• In general, copyright protection can apply to:
– Original works of authorship
– Fixed in any tangible medium of expression
• Photos, writings, songs, emails, etc, all qualify
– From which they can be perceived, reproduced or otherwise communicated
• A copyright protects the work itself but not the underlying facts referenced in the work.
• Compilations of other works can also be their own original work. Similarly, these can be copyrighted
– Collective works
– Derivative works
Public Communications Law Lecture 7
Slide 1

• Copyrights last for:
– Life of the author + 70 years
– If a company, 120 years from creation or 95 from publication
• Copyrights can be registered with the US Copyright office, but are enforceable even if not registered.
– But, it’s a good idea to notify readers of the intent to keep copyright protection by use of the ©
• Copyrights belong to the creator except:
– If done in the scope of employment, it belongs to the employer
– Even if not an employee, if one is paid to produce a particular work (work for hire) it belongs to the person doing the hiring.
– Work done by federal government employees on govt. business may not be copyrighted by the employee or the government.
Public Communications Law Lecture 7
Slide 2

• Copyright protection includes a host of rights including the exclusive rights to:
– Copy or reproduce the work
• Exception for Library of Congress and to give it to nonprofit libraries
– Create adaptations
• Including sequels, transformations, etc.
• The holder can divide a copyright and sell the right to adapt one aspect of it and not another.
– Distribute copies
• Although one cannot control the resale of the work itself (like a CD or book) later in the stream of commerce
– Perform and display the work (publicly)
• Some exceptions obviously exist for things like playing the radio in a restaurant, showing a ballgame in a bar.
Public Communications Law Lecture 7
Slide 3

• Compulsory Licenses
– Media outlets must get licenses to play copyrighted content in some cases.
– The rates are set industry-wide and apply to outlets like radio stations playing music, etc.
• Performing Rights Societies
– These monitor the media for distribution of copyrighted content without permission, which the holders themselves would not have the wherewithal to do.
• Moral Rights
– The Berne convention allows a holder various means to keep it known that he or she is the creator of the work.
Public Communications Law Lecture 7
Slide 4

• Infringement requires some degree of copying
– Unlike with patents, if two people create the same work independently, that is not an infringement.
• Direct evidence of infringement is hard to come by. So, it can be proven by showing:
– Access of the defendant to the work
– Substantial similarity to the copyrighted work
• Whether a work was actually copied is, of course, a question of fact for a jury.
• Online release of copying of copyrighted material is infringement to the same extent as any other distribution.
– Although ISPs are protected under federal law if all they did was serve as an unknowing conduit
Public Communications Law Lecture 7
Slide 5

• This applies when society’s interest in using the material for creative and educational purposes outweighs the interest in protecting the copyright holder.
• This covers “productive” use of the material for criticism, news reports, education, etc.
• Factors to be considered in determining fair use include:
– The purpose of the usage;
– Whether the usage is for profit;
– The nature of the work;
– The portion of the work used in relation to the whole;
• If you use the whole work it’s less likely to be protected
– The effect of the use on the potential market.
Public Communications Law Lecture 7
Slide 6

• News and Comment
• Parody
– This applies if the work is copied to make a point about the original or its message.
• It must change the original significantly or it’s really just a copy.
• Excessive copying in the parody might eliminate the fair use exception as applied in that case.
– The parody must target the original work, not use the original work to parody another target.
• Teaching (e.g., make a copy of a chapter to hand out in class)
• Noncommercial Research
• Personal Entertainment
– Such as taping shows off TV for personal viewing later on.
Public Communications Law Lecture 7
Slide 7

• Advertising
– One may sometimes use a clip about oneself or one’s business as self-promotion even though it’s copyrighted material.
• e.g., a restaurant publishing Zagat’s review on its ad or menu
– However, if it’s not done accurately or if it’s done too pervasively, it can be infringement.
• It’s really a question of fact based on the infringement factors.
• A company copying entire articles for its employees is an infringement, especially since the alternative is for the employees to buy the publication.
• A company copying reviews from news programs or the like to send to customers can also be an infringement.
Public Communications Law Lecture 7
Slide 8

• Whether using part of a work is fair use, depends on several factors, including:
– Nature of work
• Even a few words can be an infringement from something like a poem, whereas from a book, a small section is less likely to be an infringement.
– Quantity of the portion used
• Using most or all of a large work is unlikely to be protected by fair use.
– Quality of the portion used
• The more “central” a component of a work is to the whole work, the less likely it is to be protected under fair use.
– Effect on the potential market served by the copyrighted work
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Slide 9

• This is relevant when a company doesn’t copy another company’s copyrighted material but packages its material so similarly to the competition that the public can be confused or mislead as to the original creator of the work.
• Misappropriation
– This is similar to the invasion of privacy tort of the same name.
– This is the legal equivalent of plagiarism in many cases. This can occur when:
• A news service takes another news service’s dispatches and uses it and passes it off as its own.
• Radio stations broadcasting word for word readings of articles without permission.
– Motorola case with NBA scores delivered to pagers- not a violation!
Public Communications Law Lecture 7
Slide 10

• A trademark is any mark sued to identify a particular brand. It is a
• Word, name symbol, device, etc.
• Used to identify and distinguish one company’s goods
• From those manufactured or distributed by competitors
• Service Marks are similar to trademarks, except that they are used in the marketing of the product, and not on the product itself.
– This can apply to:
• slogans
• Phrases used by a company in advertising
• Fake words used by a company in promoting itself
Public Communications Law Lecture 7
Slide 11

• Registration
– This is not absolutely necessary, but does give the World notice that a symbol is being used to identify one product
– The mark is registered with the USPTO
• A trademark must be “inherently distinctive”
– Words that are merely descriptive adjectives cannot generally be used as trademarks
– However, if the adjective has nothing to do with the product, it can be a trademark because it is not descriptive
• Normal words can be trademarks with respect to a product if, through marketing and usage, they acquire a secondary meaning among people that refers to the company’s product.
Public Communications Law Lecture 7
Slide 12

• First Amendment
– If the trademark is being analyzed, parodied, etc., it may be used
(similar to the fair use rule for copyrights).
•
Dilution
– This can be a reason to prohibit the use of a term or mark even if ordinary trademark rules are not applicable.
• Abandonment
– If people generally use the term generically, a term’s trademark protection can be lost.
– Companies should try to make sure that their trademarked words are not used as ordinary adjectives so as to avoid this .
Public Communications Law Lecture 7
Slide 13