COPYRIGHTS PROF JANICKE JULY 2007 F 2007 Copyrights

COPYRIGHTS PROF. JANICKE JULY 2007 F 2007 Copyrights

CONSTITUTIONAL POWER • ART. I, SEC. 8 (8): F 2007 SCIENCE USEFUL ARTS AUTHORS INVENTORS WRITINGS DISCOVERIES Copyrights 2

KEYS TO PROTECTION: • ORIGINALITY • WORK OF AUTHORSHIP • FIXATION F 2007 Copyrights 3

FIXATION REQUIREMENT • WORK MUST BE FIXED IN A TANGIBLE MEDIUM OF EXPRESSION (§ 102) • MORE THAN TRANSITORY TIME (§ 101) • NOT COVERED: MY CLASSES; PASTOR’S UNWRITTEN SERMON F 2007 Copyrights 4

WORKS COVERED • • • LITERARY (INCL. SOFTWARE) MUSICAL (INCL. WORDS) DRAMATIC (INCL. MUSIC) PANTOMIME / CHOREOGRAPHY PICTORIAL, GRAPHIC, SCULPTURAL MOTION PICTURES AND OTHER A/V F 2007 Copyrights 5

WORKS COVERED • SOUND RECORDINGS (AS SEPARATE WORKS) – RECORD 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) – SOMETIMES NOT CLEAR WHO THE “AUTHOR” OF A SOUND RECORDING IS; SINGER, BAND, STUDIO ENGR. ? • HANDLED BY CONTRACT F 2007 Copyrights 6

WORKS COVERED • ARCHITECTURAL WORKS F 2007 Copyrights 7

GOVERNMENT WORKS • NO COPYRIGHT IF IT IS CREATED BY GOVERNMENT ACTIVITY § 105 • BUT U. S. CAN ACQUIRE OTHERS’ COPYRIGHTS IN THEIR WORKS F 2007 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 F 2007 Copyrights 9

ORIGINALITY REQUIREMENT (§ 102) • EXAMPLE: TAKING A PHOTOGRAPH OF BUILDING • EXAMPLE: PAINTER COPYING THE MONA LISA F 2007 Copyrights 10

WHAT IS NOT ENOUGH • WHITE PAGES OF PHONE BOOK (FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO. , 499 U. S. 340 (1991) F 2007 Copyrights 11

IDEA-EXPRESSION DICHOTOMY • THE CENTRAL DOCTRINE OF COPYRIGHT LAW (§ 102(b)) • NO PROTECTION FOR IDEAS – OTHERS CAN TAKE FREELY, USE IN THEIR OWN ORIGINAL WORKS • ONLY PROTECTION IS FOR HOW YOU EXPRESS THE IDEA F 2007 Copyrights 12

IDEA-EXPRESSION DICHOTOMY • EXAMPLE: I WRITE A BOOK DESCRIBING HOW TO DO 10 PHYSICS EXPERIMENTS – YOU CARRY OUT EACH EXPERIMENT TO THE LETTER -- NOT AN INFRINGEMENT – YOU PHOTOCOPY THE BOOK – IS AN INFRINGEMENT F 2007 Copyrights 13

COMPILATIONS • CAN BE “ORIGINAL” WORKS; COPYRIGHTED UPON FIXATION, IF THE PIECES WERE LAWFULLY TAKEN (§ 103(a)) • PROTECTION EXTENDS ONLY TO THE SELECTION OR ARRANGEMENT (§ 103(b)) F 2007 Copyrights 14

DERIVATIVE WORKS • PERHAPS THE MOST POWERFUL OF ALL COPYRIGHTS • AGAIN REQUIRES THAT THE TAKING FROM ORIG. IS LAWFUL • 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) F 2007 Copyrights 15

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) F 2007 Copyrights 16

RIGHTS • ARE DIVISIBLE FOR LICENSING OR ASSIGNMENT • THERE ARE NO REDUNDANCIES F 2007 Copyrights 17

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)) F 2007 Copyrights 18

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) F 2007 Copyrights 19

“MORAL RIGHTS” • ATTRIBUTION § 106 A (1) – INCLUDES RIGHT OF NONATTRIBUTION IF IT’S NOT YOURS • INTEGRITY § 106 A(2) – DON’T SAY IT’S MINE IF YOU’VE CHANGED IT F 2007 Copyrights 20

“MORAL RIGHTS” • ARE NOT ASSIGNABLE § 106 A (e) • TERM: LIFE § 106 A(d) F 2007 Copyrights 21

“NEIGHBORING RIGHTS” • DUE TO INTERNATIONAL AND MODERNIZING PRESSURES, CONGRESS HAS BEEN RESORTING TO THE COMMERCE CLAUSE FOR NEW RIGHTS • EXAMPLE: DATABASE PROTECTION; DIGITAL TRANSMISSION OF LIVE PERFORMANCE (NON-FIXED) F 2007 Copyrights 22

“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 F 2007 Copyrights 23

“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 F 2007 Copyrights 24

THE INFRINGING CONTENT: • EITHER: COPIED A SUBSTANTIAL PORTION OF PROTECTED MATTER FROM THE WORK • OR: DID NOT COPY LITERALLY, BUT PRODUCED A SUBSTANTIALLY IDENTICAL WORK AFTER ACCESS F 2007 Copyrights 25

SUBJECT TO IMPORTANT LIMITATIONS, THE INFRINGING ACTS ARE: • • • MAKING COPIES MAKING A DERIVATIVE WORK DISTRIBUTING COPIES PUBLICLY PERFORMING WORK PUBLICLY DISPLAYING WORK PUBLICLY § 106 F 2007 Copyrights 26

EXEMPTION -FAIR USE • COULD BE FOR ANY TYPE OF WORK § 107 • PURPOSE IS JUST A THRESHOLD – USE LEVEL MUST STILL BE “FAIR” F 2007 Copyrights 27

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 F 2007 Copyrights 28

THE FAIR-USE FACTORS: • AMOUNT AND SUBSTANTIALITY OF THE PART TAKEN • ** IMPACT ON POTENTIAL MARKET FOR THE ORIGINAL WORK – THE MOST IMPORTANT FACTOR BY FAR F 2007 Copyrights 29

• 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) F 2007 Copyrights 30

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. 2 d 432 (9 th Cir. 1986) F 2007 Copyrights 31

EXEMPTION: LIBRARIES • CAN MAKE 1 -3 COPIES FOR CERTAIN NONCOMMERCIAL PURPOSES (REPLACEMENT OF DAMAGED COPY; ARCHIVAL; ETC. ) § 108 • NO GENERAL EXEMPTION FOR LIBRARIES F 2007 Copyrights 32

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) – BAD HISTORY OF PIRACY F 2007 Copyrights 33

EXEMPTION: CERTAIN PUBLIC PERFORMANCES • CLASSROOM PERFORMANCES § 110(1) – ANY WORK • TRANSMISSIONS BY GOVT. OR NONPROFIT EDUCATION ORG. § 110(2) – NONDRAMATIC ONLY – RECEIVED IN CLASSROOM OR HANDICAPPED SPACE F 2007 Copyrights 34

EXEMPTION: CERTAIN PUBLIC PERFORMANCES • FOR CHURCH SERVICES – LITERARY WORK (NONDRAMATIC ONLY): • • POEMS SPEECHES ESSAYS ETC. – MUSICAL WORKS (DRAMATIC OR NONDRAMATIC) • • JESUS CHRIST SUPERSTAR HYMNS POPULAR SONGS ETC. – DOES NOT COVER PLAYS § 110(3) F 2007 Copyrights 35

EXEMPTION: CERTAIN NONPROFIT PERFORMANCES • LITERARY OR MUSICAL WORK • DRAMATIC OR NONDRAMATIC • CONDITIONS: – FREE ADMISSION – NO $$ TO PERFORMERS OR ORGANIZERS; NET PROCEEDS TO CHARITY – COPYRIGHT OWNER HAS RIGHT TO OBJECT, BUT DOESN’T HAVE TO BE NOTIFIED (!) § 110(4) F 2007 Copyrights 36

EXEMPTION: HOME-SIZE RADIO/TV AT SMALL BUSINESSES • PLAYING RADIO AND TV BROADCASTS IN STORES, RESTAURANTS, BARS – CAN’T HAVE ANY CHARGE FOR THE TRANSMISSION – MUST HAVE “PRIVATE HOMES” TYPE GEAR – MAY BE RESTRICTED TO NON-MUSICAL WORKS [UNCLEAR TODAY] § 110(5)(A) F 2007 Copyrights 37

EXEMPTION: RADIO/TV MUSIC WITHIN SMALL BUSINESSES, BUT WITH [SLIGHTLY] BIGGER EQMT. • MUSIC ONLY – NOT SPORTS – NON-FOOD/DRINK PLACE: • < 2, 000 SQ. FT. – ANY GEAR • > 2000 SQ. FT. – 6 SPEAKERS, 4 TVs (3 SMALL) – FOOD-DRINK PLACE: • < 3, 750 SQ. FT. – ANY GEAR • > 3, 750 SQ. FT. – 6 SPEAKERS, 4 TVs (3 SMALL) • NO CHARGE FOR THE MUSIC § 110(5)(B) F 2007 Copyrights 38

EXEMPTION: PERFORMING MUSIC AT THE STATE FAIR • BY GOVERNMENT ENTITY • BY NONPROFIT AG ORGANIZATION • INDIVIDUAL PERFORMERS ARE STILL LIABLE! § 110(6) F 2007 Copyrights 39

EXEMPTION: MUSIC IN MUSIC STORES • SOLELY FOR PURPOSE OF PROMOTING THE SALE OF RECORDS OR MUSIC; OR FOR SELLING TVs OR STEREOS § 110(7) F 2007 Copyrights 40

EXEMPTION: NONPROFIT TRANSMISSIONS TO THE BLIND OR DEAF • HAS TO BE BY – – GOVT. , or EDUC. BROADCAST STATION, or RADIO SUBCARRIER AUTH. , or CABLE SYSTEM • NON-DRAMATIC WORKS ONLY § 110(8) F 2007 Copyrights 41

EXEMPTION: A PLAY FOR THE BLIND • PUBLISHED 10 YRS. BEFORE • CAN ONLY PERFORM IT ONCE PER PRODUCER / PERFORMERS • NONPROFIT • MUST USE RADIO SUBCARRIER § 110(9) F 2007 Copyrights 42

EXEMPTION: MUSIC FOR V. F. W. , ELKS, ETC. • CLOSED SOCIAL FUNCTION • VETERANS OR FRATERNAL ORG. • INVITEES CAN’T BE THE PROMOTERS [PERFORMERS? ] • COLLEGE GREEK EVENTS DON’T QUALIFY UNLESS EVENT IS CHARITABLE § 110(10) F 2007 Copyrights 43

EXEMPTION: BACKUP TAPES, ETC. • TV OR RADIO OR CABLE TRANSMITTERS • INTERNAL USE ONLY • DOES NOT APPLY TO MOVIES § 112 F 2007 Copyrights 44

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) F 2007 Copyrights 45

EXEMPTION: BOOKS [RECORDS] FOR THE BLIND • OK IF THE BOOK HAS BEEN PUBLISHED • NON-DRAMATIC WORKS ONLY • COPIES HAVE TO BE MADE BY A NONPROFIT WHOSE PRIMARY MISSION IS ASSISTANCE TO THE BLIND • NO ROYALTIES NEED BE PAID • NO QUANTITY LIMITS § 121 F 2007 Copyrights 46

INCORPORATING THE WORK INTO A USEFUL ARTICLE • IS AN INFRINGEMENT See, e. g. , Mazer v. Stein, 347 U. S. 201 (1954) (glass figurines of dancers, used as lamp bases). F 2007 Copyrights 47

COPYRIGHT IN SOUND RECORDINGS • MORE LIMITED THAN COPYRIGHT IN THE UNDERLYING WORK (MUSIC) • NO GENERAL RIGHT OF PERFORMANCE [PLAYING THE RECORD] § 114(a) – EXCEPT: DIGITAL AUDIO • RECALL: ANY PUBLIC PERFORMANCE WOULD INFRINGE THE COMPOSER’S PERFORMANCE RIGHT F 2007 Copyrights 48

COPYRIGHT IN SOUND RECORDINGS • SOUND RECORDING COPYRIGHT IS LIMITED TO PREVENTING MECHANICAL REPRODUCTION OF THE RECORDING OR PORTIONS THEREOF § 114(b) F 2007 Copyrights 49

COMPULSORY LICENSE TO MAKE SOUND RECORDING OF ANOTHER’S WORK • NORMALLY, RIGHT TO MAKE A SOUND RECORDING IS KEPT FOR THE COMPOSER [SEE § 106(1): “TO REPRODUCE THE …WORK IN … PHONORECORDS. ”] • HOWEVER, ONCE SHE ALLOWS SOMEONE TO MAKE AND DISTRIBUTE A RECORDING IN U. S. , THE FUTURE RIGHT IS RESTRICTED F 2007 Copyrights 50

• ANYONE ELSE CAN THEN PERFORM THE WORK (PRIVATELY) AND RECORD HER OWN PERFORMANCE § 115(1), • PROVIDED SHE – GIVES NOTICE (BEFORE DISTRIBUTING; W/IN 30 DA. OF MAKING); and – NEGOTIATES A ROYALTY, OR HAS ONE SET BY: • AN ARBITRATOR • AN ARBITRATION ROYALTY PANEL F 2007 Copyrights 51

ARCHITECTURAL WORKS • NOT AN INFRINGEMENT TO TAKE A PICTURE OF IT, OR MAKE A PAINTING, ETC. § 120 • [NOTE: BOTH WOULD NORMALLY BE FORBIDDEN DERIVATIVE WORKS] F 2007 Copyrights 52

REMEDIES • INJUNCTION § 502 • DAMAGES § 504(a), (b) • AND D’s PROFITS § 504(a), (b) F 2007 Copyrights 53

REMEDIES • IMPOUNDING – DURING LITIGATION § 503(a) • DESTRUCTION – AFTER TRIAL § 503(b) F 2007 Copyrights 54

STATUTORY DAMAGES • STATUTORY DAMAGES ARE AVAILABLE AS ALTERNATIVE TO ACTUAL DAMAGES • $750 – $30, 000 PER WORK § 504, 505 • HIGHER IF WILLFUL (TO $100, 000) • AVAILABLE ONLY IF PROMPT REGISTRATION OCCURRED § 412 F 2007 Copyrights 55

ATTORNEY FEES • IN COURT’S DISCRETION, AS PART OF “COSTS” § 505 F 2007 Copyrights 56

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 F 2007 Copyrights 57

OWNERSHIP • INITIALLY IN THE “AUTHORS” • FOR WORK MADE FOR HIRE, HIRER IS THE AUTHOR F 2007 Copyrights 58

WHAT IS A “WORK MADE FOR HIRE”? • A WORK: – BY AN EMPLOYEE; OR – BY WRITTEN COMMISSION, BUT ONLY IF IN THE TEN CLASSES OF WORKS § 101 – IN OTHER SITUATIONS, NEED A SEPARATE ASSIGNMENT • THE UNDERLYING CONTRACT TYPICALLY PROVIDES FOR LATER EXECUTION OF SUCH A DOCUMENT F 2007 Copyrights 59

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) F 2007 Copyrights 60

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 RENEG F 2007 Copyrights 61

• 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 • DOES NOT APPLY TO COPYRIGHTS LEFT TO LEGATEE BY A WILL F 2007 Copyrights 62

TERMINATION RIGHT • IS NOT PASSABLE BY WILL • GOES TO PRESCRIBED RELATIVES § 203(a)(2) F 2007 Copyrights 63

TERMINATION RIGHT: (1) VERSION FOR OLDER WORKS • SEC. 304(c) – WORKS IN THEIR SECOND 28 -YEAR TERM AS OF 1978 • TERMINATION WINDOW: FIVE YEARS – BEGINS AT END OF 56 TH YEAR OF PROTECTION F 2007 Copyrights 64

HOW IT WORKS • APPLIES TO ANY ASSIGNMENT OR LICENSE • DOES NOT APPLY TO WORKS MADE FOR HIRE [EMPLOYER IS “AUTHOR”] • TWO-YEAR NOTICE REQUIRED F 2007 Copyrights 65

(2) FOR NEWER WORKS • FOR WORKS CREATED AFTER 1977 F 2007 Copyrights 66

HOW IT WILL WORK • 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 A MINIMUM-NOTICE, MUST SERVE BETW. 33 -YR. POINT AND 38 -YR. POINT * = ASSIGNMENT OR LICENSE F 2007 Copyrights 67

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) F 2007 Copyrights 68