COPYRIGHTS
PROF. JANICKE
JULY 2010
CONSTITUTIONAL POWER
• ART. I, SEC. 8 (8):
2010
SCIENCE
USEFUL ARTS
AUTHORS
INVENTORS
WRITINGS
DISCOVERIES
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REQUISITES FOR
PROTECTION:
• ORIGINALITY (i.e. NOT COPIED)
• WORK OF AUTHORSHIP
• FIXATION
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FIXATION REQUIREMENT
• WORK MUST BE FIXED IN A TANGIBLE
MEDIUM OF EXPRESSION (§ 102)
• MORE THAN TRANSITORY TIME (§101)
• HENCE, NOT COPYRIGHTED:
– MY CLASSES (WITH NO RECORDING)
– PASTOR’S UNWRITTEN SERMON
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WORKS COVERED
•
•
•
•
•
LITERARY (INCL. SOFTWARE)
MUSICAL (INCL. WORDS)
DRAMATIC (INCL. MUSIC)
PANTOMIME / CHOREOGRAPHY
PICTORIAL, GRAPHIC,
SCULPTURAL
• MOTION PICTURES AND OTHER A/V
• ARCHITECTURAL WORKS
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WORKS COVERED
• SOUND RECORDINGS (AS
SEPARATE WORKS)
– RECORD USUALLY HAS MORE THAN
ONE “WORK” ON IT:
• THE RECORDING WORK, AND
• THE UNDERLYING (E.G., MUSIC) WORK
(WHICH COULD IN TURN BE BASED ON A
POEM)
• THE ARRANGEMENT OF THE MUSIC
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– SOMETIMES NOT CLEAR WHO THE
“AUTHOR” OF THE RECORDING WORK
(“SOUND RECORDING”) IS:
• SINGER, BAND, STUDIO ENGR.?
• USUALLY HANDLED BY CONTRACT
– COPYRIGHT IS OWNED BY THE
AUTHOR, UNTIL ASSIGNED
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GOVERNMENT WORKS
• NO COPYRIGHT IF IT IS CREATED
BY U.S. GOVERNMENT ACTIVITY §105
• BUT U.S. CAN ACQUIRE OTHERS’
COPYRIGHTS IN THEIR WORKS
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ORIGINALITY
REQUIREMENT (§ 102)
• NOT HARD TO MEET
• SLOGAN MAY BE TOO SHORT (TRY
TRADEMARK)
• DOESN’T MEAN NEW
• TWO PEOPLE THINK OF THE SAME
POEM → TWO VALID COPYRIGHTS
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ORIGINALITY
REQUIREMENT (§ 102)
• EXAMPLE: TAKING A PHOTOGRAPH
OF BUILDING
• EXAMPLE: PAINTER COPYING THE
MONA LISA [NO PERMISSION NEEDED IN
THIS INSTANCE, BECAUSE ORIGINAL WORK IS
VERY OLD, IN THE PUBLIC DOMAIN]
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WHAT IS NOT ENOUGH
• WHITE PAGES OF PHONE BOOK (FEIST
PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO., 499 U.S. 340
(1991)
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IDEA-EXPRESSION
DICHOTOMY
• THE CENTRAL DOCTRINE OF
COPYRIGHT LAW (§ 102(b))
• NO PROTECTION FOR IDEAS
– OTHERS CAN TAKE IT FREELY, USE IT
IN THEIR OWN ORIGINAL WORKS
• ONLY PROTECTION IS FOR HOW
YOU EXPRESS THE IDEA
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IDEA-EXPRESSION
DICHOTOMY
• EXAMPLE: I WRITE A BOOK
DESCRIBING AND DISCUSSING 10
PHYSICS EXPERIMENTS
– YOU CARRY OUT EACH EXPERIMENT
TO THE LETTER -- NOT AN
INFRINGEMENT
– YOU PHOTOCOPY THE BOOK – IS AN
INFRINGEMENT
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COMPILATIONS
• CAN BE “ORIGINAL” WORKS;
COPYRIGHTED UPON FIXATION, IF THE
PIECES WERE LAWFULLY TAKEN (§
103(a))
• PROTECTION EXTENDS ONLY TO THE
SELECTION OR ARRANGEMENT (I.E.,
SEQUENCING) (§ 103(b))
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DERIVATIVE WORKS
• PERHAPS THE MOST POWERFUL AND
VALUABLE OF ALL COPYRIGHT RIGHTS
• EXAMPLES:
– SCREENPLAY FROM A BOOK (2 ©s)
– TRANSLATION OF A NOVEL (2 ©s)
– ORCHESTRATION OF A SONG/ARIA (e.g.,
Liebestod from Tristan und Isolde)
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WHERE THE UNDERLYING WORK
IS STILL UNDER COPYRIGHT
• DERIVATIVE WORK IS MADE
WITHOUT PERMISSION OF
COPYRIGHT OWNER: IS AN
INFRINGEMENT
• DERIVATIVE WORK IS MADE WITH
PERMISSION: IS A SECOND
COPYRIGHTED WORK
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EXAMPLE
• A COPYRIGHTED PLAY
• SOMEONE WITH PERMISSION
MAKES A MOVIE
• A SECOND COPYRIGHT EXISTS,
OWNED BY THE MOVIE-MAKER
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• SOMEONE COPYING THE MOVIE
INFRINGES BOTH COPYRIGHTS
• FACES TWO SUITS
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WHEN IDEA (UNPROTECTABLE)
AND EXPRESSION
(PROTECTABLE) COLLIDE
• SOMETIMES HARD TO TELL WHICH
IS WHICH
• CALLED “MERGER”
• IN THAT CASE, PROTECTION FAILS
BAKER v. SELDEN, 101 U.S. 99 (1879)
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RIGHTS
• ARE DIVISIBLE FOR LICENSING OR
ASSIGNMENT
• THERE ARE NO REDUNDANCIES
• >>>
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RIGHTS
• MAKE COPIES (§106(1))
• CREATE DERIVATIVE WORKS (§106(2))
– VERY POWERFUL, ESP. WHEN
INFRINGEMENT CLAIM FAILS
– APPLIES EVEN IF DERIV. WORK IS
ORIGINAL AND WOULD BE
COPYRIGHTED
• DISTRIBUTING COPIES PUBLICLY,
EVEN IF YOU DIDN’T MAKE THEM
(§106(3))
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RIGHTS
• PERFORM THE WORK PUBLICLY
§106(4)
• DISPLAY THE WORK PUBLICLY §106(5)
– BUT OWNER OF THE ACTUAL ARTICLE
(e.g. PAINTING) OR COPY CAN DISPLAY
PUBLICLY OR AUTHORIZE OTHERS
(MUSEUM) TO DO SO§109(c)
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A CLOSE CALL?
• SCRIPT FOR A PLAY
• PUBLIC PERFORMANCE IS
INFRINGEMENT
• BUT, CARRYING OUT PHYSICS
EXPERIMENTS IS NOT
• ??? WHY
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“MORAL RIGHTS”
• WE HAVE THEM, IN COPYRIGHT LAW,
ONLY FOR FINE ART WORKS, AND
WHERE NO MORE THAN 200 NUMBERED
COPIES ARE MADE BY THE “AUTHOR”:
–
–
–
–
–
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PAINTINGS
DRAWINGS
PRINTS
STILL PHOTO PRINTS
SCULPTURE CASTINGS
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“MORAL RIGHTS”
• ATTRIBUTION §106A (a)(1)
– INCLUDES RIGHT OF NONATTRIBUTION IF IT’S NOT YOURS
– DON’T SAY IT’S MINE IF YOU’VE
CHANGED IT IN ANY WAY
• INTEGRITY §106A (a)(3)
– DON’T CHANGE MY WORK
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“MORAL RIGHTS”
• ARE NOT ASSIGNABLE §106A (e)
• TERM: LIFE §106A(d)
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“MORAL RIGHTS”
• ARE BIG IN OTHER COUNTRIES
• IN U.S., PROTECTION BY
COPYRIGHT LAW IS LIMITED TO
WORK OF VISUAL ART
– PAINTINGS, DRAWINGS, PRINTS,
SCULPTURES
– SINGLE, OR LIMITED EDITION OF 200
OR FEWER, SIGNED AND NUMBERED
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“MORAL RIGHTS”
• FOR OTHER TYPES OF WORKS,
AUTHORS USE § 43(a) OF THE
LANHAM ACT [15 U.S.C. § 1125(a)],
SUING FOR UNFAIR COMPETITION
• BIG PUSH FOR EXTENSION OF
MORAL RIGHTS, SINCE NO
COMPETITION HARM IS NEEDED
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THE INFRINGING
CONTENT:
• EITHER: COPIED A SUBSTANTIAL
PORTION OF PROTECTED MATTER
FROM THE WORK
• OR: DID NOT EXACTLY COPY, BUT
PRODUCED A SUBSTANTIALLY
IDENTICAL WORK AFTER ACCESS
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SUBJECT TO CERTAIN
EXEMPTIONS, THE
INFRINGING ACTS ARE:
•
•
•
•
•
MAKING COPIES
MAKING A DERIVATIVE WORK
DISTRIBUTING COPIES PUBLICLY
PERFORMING WORK PUBLICLY
DISPLAYING WORK PUBLICLY
§106
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FAIR USE DEFENSE
• COULD BE FOR ANY TYPE OF
WORK §107
• PURPOSE IS JUST A
THRESHOLD – USE LEVEL
MUST STILL BE “FAIR”
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THE FAIR-USE FACTORS:
• PURPOSE AND CHARACTER OF USE
– AN ALTRUISTIC OR SOCIALLY DESIRABLE
PURPOSE HELPS
– BUT $$ DOESN’T CREATE PRESUMPTION OF
UNFAIRNESS
• NATURE OF THE COPYRIGHTED
WORK
– COPYING MORE LIKELY TO BE FAIR IF FROM
A SCIENCE HYPOTHESIS THAN FROM A
SCULPTURE
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THE FAIR-USE FACTORS:
• AMOUNT AND SUBSTANTIALITY OF
THE PART TAKEN
• IMPACT ON POTENTIAL MARKET
FOR THE ORIGINAL WORK
– SEEMS TO BE THE MOST IMPORTANT
FACTOR BY FAR, IN ACTUAL
PRACTICE
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• THERE IS NO CONCEPT OF FAIR
USE AKIN TO “FAIR COMMENT” IN
DEFAMATION LAW
• ORIGINAL EXPRESSION IN A BOOK
BY OR ABOUT A FAMOUS PERSON
IS ENTITLED TO FULL PROTECTION
– RANGE OF FAIR USE MAY BE A LITTLE
LARGER
Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)
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THE PROBLEM OF PARODY
AS FAIR USE
• PARODY IS ENCOURAGED FOR POLICY
REASONS, EVEN IF IT HURTS MARKET FOR
TARGET WORK
• MUST TAKE SOME OF TARGET, TO IDENTIFY
IT
• TAKING EXCESSIVE AMOUNT IS APT TO BE
NOT FAIR
Fisher v. Dees, 794 F. 2d 432 (9th Cir. 1986)
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MANY SPECIAL EXEMPTIONS
FROM BASIC INFRINGEMENT
RULES
• IN ADDITION TO FAIR USE, THE
STATUTE PROVIDES VARIOUS
NARROWLY TAILORED SPECIAL
EXEMPTIONS FROM INFRINGEMENT:
– LIBRARIES
– CLASSROOM INSTRUCTION
– RELIGIOUS SERVICES
– STATE FAIRS
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EXEMPTION:
RIGHT TO SELL YOUR OWN
COPY
• APPLIES TO A LAWFUL COPY § 109(a)
• CAN ALSO RENT OUT, EXCEPT FOR
PHONORECORDS OR COMPUTER
PROGRAMS §109(b)
– THESE HAD A BAD HISTORY OF PIRACY,
LEADING TO CONG. RESTRICTIONS
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EXEMPTION: HOME-SIZE RADIO/TV
BROADCAST PUBLICLY PLAYED AT
PUBLIC BUSINESS LOCATION
• PLAYING RADIO AND TV
BROADCASTS IN STORES,
RESTAURANTS, BARS
– CAN’T HAVE ANY CHARGE FOR THE
TRANSMISSION
– USUALLY MUST HAVE “PRIVATE HOMES”
TYPE GEAR
– MAY BE RESTRICTED TO NON-MUSICAL
WORKS [UNCLEAR TODAY]
§110(5)(A)
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CAVEAT
• NO EXEMPTION FOR PLAYING
RECORDINGS AT A PUBLIC PLACE,
WITHOUT PERMISSION
• ONLY BROADCASTS
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EXEMPTION: CERTAIN
ACTS RE. COMPUTER
PROGRAMS
• NOT AN INFRINGEMENT TO:
– MAKE A COPY IN ORDER TO USE THE
PROGRAM
– MAKE AN ARCHIVAL COPY
§117(a)
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INCORPORATING THE
WORK INTO A USEFUL
ARTICLE
• REMAINS COPYRIGHTED See, e.g., Mazer v.
Stein, 347 U.S. 201 (1954) (glass figurines of dancers, used
as lamp bases).
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COPYRIGHT IN SOUND
RECORDINGS
• MORE LIMITED THAN COPYRIGHT IN THE
UNDERLYING WORK (MUSIC)
• NO RIGHT TO PROHIBIT PERFORMANCE
[BY PLAYING THE RECORD] §114(a)
– EXCEPT: DIGITAL AUDIO
• RECALL: ANY PUBLIC PERFORMANCE
[PLAYING THE RECORD] WOULD
INFRINGE THE COMPOSER’S
PERFORMANCE RIGHT
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COPYRIGHT IN SOUND
RECORDINGS
• SOUND RECORDING COPYRIGHT IS
LIMITED TO PREVENTING MECHANICAL
REPRODUCTION OF THE RECORDING OR
PORTIONS THEREOF
• IMITATING OF STYLE IS NOT AN
INFRINGEMENT OF SOUND RECORDING
COPYRIGHT
§114(b)
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COMPULSORY LICENSE TO MAKE
SOUND RECORDING OF
ANOTHER’S WORK
• RIGHT TO MAKE A SOUND
RECORDING IS INITIALLY
RESERVED TO THE COMPOSER
• HOWEVER, ONCE SHE ALLOWS
SOMEONE TO MAKE AND
DISTRIBUTE A RECORDING IN U.S.,
THE SITUATION CHANGES >>>
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• ANYONE ELSE CAN THEN
PERFORM THE WORK PRIVATELY
AND RECORD HER OWN
PERFORMANCE §115(a)(1)
• CAN SELL THE RECORDS
• MUST NOTIFY THE COPYRIGHT
OWNER
• MUST PAY A STATUTORY ROYALTY
– ABOUT 1.5 CENTS PER MINUTE OF
PLAYING TIME, PER RECORD
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CAVEATS:
• NO COMPULSORY LICENSE TO DO
A PUBLIC PERFORMANCE AND
RECORD IT
• NO COMPULSORY LICENSE TO
RECORD ANYONE ELSE’S
RENDITION OF THE WORK
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A NOTE ON ARCHITECTURAL
WORKS:
• NOT AN INFRINGEMENT TO TAKE A
PICTURE OF IT, OR MAKE A
PAINTING, ETC., IF THE WORK IS IN
PUBLIC VIEW § 120
• [NOTE: BOTH WOULD NORMALLY
BE FORBIDDEN DERIVATIVE
WORKS]
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REMEDIES
• INJUNCTION §502
• DAMAGES §504(a), (b)
• AND D’s PROFITS §504(a), (b)
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REMEDIES
• IMPOUNDING
– DURING LITIGATION §503(a)
• DESTRUCTION
– AFTER TRIAL §503(b)
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STATUTORY DAMAGES
• STATUTORY DAMAGES ARE
AVAILABLE AS ALTERNATIVE TO
ACTUAL DAMAGES
• $750 – $30,000 PER WORK §504, 505
• HIGHER IF WILLFUL (TO $150,000)
• AVAILABLE ONLY IF PROMPT
REGISTRATION OCCURRED §412
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ATTORNEY FEES
• IN COURT’S DISCRETION, AS PART
OF “COSTS”
§ 505
• PROMPT REGISTRATION NEEDED
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REGISTRATION
• IS NOW PERMISSIVE
• NEEDED FOR ATTORNEY FEES AND
STATUTORY DAMAGES §412
• NEEDED BEFORE SUIT CAN BE
COMMENCED §411
• NO OTHER MAJOR LEGAL
SIGNIFICANCE
• GREAT PRACTICAL SIGNIFICANCE
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OWNERSHIP
• INITIALLY IS IN THE “AUTHORS”
• FOR WORK MADE FOR HIRE, HIRER
IS THE AUTHOR
• >>>
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WHAT IS A
“WORK MADE FOR HIRE”?
• A WORK:
– BY AN EMPLOYEE; OR
– BY WRITTEN COMMISSION, BUT ONLY
IF IN THE NINE CLASSES OF WORKS
§101
– IN OTHER SITUATIONS, NEED A
SEPARATE ASSIGNMENT
• THE UNDERLYING CONTRACT TYPICALLY
PROVIDES FOR LATER EXECUTION OF
SUCH A DOCUMENT
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DURATION OF COPYRIGHT
• NORMALLY, LIFE OF AUTHOR + 70
YEARS §302(a)
• IF MULTIPLE AUTHORS, LAST TO
DIE + 70 YEARS §302(b)
• WORKS MADE FOR HIRE: 95 YEARS
FROM 1ST PUBLICATION OR 120
YEARS FROM CREATION [EARLIER
GOVERNS] §302(c)
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NOW YOU SEE IT, NOW YOU
DON’T:
REVOCATION/TERMINATION
OF COPYRIGHT
ASSIGNMENTS/LICENSES
• STATUTE CALLS IT “TERMINATION”
§203
• IT’S REALLY A STATUTORY RIGHT
TO RENEGE ON AN AGREEMENT
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• POWER OF TERMINATION EXISTS
AS TO LICENSES AS WELL
• DESPITE LICENSE TERMS
• NO REASONS NEEDED IN EITHER
CASE
• NO SUCH POWER OVER WORKS
MADE FOR HIRE
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TERMINATION RIGHT
• IS NOT PASSABLE BY WILL
• GOES TO PRESCRIBED RELATIVES
§203(a)(2)
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TERMINATION OF GRANTS
FOR NEWER WORKS
• FOR WORKS CREATED AFTER 1977
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HOW IT WORKS
• OCCURS IN A WINDOW: 35-40 YRS.
AFTER THE GRANT* TO BE TERMINATED
• MUST GIVE NOTICE OF TERMINATION 210 YRS. BEFORE IT IS TO HAPPEN
• ∴ FOR EARLIEST POSSIBLE
TERMINATION, MUST SERVE NOTICE
BETW. 25 AND 33-YRS. AFTER GRANT
* = ASSIGNMENT OR LICENSE
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MORE ABOUT
TERMINATION
• TERMINATION RIGHT IS NOT
ASSIGNABLE AND CANNOT BE
CONTRACTED AWAY
• A GRANT NOTICED FOR
TERMINATION CANNOT BE
“RENEWED” UNTIL AFTER THE
TERMINATION HAPPENS §203(b)(4)
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