Copyright Basics
1. Literary Works
a. Books
b. Articles
2. Pictorial Works
a. Movies
b. Sculptures
c. Paintings
d. Photos (more creative input put into it then more protection, unless thin copyright,
Harney case)
i. Was it setup? (more protection)… candid photo (less protection)..
e. Designs (Star Athletica Case)
i. “Copyright protects original “pictorial, graphic, and sculptural works,” which include
two- and three-dimensional works of fine, graphic, and applied art.”
ii. “In sum, a feature of the design of a useful article is eligible for copyright if, when
identified and imagined apart from the useful article, it would qualify as a pictorial,
graphic, or sculptural work either on its own or when fixed in some other tangible
medium.”
f.
Tattoos
3. Dramatic/ performing art Works
a. Plays
b. Operas
c. Screenplays
4. Musical Works
a. Compositions (lyrics & beats)
b. Sound recordings
5. Choreograph
a. Ballets
b. Organized dances
c. NOT social dance moves
6. NOT Protected
a. Facts (Feist case)
b. Ideas
c. Speeches (Fritz Case, taking notes on speech)
d. Recipes
e. Short phrases (Taylor Swift Case) (can get some protection if you “dress it up” protect it
as visual work, copyright protection for artistic portion)
f. Procedures/ sequences (Birkram Yoga case)
g. Social Dance Moves (2 Milly Case, Fortnite Case)
h. Unfixed works (Fritz Case, taking notes on speech)
i. U.S. Govt works
j. Titles
k. Names
l.
Short phrases (Taylor Swift Case)
Governing Law
1. Copyright Act of 1976 and U.S. Constitution, Article I, Section 8
Duration (Eldred v. Ashcroft)
1. Solo artist: life + 70 years
2. For corporation: 95 years from publication or if unknown, 120 years from date of creation
a. Publication: when you make your work available to the public (no exact def)
Compulsory License
1. Pay original author to make re-recording
2. Also pay to make public performance
3. Musicians can make re-recordings of other artists songs. (faithful rendition)
a. Composer of song gets all royalties
Exclusive v. Non Exclusive
4. Exclusive license must be in writing, non exclusive does not
5. Exclusive is specific to that one person, cannot give that right to anyone else (license to make
movies)
a. Exclusive Licensee now stands in the shoes of the original owner. If someone infringers
on Harry Potter, both JK Rowling and Warner Brothers can sue.
b. “As long as the original owner retains some beneficial interest in the copyright.”
(Fathers and Daughters Case)
6. Licensor receives rights and can exercise rights and sue over rights given in license
7. Original owner still owns copyright, just don’t have rights
8. Exclusive means only licensee has ownership of those rights, not even transferor (JK Rowling
cannot make derivative works if give exclusive license to WB for derivative works)
9. Non exclusive license does not have to be in writing, can be oral
10. Can give as many non exclusive license to anyone
a. Can be bought back/ taken back
11. Non exclusive licensee cannot give sub licenses
a. Exclusive licensee can give other licenses
12. Non exclusive license is one time thing
Public Domain
13. When Copyright is lifted, now freely usable in the public
14. Works in the public domain cannot be re-registered under copyright, and if used, are not
original.
Thin Copyright
When a work consists of noncopyrightable material, such as facts, historical figures, recipes,
etc., copyright protection only extends to the copyrightable portions of the material which may result in
a “thin” copyright.
To Have a Copyright : “copyright protects original works of authorship fixed in a tangible medium that
falls under the subject matter of copyright
1) Author/ Owner
a) Show registration (easiest/ best)
b) Show evidence that you created it
2) Original work
a) Independently created
b) “must show a modicum of creativity” (Feist Case) (Taylor Swift Case)
3) Fixed in a tangible medium
a) “Fixation is met when the work can be directly perceived or perceived through aid of a machine.
Work must be in a tangible medium of expression”
4) Must be covered in copyright/ a copyrightable work
a) (pictorial work, musical work, dramatic work, etc..)
Copyright Infringement… must prove (if no registration then must also show copyright, (above))
1) Ownership/ Authorship including originality
i) Work must be sufficiently original to qualify for ownership
b) Author of the work/ writer (registration best way to show ownership, prima facie)
c) Exclusive License
d) Transferee
i) SoF applies to copyright transfers
e) Work for Hire
i) Employee
ii) Specially Commissioned work
f) (THEN DO TO HAVE A COPYRUGHT ANALYSIS IF YOU HAVENT TALKED ABOUT IT YET)
2) Violation of Exclusive Right
3) Access (Walt Disney Case,
a) The defendants opportunity to view or hear the work
b) More than a mere possibility
c) Proof of access can be established by direct or indirect evidence
d) “Access can be established by way of circumstantial evidence.
i) A court will consider either:
(1) (1) a particular chain of events which establishes a link between plaintiff’s work and the
defendant’s access (e.g., dealings with a movie studio or record label), or
(2) (2) that the plaintiff’s work has been widely disseminated.
e) (sending something to a studio is not enough)
4) Substantial Similarity
5) Unlawful appropriation/ copying (access and substantial similarity)
a) A subjective examination focused on whether the copying was wrongful and has crossed the lne.
This question is left up to the jury.
Who Can Sue?
15. Original owner
16. Owners of exclusive licenses
a. “As long as the original owner retains some beneficial interest in the copyright.”
(Fathers and Daughters Case)
Who Can They Sue?
1) Direct Infriger: the copying artist, the person who leaked song
2) Indirect Infringer
a) Ability to supervise, AND
b) Financial benefit in the situation
Direct v. Indirect Infringer
1. Direct Infringer (always a direct infringer)
a. Copying artist violates exclusive right
b. Person who leaked song/ work
2. Indirect Infringer
a. “One who knowingly induces, causes or materially contributes to copyright
infringement, by another but who has not committed or participated in the infringing
acts him or herself, may be held liable as a contributory infringer if he or she had
knowledge, or reason to know, of the infringement.”
b. Contributing Copyright Infringement
i. Has knowledge of anothers infringement
ii. Either materially contributes to or induces infringement
1. Materially contributes
a. Has actual knowledge that specific infringing infringing material
is available, AND
b. Can take simple measures to prevent further damage to works,
yet continues to provide access to infringing works
2. Induces Infringement
a. The distribution of a device or produvt
b. Avts of infringement
c. An object of promoting its use to infringe copyright
d. Causation
c. Vicarious Copyright Infringement
i. The right and ability to supervise
ii. A direct financial interest in the infringing activity
Exclusive Rights
1) Reproduction (Fathers and Daughters Case (downloading movie violated reproduction and
distribution)
a) A person copies an owner’s work
2) Derivative Works
3) Distribution (Fathers and Daughters Case (downloading movie violated reproduction and
distribution)
a) “First Sale Doctrine”- owner has control over first sale, but once sold, buyer has rights to do
whatever they want with that copy, they can sell that copy or give that copy away (just cant
reproduce or publicly perform)
b) People cannot download and distribute the work, even if they do not make any money
c) Does not require that you make a profit off of distributing (going to campus and handing out the
song for free is still violation of distribution
4) Public Performance
a) Cannot perform or play the work in public without a license
b) Cannot perform work outside close circle of family and friends
c) Radios do not need license?
5) Display
a) Mostly for literary and visual works (art)
b) Cant show work without authors permission (art piece in TV show)
6) Digital Auto Transmission
Derivative Works
1. “A derivative work is a work derived from one or more already existing works. The derivative
work is often referred to as the adaptation right.”
2. “common derivative works include translations, musical arrangements, motion picture versions
of literary material or plays, art reproductions, abridgments, and condensations of preexisting
works.”
3. “to be copyrightable, a derivative work must incorporate some or all of a preexisting work and
add new original copyrightable authorship to that work.”
4. “the copyright in a derivative work covers only additions, changes, or other new material
appearing for the first time in the work. Protection does not extend to any preexisting material,
that is, previously published or previously registered works or works in the public domain or
owed by a third party.”
a. Ex’s:
i. Movie based on book or play
ii. Translations of a book into another language
iii. Sculpture based on drawing
iv. Revision of a previously published book
v. Drawing based on photographs
vi. Musical arrangement of a preexisting work
vii. A new version of an existing computer program
viii. An adaptation of a dramatic work
ix. A revision of a website
b. For Songs: if use someones song and completely make new song (unfaithful rerecording) then yes derivative work
i. If faithful, true re-recording, then NOT derivative work and covered through
compulsory license.
Substantial Similarity (Stallone case and Led Zepplin Case)
1. 2 Tests
a. Extrinsic Test
i. Is objective and compares external similarities of specific expressive limits in the
two works
1. Use of experts
2. Themes, plot, tone, idea, setting, dialogue, mood
b. Intrinsic Test
i. “Examines an ordinary person's subjective impressions of the similarities
between the two works, and is the exclusive province of the jury.” “Under
intrinsic similarity, the jury does a purely subjective evaluation of the total
concept and feel of the two works. Expert testimony is not allowed on this
issue.”
Joint Authorship (Aalmuhammed Case, Horror Inc. Case)
1) Two or more people have intent that their contributions be merged into inseparable,
interdependent parts of a unitary whole.
a) Intent that their portions be used in joint work
i) Intent must be objective/ expressed
ii) Billing?
iii) Decision making authority
iv) Courts also look to see “whether the claimed author "superintended" the work by exercising
control; whether the parties made "objective manifestations of a shared intent to be
coauthors"; and whether "the audience appeal of the work turns on both contributions and
the share of each in its success cannot be appraised."
b) AND, Individual parts contributed are copyrightable
(1) Joint authors don’t need permission to do work on their jointly owned property
(2) Joint authors cant sue each other for copyright infringement
2) For Joint Authors, notice of termination must be joined by majority of owners who transferred their
copyright interests
3) Joint authors cannot file copyright infringement against each other.
Work Made for Hire
1. Must be in writing, say “work made for hire”
2. WMFH are not subject to termination
3. 2 Ways to establish Work Made for Hire
a. Employment
i. Factors for Employment
1. Skills?
2. Salary?
3. Benefits?
4. Offifce?
5. Instructions from boss? Control?
6. Given tools?
7. Duration of relationship between parties
ii. Creation must be within scope of employment
b. Specially Commissioned works (independent contractor)
i. Need to sign something giving up that work, AND
ii. Must be in list of specially commissioned works (check prof outline to see
detailed list)
1. ON LIST:
a. Motion pictures
b. Audio visuals
c. Contribution of Collective work (magazines with articles)
d. Video games
e. Tv shows
2. NOT on list
a. Music
b. Sound recordings
c. Literary works
Merger Doctrine/ Scene a Fair Doctrine
1) If idea and expression of idea are so tied together that idea and expression are one- only one way or
juristically limited way to express idea, then considered idea and not copyrightable
a) Ex: the bee, gadgets in spy movie, love scenes in romance movies
Registration
17. Benefits:
a. Registration is prima facie evidence of ownership/ prerequisite to filing a lawsuit suit for
copyright infringement
b. Allows access to federal courts
c. Can sue for statutory damages and attorneys fees
d. Establishes a date of creation
18. Only 1 registration per work
19. To Register:
a. Complete form
b. Pay fee
c. Submit deposit of work to copyright office
20. For Infringement lawsuit, work must be registered before suit or within 3 months after the first
publication of work
21. If registration is granted more than 3 months after publication, cannot get statutory damages/
attorney’s fees
22. Also cannot get statutory damages if infringement occurred before registration.
23. Copyright granted when registration approved/granted not when app. Filed (Fourth Estate
Case)
a. Exceptions:
i. expedited registration
ii. live broadcast
1. can sue for infringement after live broadcast if seeking registration 3
months after live broadcast
Registration Rejection
1. Outside copyright coverage
2. Work not fixed
3. Work lacks human authorship
Transferring/ Terminating Copyrights (Scorpio case)
1. Can sell/ transfer copyright
a. Needs to be in writing (statute of frauds)
2. Termination “allows original authors to recapture their works after the statutory period of 35
years.
3. Requires notice of intent to terminate between no more than 10 years and not less than 2 years
before the effective date of termination
4. Termination 2-Step
a. Identify who holds the rights to terminate and get agreement with multiple parties
b. Calculate the time for termination/ choose date
c. Calculate notice periods to serve notices
i. Notice needs to be given no later than 10 years before date of termination
d. Identify/ locate parties to be served
e. Draft a perfect termination notice correctly, record with copyright office
5. Works made for hire are not subject to termination
6. For Joint Authors, notice of termination must be joined by majority of owners who transferred
their copyright interests
7. All rights revert back to authors or heirs upon effective termination
Sound Recordings
5. Original composer holds rights
a. Gets:
i. Mechanical royalties
ii. Performance royalties
iii. Rights to give licenses
6. For Music, separate sound recording and composition when talking about licenses
Synchronization License
7. Need separate license for music to play music alone and play music in connection with visual
work.
Character Copyright Test (batman and even the batmobile) (DC Comics Case)
1. Character must have physical and conceptual qualities
2. Character must be so “sufficiently delineated” to be recognizable as the same character
whenever it appears; display consistent, identifiable character traits and attributes, although
appearance may change.
3. Character must be distinctive and contain unique elements of expression, cannot be stock
character.
Direct v. Indirect Infringer
3. Direct Infringer (always a direct infringer)
a. Copying artist violates exclusive right
b. Person who leaked song/ work
4. Indirect Infringer (Perfect 10 case)
a. “One who knowingly induces, causes or materially contributes to copyright
infringement, by another but who has not committed or participated in the infringing
acts him or herself, may be held liable as a contributory infringer if he or she had
knowledge, or reason to know, of the infringement.”
b. Contributing Copyright Infringement
i. Has knowledge of anothers infringement
ii. Either materially contributes to or induces infringement
1. Materially contributes
a. Has actual knowledge that specific infringing infringing material
is available, AND
b. Can take simple measures to prevent further damage to works,
yet continues to provide access to infringing works
2. Induces Infringement
a. The distribution of a device or produvt
b. Avts of infringement
c. An object of promoting its use to infringe copyright
d. Causation
c. Vicarious Copyright Infringement
i. The right and ability to supervise
ii. A direct financial interest in the infringing activity
Defenses
1. Copyright Statute of Limitations
a. 3 years from the date the claim accrues
i. Accrues: when P knew or should have known of infringing activity
ii. Discovery Rule: “Does not accrue until copyright holder discovers or with due
diligence should have discovered the infringement”
b. New clock when infringe again
2. Statute of Frauds
a. All transfers of copyright must be evidenced by writing (exclusive license and work made
for hire and transfers)
3. Independent Creation
a. “Before you came up with your work, we already thought/had our work”
b. Where the defendant establishes they created the work without reference or
knowledge of the plaintiffs work
4. De Minimis Defense
a. What we copied was so small that it basically doesn’t matter
5. Non Originality/ Idea-Expression
a. Your work is not original or is simply an idea/ not fixed
6. License Must Be in Writing
a. All transfers must be in writing
7. “First Sale Doctrine”
a. - owner has control over first sale, but once sold, buyer has rights to do whatever they
want with that copy, they can sell that copy or give that copy away (just cant reproduce
or publicly perform)
8. Merger Doctrine / Scene a Fair Doctrine
a. If idea and expression of idea are so tied together that idea and expression are one- only
one way or juristically limited way to express idea, then considered idea and not
copyrightable
i. Ex: the bee, gadgets in spy movie, love scenes in romance movies
9. Fair Use, requires “transformative use”
a. Fair: Purpose and Character
i. Commercial v. non commercial
b. Nature of copyrighted work
i. Creative or factual
c. Amount and substantiality of the portion taken
d. Impact on the market
i. Whether the use deprives the copyright owner of income or undermines a new
or potential market for the copyrighted work. Depriving a copyright owner of
income is very likely to trigger a lawsuit.
e. Fair Use Examples:
i. Criticism
ii. Comment
iii. News reporting
iv. Parody
v. Teaching
vi. Scholarship
vii. Research
Remedies
1. Actual Damages
a. P’s loss in profits/ sales
b. D’s profits/ gains
2. Statutory Damages
a. Willful infringement vs non willful infringement
3. Preliminary Injunctive Relief
a. Requires showing:
i. Irreparable harm (presumed in copyright case)
ii. Likelihood of success on the merits (monetary damages wont suffice)
iii. Balance of hardships/ equitable considerations
4. Attorney’s Fees
a. Factors:
i. Degree of success obtained on the claim
ii. Frivolousness
iii. Objective reasonableness of factual and legal arguments
iv. Need for compensation and deterrence.