Legal Environment
Randy Canis
CLASS 4
Court Procedures;
Formation of Corporations;
Copyright Law pt. 1
1
Court Procedures
2
Procedurals Rules
• Federal Rules of Civil Procedure – governs
all civil trials held in federal district courts
• States – state rules of civil procedure
• Court – local rules of procedure
• What is local counsel and why would a
company hire local counsel for litigation?
• What is pro hac vice?
3
Stages of Litigation
• Pretrial
• Trial
• Postrial
4
Stages in Greater Detail
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
Event
Attorney consultation
Prefiling investigation
Plaintiff files complaint
Defendant notified of complaint
Answer to complaint or motion to dismiss
Motion for judgment of the pleadings
Discovery
Motion for summary judgment
Additional discovery
Pretrial conference
Trial
Postrial motions
Appeal
Judgment enforcement and collection
5
Attorney Consultation
• What to expect in an initial
consultation
• Charge for initial consultation?
• Conflict check
– Subject matter conflict
– Party conflict
• Engagement letter
6
Prefiling Investigation
• How extensive must the prefiling
investigation be?
• What are rule 11(b) sanctions?
By presenting to the court a pleading, written
motion, or other paper — whether by signing,
filing, submitting, or later advocating it — an
attorney or unrepresented party certifies that to the
best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under
the circumstances:
7
Rule 11(b) Requirements
(1) it is not being presented for any improper purpose, such as
to harass, cause unnecessary delay, or needlessly increase
the cost of litigation;
(2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or
discovery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably
based on belief or a lack of information.
8
Example Rule 11 Sanction
• “On Friday, New Haven, Conn., federal district court Judge
Janet Bond Arterton granted a motion for Rule 11 sanctions
(pdf) against Labaton Sucharow and Barroway Topaz
Kessler Meltzer & Check, lead plaintiffs counsel in a failed
securities class action against Star Gas. Arterton agreed with
Star's counsel from Skadden, Arps, Slate, Meagher & Flom
that the class' claims were almost entirely without merit, and
that Labaton and Barroway knew as much early in the
litigation. She ordered the plaintiffs firms to pay all of Star's
attorney fees and costs.”
• Taken from and as reported by Law.com
• http://www.law.com/jsp/article.jsp?id=1202473060848
9
Complaint
• Filed by plaintiff
• Contains a sworn statement alleging:
– Facts showing court has jurisdiction
– Facts establishing the plaintiff’s basis for
relief
– Remedy the plaintiff is seeking
10
Example Portion of a
Complaint
•
•
•
“JURISDICTION AND VENUE 6. This is a complaint for trademark
infringement, trademark dilution, and unfair competition arising under the
Trademark Act of 1946, 15 U.S.C. §§ 1051, et seq., as amended (the
“Lanham Act”), for common law trademark infringement and unfair
competition and for trademark dilution under the laws of the State of
Missouri. 7. This Court has original subject matter jurisdiction over Plaintiff’s
claims pursuant to 28 U.S.C. §§ 1331 and 1338 and 15 U.S.C. §§ 1116 and
1121. This Court has supplemental jurisdiction over state law claims under
28 U.S.C. § 1367. 8. This Court has personal jurisdiction over Defendants in
that they do business and reside in the State of Missouri and in this District.
9. Venue is appropriate in this judicial district under 28 U.S.C. § 1391 in that
Defendants are subject to personal jurisdiction in this judicial district, and
this is the District in which events giving rise to the claims hereinafter set
forth occurred.”
Taken from the complaint filed by North Face Apparel Corp against South
Butt
http://www.scribd.com/doc/24087595/South-Butt-Complaint
11
Service
• Service of Process
– Formally notifying the defendant of a
lawsuit
– Complaint and a summons
• Method of Service
– Process server
– Mail
– Other acceptable rules
• How are corporations served?
12
Answer
• Response to the complaint
• Admit or deny each of the plaintiff’s
allegations
• Affirmative Defenses
• Counterclaims
13
Example Answer
•
•
•
•
•
“12. Defendants admit Plaintiff uses the phrase NEVER STOP EXPLORING
on some of its marketing materials and products. Defendants are without
information sufficient to form a belief as to the veracity of the remaining
allegations contained in this paragraph and, therefore, deny same.
13. Defendants are without information sufficient to form a belief as to the
veracity of the allegations contained in this paragraph and, therefore, deny
same.
14. Defendants admit Plaintiff has attached documents to its Complaint
which it has identified as Exhibit A. Defendants respectfully refer the Court
to the documents themselves for a complete determination of their terms
and proper interpretation. Defendant is without information sufficient to form
a belief as to the common law lights Plaintiff identified in this paragraph and,
therefore, deny same.”
Taken from the response filed by South Butt:
http://amlawdaily.typepad.com/files/southbuttreply.pdf
14
Motion for Summary
Judgment
• Judgment without a trial
• No facts are in dispute
• Question is how the law applies to the
facts
• Evidence is viewed in light most
favorable to other party
15
Discovery
• Allowed for any matter that is relevant
to a claim or defense of a party
• Information that is relevant or likely to
lead to relevant information is
discoverable
• Electronic discovery discussion
16
Scope of Relevancy
• The test for whether something is discoverable is
based on the relevancy of the subject matter and
not admissability of the material at trial.
• What is discoverable
– Info about matters that are not in dispute but
are relevant
– Information about witnesses
– Insurance coverage
– Financial Status
17
Depositions
• Sworn testimony by a party to the
lawsuit or by any witness
• Recorded by a court official
• Creates ability to impeach at trial
18
Limits on Scope of
Deposition
• Depositions may be taken by telephone and other than
stenographically
• All parties may pose questions
• No more than 10 depositions per party
• Generally can’t depose the same person more than once
without stipulation or leave of the court
• Objections to Questions
• Witness may be instructed not to answer to
– Preserve a privilege
– Enforce a limitation on evidence imposed by the court
– Present a motion for a protective order
• Deposing attorney may seek motion to compel
19
Use of Depositions at Trial
• Depositions are generally not admissible at trial
because they are hearsay
• Depositions may be admissible when:
– Deposition statements by party witnesses are admissible
against those parties
– To impeach a nonparty witness who has changed their
story
– Deposed party is unavailable (e.g., dead or sick)
20
Interrogatories
• Written questions for which written
answers are prepared and signed
under oath.
21
Duty to Respond
• When responding, the party must provide facts
known by the party and facts that are available to
the party
• The party must answer or object within 30 days
• The party must investigate if they don’t have
personal knowledge but have access to the
answer
• If extensive search would be required, the party
can specify the pertinent records and give the
asking party access to the records.
22
Rules of Evidence
• Evidence presented during trial is fair and
reasonable
• Relevant evidence tends to prove or
disprove a fact in question or to establish
the degree of probability of a fact or action
• May not be admitted if reliability is in
question or if its probative value is
substantially outweighed by other
considerations
23
Objections at Trial
•
•
•
•
•
•
Argumentative Questions
Lack of Foundation
Assuming Facts Not in Evidence
Questions Calling for Narrative
Non-Responsive Answer
Repetition
24
Argumentative Questions
• Question: (Cross-examination of defendant in
automobile crash case.) How can you testify that
the light was green when you drove your car into
the intersection? The fact of the matter is that you
didn’t see the light; otherwise, your car would not
have struck the plaintiff. Right?
• Objection: I object. Argumentative, your honor,
Rule 4.17.1, Fed. R. Evidence
25
Lack of Foundation
• Question: What color did the traffic light show for
eastbound automobiles?
• Objection: I object. Foundation not shown, your
honor. Rule 4.17.2, Fed. R. Evidence
26
Assuming Facts Not in
Evidence
• Question: After the red car drove through the stop
sign, where in the intersection did the collision
occur? (Witness earlier had testified only that she
saw the vehicle at the point of impact.)
• Objection: I object. Assuming facts not in
evidence, your honor. There is no testimony in the
record that the red car went through a stop sign.
27
Questions Calling for
Narrative
• Question: Ms. Witness, moving to the time after
the accident, in your own words will you please tell
the jury what your life has been like?
• Objection: I object. Overly narrative response is
asked for, your honor.
28
Non-Responsive Answer
• Question: Did you see the other driver get out of
his car right after the wreck?
• Answer: He told me he had insurance with
Travelers.
• Motion: Motion to strike, your honor. The
witness’s answer was nonresponsive, and
contained inadmissible matter under Rule 4.17.5,
Fed. R. Evidence.
29
Repetition
• Question: I ask you again, how can you be sure
the light was red?
• Objection: Objection; asked and answered.
Question is repetitive, your honor.
30
Hearsay
• Hearsay is testimony given in court
about a statement made by someone
else who was not under oath at the
time of statement
• Generally not admissible
31
Appellate Review
• Appellate Court Options
– Affirm
– Reverse
– Remand
– In Part
– Modify
32
Formations of Corporations
33
Corporate Basics
• Corporation is recognized as a person
• Board of directors
– responsible for overall management
– elected by shareholders
• Shares of stock
– Shareholder
– Owner of the corporation
34
Corporate Earnings and
Taxation
• Dividends
– Profits distributed to shareholders
• Retained Earnings
– Invested back in the company, yield
higher corporate profits in the future,
cause the price to rise
35
Double Taxation
• What is double taxation?
– Company pays taxes on its profits
– Profits passed on the shareholders
– Shareholders pay income tax on them
36
Domestic, Foreign, and Alien
Corporations
• Domestic corporation – by its home
state
• Foreign corporation – formed in one
state but doing business in another
• Alien corporation – formed in
another country and doing business in
the United States
37
S Corps
• A close corporation that meets
Subchapter S qualifying requirements
• Avoids the imposition of income taxes
at the corporate level while retaining
many of the advantages of a
corporation, particularly limited liability
38
S Corps Requirements
1.
2.
3.
4.
5.
6.
The corporation must be a domestic corporation.
The corporation must not be a member of an affiliated
group of corporations.
The shareholders of the corporation must be individuals,
estates, or certain trusts and tax-exempt organizations.
The corporation must have no more than one hundred
shareholders.
The corporation must have only one class of stock,
although all shareholders do not need to have the same
voting rights.
No shareholder of the corporation may be a non-resident
alien.
39
Incorporation Procedures
• Basic steps
1.Select a state of incorporation;
2.Secure the corporate name;
3.Prepare the articles of incorporation;
and
4.File the articles of incorporation with
the secretary of state
40
Articles of Incorporation
• Articles of incorporation must include:
1. The name of the corporation;
2. The number of shares the corporation is
authorized to issue;
3. The name and street address of the
corporation’s initial registered agent and
registered office; and
4. The name and address of each
incorporator.
41
Directors
• Inside directors – a director who is
an officer of the corporation
• Outside directors – a director who
does not hold a management position
42
Rights of Directors
• Right to participation
– Directors are entitled to participate in all board
of directors’ meetings and have a right to be
notified of these meetings.
• Right of inspection
– Each director can access the corporation’s
books and records, facilities, and premises.
• Right to indemnification
– Reimbursement for the legal costs, fees, and
damages associated with the director’s position
or actions
43
Duty of Care
• Duty to make informed decisions
– Informed on corporate matters and to
conduct a reasonable investigation
before making a decision
• Duty to exercise reasonable
supervision
– When work is delegated
44
Business Judgment Rule
• A corporate director or officer will not
be liable to the corporation or its
shareholders for honest mistakes of
judgment and bad business
decisions.
45
Duty of Loyalty
• Requires directors and officers to
subordinate their personal interests to
the welfare of the corporation
46
Proxy
• The signed appointment form or
electronic transmission authorizing an
agent to vote the shares
47
Cumulative Voting
• Allows minority shareholders to be
represented on the board of directors
• Each shareholder is entitled to a total
number of votes equal to the number
of board members to be elected
multiplied by the number of voting
shares that the shareholder owns.
48
Copyright pt. 1
49
Copyright Law
• What is the scope of protection
afforded to a copyright embodied in
computer software?
50
Requirements for Copyright
51
FEDERAL CONSTITUTIONAL POWER
• "The Congress shall have power . . .
To promote the progress of science
and useful arts, by securing for limited
times to authors and inventors the
exclusive right to their respective
writings and discoveries."
• U.S. CONST. Art. I, §8, cl.8.
52
Copyright Requirements
• For an author to have a valid
copyright in a particular work, the
work must
(i) be original,
(ii) remain fixed in a tangible medium of
expression, and
(iii) have involved a minimum degree of
creativity.
53
Originality
• Must:
– be an original work of the author
– “a work independently created by its author,
one not copied from pre-existing works, and a
work that comes from the exercise of the
creative powers of the author's mind, in other
words, ‘the fruits of [the author's] intellectual
labor.’”
• Artistic merits are irrelevant,
• The underlying idea of a work is not subject
to copyright protection.
54
Fixation
• Works must be fixed in a tangible medium of
expression to be protected under the Copyright
Act.
• Works must be embodied in a tangible form that is
“sufficiently permanent or stable to permit it to be
perceived, reproduced, or otherwise
communicated for a period of more than transitory
duration.”
• The requirement for fixation is met when the work
can either be directly perceived or perceived with
the aid of a machine or other device.
55
Fixation
• “Artic contends that the audiovisual displays of
Midway's games do not meet that requirement. Artic's
argument is based on the specific technology by which
the images that appear on the game screens are
generated. ….
• “While Artic's argument has a certain facial validity, it
nonetheless fails. The fixation requirement, as is clear
from the statute, does not require that the work be
written down or recorded somewhere exactly as it is
perceived by the human eye. Rather, all that is
necessary for the requirement to be satisfied is that the
work is capable of being "reproduced ... with the aid of
a machine or device." 17 U.S.C. § 102(a).”
56
Not Protected by Copyright
•
•
•
•
•
Ideas, concepts, facts, historic
events
Plot concepts & outlines (only plot
details)
Stock plots & scenes
Stereotype characters
Material copied from public domain
57
OTHER UNCOPYRIGHTABLE
MATERIAL
•
•
Words & short phrases; familiar symbols
or designs; variations of typographical
ornamentation, lettering or coloring; lists
of ingredients or contents
Works consisting entirely of public
domain information: e.g., standard
calendars, height & weight charts, tape
measures & rulers, schedules, lists or
tables taken from public documents or
other common sources
58
Discussion
Could a furniture design be subject to
copyright protection?
59
Fictional Characters
60
Protection of Fictional
Characters
• Is a fictional character an idea (rather
than an expression of an idea) and
therefore not protectable by
copyright?
61
Protection of Fictional
Characters
• “It is clear that when cartoons or
movies are copyrighted, a component
of that copyright protection extends to
the characters themselves, to the
extent that such characters are
sufficiently distinctive.”
• See Warner Bros. Entertainment, Inc.
v. X One X Productions (8th Cir. 2011)
62
Klinger v. Conan Doyle
Estate
• 7th Circuit 2014
• Case history
– D.C. granted Klinger’s motion for
summary judgment and issued a
declaratory judgment for Klinger that
provided Klinger could use the material
63
Klinger v. Conan Doyle
Estate
• Sherlock Holmes created by Doyle
– Copyright on original stories have expired
– Copyright on final 10 stories don’t expire until
2018-2022
• “Once the copyright on a work expires, the
work becomes a part of the public domain and
can be copied and sold without need to obtain
a license from the holder of the expired
copyright.”
64
Klinger v. Conan Doyle
Estate
• Klinger prepared an anthology containing
stories written by modern authors on Sherlock
Holmes
• Klinger did not obtain a license from the Doyle
estate, but Random House did
• Klinger was preparing a sequel
• Doyle estate made threats regarding the book
absent an additional license being taken from
the Doyle estate for the new work
• Klinger sued for declaratory judgment
65
Klinger v. Conan Doyle
Estate
• Doyle’s contention
– Copyright in a character extends beyond
the original work because the character
is further developed in subsequent
works
66
Klinger v. Conan Doyle
Estate
• “When a story falls into the public
domain, story elements—including
characters covered by the expired
copyright—become fair game for
follow‐on authors”
• Additional works are derivative works,
and copyright only extends to
additions of originality
67
Klinger v. Conan Doyle
Estate
• “The ten Holmes‐Watson stories in
which copyright persists are derivative
from the earlier stories, so only original
elements added in the later stories
remain protected. … The ‘freedom to
make new works based on public
domain materials ends where the
resulting derivative work comes into
conflict with a valid copyright[]’”
68
Klinger v. Conan Doyle
Estate
• “An author ‘could not copyright a
character described merely as an
unexpectedly knowledgeable old
wino,’ but could copyright ‘a character
that has a specific name and a
specific appearance.’”
69
Protection Schemes
70
Protection Schemes
• Some works are protectable by
amendments or extensions to the
copyright law, or by other laws that
have similar rights to copyright law
71
List of Protection Schemes
•
•
•
•
Architecture
Hot News
Rights in Ideas
DMCA/Access to Works (future class)
72
Architecture
• “An original design of a building created in any tangible
medium of expression, including a constructed building
or architectural plans, models, or drawings, is subject
to copyright protection as an “architectural work” under
section 102 of the Copyright Act (title 17 of the United
States Code), as amended on December 1, 1990.
• “Protection extends to the overall form as well as the
arrangement and composition of spaces and elements
in the design but does not include individual standard
features or design elements that are functionally
required.”
73
National Basketball Assoc.
v. Motorola, Inc.
How news elements [from INS]
(i) the plaintiff generates or collects information at some cost or
expense
(ii) the value of the information is highly time-sensitive,
(iii) the defendant's use of the information constitutes free-riding
on the plaintiff's costly efforts to generate or collect it
(iv) the defendant's use of the information is in direct
competition with a product or service offered by the plaintiff
(v) the ability of other parties to free-ride on the efforts of the
plaintiff would so reduce the incentive to produce the
product or service that its existence or quality would be
substantially threatened
74
Rights in Ideas
• Some ideas may be protectable by an
implied contract
– Implied contract when creator of an idea
submits the idea to another party for purposes
of selling it, and the parties come to a mutual
understanding that the recipient will pay for any
use of the idea
– Issue - State law “implied in fact” contracts are
not preempted by the Copyright Act.
• Why no copyright protection/action?
– Possibly because ofno work
75
Other Areas
76
Other Areas
•
•
•
•
Common Law Copyright
Registration and Deposit
Term
Notice Requirement
77
Common Law Copyright
Prior to 1976 Act
• Prior to 1976 Act, state law covered
unpublished works under common
law copyright.
• Common law copyright was
terminated upon publication.
78
Common Law Copyright
Today
• Works in "fixed medium of expression" are
protected exclusively by Copyright Act
[§ 101]
– Published works, unpublished works, sound
recordings, broadcasts
• Works not fixed in a tangible medium of
express are protected by common law
copyright
– Extemporaneous utterances, unchoreographed
dance performances, unwritten jazz & musical
performances
– Unpublished works created before January 1,
1978 (even if in a "fixed medium")
79
Registration and Deposit
• Registration: [§ 408]
– Work can be registered at any time [§ 408(a)]
– Not a prerequisite to copyright protection [§ 408]
– U.S. authors must register before bringing infringement suit
[§ 411(a)]
– Creates prima facie presumption of validity [§ 410(c)]
• Deposit: [§ 407]
– 2 complete copies of best edition must be deposited in Library
of Congress within 3 months of first publication
– Not a prerequisite to copyright protection [§ 407(a)]
• Penalty: $ 250 + retail price of undeposited work
• Sega's certificates of registration establish a prima facie valid
copyright in its video game programs. 17 U.S.C. s 410(c);
Apple Computer, Inc. v. Formula Int'l Inc., 725 F.2d 521, 523
(9th Cir.1984). Sega Enterprises Ltd. v. MAPHIA, 857
F.Supp. 679, (N.D.Cal. 1994)
80
Term
• What is the term of a copyright
registration?
– Life of the Author + 70 years
– For anonymous works, pseudonymous
works, and works made for hire - 95
years from publication or 120 years from
creation, whichever expires first
81
Current Notice
Requirements
• Copyright notice no longer required…
• Proper copyright notice:
– (i) the symbol © (the letter C in a circle), or the
word “Copyright”, or the abbreviation “Copr.”,
– (ii) the year of first publication of the work, and
– (iii) the name of the owner of the copyright in
the work.
• Why still include the notice?
82
Copyright Registration
• The Copyright Office’s copyright
registration system is available online
at http://www.copyright.gov/eco/
• You can print paper forms from the
same link, but paper submissions for
registration are more expensive.
83
Copyright Registration
• Computer Software
– Form TX
– Different Fees for online v. paper
– No trade secrets
• first 25 and last 25 pages of source code
– With trade secrets
• First 25 and last 25 pages of source code with
portions containing trade secrets blocked out; or
• First 10 and last 10 pages of source code alone,
with no blocked out portions; or
• First 25 and last 25 pages of object code plus any
10 or more consecutive pages of source code, with
no blocked out portions; or
• For programs 50 pages or less in length, entire
source code with trade secret portions blocked out.
84
Copyright Registration
• Registration of a single work as a literary
work should cover visual display as well
• However, many video games are covered
as audio visual works instead of literary
work
• See Circular 61 for more information on
registering a copyright in software
• http://www.copyright.gov/circs/circ61.pdf
85
Foreign Protection
• U.S. authors are entitled to protection
in foreign jurisdictions under the
Berne Convention
• No requirement to register the work in
the foreign country or comply with
other formalities in foreign jurisdiction
• However, infringement action must be
brought in foreign jurisdiction under
foreign law
86
Copyright Ownership
87
Ownership
• General Rule – Copyright ownership
vests with the author(s) of the work
– Copyright ownership of a work can be
assigned to another
– Important exception – work made
for hire
88
Work Made For Hire
Employees
• Within the Scope of Employment
– the work is deemed authored by the employer
and the employer will have all exclusive rights
associated with the work.
• Outside the Scope of Employment
– the work is deemed authored by the employee
and the employer will simply have a license to
use the particular embodiment of the work
without the exclusive rights associated with the
work
89
Work Made For Hire
Non-Employees
• The work must be:
1. specially ordered or commissioned,
2. for use as a contribution to a collective work,
as a part of a motion picture or other
audiovisual work, as a translation, as a
supplementary work, as a compilation, as an
instructional text, as a test, as answer material
for a test, or as an atlas, and
3. in a written instrument signed by the parties
that states the work shall be considered a work
made for hire.
90
Community for Creative
Non-Violence et al. v. Reid
• Supreme Court 1989
• Case history
– DC - work is a “work made for hire” of
which Synder is the owner
– Ct of Appeals - work is not a “work made
for hire” and Reid is the owner
91
Community for Creative
Non-Violence et al. v. Reid
• Synder wanted a sculpture to be created for
CCNV featuring modern nativity scene with
homeless people
• Synder finds Reid
• “The parties agreed that the project would cost
no more than $15,000, not including Reid's
services, which he offered to donate. The
parties did not sign a written agreement.
Neither party mentioned copyright.”
92
Community for Creative
Non-Violence et al. v. Reid
93
Community for Creative
Non-Violence et al. v. Reid
• Things go down hill…
– Sculpture is repaired; Synder wants to
take it on tour and Reid refuses; Reid
obtains a copyright registration for the
work; Synder wants the sculpture back
and Reid refuses; Synder seeks a
competing registration for the work
94
Community for Creative
Non-Violence et al. v. Reid
• “The Copyright Act of 1976 provides
that copyright ownership ‘vests
initially in the author or authors of the
work.’ .. As a general rule, the author
is the party who actually creates the
work, that is, the person who
translates an idea into a fixed,
tangible expression entitled to
copyright protection.”
95
Community for Creative
Non-Violence et al. v. Reid
• Work made for hire is an exception
• “Classifying a work as ‘made for hire’
determines not only the initial ownership
of its copyright, but also the copyright's
duration, § 302(c), and the owners'
renewal rights, §304(a), termination
rights, § 203(a),and right to import
certain goods bearing the copyright,
§601(b)(1).”
96
Community for Creative
Non-Violence et al. v. Reid
• Different views
– whenever the hiring party retains the
right to control the product
– when the hiring party has actually
wielded control with respect to the
creation of a particular work
– common‐law agency
– "formal, salaried" employees
97
Community for Creative
Non-Violence et al. v. Reid
• “[W]hen Congress has used the term
‘employee’ without defining it, we
have concluded that Congress
intended to describe the conventional
master‐servant relationship as
understood by common‐law agency
doctrine.”
98
Community for Creative
Non-Violence et al. v. Reid
• “In determining whether a hired party
is an employee under the general
common law of agency, we consider
the hiring party's right to control the
manner and means by which the
product is accomplished.”
99
Community for Creative
Non-Violence et al. v. Reid
• Factors – (i) the skill required; (ii) the source of the
instrumentalities and tools; (iii) the location of the work;
the duration of the relationship between the parties; (iv)
whether the hiring party has the right to assign
additional projects to the hired party; (v) the extent of
the hired party's discretion over when and how long to
work; (vi) the method of payment; (vii) the hired party's
role in hiring and paying assistants; (viii) whether the
work is part of the regular business of the hiring party;
(ix) whether the hiring party is in business; (x) the
provision of employee benefits; and (xi) the tax
treatment of the hired party.
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Community for Creative
Non-Violence et al. v. Reid
• “Examining the circumstances of this
case in light of these factors, we
agree with the Court of Appeals that
Reid was not an employee of CCNV
but an independent contractor.”
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Types of Copyrightable
Works
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Types of Works
•
•
•
•
Derivative Work
Joint Work
Composite Work
Compilation
103
Derivative Work
• “A ‘derivative work’ is a work based upon one or more
preexisting works, such as a translation, musical
arrangement, dramatization, fictionalization, motion picture
version, sound recording, art reproduction, abridgment,
condensation, or any other form in which a work may be
recast, transformed, or adapted. A work consisting of
editorial revisions, annotations, elaborations, or other
modifications, which, as a whole, represent an original work
of authorship, is a ‘derivative work’.”
• A derivative work is a work based upon one or more
preexisting works where the original work is recast,
transformed, or adapted.
• The derivative work copyright protects only new materials
contributed by the author, and does not affect or enlarge the
scope, duration, ownership, or subsistence of any copyright
protection in the preexisting material.
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Joint Work
• “A ‘joint work’ is a work prepared by two
or more authors with the intention that their
contributions be merged into inseparable or
interdependent parts of a unitary whole.”
• The joint owners can independently exploit
the work without consent of the other joint
owners, but must account to the other joint
owners for such exploitation.
• Term – life of last surviving author + 70
years
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Composite Work
• A composite work is a work
prepared by two or more authors
without the intent to merge their
contributions into a unitary whole.
• The work is treated as multiple works
for licensing and duration each of the
component parts.
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Compilations
• “A ‘compilation’ is a work formed by
the collection and assembling of
preexisting materials or of data that
are selected, coordinated, or
arranged in such a way that the
resulting work as a whole constitutes
an original work of authorship. The
term ‘compilation’ includes collective
works.”
107
Compilations
• What did the Federal Notice say
about dance moves?
– “A claim in a choreographic work must contain at
least a minimum amount of original choreographic
authorship. Choreographic authorship is
considered, for copyright purposes, to be the
composition and arrangement of a related series of
dance movements and patterns organized into an
integrated, coherent, and expressive whole. Simple
dance routines do not represent enough original
choreographic authorship to be copyrightable.”
108
Compilations
• What did the Federal Notice say
about exercise movements?
– “Exercise is not a category of authorship in section
102 and thus a compilation of exercises would not
be copyrightable subject matter. The Copyright
Office would entertain a claim in the selection,
coordination or arrangement of, for instance,
photographs or drawings of exercises, but such
compilation authorship would not extend to the
selection, coordination or arrangement of the
exercises themselves that are depicted in the
photographs or drawings.”
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Program
Completed
All course materials - Copyright 2010-2016 Randy L. Canis, Esq.
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