Intellectual Property
Boston College Law School
January 29, 2009
Copyright – Exclusive Rights
Transfer
• 17 U.S.C. § 201(d)
– (1) The ownership of a copyright may be
transferred in whole or in part by any means of
conveyance …
– (2) Any of the exclusive rights comprised in a
copyright, including any subdivision of any of
the rights …, may be transferred as provided by
clause (1) and owned separately…
Termination
• Post 1978 transfers - 17 U.S.C. § 203
– Can be effective during 5 year period, 35 years from
original transfer
– Notice between 2 and 10 years from effective date
• Pre 1978 transfers - 17 U.S.C. § 304(c)
– Can be effective during 5 year period after expiration of
original 56 year term under 1909 Act or 75 year term
under 1976 Act (general rule)
Termination
• Important Limitations
– Does not apply to works for hire
– Derivative work exception
• Can still continue to use derivative work under grant
• But cannot prepare new works
Rights of Copyright Owners
• 17 U.S.C. §106
– “Subject to sections 107 through 122, the owner of
the copyright … has the exclusive rights to do and to
authorize any of the following:
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•
•
•
•
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(1) to reproduce the copyrighted work …
(2) to prepare derivative works …
(3) to distribute copies … to the public …
(4) … to perform the copyrighted work publicly …
(5) … to display the copyrighted work publicly …
(6) in the case of sound recordings, to perform the copyrighted
work publicly by means of a digital audio transmission
Right to Reproduce
• Elements of infringement action
– (1) Actual copying
• Independent creation is not infringing
• Factual issue for the jury
– (2) Improper appropriation
• Perspective is the ordinary observer
• Did the copier copy “too much”?
Bright Tunes v. Harrisongs
Arnstein v. Porter
Actual Copying
Webber
Striking Similarity
Harrison
BeeGees
Similarity
Arnstein
Jury
No Jury
No Similarity
Access
Actual Copying
• Methods of proof
– Direct evidence
– Circumstantial evidence
• (1) Access
• (2) Similarity
• Procedural issues
– Issue of fact: for the jury
– Expert testimony is often permitted
– Reviewed on appeal for clear error
Improper Appropriation
• Improper Appropriation
– Standard: “substantial similarity”
– Perspective: intended audience
• Types of cases
– Fragmented literal similarity
• Literal copying of portions of original
– Comprehensive nonliteral similarity
• Non-literal copying of ideas, structure, plot,
characters, etc.
Nichols v. Universal
•
“Upon any work, … a great number of
patterns of increasing generality will fit
equally well, as more and more of the
incident is left out.
•
“The last may perhaps be no more than the
most general statement of what the play is
about, and at times might consist only of
its title; but there is a point in this series
of abstractions where they are no longer
protected, since otherwise the playwright
could prevent the use of his ‘ideas,’ to
which, apart from their expression, his
property is never extended.
•
“Nobody has ever been able to fix that
boundary, and nobody ever can.”
Abstractions Test
Not Protected
Idea
Plot Outline
Subplots, Characters
Specific Scenes
Text
Protected
Nichols v. Universal
Abie’s Irish Rose
Not protectible
No copying of
protectible
material
No copying
The Cohens and the Kellys
Idea
Plot Outline
Subplots, Characters
Scenes
Text
Shakespeare v. Laurents
Romeo & Juliet
?
Idea
Plot Outline
Subplots, Characters
Scenes
Text
West Side Story
Improper Appropriation
• Substantive issues
– Standard is “substantial similarity”
– Both quantitative and qualitative
– Generally look to “ordinary observer”
• Sometimes modify if intended for a specialized market
• Procedural issues
– Issue of fact: for the jury
– Expert testimony generally not permitted
– Reviewed on appeal for clear error
Steinberg v. Columbia
Infringing?
Copyrighting Styles
Sampling
Statutory Limits
• Statutory limits on reproduction right
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Public library exceptions
Broadcast exceptions
Compulsory licensing for musical works
Audio Home Recording Act
Fair Use
Derivative Work Right
• 17 U.S.C. §106
– “Subject to sections 107 through 122, the owner of the
copyright … has the exclusive rights to do and to
authorize any of the following: …
• (2) to prepare derivative works based upon the original.”
• 17 U.S.C. §101
– “A ‘derivative work’ is a work based upon one or more
preexisting works, such as a translation, musical
arrangement, dramatization, fictionalization, motion
picture version … or any other form in which a work
may be recast, transformed, or adapted.”
Derivative Work Right
Anderson v. Stallone
Anderson v. Stallone
• 17 U.S.C. §103
– (a) The subject matter of copyright as specified
by section 102 includes compilations and
derivative works, but protection for a work
employing preexisting material in which
copyright subsists does not extend to any part
of the work in which the material has been
used unlawfully.
Why derivative work right?
• Arguments in support
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Author created something of value; reward
Additional incentive for creating initial work
Provide for orderly exploitation of work
Preserve integrity of the work
• Arguments against
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Gives too much control over downstream creativity
Hinders development of follow-on works
Existing incentives sufficient
No need for orderly exploitation
Public Distribution
• 17 U.S.C. §106
– “Subject to sections 107 through 122, the owner of the
copyright … has the exclusive rights to do and to
authorize any of the following:…
• (3) to distribute copies or phonorecords of the
copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending
...
First Sale Doctrine
• 17 U.S.C. §109
– “(a) Notwithstanding the provisions of section 106(3),
the owner of a particular copy or phonorecord
lawfully made under this title … is entitled, without the
authority of the copyright owner, to sell or otherwise
dispose of the possession of that copy or
phonorecord.”
– Exceptions
• Recorded music rental
• Software rental
Public Distribution
• Proposals to limit first sale
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Royalties for library lending
Royalties for video rentals
Royalties for CD re-sales
Royalties for textbook re-sales
Public Performance
• 17 U.S.C. §106
– “Subject to sections 107 through 122, the owner of the
copyright … has the exclusive rights to do and to
authorize any of the following:…
• (4) … to perform the copyrighted work publicly
…”
– Sound recordings are excluded
• No general public performance right
• But digital public performance right in 106(6)
Public Performance
• 17 U.S.C. §101
– “To ‘perform’ a work means to recite, render, play,
dance, or act it, either directly or by means of any
device or process …”
– “To perform or display a work ‘publicly’ means • (1) to perform or display it at a place open to the public or at
any place where a substantial number of persons outside of
a normal circle of family and its social acquaintances is
gathered; or
• (2) to transmit or otherwise communicate a performance or
display of the work to a place specified by clause (1) or to
the public, by means of any device or process …”
Public Performance
• Examples
– Live performance
• Place open to public
– Showing a movie in a movie theater
– Performing a play on Broadway
• Substantial number of people outside normal circle
– Performing play in a church or private club
– Performing music at a private dance club
– Transmission
• Television broadcast
• Radio broadcast of music
• Reception of television in a public place (e.g. sports bar)
Public Performance
• 17 U.S.C. §110 Exclusions
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(1) Face-to-face teaching activities
(2) Instructional broadcasting
(3) Religious services
(4) Performances of music with no commercial advantage
(5) Mere reception of broadcast in public
(6) Agricultural fairs
(7) In connection with sale of records or sheet music
(8) Noncommercial broadcasts to deaf and blind
– (9) Certain charitable performances
Public Performance
• Compulsory licenses
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Cable retransmissions of broadcast t.v.
Satellite retransmissions of broadcast t.v.
Jukebox performances of musical works
Digital performances of sound recordings
Collective Rights Organizations
• ASCAP, BMI, etc.
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Given authority to license public perf. rights
Provide blanket licenses to users
Enforce licensing requirements
Distribute revenues to copyright owners
Sample Licenses
Public Display
• 17 U.S.C. §106
– “Subject to sections 107 through 122, the owner of the copyright
… has the exclusive rights to do and to authorize any of the
following:…
• (5) … to display the copyrighted work publicly …”
• 17 U.S.C. §109(c)
– “Notwithstanding the provisions of section 106(5), the owner of a
particular copy lawfully made … is entitled … to display that
copy publicly … to viewers present at the place where the copy
is located.”
Moral Rights
• Berne Convention Article 6bis
• Berne Convention Implementation Act (1988)
• Visual Artists Rights Act (1990)
Visual Artists Rights Act
• 17 U.S.C. §101
– A “work of visual art” is • (1) a painting, drawing, print, or sculpture, existing in a single
copy [or] in a limited edition of 200 copies or fewer that are
signed and consecutively numbered by the author … or
• (2) a still photographic image produced for exhibition purposes
only, existing in a single copy that is signed by the author, or in
a limited edition of 200 copies or fewer that are signed and
consecutively numbered by the author ...
Visual Art
Visual Artists Rights Act
• 17 U.S.C. §106A:
– (a) Subject to section 107 …, the author of a work of
visual art • (1) shall have the right – (A) to claim authorship of that work, and
– (B) to prevent the use of his or her name as the author of any
work of visual art which he or she did not create;
• (2) shall have the right to prevent the use of his or her name as
the author of a work of visual art in the event of a distortion,
mutilation, or other modification of the work which would be
prejudicial to his or her honor or reputation
Visual Artists Rights Act
• 17 U.S.C. §106A:
– (a) Subject to section 107 …, the author of a work of
visual art • ...
• (3) … shall have the right
– (A) to prevent any intentional distortion, mutilation, or other
modification of that work which would be prejudicial to his or
her honor or reputation … ; and
– (B) to prevent any destruction of a work of recognized stature
...
Visual Artists Rights Act
• Additional details
– Right attaches regardless of ownership of
copyright or the actual copies
– Can be waived, but only in a signed writing
– Duration is generally life of the artist
– Violation leads to an action for infringement
Administrative
• Next Assignment
– Read II.F – Fair Use