Mass Media Law
18th Edition
Don Pember
Clay Calvert
Chapter 14
Copyright
McGraw-Hill/Irwin
© 2013 McGraw-Hill Companies. All Rights Reserved.
Immaterial Property Law
• Copyright
– An area of the law that deals with intangible
property—property that a person cannot touch
or hold or lock away for safekeeping
14-2
Immaterial Property Law
• Patents
– Gives the inventor a monopoly on selling the product
for 20 years
– Three kinds of patents include:
• Patents on inventions with utility
• Patents on designs
• Patents that protect plants
14-3
Immaterial Property Law
Trademark
– Any word, symbol or device (or combination of the
three) that differentiates an individual’s or company’s
goods and services from competitors
• The function of trademark law is to stop confusion
in the marketplace
• Brand names, shapes, slogans, telephone
numbers and colors can all be trademarked
14-4
Immaterial Property Law
Trademarks
– Main Functions of Trademarks and Service Marks
1. Distinguish one seller’s goods from another’s
2. Signify all goods bearing the trademark or service mark
come from a single source
3. Signify all goods bearing the mark are of an equal quality
level
4. Serve as a prime instrument in advertising and selling
14-5
Immaterial Property Law
Trademark
– To establish a trademark the applicant must:
• Submit a registration application to the U.S. Patent and
Trademark Office
• Conduct a search to determine originality
• Pay a registration fee for the trademark
14-6
Immaterial Property Law
• Trademark
– Anyone who claims the right to a trademark
can use the TM designation with the mark to
alert the public
– It is not necessary to have a registration or
pending registration to use the TM mark
– Under the law, it is the firs person to use the
mark, not the first to register it who is
protected
14-7
Immaterial Property Law
• Plagiarism
– The act of taking ideas, thoughts or words
from another and passing them off as your
own
– Plagiarism cases arise from news stories, but
also from books, motion picture and television
scripts and other media
– Most plagiarism cases are resolved outside of
the legal system
14-8
Roots of the Law
What May Be Copyrighted
–
Six Rights under Copyright Law
1. The right of reproduction of the work
2. The right of preparation of derivative works
3. The right of public distribution of the work
4. The right of public performance of the work
5. The right of public display of the work
6. The right of public digital performance of a sound recording
14-9
Roots of the Law
What May Be Copyrighted
–
Materials that can be copyrighted include:
1.
2.
3.
4.
5.
6.
Literary or musical works
Dramatic works, including accompanying music
Pantomimes and choreographic works
Pictorial, graphic and sculptural works
Motion pictures
Sound recordings
14-10
Roots of the Law
What May Be Copyrighted
– Materials that cannot be copyrighted include:
1.
2.
3.
4.
5.
Trivial materials such as titles or slogans
Ideas
Facts
Utilitarian goods
Methods, systems, mathematical principles, formulas
and equations
14-11
Roots of the Law
Copyright and Facts
– Facts cannot be copyrighted
– No one can claim ownership of facts; anyone can
broadcast or publish them
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Roots of the Law
Copyright and Facts
– Telephone Books and Databases
• Feist Publications, Inc. v. Rural Telephone Service
Co., Inc. (1991)
– The U.S. Supreme Court rejected the “sweat of the brow”
doctrine advanced by Rural Telephone
– While some new compilations of facts may be protected by
copyright, the Court said, there was no novelty or originality
in the compilation of these materials (a telephone book)
14-13
Roots of the Law
Copyright and Facts
– Telephone Books and Databases
• Feist Publications, Inc. v. Rural Telephone Service
Co., Inc. (1991)
– Only those databases (electronic or print) in which factual
items are organized or selected or coordinated in some
novel or artful manner will be protected by copyright law
14-14
Roots of the Law
Copyright and Facts
– News Events
• Copyright law protects the expression of the story—the way it
is told, the style and manner in which the facts are presented
• Copyright law does not protect the facts in the story; other
journalists may use the facts you have gathered to write their
news story
14-15
Roots of the Law
Copyright and Facts
– Research Findings and History
• The courts have ruled that the finder of a fact in
history does not own that fact so it may not be
copyrighted
14-16
Roots of the Law
•
Misappropriation
–
–
A tort also called unfair competition
It is intended to stop:
1. A person trying to pass his or her work off as the work of
someone else
2. A person trying to pass off the work of someone else as
her or her own work
14-17
Roots of the Law
•
Duration of Copyright
1. Works created before January 1, 1978 are protected by
copyright for 95 years
2. Works created after 1978 are protected by copyright for the life
of the author or creator plus 70 years
3. Works created by more than one person are protected by
copyright for the life of the last living creator plus 70 years
4. Works for hire are protected by copyright for 95 years after
publication
14-18
Roots of the Law
•
Duration of Copyright
–
After a copyright expires, a work falls into the public
domain and may be copied by any person for any
reason without payment of royalty to the original
owner
14-19
Fair Use
• Fair Use
– Permits limited copying of an original creation that
has been properly copyrighted and has not yet fallen
into the public domain
14-20
Fair Use
• Factors To Be Considered In Determining
Fair Use
1. The purpose and character of the use
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
4. The effect of the use on the potential market
for or value of the copyrighted work
14-21
Fair Use
Purpose and Character of Use
– Categories of use that may be protected
under fair use include:
• Criticism and comment
• Teaching
• Scholarship and research
14-22
Fair Use
•
Purpose and Character of Use
–
Copying for educational use should be:
1. Brief—under 1,000 words
2. Spontaneous, with no time to get permission
3. Not occur more than 9 times a term, with limited copying
from a single author
4. Labeled with a copyright notice
5. Used in a way that does not substitute for the original work
and costs a student no more than the actual copying
14-23
Fair Use
•
Nature of Copyrighted Work
–
In determining the nature of the work, courts ask:
1.
2.
3.
4.
Is the copyrighted work still available?
Is the copyrighted work a consumable work?
Is the work an informational work or a creative work?
Is the work published or unpublished?
14-24
Fair Use
• The Portion or Percentage of a Work Used
– The amount of a work used is not as important as the
relative proportion of a work used
– This proportion includes exact copying and
paraphrased material
14-25
Fair Use
• Effect of Use on Market
– This is often the most important of the four criteria
– The inability of the plaintiff to demonstrate an adverse
economic impact from the copying can frequently in
and of itself sustain a fair-use ruling
– When evaluating economic impact, the court
considers not only direct impact, but also the impact
on derivative works
14-26
Copyright Protection and
Infringement
• Copyright Notice
– Until 1989, the failure to affix a copyright notice
(Copyright © 2009 by Jane Adams), meant the
automatic loss of most copyright protection
– Today, a copyright notice is not required to protect a
work
– Once a work is created it is protected
14-27
Copyright Protection and
Infringement
• Copyright Notice
– A copyright notice should include:
• The word “copyright,” the abbreviation “copr.”, or
the symbol ©
• The year of publication
• The name of copyright holder or owner
14-28
Copyright Protection and
Infringement
• Registration
– To register a copyrighted work with the federal
government, the owner must:
• Fill out the proper registration form
• Pay a $45 fee
• Deposit two complete copies of the work with the Copyright
Office
14-29
Copyright Protection and
Infringement
•Infringement
–Three criteria to Determine Copyright Infringement
1. Is the copyright on the plaintiff’s work valid?
2. Did the defendant have access to the plaintiff’s work prior to
the alleged infringement?
3. Are the two works the same or substantially similar?
14-30
Copyright Protection and
Infringement
• Infringement
– Originality of the Plaintiff’s Work
• Originality is not determined when a copyright is granted,
only when a lawsuit arises
• Can the author claim this work is sufficiently original or
novel?
14-31
Copyright Protection and
Infringement
• Infringement
– Access
• The plaintiff must convince the court that the defendant had
access to the copyright work
14-32
Copyright Protection and
Infringement
• Infringement
– Copying and Substantial Similarity
• There must be more than minor similarities between the
works; there must be substantial similarity
14-33
Copyright Infringement and
the Internet
• The Internet has challenged copyright law
because digitized information can be
copied quickly, easily and cheaply, and the
copy is every bit as good as the original
• Once the original is copied, it can easily be
distributed via the Web to others who can
also make copies
14-34
Copyright Infringement and
the Internet
• Digital Millennium Copyright Act
– Prevents the circumvention of technological
measures that control access to copyrighted
works—so-called encryption codes
– Outlaws the manufacture, importation or sale
of devices used to circumvent such
protections
14-35
Copyright Infringement and
the Internet
• File Sharing
– The theft of recorded music via the Internet
wasn’t a serious problem until the late 1990s
because it took so long to download a song
– By late 2009 file sharing had ceased to be a
primary issue in copyright litigation
14-36
Copyright Infringement and
the Internet
• File Sharing
– RIAA
• Access to legal downloads has become relatively
commonplace
• At the end of 2008 the RIAA announced it would
cease suing individual file sharers, and instead
work with Internet service providers to cut abusers’
access if they ignore repeated warnings
14-37
Copyright Protection and
Infringement
• Film and Television
– Illegal downloading of movies has been a
problem for several years
– The use of camcorders in theaters accounts
for most piracy
– Many video products are stolen or copied
during the production process
14-38
Copyright Protection and
Infringement
• Politics and Copyright
– Candidates are increasingly using the Internet
to spread their political messages
– Candidates are discovering that some
copyright holders are using provisions in the
1998 Digital Millennium Copyright Act
(DMCA) to block their messages
14-39
Freelancing and Copyright
Rights a Publisher May Purchase From a Freelancer:
1. All rights—ownership of the complete story or photograph
2. First serial rights—the right to use the piece for the first time in a
publication
3. First North American rights—the right to use the piece for the first
time in a North American publication
4. Simultaneous rights—the right to print the material at the same
time as other publishers
5. One-time rights—the right to use a piece just one time
14-40
Damages
• A Plaintiff May:
– Ask the court to assess the defendant for any damage they have
suffered
– Ask for the reimbursement of profits made by the infringer from
pirating the protected work
– Receive statutory damages – damage amounts prescribed by
the statute
14-41