COPYRIGHT LAW 2001
Columbus School of Law
The Catholic University of America
Prof. Fischer
Class 19 (MARCH 26, 2002)
GOALS FOR THIS CLASS
• To finish learning about formalities
(publication, notice, deposit, registration)
WRAP-UP: PUBLICATION
AND NOTICE:
• Under the 1909 Act, if a work was not published
with copyright notice it would be injected into the
public domain
• It could also be injected into the public domain for
failure to comply with other formalities like
renewal
• 1976 Act does not bring works back into copyright
• If unpublished pre-1976 act work may still be
protected under s. 303
WRAP-UP: 1909 ACT
PUBLICATION
• 1909 Act did not define publication
• Case law determined when publication had taken
place
• Public performance was not a publication under
old law
• Until La Cienega distribution of phonorecords
(sale of records) was held not to be a divestive
publication. La Cienega held otherwise. As a
result of that ruling, Congress added section
303(b) to the 1976 Act by amendment to overrule
WRAP-UP: PUBLICATION
AND NOTICE:
• 1976 Act liberalized notice provisions and
provided for copyright on creation not publication
• Accession to Berne Convention: notice becomes
optional (as of March 1, 1989)
LIMITED PUBLICATION
• To ease the harshness of the 1909 rule
requiring publication with proper notice,
courts developed a doctrine called limited
publication.
• A limited publication was a publication that
did not have the divestive effect of a general
publication.
TEST FOR GENERAL
PUBLICATION
• In MLK case p. 391 of CB
• 1. If tangible copies of the work are
distributed to the general public in such a
manner as allows the public to exercise
dominion and control over the work.
• 2. If the work is exhibited or displayed in
such a manner as to permit unrestricted
copying to the general public.
A Procedural note on MLK case
• Remember that this is at the summary
judgment stage.
• Court reverses district court’s grant of
summary judgment to CBS
• But 11th Circuit notes that there is some
evidence supporting a general publication,
just not enough to establish, beyond any
genuine issue of material fact, that Dr. King
made a general publication of his speech
ACADEMY OF MOTION PICTURE
ARTS & SCIENCES V. CREATIVE
HOUSE PROMOTIONS, INC. (9th Cir.
1991
• Was distribution of Oscar
statues without copyright
notice prior to 1941 a
general publication?
• Why or why not?
• NOTE THE
COPYRIGHT NOTICE
ON THIS MORE
MODERN OSCAR!
PUBLICATION UNDER 1976
ACT
• NOW THERE IS A DEFINITION
• Why do we still care about publication now
that copyright arises from “creation” of
works?
• What does this say about distribution of
photograph records after 1/1/78?
Publication: Section 101
• The distribution of copies or phonorecords of a
work to the public by sale or other transfer of
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
publication.
CHANGES TO NOTICE
REQUIREMENTS IN 1976 ACT
(PRE-BERNE)
• Prior to Berne could you omit copyright
notice and not lose copyright protection for
the work?
• What provision(s) of the Copyright Act is
relevant?
• What if you made mistakes in the notice?
BERNE CHANGES NOTICE
REQUIREMENTS
• The Berne-implementation amendments
changed the 1976 Act to eliminate
copyright notice as a precondition to
copyright protection.
• To what works do the Berne amendments
apply?
NOTICE AFTER BERNE
• If you want to put a copyright notice on a
work what must it consist of?
• Where should you put the notice?
• Do you have to put notice on?
• How about for phonorecords?
• What incentives are there in the law to
include a copyright notice?
DEPOSIT REQUIREMENTS
• NOTE THAT BERNE PRIMARILY AFECTED
PUBLICATION NOT
DEPOSIT/REGISTRATION REQUIREMENTS
• What is the deposit requirement for the Library
of Congress? See section 407
• What is the effect of section 408? How does it
differ from the deposit required under section
407?
REGISTRATION
•
•
•
•
Who can register a work?
What works can be registered?
When can you register?
What’s the purpose of the registration fee? ($30
more for works)
• How do you register? See Form TX (for non
dramatic literary works at CB p. 409)
• Do you have to register to sue for infringement?
• What incentives exist to register? See s. 412
INFRINGEMENT
• In this unit, we learn about all of the
exclusive rights in the bundle of rights
owned by the copyright owner (see s. 106)
• We start with the “right of reproduction”
in 106(a) - right to reproduce the
copyrighted work in copies or
phonorecords
Infringement:
• See Section 501 defining infringer as
“anyone who violates any of the exclusive
rights of the copyright owner as provided in
sections 106 through 122”
• If owner of chattel in which work embodied
refuses to permit author access to chattel in
order to exercise her exclusive rights, is that
a copyright infringement?
Infringement:
• If owner of chattel in which work embodied
refuses to permit author access to chattel in
order to exercise her exclusive rights, is that
a copyright infringement?
• No - see Frasier v. Adams-Sandler (4th Cir.
1996)
COPIES
• See definition of copy in section 101
• Digital copying - courts have consistently
held that it’s still copying even if the work
gets broken up into bits in the process of
packet switching
Matthew Bender & Co. v. West
Publishing Co. (2d Cir. 1998)
• West - premier reporter of judicial decisions
in U.S.
• Official reporter for a few jurisdictions
• De facto reporter for federal cases, many
states
• Are judicial opinions subject to copyright
protection? Why or why not?
West
• What did Matthew Bender do that West
claimed was an infringement of copyright?
• Did the court find a copyright
infringement?
• Why or why not?