Copyright Attack Sheet
Table of Contents
Copyright Requirements ...................................................................................................................................... 3
Author .............................................................................................................................................................. 3
Fixation ............................................................................................................................................................ 3
Originality........................................................................................................................................................ 3
Limitations ......................................................................................................................................................... 4
Facts ................................................................................................................................................................. 4
Ideas and Abstractions ..................................................................................................................................... 4
Useful Articles ................................................................................................................................................. 5
Infringement of Reproduction Right .................................................................................................................. 6
Copying ........................................................................................................................................................... 6
Impermissible Appropriation ........................................................................................................................... 6
Fair Use Doctrine .................................................................................................................................................. 9
Factor 1: Purpose & Character of the Use ....................................................................................................... 9
Factor 2: Nature of Protected Work .............................................................................................................. 10
Factor 3: Amount/Substantiality of Portion Used ......................................................................................... 11
Factor 4: Potential Market Effects ................................................................................................................. 11
Relationship of the Factors ............................................................................................................................ 12
Summary of Fair Use Cases .......................................................................................................................... 14
Secondary Liability ............................................................................................................................................. 15
Direct Liability................................................................................................................................................. 15
Contributory Liability .................................................................................................................................... 15
Knowledge ..................................................................................................................................................... 16
Material Inducement/Contribution ................................................................................................................ 16
Vicarious Liability ........................................................................................................................................... 16
Control ........................................................................................................................................................... 16
Financial Interest ........................................................................................................................................... 16
Secondary Liability for Tech Companies Summary .................................................................................... 17
DMCA Safe Harbors ....................................................................................................................................... 17
The Four Safe Harbors: ................................................................................................................................. 17
Take-Down Notice Procedure: ...................................................................................................................... 18
Digital Rights Management ............................................................................................................................ 19
Formalities ........................................................................................................................................................... 21
1909 Act ............................................................................................................................................................ 21
Publication Required ..................................................................................................................................... 21
Registration Required .................................................................................................................................... 21
Notice Required ............................................................................................................................................. 21
Deposit Required ........................................................................................................................................... 22
1976 Act ............................................................................................................................................................ 22
Publication Changes Things .......................................................................................................................... 22
Notice Permitted/Beneficial .......................................................................................................................... 22
Deposit Required (non-conditional) .............................................................................................................. 22
Registration Permitted/Beneficial .................................................................................................................. 22
1
Restoration of Copyright ................................................................................................................................ 23
Ownership............................................................................................................................................................ 25
Authorship ..................................................................................................................................................... 25
Joint Works .................................................................................................................................................... 25
Works Made for Hire ..................................................................................................................................... 26
Government Ownership ................................................................................................................................. 27
Duration & Limitations on Transfer................................................................................................................. 29
Current Law – Life Plus 70, No Renewal ..................................................................................................... 29
Transitional Period – 95-Years, Automatic Renewal .................................................................................... 29
Old Law – 28-Years, Plus 28-Year Renewal ................................................................................................ 29
Assignment of Renewal Rights & Termination ............................................................................................ 29
Rights and Limitations ....................................................................................................................................... 32
Reproduction of Musical Works and Sounds Recordings in Phonorecords ............................................. 32
The Performance Right .................................................................................................................................. 34
Licensing Performance Rights....................................................................................................................... 35
Limitations on the Right to Perform Works .................................................................................................. 36
Cases ...................................................................................................................................................................... A
Fixation/Authorship ........................................................................................................................................ A
Originality....................................................................................................................................................... A
Limitations ...................................................................................................................................................... A
Infringement .................................................................................................................................................... B
Fair Use Doctrine............................................................................................................................................. B
Secondary Liability.......................................................................................................................................... C
Digital Rights Mgmt ........................................................................................................................................ C
Formalities ....................................................................................................................................................... C
Ownership ....................................................................................................................................................... D
Duration ........................................................................................................................................................... E
Reproduction in Phonorecords ........................................................................................................................ E
2
Copyright Requirements
Author
 One who produces a work
 Interactive work is still authored by creator (video games)
 One who translates an idea into a fixed tangible expression OR authorizes another to embody the
expression
 Authorization must be rote or mechanical transcription without intellectual modification or highly
technical enhancement – if this is not so, then the transcriber is likely a co-author (see Ownership)
Fixation
 Requires embodiment in medium in which it can be perceived, copied, etc. by the author or someone with
author's authority
o Embodiment on any tangible medium of expression - almost always met
o Exists such that it can be reproduced or communicated, or viewed
o Duration - needs to be fixed for more than a transitory duration
o So fleeting it cannot be copied, perceived, etc. (Cartoon Network (1))
o Simultaneous creation and transmission is fixed - live broadcast of sports, etc.
o Continual, dynamic change is not fixed, at least some elements must be unchanging (garden not fixed)
(sculpture with changing music is fixed) - video is fixed, in the memory, on film, etc.
Originality
 Work must be original expression; no value, or appeal requirement
 Requires
o Independent creation - actually made by the author - creates the work, selects portions, chooses
arrangement, etc.
o Modicum of Creativity - very low threshold, just some minimal amount of creativity
 Because we value creation
 Requiring novelty would be impossible, everything builds on something
 Alphabetical listing of phone numbers is not creative
 Parallel Independent Creation - it is possible, each work is copyright protected - most likely with short
works
o Probably most frequent in music (all performers wanting to make beats the public wants to here)
 Scenes á Faire - common expressions, scenes, story lines = not original
o Clichés, common themes
o Nimmer - elements that follow naturally from the work, not from the author's creativity
o SDNY - incidents, characters, settings which are indispensable, or at least standard, in the
treatment of a given topic
 Phrases - single words or short phrases are not original "That's Hot"
 Photographs - can be original in creation of subject, timing, rendition
o Rendition - angles, lighting, exposure, effects - does not prevent others from taking a photo of
the same subject
o Timing - right place right time - does not prevent others from taking a photo of the same subject
o Creation of Subject - the positioning, things involved, etc. - prevents others from recreating the
same scene (Garnett bling)
o Basically all photos are original in rendition/timing - cannot be mechanically reproduced, but can
be recreated
 Derivative Works - protection only extends to original material added
o Originality requires more than trivial variation from original (Uncle Sam)
 Must be distinguishable from the original
3





Change in medium/material is not alone sufficient
Skill or training required to make derivative not sufficient - maybe if extreme skill is
required
 Must be artistic skill, not physical skill
o Creation of derivative without the permission of the underlying copyright holder can void the
copyright as to the derivative (because copyright grants the exclusive right to make derivative
works)
o Copyright can vest in a derivative of a work in the public domain
Works within works - may be issue of who is the author or who fixed it
o If someone had enough control to make their portion original than why not
o Schechter likes - works that have individual economic value when separated from the larger
work are the only ones it makes sense to protect (movies, cannot allow contribution alone to be
sufficient)
Compilations - the selection, coordination, and arrangement can be original and copyright protected
o Work formed by:
 Collection and assembly of pre-existing material/data that are…
 Selected, coordinated, or arranged in such a way that…
 Resulting work as a whole constitutes an original work of authorship
o True for compilations of facts and/or compilations of existing protected works
o Types - Anthology (collection of independent protected works); Almanac (collection of data,
statistics, information, etc.)
o Protection is "thin" - maybe only protects against verbatim copying/reproduction
Fact that something is mass produced has no bearing on originality
Limitations
Facts
 Not copyright protected (not original) (Feist telephone) – Also subject to merger
 If presented as facts, even if perhaps not actually facts, they are not protected
o Almost always true for speculation about history (Hindenburg)
o Maybe true for speculation about future (car valuations)
o Laws are viewed as facts, although already not protectable due to public policy, due process
consideration
 Why Facts are not protected:
o No authorship - discovered, not created
o No originality - a fact is a fact
 Compilations of facts may be protectable to the extent that they are original in selection or organization
o The selection and/or organization must be original
Ideas and Abstractions
 Are not copyright protected - only the Expression of the idea or abstraction is protected
 Idea/Expression Dichotomy
o Expressions are protected
o Ideas are not protected
 MERGER doctrine – If there is only 1 feasible way to express an idea (fact, or useful method) such that
protecting the expression would necessarily protect the idea, then the expression is not protected
o Some require only 1 way, others may say only a few ways
o If infused with authors taste or opinions, then merger likely does not apply
 Why we don’t protect ideas - building blocks, explain natural phenomena, solutions to problems, etc.
that should be free for everyone to access, build upon, etc.
4
Useful Articles
 Not the subject matter of copyright - more appropriate for patent law - expressive elements that are
separate from the usefulness are protectable
 Useful Article – one having an intrinsic utilitarian function that at is not merely to portray the appearance
of the artistic or to convey information (101)
 Separability: Aesthetic elements of useful articles can be protected if they are separable from the use
o Star Athletica - test
o Conceptual Separability – Several test
 PGS – if useful, does the design have PGS features separable from/existing
independently of utilitarian aspects of the work
 Pivot Point Conceptual – Can design element be identified as reflecting the designer’s
artistic judgement exercised independently of functional influence?
 If design influence is ≥ attributable to utilitarian aspects, then not separable
 Nimmer Conceptual – exists where there is substantial likelihood that absent the
utilitarian aspects the article still has an aesthetic market value to some significant
segment of the community
 Fabric design – patterns, textures, features of fabric separable from use as clothing
 Dress design – shape, style, cut, dimensions usually influenced by the use and not
separable
 Goldstein – Protection when artistic features can stand alone as a work of art and item
would be equally useful without those features
o Physical Separability – aesthetic element that can be physically removed without undermining
the objects utility is protectable
 Hood ornament of a car, etc.
 Physically separable elements are protected pre or post incorporation into a useful article
 Merger may also apply - if only one way to describe how to use something, likely not protected
(instruction manual)
 Software is useful but is a protected literary work
o Result or function of the software not protected – operation system not protected bc useful
o Underlying code is protected, but may be subject to merger (although generally there are several
ways to code a program so the specific manner is a protected expression)
 Architecture – surely useful – specifically amended copyright act to protect habitable structures
o Bridges, dams, etc. not protectable
o Must have original elements not necessary to the function
o Done in Compliance with Berne Convention
o Still allowed to take 2D photos, etc. of architectural structures if visible from a public place
5
Infringement of Reproduction Right
Allegedly infringing work must be fixed
Π must prove (1) ownership of a valid copyright; AND (2) impermissible copying of constituent
elements/protected elements
 Constituent elements - ∆ actually copied π work, ∆ work is substantially similar to π protectable
elements
No intent requirement – under correct circumstances, infringement may be due to subconscious
reproduction (popular song)
Copying
Did ∆ copy the π work or portions thereof?
Proven by direct evidence, admission, presence of copy traps, etc. and substantial similarity; OR
 Admission of copying the work
 Inferred by Access and Substantial Similarity – requirements are inversely proportional
1. Access if, reasonable opportunity to hear, use, read, etc. the allegedly infringed work
 Widely distributed to public (famous-ish) – may require substantial similarity
 ∆ actually owns a copy of the work
 ∆ had opportunity to see/use the work through an intermediary with access to the work –
Chain of Custody
 Corporate Receipt - not everyone follows - copy sent to corporation means everyone in
the corporation had access (may require some relation between the employee and artist)
often just used a factor to consider but not conclusive
 Proportionate to Similarity - if Striking Similarity, then little proof of access is required
 Probative Similarity - just how similar are the two works, factual and usually for the jury
1. Any amount of similarity likely sufficient (less than de minimus satisfies this part)
 Proof of independent creation rebuts any inference of copying
Copyright Trap – intentional duplicative or false data, spelling error, etc. included in works so that if
someone does copy verbatim, the infringing work will include the intentional error – proof of literal
copying
 Striking Similarity – If no access, the works must be so similar that the possibility of independent
creation is impossible (double purpose evidence – so similar that it proves it was copied, and it
proves that the copying was an impermissible appropriation)
1. Complexity of similarities, existence of copyright traps, % of same components, common
errors
2. Mutual basis on a public domain work weakens this inference
Impermissible Appropriation
The copying must have been impermissible either quantitatively or subjectively
Response of the Lay Person – ordinary observe standard is used. If the works are recognizably similar in the
eyes of an ordinary reasonable person, then the quantitative or subjective element is met, or both
 Ask if the works convey a similar feeling, response,
 More Discerning Observer – remove public domain or otherwise unprotected elements from the
underlying work before comparing the works
Quantitative Elements – more than a trivial or minimal amount
 De minimus – insignificant amount, not impermissible; Consider
1. Length of display, prominence of use,
2. Setting a scene usually de minimus, playing a role in the story is not
 Took expressive, protected elements, not just facts/ideas/abstractions
 Average lay observer would recognize the challenged work was copied from the original
Subjective Elements – substantially similar in the eyes of ordinary observer
6
Response of Lay Persons is the standard – are two works similar in the eyes of the jury
More-discerning lay persons – court may remove non-protected elements from consideration before
submitting to jury if there are unprotected similarities; no expert opinions
 Analytic Dissection – ignore unprotected elements then ask the jury to compare the works; allow
experts for dissections portion, not for comparison portion
Holistic Approach (Total Concept and Feel) – ask jury to compare the works including all aspects,
even those not protected by copyright
Two Test applied together, Schechter does not like
 Extrinsic test – are the 2 works substantially similar in ideas
1. Factual, depends on type of work, materials used, subject matter, setting, etc.
2. Analytical Dissection allowed – experts allowed
3. Often may be decided as a matter of law
 Intrinsic test – are the 3 works substantially similar in expression
1. More subtle and complex – response of lay observer/reasonable person
2. Analytical dissection not allowed – no experts allowed
3. Jury question
Abstraction-Filtration-Comparison Test – special for software
 Abstraction – break down into constituent parts (sub-programs)
1. Ususally have several levels of abstraction – smallest functions, sub-programs, program,
etc.
 Filtration – sift out non-protectable elements (ideas, merged expressions, public domain)
1. Expression necessary to achieve efficient or simplistic achievement of ideas are merged
2. Expression dictated by mechanical restraints, compatibility requirements, industry
standards excluded because likely independently created
3. Elements in the public domain are excluded
 Comparison – compare remains with allegedly infringing program (remains = “Golden Nugget”)
1. Still lay observer standard, but experts can be used due to technical subject matter at
judge discretion
Fragmented Literal Similarity
2. Literally copying of some portion of a work, but not all of the work (scene or character, etc.)
3. Impermissible if more than deminimis
Comprehensive Non-Literal Similarity
4. Copying of fundamental essence or structure of one work, but not literal copying
5. Impermissible if took protected elements or heart of the work
Striking Similarity – so similar that independent creation is not possible – can be used to prove infringement
despite lack of access; substantive and quantitative elements are shown
Non-Infringement as a matter of Law – (1) similarities between the two works concern only non-protectable
elements; OR (2) no reasonable jury could find that the two works are substantially similar
7
Access?
Striking
Similarity?
?
Minimal
Access
YES
NO
Any Similarity?
(resemblance)
Protected or not
NO
NOT
INFRINGING
YES
Sufficient
Similarity to
Prove Copying?
NO
INFRINGING
YES
YES
More than De
Minimus?
Would they find
YES
NO it substantially
similar?
YES
Is work directed
at a specialized
audience?
NO
Is work
substantially
similar to the
ordinary Lay
observer?
NO
YES
NO
NO
YES
Did ∆ copy nonliteral protected
expression?
YES
8
Fair Use Doctrine
Codified in 17 USC § 107 – applies to all uses, all exclusive rights
“[T]he fair use of a copyrighted work including such use by reproduction in copies or phonorecords or by
any other means specified by [§ 106], for purposes such as 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:
 The purpose and character of the use (including whether such use is of a commercial nature or is for
non-profit educational purposes;
 The nature of the copyrighted work;
 The amount and substantially of the portion used in relation to the copyrighted work as a whole;
AND
 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.”
No one factor is dispositive and all must be weighed together
 Generally, transformative without market effects have become the two most decisive factors
The factors are not exclusive and there could be other considerations based on the circumstances of the case,
but the courts have been applying them as if they are exclusive
Intermediate copying – if the final product does not use the work, but a copy was made in a step to achieve
the final use, there is still infringement – does not matter what point in the process the copy is made, if it
was made it is potentially infringing unless fair use or another exception
Factor 1: Purpose & Character of the Use
Commercial v. non-commercial:
 Commercial use is more likely unfair
 Non-commercial use can be unfair if copyright holder can show evidence of future harm
 Does the user stand to profit (monetary or otherwise) from using the copyrighted material without
paying for it
 Look at the alleged infringers action, not the end user
Transformative v. non-transformative:
 Transformative – adds something new, with a further purpose of different character, altering the first
w/ new expression, meaning or message – strong indicator of fair use
 Transformative if serving a different function from the original – Google Books & Perfect 10
 Parody – use of some elements of prior work to create a work that comments on the original work or
author – usually transformative and fair use
1. Allow because an author is not likely to make fun of their own works or themselves, cannot
bar others from doing so
 Derivative works – difficult to distinguish, usually a change of form is derivative and not
transformative
Primary use – look at the actions of most of the end-users
Intermediate steps – look at the use of the copy within the final version (will likely always be minimal) and
look at the direct purpose of the step in which the copy was made
 Sega – copy made to figure out how to make games compatible with the genesis system, there was
not other method of doing so – final games did not include a copy
McGuffin – only purpose is to move the story along, but is not essential to the plot
 Impress a girl by reciting “Who’s on First?” is unfair – did not change the work and not essential to
the infringing work
 Not essential to work, no reason to copy it = unfair use
9
Unethical Uses – stealing something to copy or otherwise having shady intentions or means of copying may
effectively bar a finding of fair use
Public Benefit – significant public or societal benefit can be strong indicator of fair use for this factor
Examples from cases
 Sony Betamax – non-commercial because just allowing time-shifting of TV programming that the
customer was already getting; non-transformative, just straight up copy
 Harper & Row – purpose to be first to publish political scoop was commercial, pointed towards
unfair
 Campbell – parody song is transformative
 Princeton – Michigan is selling books to students, Michigan’s use is commercial despite the
students’ educational use, collection of excerpts was non-transformative, still used the way they
would be used in the original work, nothing added to the work (transformative is arguable here,
similar to Google Books)
 Google Books – highly transformative because making searchable and providing information about
the works that is not included in a hard copy of the work; not directly commercial but may lead to
advertisement, etc. – highly transformative and minimally commercial points towards fair
 Perfect 10 – thumbnail photo display is transformative, provide information about the photos,
include in a research tool; only Google ad revenue used to argue commercial, not sufficient
 iParadym – database of academic papers to check for plagiarism; a transformative fair use, great
public benefit
 Sega Genesis – copying for reverse engineering, no other way to do it, only indirect commercial
benefit from doing so
Fair Use for Factor 1?
Non-Commercial
Commercial
Transformative
Probably Fair Use
(Google Books, Parody on
YouTube, Perfect 10 etc.)
Questionable Fair Use
(Campbell Parody for sale,
Non-Transformative
Questionable Fair Use
(Betamax)
Probably Not Fair Use
(Ford’s Memoirs, Michigan
books)
Factor 2: Nature of Protected Work
Not typically a very important factor – might be if the work is somehow private
Helpful when determining market effects, are the original and the use serving the same purpose?
Published v. Unpublished – not dispositive, but more likely to be found unfair if unpublished
 Recognize authors’ right to control the first access/use of the work
 Fair use precludes a use that supersedes the use of the original
 Final line of § 107 though…
 Factual v. Fictional – not dispositive, but more likely to be found unfair if fictional elements are taken
 National Importance – 2d. Cir. At one point found that politically significant subjects of great importance
(Ford’s Memoirs) were intended to be widely shared so more likely to find a fair use (SCOTUS did not buy
it, but it may have some bearing on the analysis)
Unprotected elements – determine what is protected in the underlying work to determine what the user
cannot use
Examples from Cases:
 Harper & Row – unpublished manuscripts and used expression beyond facts, pointed at unfair
 Perfect 10 – subscription protected works, some underlying works were infringing copies
themselves, pointed at unfair
Fair Use for Factor 2?
Factual
Fictional
10
Published
Un-Published
Probably Fair Use
(History Books)
Questionable Fair Use
(Memoirs, Harper & Row)
Questionable Fair Use
(Novels)
Probably Not Fair Use
(Drafts of novels)
Factor 3: Amount/Substantiality of Portion Used
Is the Quantity/Quality of the work used reasonable in relation to the purpose of the use?
Amount (Quantitative) – percentage of the underlying work used
 No bright line rules about what is too much – regular merger, unprotected elements, etc. used to
determine first the extent of the underlying copyright
 Certain uses require significant portions of the underlying work, such as parody, and that is okay as
long as not taking more than is necessary – Google Books and Sony Betamax required copying the
entire work
1. Google Books was allowed because it displayed small amounts to end uses, just enough to
get the context of a search return
Substantiality (Qualitative) – significance of the portion used
 Using primarily unprotected elements is fair
 Using the “Heart” of the work is unfair
 Mere fact that a given portion was chosen to be incorporated into a compilation may show that that
portion is significant enough to be considered the heart of the work or at least has some qualitative
significance
Parody – requires the listener to think about the original work – requires use of significant portions of the
underlying work, but cannot take too much
 Difficult to know how much is too much
 If the parody is so lacking in originality that it is barely effective as a parody, then likely took too
much
 Taking more than necessary to get the message across is too much
 Heart – taking just the heart is often an effective and efficient way to create a parody and is allowed
– taking the heart plus significant amounts may be a good way to find too much taken
Examples from Cases:
 Sony Betamax – record full shows, entire events = significant portion pointing towards unfair
 Harper & Row – used the most interesting portions, Nixon pardon, so unfair despite only using less
than 400 words; the copied portion was the focal point of the use
 Campbell – parody requires copying significant amounts of the underlying work, fair despite large
amount
 Princeton – 5-30% of each work, fact that the professors chose those specific portions shows that
they are qualitatively substantial
 Google Books – full copying was necessary for creation of searchable book, only insignificant
portion of works shown at one time
 Perfect 10 – subscription protected photos copied in the entirety, infringing photos also copied;
neutral factor because copying in the entirety was required, no way to know they’re infringing before
copying
 iParadym – database for academic plagiarism; entire copy necessary for comprehensive comparison,
works not displayed to the end-user, points to fair
 Sega Genesis – copied entire program to figure out how to make compatible games, necessary for
reverse engineering
Factor 4: Potential Market Effects
Widespread – look at the effects if everyone was allowed to do what the ∆ is doing, not just the ∆’s actions
in isolation
11
Commercial non-transformative use and verbatim copying has a presumption of market harm
Replacement – a use that serves as a replacement for the underlying work almost always will be an unfair
use
Can be a replacement for any portion of a market including for derivative works
Actual effects – sometimes easy to see effects due to K breaches or other readily realizable harms
Licensing Revenue – copyright holder will almost always be able to say that but for the use, they could have
licensed to someone to develop that use, therefore market harm via lost licensing opportunity
 Established market for licensing and user doing something that others have obtained a license for
can be used to show adverse market effects
 Only consider lost licenses an adverse market effect when the work has actually bene or normal is
marketed via licenses for the use such as ∆’s use Potential Markets – uses are often in markets that the underlying work is not yet in, does not matter – all
potential markets are looked at, even derivatives
 Evidence that the author was strictly against or purposefully not exploiting a given market may make
it more fair for a user to exploit that market
Parody – allowed to affect the market by suppression through criticism. Opinion, but not allowed to steal the
market or usurp it by serving as a replacement
 Disparagement v. Displacement – not allowed to replace, but can shoot it down
 Often a derivative market – look at the effects of the parody in the derivative market on a
hypothetical non-parody version authorized by the author in that derivative market
Burden of Proof
 Copyright holder shows harm if work if non-commercial
 Alleged infringer must show no harm if commercial
Positive effects – second works commenting on the original, or increasing exposure to the original, or
increasing the demand for the original may have a positive effect – consider but not conclusive, still must
die if the author could have done the same with a similar derivative work
Examples from Cases
 Sony Betamax – time-shifting did not harm the market because not a replacement for TV
programming, just a tool allowing users to watch at their convenience – might even have positive
effect on the market
 Harper & Row – the use caused a K to be breached, the user benefited from magazine sales, pointed
at unfair
 Campbell – Market harm from parody criticism is not sufficient to show unfair; derivative market
parody could have effect on the non-parody derivative market, but not found in this case
 Princeton – established market for educational book compilations, lost licenses used to show market
harm if all universities adopted Michigan’s use
 Google Books – the searching and snippet view do not substitute for the original, may increase
desire for the underlying work
 iParadym – academic database for plagiarism; not a market competitor nor a derivative market the
authors were likely to develop
 Sega Genesis – allowed ∆ to introduce competing games, but did not replace existing games, may
even increase the demand for the console, etc.
Relationship of the Factors
The amount/substantiality allowed as fair varies with the purpose and character of the use
 Factors 1 and 3
 Parody, book review, news, etc. all have to use significant portions of the underlying work
 If work is highly transformative, more of the underlying work may be used to serve that highlytransformative use
Primary use – look at the actions of most of the end-users,
 All Factors – especially 1 and 4
12


Almost always, end-users will be able to abuse the use in a way that is not fair
If most or a significant amount of the users are acting within a fair use, we allow it as a fair use
Commercial nature and market effects go hand in hand – Factors 1 and 4
 If commercial and non-transformative, one can assume adverse market effects
 If commercial but transformative, then copyright holder must show adverse market effects
 Burden of Proof: Copyright holder must prove market harm if non-commercial; alleged infringer
must show no harm if commercial
Generally the more transformative it is, the less the other factors matter
Parody – use of some underlying elements of a work to comment upon the work or the author
 Factors 1, 3 and 4 – classification as parody slightly changes factor 3/4 analysis
 Allowed to take the heart and/or a significant amount of the underlying work to conjure up thoughts
about the original when the parody is used, however there must be enough original content to be
transformative, otherwise we can assume that the user took too much and it is unfair
 Making fun of a work through a parody of it may make others realize how bad the original is, but
that market effect is not recognized, as long as not a replacement for the original or direct
competition there is likely minimal market effects – also unlikely that an author would develop a
derivative that makes fun of the original so cannot argue potential market usurpation
 Transformative nature minimizes degree of concern for commerciality when commercial nature is
use as a standalone work (not so if used to market/advertise something) – plays on the market effects
also (Factor 1 and 4)
 Katz v. Google – Kats copyrighted an unflattering photo of himself so he could suppress it. People
used it in memes, news articles, etc. held a fair use because providing commentary/criticism of him
Satire – Using material of underlying works without commenting upon or criticizing the original
 Typical fair use analysis used, usually results in too much taken (Factor 3) and market harm (Factor
4)
 Difficult to distinguish from a parody – if able to point out a criticism that the work is making about
the underlying work, then assume it is a parody
Reverse Engineering – copying code or something in order to figure out how it works and to make works
that benefit from underlying methodology is generally a fair use
 Definitely allowed if it’s the only way to access those underlying non-protectable elements
(functional, factual, etc.) and there is a legitimate reason one needs to access them
 Sega – reverse engineered to figure out how to make games compatible with a system
Guidelines for Classroom Copying in Not-for-Profit Educational Institutions
 Developed as a guide to claiming fair use for multiple copies made for classroom use – not binding
law – a use meeting all criteria is fair, but it may also be fair in the right circumstances when some
criteria are not met; Criteria:
1. Brevity (less than 1000 words);
2. Spontaneity – decision/reason for using the work for teaching and moment of use are so close
that it would be unlikely for permission to come before the time of use
3. Quantity – fewer than 9 instances in year; limited # per instance
4. Notice – each copy has a copyright notice on it
5. Substitution – copy does not substitute for the purchase of the original
6. Non-commercial – students charged no more than the cost of copying
7. Not Allowed – creation of anthologies, compilations, or collective works
 Princeton case – charged more than needed, not spontaneous, collective work, over
1000 words
Fair use assumes some implied right to use, implied consent from the author because not market effects, etc.
– A showing of unethical behavior in obtaining or using the work can completely bar a finding of fair use
Purpose of Copyright:
 In close cases, weigh in light of purpose of copyright to determine if fair
 Promoting the progress of science? Incentives to create? Public benefit of the Use? Etc.
13



Google Books – significant benefit from searchable books, likely helped the fair finding
Perfect 10 – factors were inconclusive but held that the public benefit of google images pushed
towards fair
Sega Genesis – increases number of games, increases creative expression, break constructive
monopoly, tipping in favor of fair
Summary of Fair Use Cases
Cases
Factor 1
Sony
Non-transformative
Betamax
& Non-Commercial
(?)
Harper &
Non-transformative
Row (Ford’s
& Commercial
Memoir)
(unfair)
Campbell
Transformative &
Parody
Commercial
(?)
Factor 2
Published &
Fictional/Factual
(fair)
Un-Published &
Factual (unfair)
Factor 3
Entire Work
Copied
(unfair)
Heart of the
Work (unfair)
Published &
Fictional
(?)
Enough to
Conjure Up
(fair)
Factor 4
Minimal; Time
Shifting
(fair)
Breach of K
(unfair)
Result
Fair Use
NOT Fair
Use
Lower demand;
Fair Use
Not a
Replacement
(fair)
Princeton
Published &
Significant
NOT Fair
NonViolates
Factual
Amounts
Use
Transformative &
Established
(fair)
(unfair)
Commercial
Licensing
(unfair)
Practices
(unfair)
Google Books Transformative &
Published &
Entire Work,
Minimal; Not a Fair Use
Fictional/Factual Limited Amount Replacement
Non-Commercial
(fair)
(?)
(fair)
Displayed (?)
Perfect 10
Published;
Entire Work at
Not Likely a
Fair Use
Transformative &
Subscription
Lower Resolution Replacement;
Non-commercial
(fair)
only; infringing
(?)
inconclusive
copies (unfair)
(?)
Sega Genesis Commercial & Non- Functional;
Entire Work in
Fair Use
Not a
transformative
Published
Intermediate Step Replacement
(unfair)
(fair)
(unfair)
(fair)
“More FU” tap has some in-class examples – Photoshop guitar on existing photo of a man; Who’s on First?
14
Secondary Liability
Copyright Act is silent as to secondary liability; Courts have adopted standards from Torts and other areas
 Secondary liability is justified because often it is difficult to enforce copyright against a single
infringer because it can be difficult to locate them, there may be thousands of individual infringers,
and often they cannot afford to pay damages anyway
Sources of Secondary liability (Cherry Auction)
 Landlord/Tenant – landlord has little or no control of actions of the tenant and no profit related to the
tenants actions so in most cases the landlord is not liable for tenant actions
 Dancehall Cases – Control over the venue, including the ability to make rules that
customers/performers must follow, more likely to be held liable for performer actions
Most typically arises in cases involving a tool/instrument/technology that facilitates copying
Must be infringement by an end-user (need direct infringement for secondary liability) – Cartoon Network;
found that the end-users use was a fair use, therefore no primary infringement, the DVR company cannot be
secondarily liable
Gatekeepers – Regulated industries that help enforce copyright law
 Book publishers, content providers, others that typically have widespread control and influence of
works, the ability to license broadly, and technology to prevent unauthorized copying
 Used to be effective, but not so much anymore with all the illegal download websites
 ISPs are perhaps the best remaining gatekeepers due to DMCA Safe Harbors (below)
CONTROL – often the deciding factor, if the contributory infringer has the ability to say no or otherwise
control what is being copied they are more likely to be held liable – if the end-user has full control over the
content copied then more likely that the company will not be liable
Substantial Non-Infringing Uses – sale of a device capable of making infringing copies is not sufficient for
secondary liability as long as there are other, non-infringing uses
 Willful Promotion – If marketed as a copying device or there are only illusory non-infringing use,
then more likely to lead to secondary liability (Groskster Peer-to-Peer, advertised as a means of
sharing files, including some copyright protected files)
 Article of Commerce Doctrine – derived from patent law, the same thing, mere selling of a device or
service capable of infringement is not sufficient for liability if there are significant non-infringing
uses
 Sony Betamax – most people not re-selling or creating libraries, most people not infringing so Sony
would not be secondarily liable (Note: held a fair use anyway, so could not be liable because the end
user was not liable)
Direct Liability




Actual infringing activity with a nexus sufficiently close and causal to the illegal conduct to conclude that
the machine owner himself trespassed on the exclusive domain of the copyright owner
Volitional Conduct – (1) ∆ made, maintains a system that exists solely to make copies; (2) User orders the
system and records shows, makes copies, etc.
Look at who is making the copy – if the company has little or no control over what gets recorded, then
likely the end user is making the copy and therefore the user, not the company is the direct infringer
Some courts hold contributory infringers directly liable if contribution is so great that they are effectively
“doing” the copying
Contributory Liability
Stems from Tort law – one who directly, knowingly contributes to another’s infringement should be held
accountable
Requires (1) knowledge of the infringing activity; AND (2) induces, causes, or material contribution to the
infringing conduct of another
15
Knowledge
SPLIT – Does the contributory have to know the activity is infringing, or do they only have to know of the
activity?
 Not many cases addressing
 Nimmer - ∆ knew or should have known the activity was infringing
 Likely that ignorance about the legality of the actions would not be a bar to finding one
contributorily liable, especially if there is some willful blindness, etc. (i.e. knowledge of the action
should be sufficient in my view)
Standard Knew or Should Have Known, regardless of which of the splits is used
Substantial Non-Infringing Uses – knowledge that a device may be used to infringe is not sufficient
knowledge if there are other non-infringing uses and those non-infringing uses predominate the infringing
uses
Often admitted – like in Cherry Auction
Evidence of prior wrongdoing or actual knowledge of the infringement – Cherry Auction, police had shut
down the infringing seller in past years
Material Inducement/Contribution
Induces, causes or materially contributes to the infringing conduct of another
Providing the forum, location, utilities, and traffic to a site of infringing activity is likely sufficient – Cherry
Auction
Purposeful inducement (MGM v. Groskster)
 Using infringing activities in advertising of the service/device
 No attempt to limit infringing activities or give copyright notices to users who might commit
infringement
 Intentionally including popular protected works in the service/device to attract customers
 Recreating a system/service/device that was found liable in the past (Groskster replacing Napster)
 Targeting known infringing users (emailing ex-Napster users)
 Affirmative intent for product to be used in infringement is inferred if infringing activities are
advertised or demonstrations show infringing activities – routine customer support, updates, etc. are
not sufficient
Induces, causes or materially contributes to the infringing conduct of another
Providing the forum, location, utilities, and traffic to a site of infringing activity is likely sufficient – Cherry
Auction
Vicarious Liability
Stems from agency and respondent superior from tort
Requires (1) Right and responsibility to supervise the infringing activity (i.e. Control); AND (2) A direct
financial interest in the activity
Control
Right and ability to supervise the infringing activity
Police power, promotional duties, rulemaking, regulations = control (Cheery Auction)
Financial Interest
Direct or Indirect
Rental of premises, admission and parking = financial interest tied to infringing activity (Cherry Auction)
16
Secondary Liability for Tech Companies Summary
Has ∆ actively
encourages or promoted
infringement by users of
its product?
YES
Sell IS Liable per Grokster
NO
YES
Does Seller have actual
knowledge of specific
infringements and the capability
to stop them?
Sell IS Liable per Napster
NO
Is ∆’s product
capable of substantial
non-infringing uses?
NO
Sell IS Liable per Sony
YES
Seller Not Liable
(Sony)
***Note: Analysis Changes if the technology
company can qualify for a DMCA Safe Harbor***
DMCA Safe Harbors
Internet Service Providers can rely on typical Secondary Liability standards (above), or they can use a safe
harbor to fully avoid liability – disqualification from a safe harbor does not mean automatic liability
Benefits of the Safe Harbors: Eligible and compliant ISPs…
 Do not pay monetary damages
 Only subject to limited forms of injunctive relief: (1) orders forbidding ISP from providing access to
infringing material; (2) orders requiring ISP to terminate account of infringing subscribers: (3)
orders restraining ISP from providing access to specific online locations outside the U.S.
Threshold Criteria for all DMCA Safe Harbors
 Service Provider – provide online service/network access, or operator of facilities therefor
(512(k)(1)(B));
 Terminate Repeat Infringers – Adoption/implementation of repeat offender protocol to terminate use
by known infringers (512(i)(1)(A));
 Standard Technological Measures – used by copyright owners to identify/protect works, must be
accommodated by the Service Provider (512(i)(1)(B), (i)(2)) (encryption, watermarking, etc.)
The Four Safe Harbors:
 Transmitting – ISP transmitting, routing, or providing connections for material through a system or
network controlled by the ISP (512(a)), (Ex. Email providers)
 Caching – ISP controlling or operating intermediate and temporary storage of material on a system
or network (512(b)), (Ex. Bookmarks, Homepages, etc.)
 Hosting – ISP providing or controlling a network/system for storage of material at the direction of
the user (512(c)), (Ex. YouTube)
17

Linking – ISP referring to or linking users to an online location containing infringing material
through an information location tool (512(d)), (Ex. Search Engines)
17 USC § 512 (c) – Digital Millennium Copyright Act
(1) Limits Liability of online service providers for infringement that occurs by “reason of the storage
at the direction of a user of material that resides on a system or network controlled or operated by or
for the service provider,” if the service provider:
A. (i) does not have actual knowledge of infringing material or activity; OR (ii) is not aware of facts
or circumstances from which infringement is apparent (should have knowledge; AKA Red-flag
knowledge); OR (iii) upon getting the knowledge/awareness, acts expeditiously to remove or
disable access to the material; AND
B. Does not receive financial benefit directly from the infringing activity when they have the
right/ability to control such activity (like vicarious liability); AND
C. With notification of infringement expeditiously removes, or disables access to, claimed
infringing material or activity.
This section is the most consequential and most litigated DMCA Safe Harbor
Requires Take-down with: (1) actual knowledge of infringing material; (2) awareness of
facts/circumstances that make infringement apparent; or (3) receipt of termination notice
Viacom v. YouTube
 Held, the “knowledge or awareness” required to compel takedown is specific and identifiable
infringement, not merely knowledge of potential infringement – only difference between the
actual knowledge and red-flag knowledge (i-ii) are that the first is subjective (what the ISP
actually knew) and the second is objective (what a reasonable ISP should have known) – Willful
blindness can be used to infer knowledge
 512(m) – no affirmative duty to police ISP networks/systems/services for infringing activity or
material
 I am expecting Schechter to use this – plays a role on what an objectively reasonable ISP in the
circumstances should have known – for satisfying the specific identifiable knowledge
requirement
B above – control might require knowledge because one cannot control what they have no
knowledge of
 SPLIT – 9th Cir. Requires specific knowledge, 2d. does not because it would make that
provision superfluous to A
 The courts agree, however, that control requires more than just the ability to take-down because
that power is assumed/required by all provisions of the 512 safe harbors – Something more =
substantial influence on activity of users, without necessarily acquiring knowledge of specific
infringement
(3) Notice of Infringement – requires good faith belief that something is infringing – some court
have read this to require the copyright owner to consider fair use or other exceptions that would
make the action non-infringing
 If the notice does not comply with all requirements of the section, then courts do not include the
notice in their determination of the ISPs specific and identifiable knowledge of infringement
Willful Blindness – can be used to prove actual knowledge, if ISP had some indication that there might be
infringing activity and they consciously decided not to investigate to confirm or deny the existence of such
activity
512(m) – no affirmative duty to police ISP networks/systems/services for infringing activity or material
Take-Down Notice Procedure:
 Copyright holder files a notice with the ISP;
 The ISP takes the video down (or disables access) and sends a notice to the User;
18



The User can accept the take down, affirmatively or by doing nothing, OR may send a counter notice to the
ISP arguing it is not infringing
If counter notice is filed, the ISP puts the material back up (or re-enables access) and identifies the copyright
holder of the Users identity and contact information;
Copyright holder can then agree with User (affirmatively or by doing nothing) and the video stays up, OR
the copyright holder can disagree and sue the User.
Rightsholder
ISP
User
ISP
Rightsholder
Accepts TakeDown
Sends DMCA
Notice to ISP
Video remains
down
Takes Down the
Video
Files Counter
Notice
Result
Puts Video back
up, notifies
Rightsholder
Disagees and
Sues User
Litigation
Agrees
Video Remains
Up
Digital Rights Management
Section 1201 – No Person shall circumvent a technological measure that effectively controls access to a
work
Industry organizations can choose technologies that control access to or copying and distribution of
copyright protected works and require use of the technology under threat of Legal Action – allow industry
to choose because Congress would not be able to keep up with technological advancements and does not
have a sense of real world considerations, feasibility, etc.
Pros – prevents unauthorized copying/distribution
Cons – prevent beneficial fair use, threatens creative expressive expansion, etc.
Examples – Pay per view, encryption, DVDs that play only in certain regions to prevent import of infringing
copies, Digital works tightly linked to one account/user profile
Access Control:
 1201 (a) – No person shall circumvent a technological measure that effectively controls access to a
work
 Includes a bar to manufacture, import, offer to the public, provide, or otherwise traffic a technology,
product, service, device, component, that is designed to circumvent such access controls (a)(2)
 Serves as a new anti-circumvention right
 The Fed. Cir. Requires an infringement nexus to apply 1201 because not all circumvention
necessitates infringement
Copy Control:
 1201 (b) – No person shall traffic a technology that circumvents a technological measure that
effectively protects the rights of copyright owners (b)(1)
 Includes a bar to manufacture, import, offer to the public, provide, or otherwise traffic a technology,
product, service, device, component, that is designed to circumvent such copy controls (b)(1)
 Strengths the 106 rights
What Section to apply:
Circumvention Conduct
Access Control
1201(a)(1)
Circumvention Device
Prohibition
1201 (a)(2)
Copy Control
Substantive Copyright
Infringement or Fair Use (No
1201 provision on point)
1201 (b)
19
To violate 1201 (a)(2) – Elements:
 ∆ traffics in
 A technology or part thereof
 That is primarily designed, produced, or marketed for, or has limited commercial use other than,
 Circumventing a technological measure
 That effectively controls access to
 A Copyrighted work
To violate 1201 (b) – same as above except “that effectively protects a right of a copyright owner”
Exceptions/Exemptions to 1201 – Allow a user to circumvent access controls or traffic copy control/access
control technologies – there are several and they are specific
 1201 (d) – non-profit library/education institutions in some circumstances
 1201 (e) – law enforcement or intelligence agencies
 1201 (f) – reverse engineering if circumvention is the only way to achieve
 1201 (g) – encryption research and development (improving control technologies)
 1201 (i) – protection of personal identification information
 1201 (j) – security testing
 Librarian of Congress has the power to make exemptions every 3 years
1202 – Copyright MGMT information – no one can remove or falsify (pg. 298)
 identifying information
 included in the work digitally, embedded in a watermark, title page of a book, etc.
 forbids providing false information or removing information with the intent to facilitate infringement
AHRA – not part of DMCA, but somewhat related – attempt to regulate analog/digital switch (§§ 10011009)
 Most mot because the technology is moot
 Allow marketing machines with copy control, but attach a tax (royalty) with every machine/type sole
and distributes to copyright holder and others
 Could not make copies of a copy per built-in controls (it would detect that it was not an original and
would prevent further copying – physical copy control)
 Provision making home/non-commercial use of copies of music legal (likely fair use anyway, but
made it explicit)
 Lessons – cannot chase technology with specific legislation
 New model for compensating authors while allowing some copying
 Mandatory incorporation of copy control (good and bad, could hinder fair uses, but stops unfair
uses)
20
Formalities
The current law requires no formalities (conformity with international treaties) but incentivizes some of
them
Works published prior to 1978 had to comply with the old law formality requirements to be protected, that’s
why we still care about the now outdated formalities
State Common Law – limited to unpublished works; had no definitive term (incentive to not publish)
1909 Act
Strict compliance with formalities required otherwise the works got propelled into the public domain
Unpublished works – not covered by federal copyright law so do not have to comply with the requirements
Published works are covered by copyright act and must follow the formalities
Publication Required
 If a work is published, it’s state law copyright protection ended and it must comply with federal formalities
to be protected. Applied to works that were generally published
 General publication – work is made available to members of the public regardless of who they are or
what they will do with the work
 Limited publication – tangible copies of work are distributed to (1) a definitively select group, AND
(2) for a limited purpose, without right of further reproduction, distribution or sale
 Public Performance – typically viewed as a limited publication no matter the size of the audience
or the circumstance of the performance – Example: MLK “I have a dream” was held to be
limited despite the giant crowd and access to anyone who was in the public space
Display as a General Publication – Sometimes
 More restrictive the access, the more likely that it is limited – limit number of people invited to view,
prohibit photographs, etc.
 If the public is free to copy then likely general publication
 Picasso gift to Chicago – general publication because the public invited to view it and photos of it
sent out to reporters (no notice to sent to public domain)
General Publication without the required notice = terminate state common law protection and inject the
work into the public domain
General Publication with the correct notice = terminate state common law protection, vest federal copyright
protection
Registration Required
Notice Required
Improper Notice – propels the work into the public domain upon publication
 Improper if not meeting any of the below requirements
Forms:
 Includes, copr., or “work copyrighted,” or ©;
 Year of first publication of the work
 Name of the owner of copyright
 Example: © 1992, Hansen
Affixation – notice must be attached to an integral part of the copyright protected work (physically attached)
 Typically, in the corner of a photo/painting, on the cover page of a book, on the stand of a statute,
etc.
 Including a separate flier or certificate of copyright notice with a work is not sufficient (Shapiro)
Section 405 (a) – No copyright for works first published prior to March 1, 1989 without notice, unless: (pg.
217)
 Reasonable effort to add notice to all copies that are distributed after omission of notice is
discovered; AND
21

Copyright holder registers the work with the Copyright Office within 5 years from the first
publication.
 Discovery date – may be contentious, at the latest the infringement will amount to a discovery
Deposit Required
Registration – title of the work registered with the copyright office
Deposition – deposit the best form of the work with the copyright office
1976 Act
Must be registered in order to sue for infringement
All State Common Law is preempted by federal law – for published and unpublished works
Publication Changes Things
101 definition – distribution of copies or phonorecords of a work to the public by sale or other transfer or
ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of
persons for purposes of further distribution, public performance, or public display, constitutes publication.
A public performance or display of a work does not itself constitute a publication. (goes on to define public
performance and display, pg. 129)
No longer key to obtaining copyright (all works, even unpublished, vest copyright protection upon creation)
Published works are required to have a best form deposited with the copyright office; can effect the
application of fair use and other exceptions (107-122); year of publication often sets duration, etc.
Notice Permitted/Beneficial
Section 401 – notice may be placed on a work (may, not required)
If choosing to include a notice, must:
 Include the copyright symbol; year of first publication; the owners name or recognizable
abbreviation (401(b));
 Be affixed to the work in a way and location to give reasonable notice
Benefit of Notice – an infringer cannot plead ignorance of the existence of copyright to say they are
innocent (see Statutory damages, below)
Notice, deficiencies, and omissions by date:
Published on:
Before 1/1/1978
1/1/1978 – 2/28/1989
On or After 3/1/1989
Notice
Required and public
Required and curable if Optional; forecloses
domain if improper
improper
mitigation of damages
defense
Effect of Omission
Fatal, no copyright
Dangerous, but curable No effect on validity,
but lose the damages
protection
Deposit Required (non-conditional)
Deposit is still required, but is not a condition of obtaining copyright protection
Must deposit 2 copies of the best edition of a published work
407 – within 3 months of publication, an author or the holder of any exclusive right must submit 2 complete
copies of the best edition of the work
Registration Permitted/Beneficial
Can apply at any time in the life of the copyright
Owner of ANY exclusive right can register
Mechanics – form deposit and fee, prescribed information as in 409
 Can be done quickly online and certain works can be registered in groups (ex. Related photos)
22
Purposes – provide information about the works (database); screen claims for validity, indication of authors
economic intentions
Registration deposit, if published can serve as 407 archival deposit
409 – application for registration is made on a form provided by the Register of Copyrights; shall include:
 Name and Address of the copyright claimant;
 Nationality, living/dead status of author, work for hire status; how the applying party got ownership
 Title of the work, year it was created, date and location of publication,
 Preexisting works included within the work or from which the work was derived; with list of original
elements
Reasons to register:
 Pre-requisite for suing for copyright infringement – must register before initiating suit, provides
judges with copyright office notice that work is protectable; can go to court if the application is
denied
 Prompt registration is prima facie evidence of validity;
 Prompt = pre-publication or within 5 years of publication
 Timely registration is a pre-requisite for certain remedies
 Statutory damages become available and attorney fees
 Must register prior to infringement (not merely suit) for unpublished works
 Must register within 3 months of publication for published works
Statutory Damages (804):
 In lieu of actual damages
 Not less than 750 dollars or more than 30K for all infringements involved in the action with respect
to any one work
 If infringement is willful, amount can be increased to no more than 150K
 If ∆ proves he was not aware and had no reason to believe that acts constituted infringement,
reduces to no more than 200 dollars (not available if notice requirements met)
Pre-registration (408(f), pg. 220)
 Unpublished works being prepared for publication are vulnerable during that period, so…
 Allow pre-registration, which will allow certain protections and assumptions if infringement prior to
publication or actual publication
 Limited to categories of works that historically have been at risk for pre-commercialization
infringement, such as movies in production, software, sound recordings (categories determined by
Register of Copyrights)
Restoration of Copyright
104A – Restores Copyright in Foreign Works that entered the public domain due to some breach of a
formality requirement under the old law (done in accord with foreign law that did not require formalities)
Term: Copyright subsists in accordance with this section, in restored works, vest automatically on the date
of restoration; and subsists for the remainder of the term of copyright that the work would have otherwise
been granted in the US if the work never entered the public domain in the US
This section contains some specific comparisons as Schechter put in tables, etc.
Interaction with Section 104
 (a) all unpublished works are granted copyright protection regardless of nationality/domicile of
author
 (b) if published, granted copyright if national or domiciliary of the US; if not, granted copyright if a
national or domiciliary of a Treaty Country (all but 8 countries), or if the work was first published in
the US or a treaty nation
 104A allows restoration of copyright for authors that would qualify under 104, but for their noncompliance with US formalities at the time of publication
Restores Copyright In: (Requirements) (104A(h)(6)):
23


Works not in the public domain in their source countries throughout term of protection;
Works in the US public domain due to non-compliance with formalities ever existing (renewal,
notice, etc.)
 Works authored by national or domiciliary of a Treaty country; AND
 Was first published in a treaty country and not published in the US within 30 days of publication in
the treaty country.
Reliance Parties (104A(h)(4) – can continue to exploit the work that was recently restored in the following
circumstances:
 One who is exploiting the work prior to a country becoming eligible for restoration of their works
and continues to do so after the restoration;
 Continues – cannot stop for a significant period and then attempt to do it again (Trolls)
 One who makes or acquires one or more copies of a work prior to a country becoming eligible, that
party is allowed to sell off their inventory;
 Prior to – copies must have been made prior to the restoration of the works (Trolls)
 One who is a successor, assignee, of licensee of someone who falls into one of the above categories.
 Allowed to continue their actions for 1 year after notice from renewed copyright owner (general or
specific notice) but cannot make new copies
 Derivative works created before the renewal can be used indefinitely as if the reliance party made them
but a royalty must be paid to the renewed copyright owner
24
Ownership
Authorship
Author is one who translates an idea into a fixed, tangible expression subject to copyright
 May authorize another to transcribe the work for them, but to retain sole authorship, the transcription
must be rote and mechanical, requiring no (minimal) intellectual modification and no highly
technical enhancement
If the authorized transcriber is not fitting the above criteria, he may be held a co-author
Creative contribution – not sufficient to be an author.
 Many works have many people contributing (ex. Movie production)
 Requires some creative, artistic control – likely would have to be eligible for copyright protection to
be considered an author
 For Works made for Hire – the Employer or whomever the work was made for is considered the author and
owner – Basically they authorized the rule
Joint Works
101 Definition – Joint work is (1) a [copyright eligible] work (2) prepared by two or more authors with (3)
the intention that their work contributions be merged into inseparable or interdependent parts of a unitary
whole
Typically requires the authors to make independently copyrightable contributions to the larger, joint work
 One who contributes only non-protectable elements are not copyright owners
 EXCEPT – if neither contribution can stand alone or neither is protectable on its own, then the two
contributions can form a single copyright protected work
 Majority Rule – each co-author’s contribution has to be separately copyright eligible – some relax
when circumstances are an expressive element that is not protectable but more than idea, scenes a
faire, etc.
Joint Authorship Criteria:
 Control – Author superintends the work by exercising control; usually one who creates, causes, gives
effect to ideas;
 Shared Intent – Coauthors objective manifestation of intent to be a shared co-author; AND
 Inseparable Appeal – Appeal of the work turns on both/all contributions, the share of individual
success cannot be appraised
 9th Cir. Test (used for movies at least, maybe all works, maybe just mass-collaborative works):
 Each party makes independently copyright eligible contribution
 Each party must intend their contribution to be merged into inseparable or interdependent parts
of a unitary whole; AND
 Each party must be an “Author” – creative contribution not alone sufficient; person to whom the
work owes its origin and who superintends the whole work, the “mastermind” – like they are
saying there are no joint authors because when are there multiple masterminds?
 2d Cir. Test:
 Each makes an independent copyright eligible contribution;
 Each party intends (intention 1) for their contribution to be merged into inseparable or
interdependent parts of a unitary whole; AND
 Each party intends (intention 2) to be co-authors with the other co-author – both intend to be
joint authors – prove intent by K, how they market or bill the work, etc.
 7th Cir. (Posner) Test:
 Does not require independent copyright eligible contribution so long as their coalescence is
copyright eligible (Comic Book Character in Gaiman)
Timing of Authorship – What if someone makes a musical composition and delivers it to a music publisher
and a couple years later someone else develops lyrics to go over the composition – Co-authors?
25
12 St. Rugs would say yes – most require actual collaboration of some sort
Rights of Joint Authorship:
 Unless otherwise agreed to, co-authors own equal shares in the work; even if they clearly had
unequal contributions
 Each can independently grant licenses, etc. just have to account to the other co-author(s) for any
profits realized from the use of the work (derivative work problem, how much do they owe the coauthor of the underlying work?
 Each can use without the permission of the other
 Each can sell their entire interest to another
 Each can exploit personally, including making derivative works
Derivative Works Problem (Green Case)
 Grandfather – solely one person made and owns (just A)
 Father – Jointly authored (derivative of the grandfather) (A and B)
 Son – solely the second person (derivative of the Father) (just B)
 Ideally if Son = 70% from Father and 30% from new, B would owe 35% (half of 70%) to A for
use of the Son, but nearly impossible to calculate how much is new/borrowed
 Possible for A to assert that stuff originating in Grandfather cannot be use in A – may be some
merit, but A can argue fair use, etc. (taking out of context, supplementing by inclusion in larger
work, etc.)
Accounting – duty to give equal share of profit to co-author(s)
 Generally very difficult to determine
 Applies only to actual profit realized by one of the joint authors, does not apply to depletion in
potential value – often adverse co-owner will argue that a use that retuned no profit made a work less
valuable for him, but generally courts do not require the author who authorized the use to pay the
other author (perhaps they would if bad faith, but generally not, each is free to do what they want)

Works Made for Hire
See duration – typically a shorter duration for works made for hire
Works made for hire Ownership –
 Whomever the work was made for owns the work (Employer, Contracting Pary) and is considered
the author unless there is an agreement to the contrary
101 definition – (1) Work prepared by an employee within the scope of his or her employment (Agency
Law); OR
 (2) Work specially ordered or commissioned with a written contractual agreement stating that it is
made for hire; limited to (see pg. 131):
 Contribution to a collective work
 Part of a motion picture or other audiovisual work
 A translation
 Supplementary, compilation, or instructional work
 A test or answer sheet
 An atlas
Employee status per agency common law:
 Hiring party has a right to control the manner and means by which work is accomplished
 Main Factors pointing to Employee:
 Skill of the artist that is required
 Whether the hiring party can assign more work to hired party
 Whether the work is in the regular business of the hired party
 Extent of hired party’s discretion of when/how to complete work
 Tax or employee benefits
 Other Factors pointing to Employee:
 Source of tools or instruments or materials
26



Location of the occurrence of work
Duration of the party’s relationship
Method of payment
Scope of Employment: (must be an employee and satisfy all three of these):
 Work is of type employee was hired to perform;
 Employees creation occurred substantially within the authorized time and space limits of the job;
AND
 If work occurred at home, off the clock then almost certainly not met; does not require 100%
separation from work space/time, but the majority.
 Salary workers – industries where salary employees have no set work day and are often
expected to work from home are less likely to satisfy this element – the work must be more
separated from the type performed at work.
 Task was activated or motivated, at least in part, by purpose to serve the employer’s interests
 Requires some significant motivation beyond a scintilla
 Motivation must be for the creation of the work, not just the use of the work
 Salary workers – industries where salary employees have no set work day and are often
expected to work from home are less likely to satisfy this element – the work must be more
separated from the type performed at work.
Teacher Exception – professors are usually full time employees – their academic work product is not a work
for hire – they retain their own copyright – no real law, just a common application – justification: prevent
the University from censorship or limiting publications, etc.
 A religious/clergy exception has been proposed, would likely be similar to the teacher exception
Independent Contractor – if not an employee, they are an independent contractor and the work is only for
hire if it is so in a written contract and the work is in the enumerated list of (2) on page 131
 A valid written contract;
 Expressly indicating a work for hire relationship (does not require the words “made for hire” but that
must be the natural interpretation of the K)
 Work must fit into enumerated categories: There are 9 enumerated, two that are frequently used due
to their breadth:
 Supplementary work – prepared for publication as secondary adjunct to a work by another to
introduce, conclude, illustrate, explain, reuse, comment upon, or assist use of the other (see 101
for examples)
 Compilation – work formed by collection and assembly of pre-existing material/data selected,
coordinated, or arranged in way that resulting work as a whole constitutes an original work of
authorship
 Instance & Expense Test – independent contractors can become employees if works are made at the
instance and expense of the hiring party (probably limited to 1909 law)
 Hiring party induces creation of work and had power to direct the manner in which it would be
completed (instance); AND
 Provision of tools, resources, or overhead, and payment of a flat sum for the work (rather than
royalty) (expense)
Meaning of Work for Hire Status:
 Usually a shorter duration (95 years or 120, see duration)
 Employer has copyright ownership for the entire term of protection – if it was assigned, the
employer would only be guaranteed 35 years
Government Ownership
105 – copyright not available for any work of the US government (works go into the public domain), but the
US government is not precluded from receiving and holding copyright transferred to it by assignment,
bequest, or otherwise
27
101 – work of US government – work prepared by an officer or employee of the US government as part of
that person’s official duties
 Like work for hire – likely that if the work is made outside the scope of duties of the officer or
employee that it would not be considered a work of the US government and the author would retain
copyright protection
Contracted Works – like work for hire – the government CAN hold copyright in specially commissioned
works
Justification for No copyright for employee works:
 Taxes pay for the work, allowing the government to exploit them would be like double dipping by
the gov.
 Almost like the gov. works for the public and the public is specially commissioning for the works –
public as the author = elect representatives, argue in court, protest, otherwise shape the government
Special Circumstances:
 Stamps – not included in 105 because the postal service is considered an independent agency –
postal works are covered by regular copyright and typical work for hire stuff would apply
 Money – money is included in 105 so no copyright in money design as a work; however, some
portions of money are specially commissioned and they are subject to copyright (ex. Sacagawea
design on the dollar coin) – of course, there are other areas of law that prevent reproducing money
State Governments – not subject to 105 so they can hold copyright, but there are several areas of works that
cannot be copyright protected due to public policy
 Governing laws, codes, regulations cannot be protected – public notice is cornerstone of law
enforcement, all citizens have a right to know what the law is = Due Process (Veeck, model codes
propelled into public domain when adopted as law)
 Standards – referring to a given work in a statute with that work to serve as the standard does
not propel it into the public domain (example is a statue that reference the Red Book as the
standard method for pricing cars for resale, held not in public domain) – serve purposes other
than law
 Judicial opinions also not copyright eligible for public policy (Wheaton v. Peters, SCOTUS
reporters)
28
Duration & Limitations on Transfer
Current Law – Life Plus 70, No Renewal
302 – Works created on or After Jan. 1, 1978:
 Vest upon creation and last for life of the author plus 70 years
 Joint Works – last for the life of longest living author plus 70 years
 For Hire, Anonymous, Pseudonymous Works – shorter of 95 years from publication or 120 years
from creation – 95 is shorter unless published 25 years after the creation, 120 years is the maximum
302(d) – Copyright owners can submit statements saying that an author is alive or dead as of a given date
 (e) After the 95 or 120 year expiration date – users may ask the copyright office of author status, if
there are no records within the last 70 years, the user can assume the author has been dead for 70
years and that the work is now in the public domain (good faith reliance is a defense if it turns out
the author has not been dead for 70 years and the user is found to be infringing)
Justification for Long Duration (currently life plus 70 years):
 Increasing life expectancies
 Longer commercial life of many works
 Short duration does not actually benefit the public, may restrain the dissemination of works
 Elimination of public formalities
 Elimination for need to renew copyright
 Harmonization with international norms (Berne Convention)
305 – all Copyright expires on December 31 of the year of expiration
Transitional Period – 95-Years, Automatic Renewal
303 and 304
303 – Created pre-1978 but not published before 1978 and not in the public domain pre-1978:
 Copyright vest on January 1, 1978 and guaranteed not to expire until 2002 (even if that is longer
than 302 copyright duration)
 If published after 1978 but before Dec. 31, 2002, guaranteed protection until at least Dec. 31, 2047
304 – Existing Copyrights on January 1, 1978
 In their first term, as of January 1, 1978 – copyright will exist for the original 28-year term then an
additional 67-years of automatic renewal (for a total of 95 years)
 Optional renewal filing – if renewal is requested in the final year, the 67-year period begins upon
approval of the renewal request, if no renewal request is filed, the 67-year period begins Jan. 1 at
the expiration of the 28th year.
 May have an ownership bearing due to death of author, etc. that could happen in the 28th year.
 Works published in or after 1950
 In their renewal term, as of January 1, 1978 – term is extended to be a total of 95 years
 Works published in 1923 to 1949 and renewed at the proper time
 Termination rights – A grant can be terminated within 5 years from the end of the original 56-year
duration (i.e. form year 57-61); must give notice of the termination within 2-10 years from the
effective termination date – Allowed even if the K says that termination is not possible (because
authors were not expecting the extension, did not negotiate with it in mind)
1. Limitations on who can effectuate the termination – see page 212-13.
Old Law – 28-Years, Plus 28-Year Renewal
Assignment of Renewal Rights & Termination
No bar on assigning rights in a renewal term, but it acts as an expectation only – the assignee only gets the
assignment in the renewal if the author is alive to renew the copyright
Statutory renewal return to heirs of a dead author who died before the renewal – the heirs are then free to do
what they wish with the renewal term, even if there is an existing K made by the dead author
29

One reason there is an optional renewal, people granted a renewal right might want to do
optional renewal ASAP so that they do not miss out should the author die in the last year
Derivatives – subject to the same rules
Of course, under current law, there is no renewal – so works created after 1978 or agreements entered after
1978 cannot be terminated based on this – 305(d) expressly limits application for termination to contracts
made before January 1, 1978 – some K are allowed to terminate due to the Sonny Bono Extension and may
be terminated between year 76 and 80 with proper notice (305(d))
203 – Termination of Transfers and Licenses Granted by the Author on/after Jan. 1, 1978
 Applies to exclusive or non-exclusive grant of a transfer or license executed (carried into full effect)
on or after Jan. 1, 1978
 Termination may be effected at any time during a period of five years beginning at the end of 35
years from execution of a grant date (option to terminate)
 Unless and until termination if effected, the grant if not provided otherwise, continues for the term of
the copyright duration (State law often does provide otherwise)
§ 304(c)
§ 304(d)
§ 203
Major Differences Between Termination of Transfer Interests
Date of Transfer to be
Person that made the
Termination Window
terminate must be:
transfer must be:
runs:
Before January 1, 1978 Author or statutory
From 56 to 61 years
successor
after copyright
obtained
Before January 1, 1978 Author or statutory
From 75 to 80 years
successor
after copyright is
obtained
On or After January 1, Author Only
From 35 to 30 years
1978
after date of transfer
30
31
Rights and Limitations
Exclusive
Right
106 (2) right to
produce
derivative
works
Limitations
114 (b) sound
recordings
112 ephemeral
recordings
106 (1) Right
of
Reproduction
106(3) Right
of Distribution
113 pictures or
photographs of useful
articles
1008 noncommercial
use by a recording
device to make
musical recordings
109(a),(b) Effect of
transfer of copy or
phonorecords
106 (4) right
of public
performance
116 Public
performances by
jukeboxes
106(5) right of
public display
109(c) Effect of
transfer of copy or
phonorecord
106(6) right of
public
performance
by digital
audio
transmission
108
reproductions by
libraries and
archives
121
reproduction for
the blind &
disabled
115
compulsory
licenses for
making &
distributing
phonorecords
117
Computer
Programs
118 Public
broadcasting
compulsory
licenses
109(e) effect of transfer of copy
or phonorecord
107 Fair use
(and general
equitable
remedies)
110 exemption of certain
performances and displays
111 secondary transmission
(cable compulsory license)
119,122 satellite compulsory
license
114(d-j) public performance of sound recordings by means of digital audio
transmission limitations and licenses
Reproduction of Musical Works and Sounds Recordings in Phonorecords



First Sale Doctrine – 109(a)
o Owner of a particular copy or phonorecord lawfully made is entitled, without the authority of the
copyright holder, to sell or otherwise dispose of the possession of that copy or phonorecord
Physical reproduction - CDs, MP3 on hard drives, Vinyl, etc.
2 Works - the musical work itself and the sound recording
o Musical Work - White Christmas originally composed by Irving Berlin
o Sound recording - rendition of the musical work
o Physical phonorecords embodies both the musical work and the sound recording
32
Musical Work - Sound Recording Distinction




Smith wants to make physical objects duplicating the song White Christmas
o Could be sheet music (copies)
o Could be vinyl, cassette tapes, or CDs (phonorecords)
If Smith does want to make phonorecords, he might want to
o Physically or mechanically reproduce a previously recorded version (like Bing Crosby's Copy)
 Would require license from Irving Berlin and Decca Records
o Re-record his own version
 He might to imitate Bing Crosby, i.e. sings it himself but trying to sound exactly like Bing
 Does he need both licenses or just Irving Berlin??? - Not an infringement of the sound
recording so fuck the license (114 below)
 He might make his own version with his own interpretation
 Needs only license the Irving Berlin version
§ 115 Compulsory License for musical compositions - essentially for Cover songs (not live covers,
recorded/distributed covers)
o Applies to non-dramatic musical compositions (i.e. not operas, broadways, etc.)
o Requires that phonorecords embodying the work have been distributed to the public in the US under
the authority of the copyright owner - original composer gets first bite of the market
o Thereafter any other person may make and distribute phonorecords of the work
o Includes the privilege of making an arrangement to conform to performer's own style but may not
change the basic melody or fundamental character of the work
 Italics have not been heavily litigated
o Must give notice to copyright owner 30 days after making the phonorecords but prior to distribution
o Copyright owner only gets the statutory royalty if the work is registered - registration is optional
generally
o Royalties are set by Copyright Royalty Judges. Currently 9.1 cents per physical phonorecord or 1.75
cents per minute of playing time, whichever is greater (i.e. if over 5 minutes, then 1.75 cents per
minute)
o NO ONE uses this compulsory license
Harry Fox Agency Mechanical License - also for cover songs - why no one uses § 115
33
o
o
Provides license to make physical embodiments of musical compositions
Charges exactly the same as the government rate
 Phonorecord definition - sounds associated with motion pictures are not included in phonorecord
definition, i.e. not included in § 115
o Synch Licenses - made for motion picture audio
 Not included in Harry Fox or § 115
 So must deal with the composer and the performer for the song you want to use (I.e. from
Irving Berlin and from Decca to use White Christmas)
 Record label often gets an assignment from the composer to grant sub-licenses, that way Decca
can license both licenses at once
 114 (b) – exclusive right to duplicate the sound recording in the form of a phonorecord or copies that
directly or indirectly recapture the actual sound fixed in the recording (i.e. reproduction right in sound
recordings is limited to mechanical or physical reproduction
o The world is free to imitate or simulate as long as not making an actual physical copy of the
sound recording – independent creation (fixation) of other sounds is not an infringement
o Bridgeport – requires 100% independent creation otherwise infringing – courts have not
followed this
o Madonna – allows minimal use of sound recording as long as de minimus
Music Licensing Recap - Who You Going to Call?
Musical
Composition
Reproduction
Performance
In sheet music - copyright owner (usually a music
Publisher)
On Radio TV, Bar, Concert Venue, other
In phonorecords (mechanical license) - Harry Fox
Agency (compulsory License available but not often
used § 115)
In a Movie Soundtrack (synch license) - Copyright
owner (usually Music Publisher
Sound
Recording
In Phonorecords - copyright owner (usually a record
label) for mechanical reproductions (not needed for
imitative recording § 114)
Public Place - PRO (or private license from
composer)
As part of a performance of Movie Copyright Owner (usually Music Publisher)
(often bundled with synch license)
Analog Performance (conventional radio
station) - No license needed (no performance
right in sound recordings)
In Movie, TV, other audiovisual sound track
Digital Transmission (XM, Pandora, Spotify) ("master license" - Copyright Owner (usually Record governed by DPRSRA (not covered)
Label)
The Performance Right
34




One of the exclusive rights. Historically not that important; people expected to make money through
production of physical copies. Evolved for theatre, very important in music now
Ways to perform a work:
o Playing instrument
o Singing/speaking aloud
o Broadcast live over TV or Radio
o Many, many more
Exclusive right to perform the work publicly - 106 exclusive right
o 101 has public performance definition, includes 5 scenarios that constitute "public" performance:
 Public place - whether paid to get into or not (park, theatre, etc.)
 Semi-public place - where more than the usual circle of family and friends are gathered
(wedding, private country club, gym, etc.)
 Transmission to Public Place
 Transmission to a semi-public place
 Transmission to the public - on TV or radio, goes to anyone with a subscription etc. even if
they all view in a private place
o Examples: - DVR sending each user an individual copy was not a public performance; performance
of music at a private golf club was a public performance due to semi-public place beyond the regular
confines of family and friends; VHS rental stores with private booths were considered pubic
performance, like a public toilet; Huckabee use of “Eye of the Tiger” outside in public park, likely a
public performance, settled for 25K, same performance in a venue for the RNC would have been
licensed by a PRO
Not all works get a performance right
o Pictorial, graphical, etc. do not - cannot be performed
o Musical compositions get a performance right
 Radio stations do need licenses - collective licensing agencies (PROs)
o Sound recordings get NO performance rights (except for digital transmissions - Spotify, Pandora)
 Allows radio stations to play sound recordings (though need a license of the composition)
Licensing Performance Rights
 Radio Stations; TV stations; Bars and Clubs
 Transaction costs would be prohibitively high
 PRO - Performance Rights Organizations (grants licenses for groups of musical compositions)
o Societies
 ASCAP - American Society of Composers, Authors, and Publishers (of music) (antitrust
decree, must accept anyone who wants to be part of the group)
 BMI - Broadcast Music Inc. (antitrust decree, must accept anyone who wants to be part of the
group)
 SESAC - invitation only, no antitrust decree
 GMR - Global Music Rights (newest) no antitrust decree
 Many foreign ones that trade with these ones to distribute royalties globally - both ways
o Each society offers a number of licenses for various types of events (hotels, retail stores, clubs,
dance schools, wineries, restaurants, bars, etc.)
o Royalty Calculations
 Heavy users like radio stations have to log everything they play so the PRO knows who they
owe money
 Smaller users - PROs do sampling, literally travel to places to see what is played most/least etc.
to calculate royalties for a given period
o Customary Practices
 Most users will get Blanket License - flat fee to use the music as much as you want
35

Large companies will just get licenses from all the PROs and perhaps several categories
just to be safe
 For live performances, licenses usually obtained by the venue rather than the performer
 Exception is movie industry
 Distributor obtains performance rights at the same time as it obtains synch rights
 Movie theatre does not need PRO license to show movie - would need it for music in the
lobby or between movies, etc.
o The composers/producers are free to license out-side of the PROs - might happen if someone does
not need an entire catalog of works but just a few artists, etc.
Retransmissions
 Under 1909 Act, held not to be performances
o SCOTUS case - is physical cable transmitting TV to homes a performance = NO
o Signal was transmitted to a tower, then retransmitted to the home via cable
 Under 1976 Act, defined by congress to be a performance
o Cable and Satellite systems "perform"
o User performs when turning on the TV
 HOWEVER
o only public performance covered by 106(4)
o Some re-transmitters exempt from liability (passive transmitters, the government, see § 111)
o Many others (cable and satellite TV) are eligible for compulsory licenses (similar to cover songs,
gov. sets the rates)
Limitations on the Right to Perform Works
Exclusive right granted by 1909 law - right to perform a work publicly for profit - private and non-profit were
generally exempted
Exclusive right granted by 1976 law - right to perk a work publicly (i.e. no for profit limitation) - now express
exemptions in § 110:
 110(1) - Face to face teaching; reading a poem, showing a video, playing a song, etc.
o Immunizes the teacher, students, guest lecturers, school from liability for those performances
o Covers all works (broadest of 110 exemptions)
o Performing and displaying is exempt
o Not-for-profit educational endeavors only (bar review, etc. not exempt)
o Must be in a classroom or a similar place (class outside would be covered, field trips covered)
o CANNOT knowingly show an illicit copy of a work (cannot show a bootleg version)
 110(2) - originally for educational broadcasting (old-time had TV channel showing schooling) allowed
performance of works over transmission teaching
o Distance learning now included after an amendment - via internet, etc.
o Only applies to non-dramatic literary or musical works OR "reasonable and limited" portions of
other works
o Must be directed by the instructor as part of systematic instructional activities
o Must be directly related to the teaching content
o Must be solely available for and limited to the students
o Transmitting body (the school) must inform the students and faculty of the copyright law and has
tech that prevents further dissemination or retention of the work and cannot interfere with any digital
rights management
 Must prevent copying or use beyond the students educational outcomes
 110(3) - religious services - allowed to perform works
o Clergy member giving a sermon and quoting lyrics, books, newspaper, etc.
o Only non-dramatic literary or musical works
o Allows performance of dramatico-musical works of a religious nature
36

Like "Handles Messiah" or "Jesus Christ Superstar"
Only if taking place during a service and at a place of worship or religious assembly
Mizel - a religious broadcaster - not allowed to use the exception because transmitting, which is not
covered (likely not place of worship either
110(4) - Non-profit performance
o Allowed to perform publicly for no profit - someone listening to music on the beach
o Only covers non-dramatic literary or musical works
o Only covers performance, not displays
o Must be performance "otherwise than in a transmission to the public"
 Playing a CD, cassette, etc. audible is not a transmission
 Listening to a radio station is not a transmission by the user - he's just making a transmission
audible
o Must be no purpose of direct or indirect commercial purpose
 Can't be used to attract people to business, etc.
o Performer's and promotors cannot be paid
 Band teacher? - if job has other functions and paid salary or hourly, then likely not being paid
for the performance
 Someone performing on street with a hat for money? - he is getting paid, likely not eligible for
the exception
o There must be no admission charge, or net proceeds must be donated to charity
o Arguably protects politicians in public rally playing a song (advantage may be arguable if seeking
donations, etc.) (are the politicians or event staff promotors being paid?)
110(5) - The Homestyle Exemption - publicly played via a Homestyle type device
o Prior to this in early 1960s, case going to SCOTUS held that turning on the radio is not a
performance so cannot be sued for doing so in public - 1976 amendment said that making a
transmission audible is a performance
o Not infringement to communicate a transmission (performance or display) of any work by public
reception of the transmission on a single receiving apparatus of a kind commonly use in private
homes; unless a direct charge is made to enjoy the transmission OR there is further transmission
o Common private home type devices - litigation heavy as technology advances
 Some safe-harbors were made in attempt to clarify in part (b) - but only for music
 Less than 3750 sq. ft. food service business can do whatever; if larger than less than 6
speakers (no more than 4 in one room) or more than 4 TV monitors over 55" with no
more than 1 per room - no direct charge to see or hear - no retransmission - initial
transmission has to be licensed (other business types are same but diff. sq. ft. limitations)
~ in year 2000 held to be a violation of TRIPS agreement (we have been paying rather
than fixing the issue)
o Single receiving apparatus - Claire's case, do we look at each location separately or as a chain of
businesses - each store individually
o Church playing the Super-Bowl? - NFL sued but bad press so dropped the suit
110(6) - Agricultural and Horticultural fairs
110(7) - musical works at a vending establishment
110(8-9) - Performances for people with disabilities
110(10) - Performance of fraternal organizations at charitable events
110(11) - Filtering content out of movies
o Basically, allowed to make derivative of movie on the fly
o
o







114 - digital performance of sound recording act
 Used to be physical objects sold was how revenue was made
o Radio play was considered promotional
 Now everything digital, rarely even pay for music
37
Table
Free (Non-Subscription)
Paid (Subscription)
No user control over
content
(Non-Interactive)
FM Radio transmission digital signal over the air
Free broadcast TV
Webcasting
Pandora?
XM Radio
Digital Music Channels bundled w/ TV
Digital broadcast transmission by FCC licensed
stations EXEMPT - streaming or Webcasting
compulsory licensing
User Controls
Grooveshark
Content (Interactive) Rdio
Must Negotiate Licenses
Compulsory Licensing (unless
program guide published or SRPC
exceeded)
New - Napster
Amazon Prime
Spotify Premium
Must Negotiate Licenses
38
Cases
Fixation/Authorship
 Kelly v. Chicago Park
Fixation
o Garden not fixed, continually changing
 Cartoon Network v. CSC (1)
Fixation; Duration
o Transitory duration of digital copy is not fixed
 US v. Mortingnon
Fixation; Live Performance
o Cannot bar one from recording a live performance under copyright clause, but can with the
commerce clause
o Not a new right, but a layer of protection for live musical performers
 William Elect. v. Artic Int'l
Fixation; Interactive
o Video game is fixed despite interactive nature, software fixed on hard drive
o Interactive does not alter authorship
Originality
 Bleistein v. Donaldson Lithography
Originality
o Ct. cannot say what is valuable - circus poster
o Depictions of real-life can be original
 Prunte v. Universal Music
Originality; Scenes a Faire
o Common themes, phrases, clichés lack originality
o Promiscuous girls in rap song
 Mannion v. Coors Brewing
Originality; Photography
o Kevin Garnet bling photograph
o Rendition, Timing and Creation are original
 L Battlin v. Snyder
Originality; Derivative Works
o Uncle Sam Bank; Work based on pre-existing work may be original
o Requires more than trivial changes
 Garcia v. Google
Originality/Author; Derivative Works
o Anti-Muslim movie; actress did not have enough control to be considered author
o It’s a derivative of the script; generally in movies, small parts have no copyright
o Also like compilations, breaking down larger works into component parts
Limitations
 Feist Pub. v. Rural Telephone
Facts
o Telephone number and address are factual, not protected, no infringement for copying facts
o Compilations of facts may be protected
 Hoehling v. Universal Studios
Facts; Interpretation of History
o Hindenburg disaster theory presented as factual is treated as factual
 CCC Information v. Maclean Hunter (1)
Facts
o Valuation of cars in given markets (quasi-factual)
o Significant discretion in developing data tables constituted expert opinion, protectable non-facts
 Nichols v. Universal Pictures
Abstract Ideas
o Play based on stereotypes; movie based on stereotypes
o Not protected at high level of generality, copying of expression of ideas is protected
 MGM v. American Honda
Abstract Ideas; Characters
o James Bond-esque commercial
o Sufficiently delineated or Story being told test
 CCC Information v. Maclean Hunter (2)
Abstract Ideas; Merger
o Expression essential to the underlying ideas merges the expression with the idea and no
protection
A
o
Valuation opinions are not essential to understanding car resale, no merger
 Baker v. Selden
Useful Articles; Blank Forms
o Book-keeping method; use of method not protected, but expression explaining it is
o Blank forms needed to use the method are not protected
o Comparison with patent law
 Utopia Provider Sys. v. Pro-Med Clinical
Useful Articles; Blank Forms
o Medical patient information forms; held not protected
o Conveyed no information or creative expression, just recorded typical information
 Apple CPU v. Franklin Computers
Useful Articles; Software
o Operating systems are useful, the end result is not protected
o Underlying software code is protected unless merger with the end result
 Mazer v. Stein
Useful Articles; PGS Separability
o Table lamp statuette – copyright not lost by incorporation into a useful device
o Eligibility for a design patent does not bar copyright protection
 Galians v. Harrahs Operating Co
Useful Articles; Separability Tests
o Uniforms for the Casino; useful articles with no market value outside the use
o Several conceptual separability tests outlined
Infringement
 Arnstein v. Porter
Infringement; Elements
o Access and substantial similarity are sufficient to show copying
o More substantial the similarity, the less important the other factors become
 Jones v. Blige
Access; Corporate Receipts
o Corporate receipt too attenuated to constitute access (usually)
o Without substantial similarity, corp. receipt will likely always fail
 Bright Tunes Music v. Harrisongs Music
Access; Popular Work
o Fact that a work is very popular (#1 on US charts) is sufficient for access, especially given the
substantial similarity of the two works
 Price v. Fox Entertainment
Striking Similarity
o Sticking similarity can prove infringement without access; dodgeball
o So similar that independent creation not possible
o Expert testimony can be sued to show striking similarity in technical sense, but the standard
remains the lay persons response to the work
 Gottlieb Development v. Paramount Pictures
De Minimus
o Pinball machine was just in the background, had no effect on story, always obscured
 Allen v. Scholastic Inc.
Reasonable Lay Observer
o Harry Potter vs Willie Wizard; only similarities were non-protected elements (scenes a faire)
o Evoke significantly different feeling in readers, lay observer would not find similarity
 Boisson v. Banon
More Discerning Observer
o Alphabet quilts; remove public domain elements (the alphabet) before comparing the similarities
 Computer Associates v. Altai Inc.
Abstraction-Filtration-Comparison
o See A-F-C tab in Pink
o At lowest level no similarity, at next level all merged, at highest all public domain or scenes a
faire
Fair Use Doctrine
 Sony v. Universal Studios
Fair Use; Elements
o Betamax time-shifting is fair use
o Held non-commercial and not harming the potential market
 Harper & Row v. Nation Enterprises
Fair Use; Unpublished
o President Fords memoir; took heart of the memoirs, most interesting portion
o Infringed, unpublished is more likely to infringe
 Campbell v. Acuff-Rose
Parody
B
Parody is presumptively fair use, highly transformative, doesn’t directly compete with the
original work
o Parody must comment upon the original work or author in someway
 Princeton University Press v. Michigan Document Services
Lost Licensing; Classroom Use
o Reprinting portions of books in collections and selling them to students is not fair use
o Commercial reselling despite educational purpose, look at widespread effect
o Guidelines of classroom use set out what constitutes fair use in that context
 Authors Guild v. Google Books
You Know
o Google books snippet view is fair use despite quasi-commercial nature, copying of the entire
work to make digital copy; highly transformative and not directly competing with the underlying
work
o Copy entire work if necessary for the use, cannot display or disseminate the entire work
 Perfect 10 v. Amazon Inc.
Research Tool; Public Benefit
o Thumbnails of porn site photos; serve different function within a research tool; provides new
information
o Transformative, little market effect- limited or no market replacement, only advertising revenue
for ∆
o Significant public benefit
 Sega Entertainment v. Accolade
Reverse Engineering
o ∆ video game maker; copying the code needed to make a compatible game is fair use
o Holding otherwise would give Sega an unofficial monopoly
Secondary Liability
 Cartoon Network v. CSC Holdings (2)
Direct Infringement
o DVR exist solely to record shows; the customer decides what is copied, not the company
o Customer/user is the direct infringer (secondary liability not alleged here, but likely could be
held a contributory infringer)
 Fanovisa Inc. v. Cherry Auction
Vicarious Liability
o Swap meet w/ booth selling bootleg CDs, held vicariously liable and contributority liable
o Control = maintain/patrol premises, right to terminate/deny vendors, promoted event, control
admissions
o Financial Interest = rental payment, admissions, parking, all from the infringer customer
o Knowledge admitted; material contribution was providing space, utilities, parking, advertising,
and sales
 MGM Studios v. Groskster
Inducement
o Peer-to-Peer sharing; advertised to known infringers, no attempt to filter out infringing activity,
used infringing activity in demonstrations/advertisement, should have known it was infringing
based on recent Napster closing, etc. = active inducement, liable as contributory infringer
o Only real use was for infringement (i.e. no significant non-infringing uses)
 Viacom v. YouTube
DMCA
o Remand to see if they quality for 512(c) safe harbor; If they had specific and identifiable
knowledge of infringing activity then they do not qualify
o Some emails within YouTube suggest they might have known and chosen not to take-down
o Might be willful blindness, which would be sufficient to disqualify them
Digital Rights Mgmt
 MDY Industries v. Blizzard Entertainment
Digital Rights Management
o World of Warcraft Bot; the protection only blocks the online hacking actions, so the non-blocked
stuff on the hard drive is not subject to 1201 protections
o 1201 (a)(2) violation for circumventing the protection that blocks bot access to the dynamic
elements (it was designed to block bots, and the new bot was specifically designed to get around
it = violation)
Formalities
C
o

Wheaton v. Peters
1909 Formalities
o SCOTUS court reporters, both wrote summaries of cases, etc. the second wrote a book that
included many of the first’s writings
o The first did not register, give notice, or deposit the writings so no valid copyright over them
 Academy of Motion Pictures v. Creative House
General v. Limited Publication
o Oscar trophy; need not comply with copyright formalities because was not generally published
o Limited publication – select group w/ limited purpose and no right to transfer
o Eventually did comply with the formalities, question was whether propelled into public domain
do to non-compliance before that date; held no, due to limited publication
 Nutt v. National Institute for Memory Improvement
Performance as Limited Publication
o Public performance of a musical or dramatic work is not an abandonment of state common law
protection
o Performance typically viewed as a limited performance
 Letter Edged in Black v. Public Building Commission of Chicago General Publication through Display
o Statue given to Chicago by Picasso; got much media/news attention and the images given to
reporters did not have a notice = general publication and abandonment of protection (i.e. into
public domain)
 Sidwell v. Real Estate Data Inc.
Notice
o Improper notice propels into the public domain
o Here the ∆ put a notice that it was his, even though it was π = improper notice and into public
domain
 Shapiro v. Royal Mills
Notice Affixation
o Notice must be affixed to the work, not sufficient to include a separate flier with the work
o Must be affixed to an integral part of the work
 Hardwick Airmasters v. Lennox
Notice Pre-1989
o If notice is improper, allowed an opportunity to correct w/in 5 years of publication by registering
and reasonably attempting to affix notice to all copies issued
o Here, distributed letter for more than 5 years without correcting informalities = no valid
copyright
 Troll Co. v. Uneeda Doll Co
Restoration of Copyright
o Sold trolls in US without notice = public domain (in 1960s); the copyright was restored in 2000
o Held ∆ was not a reliance party and therefore cannot continue to exploit the trolls.
Ownership
 Andrian v. S. Ocean County Chamber of Commerce
Authorship
o Dispute between the π who compiled data for maps and drew first versions and the ∆ who
translated them into comprehensive tourist maps - ∆ is not an author if his contribution was rote
or mechanical without intellectual contribution
 Aalmuhammed v. Lee
Contribution to Joint Works
o Π trained Denzel on Malcolm X’s life; yes he contributed to the film and insured historical
accuracy, but he was not an author – never had control of the movie
 Green (didn’t read)
Derivative of Joint Works
o Psychology book collaboration, then one of the co-authors used the work in presentations
o Co-authorship does not require equal or similar amount of contribution
o Between the Joint Author and Fair Use tabs, dog-eared
 Gaiman v. MacFarlane
Unprotected Individual Contributions
o Π wrote one issue of ∆ comic books, ∆ continued using π characters in future books (π wrote
stories, descriptions, ∆ drew them)
o Neither contribution is separately protectable, but together they are, each is considered a coauthor
 Community for Creative Non-violence v. Reid
Made for Hire; Employee Status
o Collaboration for homeless Jesus; no K so only for hire if he is an employee
D
The ∆ had no control over the means/manner of π work = not an employee
 Avtec Systems v. Peiffer
Made for Hire: Scope of Employment
o Undisputed he is an employee, question as to whether a program created mostly at home is
within the scope of employment; similar to type maed at work, but done almost exclusively at
home and not motivated by the company = not within scope of employment
 Morris v. Atchity
Made for Hire; Contractor
o Planning to make a movie of a novel; can the novel qualify as a commissioned work for hire?
o NO – not in the enumerated list.
 Veeck v. S. Building Code Congress
State Gov. Ownership
o A city adopted ∆ codes verbatim as their building regulation; π held free to reproduce on a
website for the local citizens to access – cannot bar reproduction of binding law
o ∆ advertised as adoptable law and promoted adoption of their regulations – goes into public
domain when adopted as law
Duration
 Eldred v. Ashcroft
Challenge Sony Bono Extension
o Argue that getting so long no longer a constitutional limited term
o Congress has power to determine policy for duration
 Fred Fisher v. Whitmark
Assignment of Renewal, Living Author
o One is free to assign a renewal term prior to the renewal date – it is an option
o Author was alive when the renewal happened, binging K assigning renewal to ∆
 Miller Music v. Charles Daniels
Assignment of Renewal, Dead Author
o Author assigned renewal, then died; his heirs assigned renewal to 3rd party
o Renewal assignment is an expectation that is only realized if the author lives to renew
 Stewart v. Abend
Derivative Work, Dead Author
o Renewal right in derivative work granted then author died; derivative nature of a work changes
nothing, the renewal still goes to the heirs to do what they wish
Reproduction in Phonorecords
 Newton v. Diamond
De minimus Sampling
o Musical composition called for improvisation, so the sound recording was de minimus use of the
composition – use of the sound recording was a sample, subject to regular de minimus
 UMG v. Augusto
First Sale Doctrine
o Distributed promotional CDs; applied the first sale doctrine, the recipients were free to do with
them what they pleased
o If distributor has a system to track-down and retrieve items given away, then might be the case
that first sale does not apply and there was a license to limit further distribution, etc.
 Bridgeport Music
114 Imitations
o Rights in sound recordings extends only to physical copies, others are free to imitate or simulate
the sound recording without infringing – although they may be infringing upon the underlying
musical composition
o Read the require complete independent recreation – ANY reproduction of the sound recording
leads to infringement (WRONG)
 Ciccone (Madonna)
114 Imitations
o Also applied 114 for independent recreation of a sound recording – applied de minimus to see if
some underlying use of the sound recording was okay – what most courts would do
 Cartoon Network v. CSC Holdings (3)
Public Performance
o Public performance? No, it was broadcast to individuals upon request, not broadly to a wide
audience – individual copies sent to individual users
o If there was one copy that served all users, then it likely would have been considered public
 Aereo
Transmission v. Retransmission
o Provide TV on mobile devices by using a series of tiny antennas; qualify as retransmission rather
than a transmission – held bullshit, acting significantly similar to cable TV and liable
E
o