COPYRIGHTS PROF JANICKE FALL 2017 CONSTITUTIONAL POWER ART

COPYRIGHTS PROF. JANICKE FALL 2017

CONSTITUTIONAL POWER • ART. I, SEC. 8 (8): 2017 SCIENCE USEFUL ARTS AUTHORS INVENTORS WRITINGS DISCOVERIES Copyrights 2

REQUISITES FOR PROTECTION: • ORIGINALITY (i. e. NOT COPIED) • WORK OF AUTHORSHIP • FIXATION 2017 Copyrights 3

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 2017 Copyrights 4

WORKS COVERED • • 2017 LITERARY (INCL. SOFTWARE) MUSICAL (INCL. WORDS) DRAMATIC (INCL. MUSIC) PANTOMIME / CHOREOGRAPHY PICTORIAL, GRAPHIC, SCULPTURAL MOTION PICTURES AND OTHER A/V ARCHITECTURAL WORKS Copyrights 5

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 2017 Copyrights 6

– 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 2017 Copyrights 7

GOVERNMENT WORKS • NO COPYRIGHT IF IT IS CREATED BY U. S. GOVERNMENT ACTIVITY § 105 • BUT U. S. CAN ACQUIRE OTHERS’ COPYRIGHTS IN THEIR WORKS 2017 Copyrights 8

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 2017 Copyrights 9

ORIGINALITY REQUIREMENT MET (§ 102) • EXAMPLE: TAKING A PHOTOGRAPH OF A TREE • EXAMPLE: PAINTER COPYING THE MONA LISA 2017 Copyrights 10

WHAT IS NOT ENOUGH • WHITE PAGES OF PHONE BOOK (FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO. , 499 U. S. 340 (1991) 2017 Copyrights 11

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 2017 Copyrights 12

IDEA-EXPRESSION DICHOTOMY • EXAMPLE: I WRITE A BOOK DESCRIBING THE CONSTRUCTION OF BRIDGES: MATERIALS NEEDED; WORKERS NEEDED; ETC. – YOU BUILD A BRIDGE USING THE INFO IN MY BOOK – NOT AN INFRINGEMENT – YOU PHOTOCOPY THE BOOK – IS AN INFRINGEMENT 2017 Copyrights 13

IDEA-EXPRESSION DICHOTOMY • EXAMPLE: I WRITE A BOOK ON THE GOOD AND BAD FEATURES OF ELECTION CAMPAIGNS • YOU PLAN AND CARRY OUT A CAMPAIGN USING MY SUGGESTIONS – NOT AN INFRINGEMENT • COPYING CHAPTERS OF MY BOOK – IS AN INFRINGEMENT 2017 Copyrights 14

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)) 2017 Copyrights 15

DERIVATIVE WORKS • PERHAPS THE MOST POWERFUL AND VALUABLE OF ALL COPYRIGHTS • 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) (2 ©s) 2017 Copyrights 16

WHERE THE UNDERLYING WORK IS STILL UNDER COPYRIGHT • IF DERIVATIVE WORK IS MADE WITHOUT PERMISSION OF COPYRIGHT OWNER: – IT IS MERELY AN INFRINGEMENT; NO NEW COPYRIGHT IS CREATED! • IF DERIVATIVE WORK IS MADE WITH PERMISSION: IS A SECOND COPYRIGHTED WORK 2017 Copyrights 17

EXAMPLE • A COPYRIGHTED PLAY • SOMEONE WITH PERMISSION MAKES A MOVIE • A SECOND COPYRIGHT EXISTS, OWNED BY THE MOVIE-MAKER 2017 Copyrights 18

• SOMEONE COPYING THE MOVIE INFRINGES BOTH COPYRIGHTS • FACES TWO SUITS 2017 Copyrights 19

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) 2017 Copyrights 20

EXAMPLE OF MERGER • I WRITE AN ARTICLE SAYING JACK SMITH SHOULD RUN FOR GOVERNOR • YOU MAKE UP CAMPAIGN SIGNS SAYING “JACK SMITH FOR GOVERNOR” • THE IDEA AND ITS EXPRESSION HAVE MERGED 2017 Copyrights 21

CASES • MAZER v. STEIN • LAUREYSSENS 2017 Copyrights 22

RIGHTS • ARE DIVISIBLE FOR LICENSING OR ASSIGNMENT • THERE ARE NO REDUNDANCIES >>> 2017 Copyrights 23

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)) 2017 Copyrights 24

RIGHTS • PERFORM THE WORK PUBLICLY § 106(4) • DISPLAY THE WORK PUBLICLY § 106(5) – BUT: OWNER OF THE ACTUAL ARTICLE (e. g. PAINTING) OR LAWFUL COPY IS ALLOWED TO DISPLAY PUBLICLY OR AUTHORIZE OTHERS (MUSEUM) TO DO SO§ 109(c) 2017 Copyrights 25

“MORAL RIGHTS” • WE HAVE THEM, IN THE COPYRIGHT STATUTE, BUT ONLY FOR FINE ART WORKS, WHERE NO MORE THAN 200 NUMBERED COPIES ARE MADE BY THE “AUTHOR”: – – – 2017 PAINTINGS DRAWINGS PRINTS STILL PHOTO PRINTS SCULPTURE CASTINGS Copyrights 26

“MORAL RIGHTS” • ATTRIBUTION § 106 A (a)(1) – INCLUDES RIGHT OF NON-ATTRIBUTION IF IT’S NOT YOURS – DON’T SAY IT’S MINE IF YOU’VE CHANGED IT IN ANY WAY • INTEGRITY § 106 A (a)(3) – DON’T CHANGE MY WORK 2017 Copyrights 27

“MORAL RIGHTS” • ARE NOT ASSIGNABLE § 106 A (e) • TERM: LIFE § 106 A(d) 2017 Copyrights 28

“MORAL RIGHTS” • ARE BIG IN OTHER COUNTRIES – FOR ALL KINDS OF WORKS, E. G. , BOOKS • IN U. S. , PROTECTION BY THE COPYRIGHT LAW IS LIMITED TO WORK OF VISUAL ART 2017 Copyrights 29

“MORAL RIGHTS” • FOR OTHER TYPES OF WORKS, U. S. AUTHORS USE § 43(a) OF THE LANHAM ACT [15 U. S. C. § 1125(a)], SUING FOR UNFAIR COMPETITION • BIG PUSH FOR U. S. EXTENSION OF MORAL RIGHTS, BUT SEEMS NOT TO BE MOVING IN CONGRESS 2017 Copyrights 30

“INFRINGING” MEANS: • EITHER: COPYING A SUBSTANTIAL PORTION OF PROTECTED MATTER FROM THE WORK • OR: NOT COPYING EXACTLY, BUT PRODUCING A SUBSTANTIALLY IDENTICAL WORK AFTER ACCESS 2017 Copyrights 31

CASE • PARAMOUNT 2017 Copyrights 32

THEREFORE, SUBJECT TO CERTAIN EXEMPTIONS, THE INFRINGING ACTS ARE: • • • MAKING “COPIES” MAKING A DERIVATIVE WORK DISTRIBUTING “COPIES” PUBLICLY PERFORMING WORK PUBLICLY DISPLAYING WORK PUBLICLY § 106 2017 Copyrights 33

“THE RIGHTS” • A VAGUE TERM IN COPYRIGHT • GOOD LAWYERS SAY: “SHE ACQUIRED THE RIGHT TO _____” 2017 Copyrights 34

FAIR USE DEFENSE • COULD BE FOR ANY TYPE OF WORK § 107 • PURPOSE IS JUST A THRESHOLD ISSUE – USE LEVEL MUST STILL BE “FAIR” 2017 Copyrights 35

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 2017 Copyrights 36

THE FAIR-USE FACTORS: • AMOUNT AND SUBSTANTIALITY OF THE PARTS TAKEN • IMPACT ON POTENTIAL MARKET FOR THE ORIGINAL WORK – SEEMS TO BE THE MOST IMPORTANT FACTOR BY FAR, IN ACTUAL PRACTICE [OFFICIALLY, NO FACTOR DOMINATES] – INCLUDES THE DERIVATIVES MARKET 2017 Copyrights 37

BOOKS ABOUT FAMOUS PERSONS • FAIR USE IS NOT LIKE “FAIR COMMENT” IN DEFAMATION LAW • A BOOK BY OR ABOUT A FAMOUS PERSON IS ENTITLED TO FULL COPYRIGHT PROTECTION 2017 Copyrights 38

CASE • HARPER & ROW 2017 Copyrights 39

THE PROBLEM OF PARODY AS FAIR USE • PARODY IS ENCOURAGED FOR POLICY REASONS, EVEN IF IT HURTS MARKET FOR TARGET WORK • EVERY PARODY TAKES SOME OF THE TARGET WORK, IN ORDER TO IDENTIFY IT • TAKING EXCESSIVE AMOUNT IS APT TO BE NOT FAIR Fisher v. Dees, 794 F. 2 d 432 (9 th Cir. 1986) 2017 Copyrights 40

CASES • FISHER v. DEES • SEGA v. ACCOLADE • TY INC. • MGM v. GROKSTER 2017 Copyrights 41

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 2017 Copyrights 42

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 2017 Copyrights 43

• PRIVATE LENDING OF RECORDINGS (e. g. , TO FRIENDS) for NO $$, IS OK – § 109 SAYS LENDING NOT ALLOWED FOR COMMERCIAL ADVANTAGE [“for the purposes of direct or indirect commercial advantage”] 2017 Copyrights 44

EXEMPTION 110(5)(A): 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 – NO RESTRICTION ON SIZE OF ESTABLISHMENT, BUT: – MUST HAVE “PRIVATE HOMES” TYPE GEAR – SEEMINGLY COVERS ANY KIND OF WORK § 110(5)(A) 2017 Copyrights 45

UNCLEAR ABOUT 110(5)(A) • DOESN’T MENTION ORIGIN OF THE “TRANSMISSION’ – COULD IT BE INTERNET STREAMING? – DOES THE ORIGIN NEED TO BE LICENSED? 2017 Copyrights 46

CAVEAT RE. 110(5) • NO EXEMPTION FOR PLAYING RECORDINGS AT A PUBLIC PLACE, WITHOUT PERMISSION • 110(5) (A) AND (B) REQUIRE A “TRANSMISSION” • THEREFORE, ONLY BROADCASTS (maybe including streaming) 2017 Copyrights 47

EXEMPTION: CERTAIN ACTS RE. COMPUTER PROGRAMS • NOT AN INFRINGEMENT TO: – MAKE A COPY IN ORDER TO USE THE PROGRAM – MAKE AN ARCHIVAL COPY 2017 § 117(a) Copyrights 48

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). 2017 Copyrights 49

COPYRIGHT IN SOUND RECORDINGS (PERFORMERS’ RIGHTS) • MORE LIMITED THAN COPYRIGHT IN THE UNDERLYING WORK (MUSIC) • NO RIGHT TO PROHIBIT PUBLIC PERFORMANCE OF THE RECORDING (i. e. , BY PLAYING THE RECORD) § 114(a) – EXCEPT: DIGITAL AUDIO • RECALL: ANY PUBLIC PERFORMANCE [PLAYING THE RECORD IN PUBLIC PLACE] WOULD INFRINGE THE COMPOSER’S PERFORMANCE RIGHT 2017 Copyrights 50

COPYRIGHT IN SOUND RECORDINGS (PERFORMERS’ RIGHTS) • SOUND RECORDING COPYRIGHT IS LIMITED TO PREVENTING MECHANICAL REPRODUCTION OF THE RECORDING OR PORTIONS THEREOF § 114(b) • 2017 PLUS DIGITAL AUDIO TRANSMISSION OF THE RECORDING (IF WE EVER GET THERE) §§ 106(6), 114(b) Copyrights 51

• THEREFORE, MAKING A RECORD IMITATING THE RECORDING ARTIST’S STYLE IS NOT AN INFRINGEMENT OF SOUND RECORDING COPYRIGHT – WOULD STILL BE INFRINGEMENT OF THE COMPOSER’S COPYRIGHT – “REPRODUCING THE WORK IN … PHONORECORDS” § 106(1) 2017 Copyrights 52

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 >>> 2017 Copyrights 53

• 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 2017 Copyrights 54

CAVEATS: • NO COMPULSORY LICENSE TO DO A PUBLIC PERFORMANCE AND RECORD IT • NO COMPULSORY LICENSE TO FIX ANYONE ELSE’S PERFORMANCE OF THE WORK § 1101(a) 2017 Copyrights 55

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] 2017 Copyrights 56

REMEDIES • INJUNCTION § 502 • DAMAGES § 504(a), (b) • AND D’s PROFITS § 504(a), (b) 2017 Copyrights 57

REMEDIES • IMPOUNDING – DURING LITIGATION § 503(a) • DESTRUCTION – AFTER TRIAL § 503(b) 2017 Copyrights 58

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 2017 Copyrights 59

ATTORNEY FEES • IN COURT’S DISCRETION, AS PART OF “COSTS” § 505 • PROMPT REGISTRATION NEEDED 2017 Copyrights 60

REGISTRATION • IS NOW PERMISSIVE • PROMPT REG. NEEDED FOR ATTORNEY FEES AND STATUTORY DAMAGES § 412 • ALWAYS NEEDED BEFORE SUIT CAN BE COMMENCED § 411 • NO OTHER MAJOR LEGAL SIGNIFICANCE • GREAT PRACTICAL SIGNIFICANCE 2017 Copyrights 61

CASE • ARTHUR RUTENBERG 2017 Copyrights 62

OWNERSHIP • INITIALLY IS IN THE “AUTHORS” • FOR WORK MADE FOR HIRE, HIRER IS THE AUTHOR • >>> 2017 Copyrights 63

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 2017 Copyrights 64

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 1 ST PUBLICATION OR 120 YEARS FROM CREATION [EARLIER GOVERNS] § 302(c) 2017 Copyrights 65

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 2017 Copyrights 66

• 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 2017 Copyrights 67

TERMINATION RIGHT • IS NOT PASSABLE BY WILL • GOES TO PRESCRIBED RELATIVES § 203(a)(2) 2017 Copyrights 68

TERMINATION OF GRANTS FOR NEWER WORKS • FOR WORKS CREATED AFTER 1977 2017 Copyrights 69

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 2017 Copyrights 70

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) 2017 Copyrights 71