COPYRIGHT LAW Courtney M. Dunn 407-418-6465 courtney.dunn@lowndes-law.com November 20, 2012 ©Lowndes, Drosdick, Doster, Kantor, & Reed, P.A., All rights reserved What is a Copyright (©)? An original work of authorship, fixed in a tangible medium of expression. See, 17 USC 101 et seq. What is an “Original Work”? Any work that was independently created (not copied) and that contains a “modicum of creativity”. What is “Fixed in a Tangible Medium”? The work in question must be set in a form in which it can be perceived either directly or with the aid of a device. Things that are not fixed in a tangible medium are not subject to copyright protection Types of works subject to protection Generally include: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; architectural works. What cannot be protected? Facts or any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work; Words and short phrases such as names, titles, and slogans; Typeface designs; Lists of ingredients; Blank forms that do not themselves convey information; Works consisting entirely of information that is common property containing no original authorship What does a copyright give you? Exclusive right to do and authorize: Reproduction Derivative works Distribution Public of the work of work by sale or transfer or license performance of work Display of work in public Limitations on a Copyright? Fair use: allows for limited copying of a work without the permission of the owner Very fact dependent Examples: Criticism Comment News reporting Teaching Scholarship Research How do you determine if something is Fair Use Consider: Purpose and character of the use Nature of the copyrighted work Amount and substantiality of use Effect upon the value of the copyrighted work Other Limitations on a Copyright Libraries and archives First sale doctrine Record rental Software rental Performances and displays Secondary transmissions Ephemeral recordings Pictorial, graphic, sculptural works Sound recordings Musical recordings - compulsory licenses Jukeboxes - negotiated licenses Computer programs - Essential step in utilization of program or Archival (backup) copy allowed Public broadcasting Satellite retransmissions – superstations Architectural works Reproduction for blind and disabled Satellite retransmission – local Reproduction for blind/ people with disabilities Satellite retransmissions within local markets How to Obtain Copyright Protection Copyright Protection attached upon creation. There is no need to register a work, but may do so. Registration is required, however, to enforce rights and provides additional benefits such as statutory damages for infringement. How do you register a copyright? Application must be submitted to the Copyright Office of the Library of Congress. Note: Patents and federal trademark registrations are with the United States Patent and Trademark Office (USPTO) Contents of Application: Completed application form TX – Non-dramatic literary work VA – Visual arts work PA – Performing arts work SE – Sound Recording work SR - Serials Deposit materials Fee Information needed to complete Application Name and address of applicant If the work is “made for hire”, a statement of such or if the applicant is not the author then a statement of how the applicant obtained ownership Title of work Year of creation Date of first publication, if any Identification of the work as a derivative or compilation Other relevant information Deposit Materials Unpublished work Published work One complete copy as published Contribution or collective work Two complete copies of best edition Work first published outside US One complete copy One complete copy of best edition Some exceptions apply For example, for computer programs a print out of the first and last 25 pages is ok Who owns a Copyright? Author Authors, if joint work What about employees? “Work made for hire” doctrine work prepared by an employee within the scope of his or her employment; or work specially ordered or commissioned for use as a contribution to a collective work, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire Take away – get an assignment up front! What is the Term of a Copyright? In the U.S.: the life of the author plus 70 years, unless the work is anonymous, pseudonymous or a work-made-for-hire then, the lesser of 95 years from its publication or 120 years from its creation. Copyright Notice Prior to 1978 failure to use a copyright notice on your copyrightable materials was fatal to your copyright and placed the material into the public domain. Omissions between January 1, 1978 and March 1, 1989 could be cured under certain circumstances. Since March 1, 1989, use of a copyright notice has been optional, but failure to mark your materials can provide infringers with an "innocent infringer" defense, preventing you from collecting actual or statutory damages for any infringing act committed before the infringer received actual notice. Example of Proper Notice: “© Your Name 20XX” “© Your Name 20XX, All rights reserved.” Copyright Infringement What is it? 17 USC 501 et seq. – Anyone who violates the exclusive rights of the owner by making an unauthorized copying, distribution or derivation of a work Rights of owner set forth in 17 USC 106 Kinds of Infringement Direct Contributory Vicarious Liability of states Pre-filing considerations Where to file? Federal District Court: Exclusive, original jurisdiction for Patent and Copyright cases. 28 USC 1338(a) Note: Venue: could have an exception for counterclaims Where the defendant resides or in any district where the defendant does business. Pre-filing considerations (cont.) Jury or non-jury Nature and type of work involved Extent of copying Parties involved Registration certificate in hand? Certificate of registration is now a procedural prerequisite If registration is sought but refused serve complaint on Copyright office Proving your case Exclusive rights Ownership Access by defendant Substantial similarity of work Damages, if any Should you use an expert? Depends Should you use surveys? Defenses Fair Use See above Must be pled as an affirmative defense For computer programs Implied License Can be orally granted for non-exclusive grant Elements Right to make archival copy Right to dissect programs to determine functional interface Author creates for another Author delivers the work Author intends that party distribute and/or copy SOL (3 yrs.) and/or laches Lack of Notice Fraud on the Copyright Office Misuse Parody Satire not necessarily a defense Remedies Damages- at option of copyright owner: Actual damages and profits made by infringer that are not taken into account in calculating actual damages. To establish an infringer’s profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work OR Statutory damages of $750 to $30,000 for each infringement (court’s discretion as to actual amount). Can be increased to $150,000 per infringement if the infringement was committed willfully. Other Remedies Injunction Seizure, impoundment and destruction of infringing goods Criminal offenses Attorney’s fees and costs Thank You! Questions?