficial owner only has an economic interest b. Marriage: (1) some circuits, wife is joint owner of works created during the marriage (2) others author retains rights, but
19.
has to share equally in the revenue/profits
20. How long with the Copyright Last/When was the work published or unpublished(§302, 303, 304(a,b)? a. Phonorecords no protection before 1972 b. If the work was published without notice before 1989, then it is in the public domain 21. Renewal and Derivatives: If the author assigns his right to a copyright owner it i s valid unless the author dies before the renewal date
a. the reversionary rights go to people not the estate, it is really a grant of a new right 22. Do I have Termination Rights(203)?
a. §203 allows an author to termination ( 1) up to 5 years after initial 35yr term (2) with notice 2-10 years before the 40yrs runs out b. §203(b)(1) => allows previous licensees to continue to use derivative works (overturned Stewart) i. Music Mills c. Who can terminate: Author or his statutory successors d. Cannot assign away termination rights (agreement to the contrary) §203(a)(5) 23. Do I have Termination Rights under 304(c)?(b/c CR life was extended authors did not properly bargain) a. Only for works published before 1978. b. Allows for termination in a 5 year period (1) after the initial 56yr period is out or (2) after Sonny Bono after 75yr period is over. Must give written notice to (1) grantee and (2) notice must be recorded at CR office and served 210 years before termination period ends. c. Who can terminate: Author or his statutory successors by per stripies voting with a majority needed 24. Renewal of Copyright Terms of foreign works ( TRIPS) - Restored on Jan. 1996. a. Published before 1978 and still valid copyright in home country their rights are restored if they give notice to those currently exploiting the work and exploiters have a 13month compliance time. b. Renewal only when: (1) still valid copyright in home country (2) was invalidated because of formalities (3) is part of a treaty country ( 4) author was a national of an eligible country
25. Did we comply with deposit requirements(§407-412)? a. Must deposit 2 copies of best mode at Copyright office/Library of Congress (1 for phonorecords, reproduction created later cannot be used) b. Requirements: (1) registration is required for suits from US authors/not for foreign authors (2) if not registered before infringement, cannot receive lawyer fees or statutory damages (412) (3) registration provides a prima fascia case of copyright protection
26. What are my rights (§106) INFRINGEMENT 1. Types of Infringement a. reproduction(copying) §106(1) b. derivative work §106(2) c. distribution §106(3) d. perform §106(4) e. display §106(5) f . perform transmission of a digital audio sound recording § 106(6) 2. Was there copying? (§106(1) a. Infringement: (1) that D copied form Ps copyrighted work (and)(2) the copying went so far as to constitute improper appropriation
b.
To
prove Copying: (1) access to CR work and (2) substantial similarities
i.
Some courts allow to infer access, if SS is
nearly or exact copying (Court does not believe that the work was
independently created
c. Only parts of the work that are c opyrighted are protected from copying d. Tests: (Total look and Feel, Porter): (1) interpreted from the intended audience (2) D took from P s works so much of what is pleasing to the ears/eyes e. Lyons Test: whether the works are so similar that the introduction of the alleged copy into the market will have an adverse effect on the demand for the protected work 3. Is there Proof of Copying? a. Do not have to have knowledge of copying, if subconsciously copying (Bright Tunes Music Corp) 4. Is there Substantial Similarities? a. Must go towards the expression, not their ideas or facts i.
Similarities
of facts or ideas may be probative of the existence of copying (false facts inserted to prove copying)
b. Merger of ideas/expression cannot be used to demonstrate infringement. rd c. Copying from 3 parties is also a defense of infringement (similarities is because they copied from the same source) d. Striking Similarity: the two works are so similar, that access/copying can be inferred. e. Ordinary Observer Test: whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work
f.
Two
approaches to SS:
(1) Fact-finder judge substantial similarity with r espect to the whole of the copied portions of the plaintiff s work
g.
including portions that viewed in isolation might not be eligible for copyright (2) Fact-finder judge first removed from consideration the uncopyrightable elements of the copied material then evaluates those remaining elements for SS. Substantial Similarities for Computer Programs: ((1) F irst break down the allegedly infringed program into its constituent structural parts , (2) Then examine each of these parts for such things as incorporated ideas, expression that is necessarily incidental to those ideas and elements that are taken from the public domain , a court would then be able to sift out all non-protectable material. (3) The courts compare this material with the structure of an allegedly infringing program. - (abstraction-removal-comparison test) (Computer Associates International, Inc) Authors that have given rights to their work are given more lieniet treatment for SS, (Gross)
h. 5. What are my rights it my work is a Phonorecord(106,115,114)? a. §115 provides for a compulsory licensing fee scheme. Harry Fox License , if you make a phonorecord, anyone can make their own as long as they pay fees . b. Requirements: (1) serve the copyright owner with notice of its intention to obtain a compulsory license, before or within thirty days after making, and before distributing any phonorecords of the work
c. Phonorecords have only been protected since 1972 d. §114 Protection: (1) protection extends to recordings, that directly or i ndirectly recapture the actual sounds fixed in the protected recording and (2) protection does not extend: to a recording, that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording i. Bridgeport: No substantial Similarities Test, by the language of 114(b). If you can prove copying, then you have protection.
e. Recording Devises: (1) home copying for non-commercial use is non-infringing (2) Recording/copying devises must have a SCMS to protect against copying (3) portion of revenue from these devises goes to record industry 6. My rights to Derivative Works(§106(2))? a. To be a derivative work, it need not be fixated . (covers performances/plays) b. Hogan: 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. (Look and feel test to derivative works)
c. d. e. f . g.
cannot be a derivative work if you don't take a protective element from the first, even if it was based on the original work. Ownership of a copy, and the modification of that copy is not a derivative work (first-sale doctrine) Infringement: A derivative work must exist in ( 1) a concrete and permanent form and must (2) substantially incorporate protected material from the pre-existing work. exclusive right to compilations does not appear in 106 §117 => (1) it is not an infringement for the owner of a copy of a computer program to make or authorize the making of It
another copy or adaptation of that computer program provided (2) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine
7. Have my moral Rights been effected? a. Gilliam allowed for recovery for mutilation of a TV program, but might be limited under Daistar. (Lanham Act) 8. VARA: §106(a) protects against a PGS works destruction and mutilation, but can only be exercised by the artist a. 106A(a)(1)(A) gives the author the right to claim authorship of the work. b. 106A(a)(1)(B) gives the right not to have an authors name associated with a WVA he or she did not create c. 106A(a)(3) gives Sculptor the right to prevent any intentional distortion, mutilation, or other modification d. VARA does not include: (1) works made for hire (2) advertisements or promotional material (3) movies, most functional e.
f . g. h. i. j.
works, maps/dictionaries/books/magazines applied art etc. ( VARA Information:(1) works created after 1990, rights are the life of the author (2) prevent destruction if it is of recognized stature (3) prevent intentional distortion mutilation or other modification that would hurt the re putation (4) modifications are the result of time are not protected (5) rights can be waived by written contract but never transferred (6) conservation, changes in lighting and placement of the work is not protected unless by gross negligence. Applied Art: Applied art describes two-and three-dimensional ornamentation or decoration that is affixed to otherwise utilitarian objects
VARA is not retroactive, if the modification happened before 1990, then no protection. It only protects against the act of modification/destruction ( Pavia) VARA does not protect site specific Art ( Phillips) §113(d), deals with removing art from buildings (VARA) applies to physical copies of works, not to the intangible works themselves.
9. My rights to distribute (106(3) a. If you make and distribute copies you infringe both 106(1) & (3) b. the copyright owners rights under section 106(3) cease with respect to a particular copy or phonorecord once he haw parted with ownership of it 10. Does the first sale Doctrine Apply (§109)? a. Digital first Sale: Because giving a digital copy in fact yields new copies, the first sale doctrine, which derives from the analog copy owners chattel rights, does not apply b. FSD only applies to items made in the U S, exported to other countries and then imported ba ck (Costo & Quality King Distributors, Inc.) (§602)
c.
Importation: If
the product was purchased oversees, then FSD does not protect the importer from infringement
(Pearson Educational)(§602,§501)
11. My Public Performance Rights (106(4),(5),(6)) a. People who own copies have a right to display the image . (§109) b. You cannot perform a work in public if you do not have a license . (ASCAP and BMI handle the lcensing fees of public performed works) c. Under 1976 Act i. Perform: a work means to recite , render, play, dance, or act it, either directly or by means of any device or process or,
ii.
iii.
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: (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause Transmit: a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent .
d. ASCAP does not cover Dramatic Works e. Internet Servers: Do not display by simply providing links to places were the material is displayed . 12. Was there any secondary Infringement? a. There can be no CI or VI if no direct infringement occurs b. Contributory Infringement: (1) has knowledge of the infringing activity (2) induces or materially contributes to the infringing conduct of another i. willful blindness can establish knowledge (In re Aimster) ii. Substantial non-infringing use: A sale of an article though adapted to an infringing use is also adapted to other and lawful uses, is not enough to make the seller a contributory infringer . (If there is a valid noninfringing use: time-shifting, Sony) (measured not if there is but if there is the capability of Substantial noninfringing use) iii. Grogster: if the inducement is to promote the non-infringing use, can still infringe (even when the article has a substantial non-infringing use)
c.
Vicarious Infringement: (1) has the right and ability to supervise the infringing activity (2) has a direct financial interest in such activates i.
Enhancement
or draw to one s facilities because of infringing activity is enough to establish financial interest (Fonovisa,
Inc)
13. Protection for Internet Secondary Infringers (§512) a. 512 provides a safe harbor for internet companies from monetary and injunctions b. To be eligible for 512 safe harbor: (1) procedure/location for receiving notices of infringement (2) must take action to remove infringers (3) have a policy to terminate repeat offenders
c.
§512(h) subpoenas cannot be filed against 512(a) service providers (512(c) notice cannot be given for ISP services providers, which is a requirement for the subpoena)
d. Failure to comply with the notice requirement in 512(c)(3) by Copyright Holders does not require ISP to take down content. (Substantially compliant is enough, but failure to sign under perjury is not enough to establish notice) e. §512(g) => provides remedies when copyright holder acts in bad faith to take down content that is copyrighted material f . Perfect 10: Must have a reasonably implemented notice and takedown policy g. If notice is not given, ISP still have to act if red flags are present: a service provider may lose immunity if it fails to take action with regard to infringing material when it is aware of facts or circumstances from which infringing activity is apparent . (But ISPs are not required to police, so hard to prove, knowledge of red flags)
14. Was there Fair Use(§107)? a. Always start with the enumerated categories at the top of 107 to see if the use fits into one of those categories : criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or b. c.
research Look at things that would not be infringing if it w as in analog form, but it is in digital. Four Factor
Statutory Test Used in Every Fair Use Case: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) 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. d. Factor #1 Issues: (1) commercial use (2) transformative use (3) legitimate purpose i. the more transformative (fair use), the more commercial less transformative (not fair use) ii. parody v. satire (Parody is more likely a FU, because it needs to mimic the original, Satire can stand on own, gets less protection as FU) iii. can be commercial without charging a fee iv. was the copying done just to get at the unprotected elements of the work ( Sega) v. were the sales directly related t o providing the copyrighted material
e. f.
g.
Factor
#2 Issues: (1) works of non-fiction and facts are gi ven less protection (2) is the work published (3) does not play a major role unless one or two i s met Factor #3: Issues: (1) the amount taken has to be related to the purpose of Factor 1 (2) take more than needed to accomplish #1s goals => no fair use (3) if what was taken was the heart of the work, moves towards a finding of Not fair use (4) if what was taken was the creative expression not just facts/information (5) Factor #4: Issues: (1) would the author pursue the mark et (2) can the CR holder establish a market by using the licensing in the fair use question (3) it is potential marke t not current market i. authors are less likely to pursue markets that are critical or parody their work (If so almost always find FU) th ii. The 4 factor does not recognize a decrease in value of a copyrighted work that may result from a particularly powerful critical work iii. To negate fair use one need only show that if the challenged use , should become widespread, it would adversely affect the potential market for the copyrighted work iv. Market Loss: (1) loss of direct sales (2) if use becomes widespread it will hurt market
