Copyright Law Final Belmont University

Author, copyright owner, and owner of any exclusive right are

Bringing an infringement suit who are potential plaintiffs

Where should an infringement suit be filed

In federal district court where defendant cant be found

Steps to proving infringement

Prove you own a valid copyright and then prove the copying

If registered within 5 years of the first publication, court will presume plaintiff owns and that the info in the registration is true.

If not registered within 5 years, plaintiff will have to show evidence.

Copyright registration rules in an infringement case

3 elements of copyright

fixed, originality, expression

2 ways to prove copying

Direct or Circumstantial Evidence

Direct Evidence

-seeing someone do or talk about committing an act

*Least common in court cases

Circumstantial Evidence

an inference that requires reasoning to prove a fact

ex. a fingerprint at a crime scene

Direct Evidence of Access

defendant admits it, witness saw it happen or heard defendant talk about it

Circumstantial evidence of access

plaintiff's work is well known or plaintiff distributed work to a third party who likely got it to the defendant

Access

A reasonable opportunity to hear or see a copyrighted work

**HAVE TO PROVE ACCESS

Substantial Similarity

Generally-if the similarities are so great that it is more than likely the defendant copied the plaintiff's work

Striking Similarity

The similarities between two works are so striking that there is no reasonable possibility the defendant works could be independently created

Court may find copying even if plaintiff cannot prove access

Showing what 2 things make the court presume copying?

Plaintiff shows access and substantial similarity

4 ways a defendant can rebut presumption of copy

-Company policies

-Prior works

-Show defendant's work was created first

-Show independent creation

Direct Infringement

The actual infringement violation of one or more of the exclusive rights

Contributory Infringement

Party has knowledge of the infringing activity and induces, causes, or materially contributes to the infringing conduct of another

Vicarious Infringement

Defendant has the ability to control an infringers activity and receives a direct financial benefit from the infringement

*Does not require knowledge

(ex: boss gets blame for workers infringement)

Inducement Liability

Take active steps to encourage direct infringement

ex: Grokster-Supreme court case

Joint and Several Liability

If more than one defendant infringes together, they are jointly and severally liable-artist, label, writer, publisher, producer

Statute of Limitations

must bring suit within 3 years from the date upon which infringement should reasonably have been discovered

Abandonment

Commit some act that clearly indicates an intent to surrender rights in the copyrighted work and allow the public to copy

*Typically requires a statement, not just implied by actions

When proving independent creation what 3 things must a defendant show

1)that similarities are coincidental

2) Best if proved that defendant's work was created first

3) Witnesses, documents, notes from writing, work tapes

De Minimus Copying

-No clear legal rules

-Prove that what was copied was insubstantial and inconsequential to be dubbed copyrightable

Innocent Intent

Infringement does not require intent, but it may reduce liability with statutory rates

Fair Use

Allow infringing use because some public benefit is derived

Why do we have fair use?

1) Copyright's goal-to provide wide access to creative works

2) Freedom of speech

3) Allows courts to avoid the rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster

Have to be sued to claim fair use. What type of defense is this?

Fair Use is an affirmative defense. Claiming fair use is unlikely to prevent a lawsuit.

First case of fair use

in 1841. a book about George Washington

What was the first statute that fair use was covered in?

1976 Act

What does the 1976 Act say about fair use?

-DOES NOT DEFINE IT

- gives illustrative examples and a 4 factor test

Things that are considered fair use?

1) Criticism

2) comments

3) news reporting

4) teaching

5) scholarship

6) research

The factors of fair use when assessing in a court

1) Purpose and character of use

2) Nature of the copyrighted work

3) Amount and sustainability of the portion used

4) Effect on the market

True or false. Parody is typically protected under fair use

true

What is parody

uses the copyrighted work to make fun or criticize the work

What is satire

uses the copyrighted work to make fun or criticize something else, typically society

What does the trademark law protect?

words and short phrases

A famous English philosopher was an advocate of which copyright philosophy?

John Locke; Author's right philosophy

"Congress will have the power to promote the progress of Science and the Useful arts, by securing for limits times to Authors and inventors the exclusive right to their writings and discoveries" is a clause from what famous document?

U.S. Constitution-DOES address copyright laws

Prenuptial Agreements are only valid in California and ⅚ others if they are signed prior to the wedding. This falls under what type of law?

Family law NOT copyright

The act of Congress that allowed the President to extend copyright protection to foreign works, IF the foreign countries provided protection for U.S. works, was known as the?

Chase Act

Even though the Burne Convention already existed, the first multinational treaty the U.S. signed was the

UNIVERSAL COPYRIGHT CONVENTION (UCC)

Universal Copyright Convention protected works in the US between what dates?

1955 to 3/1/1989

At minimum, a country must provide how many provisions in its copyright law to be a member of the Berne Convention?

TWO

Name the two Berne Convention provisions

-copyright term of Life +50

-must have fair use for education and news reporting

How many copyrights are involved in streaming or downloading?

2-musical composition and sound recording

Which copyright philosophy is to encourage the widest possible production and dissemination of artistic works?

User's right philosophy

While the U.S. copyright law has generally been based upon the User's Right Philosophy you can also say it is based on the_____?

Economic (trade based) philosophy

Why can US copyright law be based on another philosophy besides users right philosophy?

Because sometimes we revise the copyright act to favor people who own copyrights to increase their income

Musical works are one of the many types of works subject to copyright protection. Which element of a musical work is defined as the "regular pattern formed by a series of notes of differing duration of stress"

rhythm

A compilation is another type of work subject to copyright protection, however, the author of the compilation only has copyright protection if...

The selection and arrangement of the preexisting materials have originality and expression (also have to have permission from copyright owner)

If an author published a work prior to 1978 without a copyright notice, the work would

be injected into public domain

Two requirements for the creation of a joint work are

-The intention to create a joint work

-Each author's contribution has to be copyrightable subject matter

Kenny Chesney records a song you wrote when you were 7 and had just figured out how to play guitar. He makes minor changes to the song and claims 50% ownership. Can he?

-Maybe

-He cannot claim to be a CO-AUTHOR because you did not have the intent to create when you were 7

-However, if you choose to do so, you could assign 50% of your rights in the song by written agreement

The U.S. copyright office assists in drafting their copyright laws, and will search the copyright indexes and records but it will not ______

Judge the quality of work submitted or the validity of the ownership claim

Works registered in 1978 and after can be found online, but you must search _____________ to find pre-78 works

COPYRIGHT CARD CATALOG & CATALOG OF COPYRIGHT ENTRIES

A copyright notice must have three elements

-CIRCLE C OR COPYRIGHT OR "Copr." (FOR -SOUND RECORDINGS ONLY USE A CIRCLE P)

YEAR OF PUBLICATION (not creation unless it hasnt been published)

-NAME OF COPYRIGHT OWNER

A copyright registration is a claim of

ownership

If the copyright ownership changes, an assignment should be recorded. But, if an author or claimant is omitted on the registration, the omitted party should file a _________, WHICH is done with a Form CA.

Supplemental registration

Under the 1976 Copyright Act, works created after 1/1/78 receive protection upon

fixed in a tangible form

Is registration required to have protection or exercise exclusive rights?

No

Registering multiple songs as a collection can save you money in registration fees, but your songs must meet several conditions, two of which are:

-The works must have one common author

-A single title should identify the collection

The compulsory mechanical license, which allows people to reproduce and distribute sound recordings of musical compositions first appeared in

1909 copyright act

Compulsory Mechanical License royalty rate

2 cents

Sound recordings did not gain copyright protection until what year

1972

The public performance right, which is usually exploited by ASCAP, BMI, OR SESAC on behalf of the writer and publisher, is under which section of the 1976 Copyright Act?

106(4)

The right to create derivative works is found in ____of 1976 copyright act

106(2)

With compulsory licenses you do not have to have a license before recording a song but you must request the license within_______ days of recording and _______ distribution

30; before

The statutory royalty rate for Digital Phonograph Deliveries which is the same rate as for physical copies, is how much per copy manufactured and sold?

9.1 CENTS

A controlled composition clause:

Guarantees the label that the artist will grant a mechanical license for his/her songs at a reduced rate

What does a compulsory Mechanical License allow?

to record a musical composition for sale to the public for private use

Which of the exclusive rights would you need to license to create a French version of the Music Copyright Law textbook?

Derivative; 106(2)

The compulsory license allows you to make changes to a musical composition to fit the artist's style and interpretation, BUT you cannot change the ____ or _____.

basic melody or fundamental character.

First Sale Doctrine Section 109(a)

owner of a copy or phonorecord lawfully made under this title may sell or otherwise dispose of the copy or phonorecord without the copyright owners permission

If sam hunt sings "We can leave the night on" at a radio station, how many public performances have occurred?

3

-Same hunt singing at the station

-The stations broadcast

-The listeners at home

infringement to perform music publicly without a license, restaurant owners were "charging" for the music performed for their diners. What case was this?

Herbert v. Shanley

M. Witmark & Sons v. L. Bamberger & Co

Profiting from music in store

While copying, uploading, and downloading files all involve the reproduction right, streaming involves the ______ right?

Performance

Copyright law protects sound recordings to the extent it protects musical works. True or False

FALSE

Terrestrial radio

only writers and publishers get royalties but artist and labels do not

What limits the distribution right?

First Sale Doctrine

What two rights doe the compulsory license limit?

reproduction and distribution right

Home-style receiving apparatus and Fairness in Music Licensing Act only apply to

music NOT MOVIES

if a song was published in or before 1923, it is in the public domain. Therefore you do not need a license to exercise and of the exclusive rights to those works

Public domain

Copyright Renewal Act of 1992 amended what?

1976 Copyright Act but impacted works created under the 1909 Act.

** Eliminated rule of renewing to have a second term

What changed under the Copyright Renewal Act of 1992?

Renewal became automatic for works created between 1964 and 1977.

Are works made for hire subject to the right to terminate transfers of copyright?

no

Copyright assignments that do not clearly indicate a duration of assignment will be deemed to be effective for _________

REMAINDER OF THE COPYRIGHT TERM, SUBJECT TO AUTHOR'S RIGHT TO TERMINATE

The duration of copyright is _______ for works made on or after 1/1/78

life plus 70

The duration of copyright for works created before 1978 and published between 1923-1963

95 years from publication assuming a proper renewal was filed

When does copyright protection end?

ON 12/31 OF THE LAST YEAR OF PROTECTION

Duration of copyright for works for hire?

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

Which copyright act extended the length of the renewal term to 28 years given the owner two 28 years to protection for a total of 56 years?

1909 Act

_______ has likely occurred if two songs are similar yet the writers never heard each other song

Independent Creation

Example of something a defendant would show court to prove independent creation

prior art

Three types of coercive remedies:

Impoundment

Destruction

Injunction

What is the first thing you do when you discover someone has infringed your copyright

Cease and Desist Letter

A plaintiff in a copyright infringement lawsuit must prove these elements

1 Ownership of a valid copyright

2 Copying

3 Copied the parts protected by copyright

4 Circumstantial evidence

Who can the plaintiff be?

Copyright owner

Author

Owner of the exclusive right

who motivated congress to pass the No Electronic Theft Act?

David LaMacchia