Copyright Law
David G. Post
Temple Law School
Feb. 2004
David.Post@Temple.edu
http://www.davidpost.com
Copyright attaches to works of
authorship
• copyright subsists in
– “original works of authorship” that are
– “fixed in any tangible medium of expression”
• Nothing more is required
– Registration of copyright is not required
– Copyright notice is not required
Originality
• An “original” work is one that was
– independently created, and
– shows a “modicum of creativity”
Fixation
• A work is “fixed in a tangible medium of
expression” when it is embodied in a
material object of some kind – the pages
of a book, a canvas, magnetic tape, a
computer’s hard disk, a piano roll, . . .
What is this thing – “copyright” –
that attaches to original works of
authorship that are fixed in a
tangible medium of expression?
• copyright is a negative right
– It does not give the owner a right to do
something with or to the work;
– it gives the owner a right to exclude others
from doing certain things with or to the work
What can the copyright owner
exclude others from doing with or
to the work?
• The Section 106 rights: The owner of copyright
can exclude others from
– reproducing the work
• The right to exclude others from making reproductions that
are “substantially similar” to the copyrighted work
– distributing the work [or things “substantially similar”
to the work] to the public
– creating a “derivative work” based upon the work
– performing the work in public
– displaying the work to the public
– transmitting the work by means of digital audio
transmission
What is the “work” that copyright
protects?
• Copyright protects only the expression
contained in the work, not the ideas
• The copyright owner therefore does not
have the exclusive right to reproduce [or
distribute, or perform, or display, etc.] the
“ideas” in a work; only the way that he/she
chose to express those ideas
– and only if that expression is “original”
What is the “work” that copyright
protects, II
• Copyright never protects the “facts” revealed in a
work; only the way the author has organized, or
selected, or arranged those facts
– and only if that organization/selection/arrangement is
itself “original”
• The copyright owner therefore does not have the
exclusive right to reproduce [or distribute, or
perform, or display, etc.] the “facts” in a work;
only the [original] way that he/she chose to
select, organize or arrange those facts
Who owns the copyright?
• Initially – i.e., when a work is created and fixed
in a tangible medium of expression – all of the
exclusive rights vest in the “Author”
• who is the “Author” of a work?
– Ordinarily, the author is who you think it is
– Sometimes, it can be more than one person; “joint
authors,” who own the copyright jointly
– If the work was created by an employee acting within
the scope of his or her employment, the employer is
the author [Work for Hire]
Who owns the copyright, II
• After the initial vesting, the author can
– divide up rights any way he/she wants, and can
– transfer the rights, in whole or in part, to anyone else
– as long as the transfer is in writing and signed by the
owner of the rights in question
• The owner can also license others to do things
that would otherwise be violations of one of
more of the exclusive rights
– These do not have to be in writing
The Picture So Far
•
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Copyright subsists in “original works of authorship” that are “fixed in any tangible medium of expression”
Whoever owns the copyright has the right to exclude others from doing certain things with or to the work
The owner of copyright can exclude others from
– reproducing the work
– distributing the work to the public
– creating a “derivative work” based upon the work
– performing the work in public
– displaying the work to the public
– transmitting the work by means of digital audio transmission
The “work” to which these exclusive rights attach does not include any “ideas” or “facts” – those are in the public
domain. Only original expression is protected
Initially, all of the exclusive rights vest in the “Author”
– who is the “Author”?
• Ordinarily, the author is who you think it is
• Sometimes, it can be more than one person; “joint authors,” who own the copyright jointly
• If the work was created by an employee acting within the scope of his or her employment, the
employer is the author [Work for Hire]
After the initial vesting, the author can
– divide up rights any way he/she wants, and can
– transfer the rights, in whole or in part, to anyone else
– as long as the transfer is in writing and signed by the owner of the rights in question
The owner can also license others to do things that would otherwise be violations of one of more of the exclusive
rights
– These do not have to be in writing
Infringement
• Anyone who violates any of the exclusive
rights of the copyright owner without
authorization is liable as an infringer of
copyright
What happens to infringers of
copyright?
• Injunctive relief is available
– a court order to stop doing whatever it is you
are doing that constitutes infringement
• Damages are available
– The copyright owner’s actual damages from
the infringement, OR
– Fixed statutory damages
• up to $20K per infringement, whether or not there
were any actual damages
What kind of authorization can
serve as a shield against liability?
• Licenses
– Remember: these do not have to be in writing
– They can be implied from the circumstances
• Fair Use
– It is not infringement to make “fair use” of a
copyrighted work
– It is a kind of license granted to the public to
do certain things to and with copyrighted
works that would otherwise constitute
infringement
When are uses “fair”?
• Four factors are balanced against one another
– The purpose of the use
• what did the defendant do, and why?
– commercial uses are bad; educational uses are good
– duplicative uses are bad; transformative uses are good
– The nature of the work being infringed
– The amount that was taken from the work
• more is bad; less is good
– The effect of the use on the market for, or the value
of, the work
• Will the defendant’s actions, if widespread, reduce the value
of the copyrighted work?
• Will they deprive the copyright owner of valuable or
potentially valuable licensing opportunities?
The Copyright Claim
• The work is protected by copyright
• I am the owner of one (or more) of the
exclusive rights in the work
• You have, by doing XXX, done something
within those exclusive rights belonging to
me, without my permission
• You are liable for infringement
The Response
• You authorized me to do what I did, or
• I am making fair use of the work, or
• [Some other exception applies]
The Whole Deal
•
The Copyright Owner’s Claim:
–
–
–
–
•
The work is protected by copyright
• Copyright subsists in “original works of authorship” that are “fixed in any tangible medium of
expression”
• The “work” to which these exclusive rights attach does not include any “ideas” or “facts” – those are in
the public domain. Only original expression is protected
I am the owner of one (or more) of the exclusive rights in the work
• I am the “Author,” and I have retained my copyright rights, or
• I received the rights by transfer from the Author, or from someone else to whom the author had
transferred the rights
You have, by doing XXX, done something within those exclusive rights belonging to me, without my
permission
• I have the exclusive right to reproduce the work, distribute the work to the public, create a “derivative
work” based upon the work, perform the work in public, display the work to the public, and transmit the
work by means of digital audio transmission
• What you (defendant) have done is a violation of one of these rights
You are liable for infringement
• I am entitled to injunctive relief and damages (actual or statutory)
THE Defendant’s RESPONSE
–
–
–
I didn’t do what you claim I did; or
I did what you claim I did, but doing that is not a violation of your rights; or
It was a violation of your rights, except for the fact that
• I was making “fair use” of a copyrighted work
– Four factors are balanced against one another
– The purpose of the use, the nature of the work being infringed, the amount that was taken from
the work, and the effect of the use on the market for, or the value of, the work
• You authorized me to do what I did
– I have a license from you
• [Some other exception applies]
Education and Copyright
• Fair Use and Coursepacks
• The Work for Hire Doctrine – Teachers as
“employees”
• The copyright status of works posted on
the Internet
• The “classroom guidelines”
The “Classroom Guidelines”
• Copyright Office Circular No. 21: “Reproduction of
Copyrighted Works by Educators and Librarians”
– http://www.copyright.gov/circs/circ21.pdf
• A single copy may be made of any of the following by or
for a teacher at his or her individual request for his or her
scholarly research or use in teaching or preparation to
teach a class:
–
–
–
–
–
A. A chapter from a book;
B. An article from a periodical or newspaper;
C. A short story, short essay or short poem,
D. A chart, graph, diagram, drawing, cartoon or
picture from a book, periodical, or newspaper;
• There shall not be more than nine instances of such
multiple copying for one course during one class term.
Classroom guidelines, II
• Multiple copies (not to exceed in any event more than one copy per
pupil in a course) may be made by or for the teacher giving the
course for classroom use or discussion; provided that:
– A. The copying meets the tests of brevity and spontaneity
• Brevity: e.g., for prose works: (a) Either a complete article, story or essay of
less than 2,500 words, or (b) an excerpt from any prose work of not more
than 1,000 words or 10% of the work, whichever is less, but in any event a
minimum of 500 words.
• Spontaneity: The copying is at the instance and inspiration of the individual
teacher, and the inspiration and decision to use the work and the moment of
its use for maximum teaching effectiveness are so close in time that it would
be unreasonable to expect a timely reply to a request for permission.
– B. The copying meets the cumulative effect test
• e.g., There shall not be more than nine instances of such multiple copying
for one course during one class term.
– and,
• C. Each copy includes a notice of copyright