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?
