Understanding Copyright Law: Concepts of Fixation, Work Separability, and Fair Use, Study notes of Law

Download Understanding Copyright Law: Concepts of Fixation, Work Separability, and Fair Use and more Study notes Law in PDF only on Docsity! Copyrights Harrison Spring 2010 Intro: Copyright law designed to make offender internalize the benefits gained by offensive act Protection: Length of Protection and Breadth of Protection ’78 Act CR protection begins when work=fixed; ’09 Act: Protection begins when published Fed Law Preempts State law if work=fixed Prerequisites for protection: Originality and fixation Exceptions: § 102(b): can’t CR: idea, procedure process, system, method of operation, concept, principle, or discovery 2-part analysis: Is protected?(i.e. can work be CR-ed?) and Is infringement?(i.e.CR rights violated?) Cts treat CR as a K between Author and Public and asses the value as the lowest price public would pay for the benefit CR protection in Const to encourage author’s to create works to advance society Fixation: § 101: Fixed=if sufficiently permanent or stable to permit it to be perceived for more than a transitory period § 101: Copies=material objects in which work is fixed by any method now known or later developed, and from which work can be perceived either directly or w/ aid of a machine/ device. “Copies” includes the object in which the work is first fixed White Smith Music Pub Co. v. Apollo Co.(’08)-Statute overrule cts ruling, but ct say sheet music, not song is protected, so piano rolls ≠infringe…legis Δ’d law by including language “any method now know or later developed” Midway Manuf Co v. Artict Int’l(7C ’82)-video games case-if can repetively bring up same image=fixed. Fixation ≠require work to be written down/recorded somewhere exactly as it’s perceived to the human eye. Fixed includes if reproduced w/ aid of machine Originality: Originality/Novelty Distinction: Novel, nonobvious and useful to get a patent, but not novelty ≠necessary for CR (CR=lower standard of “originality” Can be original even if trivial and purpose is for advertising Merger=Idea and expression so closely related that very thin if any protection on expression Feist Publications(’91)-Original means independently created by author and that possess modicum of creativity, even if creativity=accidental(i.e. thunderclap makes painter jump, resulting painting still=original) as long as you adopt work as your own Burrow-Giiles Lithographic Co v Sarony(1884)-Photograph=CR-able, photographer=author b/c set up background, choose pose, etc Slavish Copying=picture of work attempting to show work exactly as is. Cts split on if slavish copying=CR-able. Some cts say that if trying to set up picture in exact way to replicate another picture, than ≠original Intent Issue: Harrison (but ≠ cts) thinks should be a requirement of at least some cognitive effort to create an original work. Case law seems to suggest that if trying to copy something exactly, but mess it up, or if unintentionally different from original, then work=original/ protected Mystikal v. Cajun in your Pocket-common sayings ≠CR-able Photographs: Gross v. Seligman(2C ’14)-Artist sell CR to painting, then repaint very similar picture of same womanCR violation, b/c used 1st picture to produce 2nd picture Franklin Mint(3C’78)-Artist sell CR to painting of cardinal, redo painting w/ some changes and some similarities. Ct say enough differences to be CR and Merger b/c only so many ways to paint a cardinal (as opposed to Gross where many ways to paint a woman) Mannion v Coors Brewing Co(SDNY 2005)-photo can be original in Rendition, timing, and Subject. Rendition: CR protects how image in photo is depicted Idea/Expression Dichotomy: Can CR on expression, but not on actual idea, but can have CR on compilation of non-CR-able things If endless possibilities of combinations/choices, then more likely that compilation will be CR- able and not an idea Baker v. Seldon(1880)-CR of a book on bookkeeping method, ≠secure exlusive right to make/ sell/use accounting books prepared upon the plan set forth in the book. Can’t monopolize an idea, CR only on book itself/words used, ≠on system Abstractions Test: L.Hand: difference between idea and expression depends on specifics and boundry=unclear. Series of abstractions beginning with broad description getting more specific, somewhere on the continuum there is a point that divides protected expression from unprotected ideas. Authorship: § 102(a)(1) Literary Works: Theories ≠CR-able Miller v. Unversal City Studios, Inc(5C’81)- Sweat of the Brow ≠CR-able (≠how much time/ effort put into work that makes it CR-able). Can’t CR research Hindenberg Case: Someone does a lot of research coming up w/ conspiracy theory, ct say theory ≠CR-able b/c =facts. Dillinger Case: IF come up w/ theory as to what really happen, less protection that if say same thing as fiction, even though theory just=speculation, if say it is true, then =facts and ≠protected Characters: (≠apply to illustrated characters b/c pictoral works=easy to CR)-2 tests: 1.How detailed character is delineated(abstraction test)? 2.(9C Test) Is character interest vehicle to tell story (≠CR) or is story about character(CR)? “Vehicle”=character that can be substituted by anyone/anything w/o changing the story § 102(a)(5) Pictoral, Graphic, and sculptural Works: Includes Maps, b/c listed since early statutes (b/c selection and compilation=CR-able) § 101 definition=poor, but can’t CR useful items, leads to seperability tests Physical Separability: Is work capable of existing independent of useful portion of work? Conceptual Separability: Can artisticness be identified separate from usefulness? Tests for Conceptual Separablitly: Collective Works: § 201(c) NYTimes v. Tasini(2001)-Tasini Case-journalists bring suit against NYTimes for putting articles on web-database w/o journalists’ consent. NYT can reprint stories in newspaper, but can’t Δ medium to isolation, database ≠new version of all collective parts of newspaper, but database=outside the collective workNYT ≠allowed Bundle of Rights: § 106 recognize divisibility of CR (6 separate rights) Effects Assoc Inc v. Cohen(9C’90)-§ 204 invalidates purported transfers of ownership of CR/ license unless in writing, exception=non-exclusive licenses Duration: Status if CR under 1909 Act: Published Pre-‘22=Now in Public domain Published ’23-’64 and Renewed: get 95 years (28+28+19+20), if ≠renew, just get 1st 28 yrs Published ’64-’77: Get 95 years, ≠need to renew ’78 Act=clock start when fixed, get life plus 50, if published under ’09 Act get 19 yrs added to second term ’98 Sonny Bono CTEA=Add 20 years retroactively, so all CR’s get extension, so if post-’78 =life plus 70 Works for Hire and Anonymous works get shorter of 95 years from publication or 120 yrs from production If work made before ’78, but ≠published, get life plus 70, but ≠expire any earlier than 12/31/2002. If work made before’78 and published between ’78 and 12/31/2002, get life plus 70, but ≠expire any earlier than 12/31/2047 Termination Rights: 1. Assigned by author after ’77: 35yrs after assignment, author has right to cancel, has a 5 year window to give notice(min of 2 yrs and max of 10 yrs notice) 2. Assigned before ’78: Author/heirs can claim in ’78, or at 56 and 75 years after CR (different measuring point), has 5 yr window to give 2-10 yr notice If terminated, old owner/licensee can keep showing/using previously made DW, but can’t make new DW after termination Author cannot assign away heir’s right to terminate (§ 304(c)(5)) Burroughs v MGM, Inc(2C’82)-Termination must clearly ID which grant termination applies to and include each work to apply to. If character in all works, but only reclaim some of the works, can’t reclaim character. Renewal by Heirs (pre-78): Stewart v. Abend(’90)-Hitchcock case-Author assign license during 1st term, author dies before term ends, heirs renewthe heirs CR and assigned rights end, unless heirs renew rights to assignee If renewed by heirs: assignee/licensee can’t keep showing DW from first license (diff. from termination) Publication: Publication needs to be done w/ author’s consent ’09 Act=CR protection start when Published w/ notice ’78 Act=CR protection begins when fixed/created Pre’78 Work: If Publication w/ notice=Fed protection, if pub w/o notice immediately go to public domain ’78-’89 Work: if copies, required to bear notice or else public domain, unless cured by author Post-’89 Work: no notice requirement, but notice prevents infringer from mintigating defense of innocent infringer Creates room for courts to create limited publication Limited Publication=limited audience for a limited purpose Academy-(9C ’91) Oscars Case, limited audience(winners of award) and limited purpose(implied restrictions on distribution) MLK Case –I have a dream speech-Performance ≠publication, so doesn’t matter that everyone heard speech, still=limited publication b/c advance copies only given to select audience (member of the press) Individual Rights: § 106 Reproduction Right – § 106(1) – most fundamental CR right, act of copying=violates, even if ≠distribute Walt Disney Prod. v Filmation Assocs(CDCA ’86)-“New Classic” case-reproduction right protects CR owner against infringer even if infringer ≠distribute copy in violation of §106(3). Adaptation Right – § 106(2) – exclusive rights to make/license Derivative works Lee v. A.R.T. Co(7C’97)-Mounting artwork on tiles case-ct looks to §101 def of DW say ≠recast/ adapt/transformed, just=akin to framing, so ≠violate 9th Circuit comes to opposite result as 7th Circuit in basically the same case as Lee Public Distribution – §106(3) – limited by § 109 (1st Sale Doctrine) § 106(3) gives CR owner right to control 1st public distribution of any material embodiment of work (only right that ≠involve copying, infringer can do so unknowingly;innocent intent ≠defense First Sale Doctrine – § 109 – Restricts CR owner’s control of dissemination of copies of work to their 1st sale/transfer (i.e. I can do whatever I want w/ a copy of your book, once I buy the copy) Hotaling v. Church of JC of Latter Day Saints(4C ’97)-Church library/microfiche Case-Church get single legitimate copy of microfiche, make unauth copies, sends to branches of library. Distributing unlawful copies of CR work=CR infringement. When unauth copy in collection, indexed and avail to public=CR violation, even if no record of anyone checking it out (otra courts disagree, file-sharing cases=simply listing for avail ≠enough for infringe) Imported Goods-Gray Market: § 602 prohibits importation in 2 situations: 1.can’t import CR work that =acquired outside US w/o auth of Owner unless a.by/for govt, b.single copy for pvt use, c. <5 copies for library use; and 2.Can’t import piratical copies (≠owner’s consent), pirated copies can be seized by customs Quality King-CR on shampoo bottle; L make shampoo in US, sell shampoo in Europe cheaper, QK buy in europe for cheap, bring back to US to sell § 602 say violate §106 if bring back to US and sell, but § 106=subject to § 109, so § 602 is as well. § 602 ≠protect “round trip” (made in US sold outside of US, brought back to US and sold, ≠protected b/c 1st Sale doctrine) Public Performance Rights – §106(4) – ≠limited by “for profit” requirement § 101 Perform: means to recite/render/play/dance/act a work either directly or by any device/ process, or if movie/AV work, to show images in any sequence or to make the sounds accompanying it audible § 101 Public: means 1. to perform/display at place open to public or at any place where a substantial number of persons outside of normal circle of family/friends is gathered; Public ≠matter if anyone there, if place=open to public Columbia Pictures Indus Inc v. Aveco, Inc(3C’86)-Watching movies at video store=public display-CR only require place be open to public, not a crowded public place. 1st Sale Doctrine ≠apply to public performance Secondary Transmissions: 2nd type of public performance (§ 101 def of Public (2)) Unauth transmission of CR work=violation of § 106(4) § 110: Exemptions of certain public performances and displays § 110(5) Aiken exemption-if similar to system used in homes, ≠violate § 106(4) if transmit in commercial store, give more leeway to restaurants Aiken-≠performing when restaurant play conventional radio through 4 ceiling speakers NFL v. McBee &Bruno’s, Inc(8C ’86)-blackout football game played at bar, bar have satellite dish and descrambler-satellite dishes used ≠commonly used in private homesAiken exception ≠apply Public Display Right – § 106(5) – things otra than sound recordings/architectural works § 101 – Display means to show a copy of the work § 101 Public definition (see above): basically means a place open to public or to a large group § 109(c)-ok for owner of copy to display (directly or by projection) to viewers present at the place where the copy is located Perfect 10 v. Amazon.com, Inc(9C 2007)-Google case, images are infringement but Google ≠liable as long as take down when given notice De Minimus - Ringgold v. BET, Inc.(2C ’97)-tapestry, museum licensed to make posters, poster in TV show – de minimus breakdown – Prominence in show for long enough period of time (≠bright line test), Background/featured need to get auth unless de minimus – length of time poster showed in full and partial display meant ≠de minimus Seven Case-Sandoval’s poster used as lampshade in movie, Photos ≠shown in sufficient detail (out of focus, from a distance, dark), could just be any lampshade Moral Rights: VARA § 106A: Apply to Visual Arts § 101: Visual Arts means painting/drawing/print/sculpture/photo existing in single copy or limited edition (less than 200 copies) – Photo must be made for exhibition purposes only § 101: Excludes from Visual Arts: work made for hire, advertising, poster,movie, etc Protect attribution and integrity Attribution=if use, your name should be with it (§ 106A(a)(1)) Integrity=prevent intentional distortion/mutilation/etc that negatively effects author’s reputation (§106A(a)(3)(A)) and to prevent destruction of work of recognized stature (§106A(3)(a)(3) (B)) Exceptions=§ 106A(c): damage done b/c nature/passing time ≠distortion, Δing lighting ≠distortion, SunTrust(11C 2001)-Wind Done Gone-Fair use to take whole book from diff. point of view, fair use allows to take more than just the minimum to conjure up image of the original. Conceptual Issues in Fair Use – CR and 1st Amendment: 1st Am work in CR by ≠allowing CR of facts/ideas and allowing fair use Harper&Row Publishers, Inc. v Nation Enterprises(’85)-Ford’s biography-Public Figures/ newsworthiness ≠negate CR protection of expression. Newsreporting=Fair use, but commercial b/c N stand to make profit, character of use takes into account if good faith. Amount taken evaluated as quantitative(how much did you take) and qualitative(did you take the heart of the work). There was actual affect on the market in this case b/c Time cancelled K Meaning of Transformative Use CastleRock Ent Inc. v Carol Publ Group(2C ’98)-Seinfeld Aptitude Test book-Fair Use not less protected b/c subject=ordinary. If 2nd work just supercedes first work than infringe, if add something cuts to fair use. Effect on potential market takes into account harm to potential DW market (markets that authors generally license/develop). 3rd factor amount=relative to use(1st factor) (if valid use than allowed to take more) Turn It In Case-plagiarism website-transformative ≠require adding/altering if used for entirely different purpose Actual & Potential Market Effect: Good way to look at it: Are markets foreseeable? if yes, then figure into 4th factor Am. Geophysical Union v. Texaco, Inc(2C ’95)-Texaco scientist copy articles from journal-Ct say affect market b/c avail of up and coming clearinghouse center, so could just buy rights to photocopy (semi-controversial) Remedies: P’s Damages and D’s Profits § 504 (a)(1)=actual damages and any additional profits of the infringer (b) Actual Damages and Profits: any profits that are attributable to infringement (even if profits only higher b/c who infringer is and owner ≠same reputation and ≠able to sell for as high a price). CR Owner only required to present proof of infringer’s gross income, burden on D to prorate what profits ≠from infringement (a)(2): Statutory damages – only if register CR before infringement can owner be eligible for statutory damages (c)Statutory damages defined, (c)(2) allow for increase in limits if willful infringement, and lower limits if innocent infringer Polar Bear Prod. Inc. v. Timex Corp(9C 2004)-P must establish sufficient causal relationship between infringement and infringer’s profits to recover. § 504(b) expansive enough to include indirect profits if causal link established. Actual Damages=loss in FMV of CR (measured by profits lost by owner or value of use to infringer), Profits=wrongfully obtained profits attributable to infringement. Statutory/”In Lieu” Damages: Columbia Pictures TV v. Krypton Broadcasting Inc(9C ’97)-All infringement based on one work=one award of damages, if infringement based on more than one work, each work infringed=another award. Willful=w/ knowledge that conduct constitutes CR infringement (D needs reasonable good faith belief in own innocence to avoid willful infringement)