Exa 3 copyright

Copyright

Legal protection for original works of authorship fixed in a tangible medium giving exclusive rights to copy distribute perform display and create derivatives

Copyright Infringement

Unauthorized use of a copyrighted work that violates one of the owner’s exclusive rights

Profit Requirement

Profit is NOT required for infringement to occur

Ownership Requirement

Plaintiff must prove ownership of a valid copyright usually through registration or other evidence

Copying Requirement

Plaintiff must prove copying which is usually shown through access and substantial similarity

Access

Reasonable opportunity for the defendant to see or hear the copyrighted work

Substantial Similarity

Degree to which two works are similar enough that an ordinary observer would recognize copying

Ordinary Observer Test

Test asking whether an average person would find the works substantially similar

Protectable Expression

Elements of a work that are original and protected not including ideas facts or common elements

Idea Expression Dichotomy

Rule that ideas are not protected only the expression of those ideas is

6 Second Rule Myth

False belief that using less than a certain time avoids infringement no such rule exists

Striking Similarity

When works are so similar that copying is inferred even without proof of access

Subconscious Copying

Copying that occurs without intent but still constitutes infringement

Independent Creation

Defense where defendant created the work independently without copying

Fragmented Similarity

Use of small portions of a work that can still constitute infringement especially in music sampling

Direct Infringement

Defendant personally engages in infringing activity

Contributory Infringement

Defendant knowingly contributes to or encourages infringement by another

Vicarious Infringement

Defendant has the right and ability to control infringement and receives a financial benefit

Cease and Desist Letter

Formal notice demanding that infringing activity stop

Settlement

Agreement between parties to resolve dispute without trial

Federal Court Jurisdiction

Most copyright cases are brought in federal court

State Court Exception

Contract related copyright disputes may be heard in state court

Statute of Limitations

Copyright claims must be brought within 3 years of discovery

Discovery Rule

Statute of limitations begins when infringement is discovered or reasonably should be discovered

Ongoing Infringement Rule

Each act of infringement may restart the statute of limitations

Abandonment

Copyright owner intentionally gives up rights placing work in the public domain

Abandonment Requirement

Requires clear intent not merely failure to enforce rights

Fair Use

Defense allowing limited use of copyrighted material without permission for socially beneficial purposes

Fair Use Purpose Factor

Considers whether use is commercial or transformative

Transformative Use

Use that adds new meaning message or expression strongly favoring fair use

Fair Use Nature Factor

Considers whether the work is creative or factual

Fair Use Amount Factor

Considers quantity and qualitative value of portion used including the heart of the work

Fair Use Market Effect Factor

Considers whether the use harms the market for the original work most important factor

Parody

Work that imitates and comments on the original and is more likely to be fair use

Satire

Work that uses original to comment on something else and is less protected

De Minimis Use

Use too trivial or insignificant to constitute infringement

Music De Minimis Limitation

Courts are strict and even small samples can infringe

Innocent Intent

Lack of knowledge of infringement not a defense but may reduce damages

Copyright Duration General Rule

Life of the author plus 70 years

Joint Works Duration

Last surviving author plus 70 years

Work for Hire Duration

95 years from publication or 120 years from creation whichever is shorter

Anonymous Work Duration

Same as work for hire 95 or 120 rule

1909 Copyright Act

Old law providing 28 year term plus 28 year renewal

Renewal Requirement

Under 1909 Act renewal had to be filed in 28th year

Failure to Renew

Work entered public domain if renewal not filed

1976 Copyright Act

Current law establishing life plus 70 years duration

Pre 1923 Works

Works published before 1923 are in the public domain

1923 to 1977 Works

Works receive up to 95 years of protection

Unpublished Pre 1978 Works

Protected at least until 2002 or 2047 depending on publication

Termination Rights

Authors can reclaim transferred copyrights after approximately 56 years

Purpose of Termination Rights

Protect authors from unfair early contracts

International Copyright Minimum

Berne Convention minimum of life plus 50 years

US Copyright Term

Life plus 70 years

Rule of the Shorter Term

Country may apply shorter copyright term of another country

Restoration of Foreign Works

Foreign works may regain copyright in the US if previously lost due to formalities

Public Domain

Works not protected by copyright and free for public use

Public Domain Entry

Occurs when copyright expires or formalities not met

Public Domain Trap

Old does not automatically mean public domain

Coercive Remedies

Remedies designed to stop infringement

Injunction

Court order requiring defendant to stop infringing activity

Preliminary Injunction

Temporary order before final decision

Permanent Injunction

Final order after case is decided

Irreparable Harm

Harm that cannot be adequately compensated by money required for injunction

Impoundment

Court seizure of infringing materials and equipment

Destruction

Court ordered destruction or disposal of infringing copies

Compensatory Remedies

Monetary damages awarded to compensate copyright owner

Actual Damages

Monetary loss suffered by copyright owner

Defendant Profits

Profits gained by infringer that are attributable to infringement

Statutory Damages

Predefined damages available without proving actual loss

Statutory Damages Range

$750 to $30

Willful Infringement Damages

Up to $150

Innocent Infringement Damages

As low as $200 per work

Per Work Rule

Damages calculated per work not per copy

Registration Requirement

Statutory damages require timely copyright registration

Attorney Fees and Costs

Court may award legal fees and costs to prevailing party

Criminal Copyright Infringement

Willful infringement for commercial advantage or financial gain

Misdemeanor Infringement

Up to 1 year imprisonment and fines

Felony Infringement

Up to 5 to 10 years imprisonment and larger fines

No Electronic Theft Act

Makes infringement criminal even without profit motive

Pre Release Piracy

Unauthorized distribution before official release harming market value