Copyright Law

Copyright

set of rights of limited scope and duration that are granted by law to the authors of original artistic and literary works, and that arise when such works are fixed in a tangible medium of expression

Categories of copyrightable subject matter

As defined in §102(a)

Literary works
Musical works, including any accompanying words
Dramatic works, including any accompanying music
Pantomimes and choreographic works
Pictorial, graphic, and sculptural works
Motion pictures and other audiovisual works
Sound recordings
Architectural works (added in 1990)

LAMPS DMPA

Sources of Copyright Law

U.S. Constitution; Copyright Act of 1976; Case precedent; Copyright Office Regulations/guidance; International Copyright Regime; U.S. x Berne Convention; TRIPS & WTO

U.S. Copyright Act of 1790

Applied to maps, charts, books, provided copyright owner w/ "sole right and liberty of printing, reprinting, publishing, and vending" copies w/ 14-year term

Authors required to register the title in their works, publish registration via newspaper, and deposit a copy w/ clerk of local district court and send another copy w/in 6 months of work's publication to U.S. Sec. of State

1912 Amendments

Congress added copyright protections for motion-picture photoplays and "motion picutres other than photoplays"

1939 Amendments

added "prints or labels used for articles of merchandise"

1971 Amendments

Sound recordings

Copyright Act of 1976

The Act, now remains the law, aims to refine the scope of particular [subject matter] categories, favoring more broad categories of copyrightable subject matter

Non-rival use

the consumption of one person does not diminish the consumption of another person

Elements of Copyright Protection

1. Fixation
2. Originality
3. Idea-Expression Distinction
4. Categories of copyrightable subject matter

Fixation

Section 102 requires, as pre-condition, that a work be "fixed" in a "tangible medium of expression";

Fixed

in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under authority of the author, is sufficiently permanent or stable to permit it to be perceived...

Rationale for Fixation

1. U.S. Constitution requires fixation
2. Advances creation of works by protecting only works that are likely to be preserved and thus disseminated over time and space
3. Copyright fixation serves an evidentiary function; fixed work serves as documentary evidence as to what the work is and is not
4. Fixation ensures that a work's (protected) expression is fully delineated, easier to separate from any unprotected "ideas" the work may contain or represent

Originality

§ 102 requires "original works of authorship"; Leg. H suggests that they left it undefined to be interpreted on case-by-case basis

determines both validity (do you have a copyright?) and scope (what details copyright protected v. unprotected) of copyright

Fiest, "Originality"/validity analysis

1. What did author do?
2. For independent creation → did it come from them or did they copy it?
3. Apply originality criteria: "more than trivial creativity"

Derivative Works

Under § 101, "works based upon one or more preexisiting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted"

Compilation

Under § 101, "a work formed by the collection and assembling of preexisiting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship; includes collective works"

Collective Work

Under § 101, "a work, such a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole"

Copyrightability of Derivative Work/Compilation

§ 103(b) clarifies copyright extends only to "material contributed by the author of such work... The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material"

Idea-Expression Distinction

§102(b)'s withdrawal of copyright protection applies to, "any idea, procedure, process, system, method of operation, concept, principle, or discovery"

Merger Doctrine

when there is "one form of expression, [or] at best only a limited number [of ways to express an idea or system], to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance"

- Limited # of ways to express an idea indicates that the idea has merged w/ expression itself
- Today, concerned w/ scope, not validity cases → means they are parts of the work you can copyright; copyright is very thin!

To identify an unprotectable idea

1. Specify the work's idea(s)
2. Distinguish from its expression

Scènes à faire

extension of merger doctrine; applies to fictional works and bars protections of "incidents, characters, or setting which are as a practical matter indispensable, or at least standard in the treatment of a given topic"

- Allows works of similar genre to include necessary/common details pertaining to the scene
- Pushback to originality requirement; Hindenburg films/books will both share details regarding specific event/time/space

Copyright Estoppel

Courts general refusal to protect aspects of a work that are held out as factual even if these aspects are actually fictional.

Software

non-tangible component of computers or other hardware that helps direct their operation

Source Code

instructions in programming language

Object Code

applications program w/ computer’s operating system

User Interface

what users see when interacting with software program/operating system

Network Effects

A market exhibiting “value customers place on a good increases as others use the good”

Where does Software fit for copyright protection?

Literary works!

Literary Work Def.

§ 101, “works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.”

Computer Program Def.

§ 101, "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result”

Useful Articles Doctrine

Copyright law imposes special mechanism to screen out functionality in Pictorial, Graphic, and Sculptural (PGS) works

Useful Articles if…

“an intrinsic utilitarian function that is merely to portray the appearance of the article or to convey information” 17 U.S.C. §101

Useful Articles Test

1. Is the work a PSG?

   1. If no, is it fixed and original? (validity test)

   2. if yes, run doctrine

2. Useful Articles Doctrine

   1. Special rule applies to copyright validity

3. Separability

   1. is separable feature fixed/original?

   2. If not, no cophyright; gets design patent instead

Initial Ownership Def.

§ 201(a), “Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.”

Works Made for Hire Def.

§ 201(b), “In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.”

Joint Work Def.

§ 101, “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”

What do you get as a joint author?

1. independent rights to use work; so long as it is a non-exclusive license, either party can use works as they please w/o permission from the other

2. duration of authorship/ownership is as long as longest-lived co-author

What do you get as WFH?

The employer/person for whom work was prepared for is considered the author, gets copyright

Person hired to create art, virtually has no copyright interest/ownership

2 Ways to create WFH

1. Works of Employees Operating Within Scope of Employment

2. Specially Commissioned Works

Specially Commissioned Works Categories

1. Contribution to a collective work

2. as a part of Motion picture or other Audiovisual work

3. as a Translation

4. as a Supplementary work

5. as a Compilation

6. as an Instructional text

7. as a Test

8. as Answer material for a test

9. as an Atlas

CATISCAT

Formalities

Procedural mechanisms in which one must or is encouraged to comply

Types of Formalities

1. Publication

2. Copyright Notice

3. Registration

4. Deposit

5. Others

   1. Recordation of Transfer

   2. Domestic Transfer

6. Restoration

PRCD-ORDR

Pros of Formalities

• helps provide information to 3rd parties/would-be users; helps determine whether work is subject to © and who to receive licensing from

• creates info about ownership that mere possession would not

• allows authors to distinguish between works for which they desire copyright protection

Publication Def.

§ 101, “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.”

Formalities: Publication (current law)

formalities still relevant because availability of statutory damages/atty’s fees turn on when work was registered in relation to work’s publication

4 Purposes of Copyright Notice

1. Effect of placing work in public domain a substantial body of published material that no one is interested in copyrighting

2. Informs public as to whether a work is copyrighted

3. Identifies copyright owner

4. Shows Date of Publication

Formalities: Copyright Notice (current law)

1. Labeled “Copyright,” “Copr.,” or ©

2. Name of Copyright Owner

3. Date of First Publication

Registration Def.

§ 101, “a registration of a claim in the original or the renewed and extended term of copyright.”

Formalities: Registration (current law)

• Copyright Renewal Act of 1992 made renewal terms automatic for works published from 1964-1977, removing the requirement that renewal was contingent on registration before the renewal period

• If copyright uncertain —> Copyright Office will register work under “Rule of Doubt” and let future litigation decide

• If registration refused, applicant may seek judicial review in U.S. District Court for District of Columbia

Deposit

The act of providing Library of Congress–via the Copyright Office–copies of copyrighted work to bolster registration’s written record

Formalities: Deposit (current law)

1976 Act requires 2 complete copies of published work to the Copyright Office; failure to comply within 3 months only results in a civil fine

Recordation of Transfer, § 205

Copyright ownership transfer must be recorded in the Copyright Office

Any unrecorded trasnfer is void against a subsequent bona fide purchaser for value who records first

Formalities: Transfer (current law)

§203 outlines transfers after 1976 Act

• Termination of grant may be effected if author is dead, or author authorizes, person(s) may exercise total of more than half of author's termination interest *DOUBLE CHECK

• §203(a)(2) outlines termination right after author has died

• Transfer of rights in W4H/transfers made by will/transferors subsequent to author exercise termination rights  cannot be terminated

• §203(a)(3) outlines 5-year window where author is entitled to exercise termination:

  • End of 35 years from date of execution of grant

  • Period begins at the end of 35 years from date of publication or end of 40 years from date of execution of grant

Formalities: Recordation (current law)

Under 1976 Act, recordation made a prerequisite of infringement suit; Changed by Berne Convention, so Congress has abandoned this req.

Domestic Manufacture

1909 required work to be published w/in the U.S.

In 1955/Universal Copyright Convention, permits foreign authors of works first printed abroad in English to secure copyright protection w/o manufacture requirement met

Formaltiies: Domestic Manufacture (current law)

All works on or after July 1, 1986 have complete protection regardless of location of manufacture

Restoration

In 1994, Congress, in compliance w/ Berne Cconvention, passed law/codified § 104A, restoring copyright protection for certain works originating from countries that are members of the Berne Convention or WTO in 1/1/1996

Renewal (current law)

1976 Act created single copyright term and retained renewal for works already protected under 1909 Act

• 1976 grants rights entitled upon renewal term (§304(a)(1)(C)); renewal for another 67 years

  • Author if they are still living

  • Widow/widower/children if author not living

  • Author's executors if previously listed not living

  • Author's next of kin, absence of will of the author

Renewal of works protected under 1909 Act

• For works already protected, added 19 years to renewal term

• 1998 change added another 20 years to copyright duration for all works

Termination of Trasnfer

To terminate a transfer/license, must be advanced notice of termination (§203(a)(4))

• Effective date of termination

• Copy recorded in Copyright Office before effective date of termination

Elements of Copyright Infringement Claim

1. Valid ©

2. Violation of reproduction right

   1. copying-in-fact

      1. In the absence of direct evidence, have to infer from circumstantial evidence

         1. sub-elements:

            1. Courts look to the defendant’s access

            2. Similarity probative copying: “suspicious similarity”; DO NOT SAY SUBSTANTIAL SIMILARITY

      2. If one obtains direct evidence, don’t have to spend much time analyzing copying-in-fact

   2. Unlawful appropriation (AKA “copying-in-law”)

      1. Use “substantial similarity” here

Copying in fact

Established by showing that the defendant actually used some elements of the plaintiff’s work (potentially including use of unprotected elements such as ideas) to make the defendant’s allegedly infringing work

Did they (defendant) copy or did they independently create?

Unlawful Appropriation/Copying in Law

Established when defendant’s copying is both sufficient in quantity and qualitative to provoke legal liability for infringement

Did they (defendant) copy unlawfully?

• Normative judgment – about how much or what you copied

• Is this the kind of copying copyright aims to prohibit?

Patterns of Copying in Law Similarities

• De minimis case

• Abstraction comparison case

• Derivative works, characters case

De Minimis copy

Defendant’s copying is minimal in a legally salient way

• Defendant copies the plaintiff’s entire work, but it appears as an insignificant aspect of defendant’s work

• When the defendant copies but a minimal part of the plaintiff’s work

No question of copying in fact, because it is already admitted to

Copyright Infringement, 9th Cir. Approach

1. Valid ©

2. Violation of Reproduction Right

   1. Copying in fact

      1. Direct Evidence

      2. Circumstantial Evidence

         1. Access

         2. Similarity probative of copying: “suspicious similarity”

   2. Unlawful Appropriation

      1. Extrinsic – objective test that looks to specific, describable elements of the works

         1. done by the courts

      2. Intrinsic – subjective test

Purpose of Derivative Rights

“enables prospective copyright owners to proportion their investment in a work’s expression to the returns expected not only form the market in which the copyrighted work is first published, but form other, derivative markets as well”

Encourages those to add original expression to each derivative work and obtain copyright for their “new” work

Distribution

§106(3) gives copyright owners exclusive right to "distribute copies or phonorecords of copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending"

• Purpose → can sue distributors who are not original owners of copyright

  • Exception → streaming not considered a fixed copy

First Sale Doctrine (§109(a))

"Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.…"

• Purpose → efficiency, allow people to use their property how they please, etc.

• Limitation – does not apply to software or records out of worry for piracy

Phonorecord def.

§ 101, "material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device"

Sound Recordings Protection Status

Not protected under federal law until 1972; Pre-1972 recordings only protected by state law until 2018 passage of Music Modernization Act (“MMA”)

Music Ownership

Initial ownership of copyrights in musical compositions typically vests in the songwriter as author(s) of those works

• Music M4H/made my employee act within the scope of their employment

  • In some instances, ownership and authorship go to the songwriter’s employer

• Songwriters rely on music publishing companies to manage the exploitation of musical compositions

Statutory Rights of Copyright Owners in Musical Compositions

copyright owners in music composition enjoy all rights granted in §§106(1)-(5)–the exclusive right to make or auhtorize reproduction, derivative works, distribution of copies, public performances, and public displays

§115 Compulsory License

Non-dramatic musical compositions are subject to a §115 compulsory license