Copyrights Terms and Derivative versus Transformative Use IM

Copyrights Terms and Derivative versus Transformative Use IM 450: Intellectual Property Law and New Media Day 5. 2

Copyright Term • For works created from January 1, 1978 onward: – Term begins the moment a work is “fixed in a tangible medium of expression” – Life of the author plus 70 years – If work-made-for-hire or anonymous work, 95 years from publication or 120 years from creation, whichever is shorter

Trend of Maximum U. S. General Copyright Term Copyright Tom W. Bell 2008, used with permission 3

Potential Closing of the Public Domain • Is the term too long? • Does it stifle creativity or support investment? • Why so out of whack compared to patent term? • Must we lock down all materials in favor of 1015% that have viable economic value?

Fair Use Factors • (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; • (2) the nature of the copyrighted work; • (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and • (4) the effect of the use upon the potential market for or value of the copyrighted work.

Trouble with the Factors/Test • No set logic(s) determining – How many factors have to “win” to carry the ruling – Relative importance of the factors – Application of the tests across judges and cases

Hot News! Let’s Go Crazy! • Story : • http: //www. latimes. com/local/lanow/la-meln-video-suit-20150914 -story. html • Video: • https: //www. youtube. com/watch? v=N 1 Kf. JH FWlh. Q

Back to “Let’s Go Crazy” • Lenz v. Universal Music, 13 -16106 and 1316107, (9 th Cir. Sept. 14, 2015) – Does a copyright owner have to consider whether the use of its work is a “fair use” before sending a takedown notice under the DMCA? – Answer – Yes. – Outcome – The Dancing Baby’s Mom gets to take her suit against Universal to trial.

Derivative v. Transformative • Why does it matter? – A copyright owner owns the right to control who can create derivative works based on the copyrighted work. – A copyright owner does not own the right to control who can create transformative works. – At this point, the two principles are very often at odds

What is a “derivative work”? • Based on or derived from one or more already existing works • Examples: – translations, musical arrangements, – motion picture versions of literary material or plays, art reproductions, – abridgments, and condensations of preexisting works – a “new edition” of a preexisting work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.

What is “transformative use”? • “whether the new work merely supersede[s] the objects of the original creation or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is `transformative. '" • Campbell v. Acuff-Rose Music, Inc. , 510 U. S. 569, 579 (1994) [rapping around “Pretty Woman”]

“I’ll know it when I see it!” • Star Wars Fan Game Shut Down by Electronic Arts – https: //gamerant. com/star-wars-fan-game-shut-down/ – In a sad but unsurprising move, Electronic Arts and Lucasfilm shut down Galaxy in Turmoil, a fan-built [EA sponsored] spiritual successor to the classic Star Wars: Battlefront series. • and yet Fan Sites thrive and the rights holders often leave them be: – http: //starwarsjunkies. weebly. com

Michael Kienitz v. Sconnie Nation, LLC and Underground Printing-Wisconsin, LLC, No. 13 -3004 (7 th Cir. Sept. 15, 2014). Transformative Fair Use Mayor Soglin T-Shirt Design

LIEBOWITZ v. PARAMOUNT PICTURES 137 F. 3 d 109 (2 nd Cir. 1998) Transformative Fair Use Demi Moore Leslie Nielsen

Cariou v. Prince, 714 F. 3 d 694 (2 nd Cir. 2013) Fair use, but maybe muddied the waters The 2 nd Circuit reversed in part, vacated in part and remanded, holding that, contrary to the standard applied below, there is no requirement that the new work comment in some way on the earlier work or popular culture for it to be deemed transformative.

Here Come the Sharks!

Here Come the Sharks! Figurines for sale

• “Katy Perry's Lawyers Have Told a Guy to Stop Selling Left Shark Figurines” – Katy Perry’s lawyers have issued a cease-anddesist demand to a man selling 3 D-printed models of Left Shark from the singer’s Super Bowl half time show. – http: //time. com/3698399/left-shark-kay-perrylawyers-model-sculpture/ – Feb 05, 2015 • We don’t think she’d win if it went to trial.

Derivative or Transformative? Who owns the copyright on the tattoo? What if the tattoo is on a celebrity and shows up in a video game or movie or on TV?

Solid Oak LLC v NBA 2 K 16 • On February 1, 2016 the producers of NBA 2 K 16, a basketball video game, were sued in the Southern District of New York by Solid Oak Sketches LLC (“Solid Oak”) over claims that the game infringed tattoo copyrights. Solid Oak owns the rights to the tattoos on a number of NBA players and claims that the video game has infringed on eight of their copyrights by displaying the tattoos of Le. Bron James and Kobe Bryant without authorization • http: //www. kentuckylawjournal. org/index. php/2016/02/1 7/tattoo-copyright-nba-superstars-tattoos-and-videogames/

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