Copyright - Authorship and Formalities

How does the Supreme Court define author?

person “to whom anything owes its origin; originator; maker; one who completes a work of science or literature.”
authorship in copyright law has come to be understood as equivalent to human causation.

Who can be credited as an author?

Human being, “works produced by nature, animals, or plants” lack human authorship, as do “works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”

Test for whether work generated in party by computer or AI is copyrightable

question is “whether the ‘work’ is one of human authorship, with the computer merely assisting, or whether elements of authorship in the work were actually conceived and executed by a machine.”

When it comes to prompts given to AI…

prompts alone do not provide sufficient human control to make users of an AI system the authors of the output.

Giving prompts to AI vs commissioning an artist

party is able to oversee, direct, and understand the contributions of a commissioned human artist.

Prompts do not appear to adequately determine the expressive elements produced, or control how the system translates them into an output.

When the user inputs their own work into AI…

they will be the author of at least that portion of the output, will be protected by copyright, with a scope analogous to that in a derivative work

How is modifying or arranging AI-generated content treated?

depend on a case-by-case determination, must meet minimum standard of originality

How does the inclusion of AI-generated content in a work treated?

inclusion of elements of AI-generated content in a larger human-authored work does not affect the copyrightability of the larger human authored work as a whole,

Even if human created the machine/program that created the work of art…

stills lacks human authorship

The Supreme Court explains that the author…

the one “who has actually formed the picture,” the one who acts as “the inventive or master mind.”

Why was the author using Midjourney not granted authorship of the images?

Midjourney generates images in an unpredictable way,

person who provides text prompts to Midjourney does not “actually form” the generated images and is not the “master mind” behind them. prompt may “influence” generated image, but prompt text does not dictate a specific result....

What are copyright formalities?

procedural requirements imposed on authors by the government that are necessary to obtain copyright protection but do not relate to the substance of the copyright.

What are the 4 formal required formalities?

(a) notice of copyright;

(b) publication of the work;

(c) registration of the work with the Copyright Office; and

(d) deposit of a copy of the work with the Library of Congress.

Failure to comply with formalities…

largely voluntary, does not risk forfeiture

Why failure to comply with formalities doesn’t risk forfeiture?

Berne Convention, provides copyright “not be subject to any formality”

What does the 1909 Act require in terms of notice?

Must have year of first publication; the word “Copyright,” the abbreviation “Copr.” or the symbol ©; and the name of the copyright holder in appropriate form and location

Failure to place notice typically resulted in no copyright protection

What does the 1976 Act requires in terms of notice?

No location or form requirement, and

no notice did not result in forfeiture so long as they were inadvertent and holder registered within 5 years after publication, made reasonable efforts to give notice after omission discovered

What did the Berne Convention Implementation Act require in terms of notice?

Eliminated notice requirement, but encouraged voluntary notice by not allowing “innocent infringement” defense to try to lower actual or statutory damages if notice is there and infringer could see

How did federal copyright protection become available under the 1909 act?

act of publishing work, unpublished could be protected by state common law or “constructively” published by registration with Copyright office

What is investive publication under 1909 act?

when done with the required formalities (like a proper copyright notice), vested or secured federal copyright

What is divisitive publication under 1909 act?

If the work publicly distributed without satisfying federal formalities, that act of publication could divest the author of protection and potentially push the work toward the public domain

How did federal copyright protection become available under the 1976 act?

act of creating a work fixed in a tangible medium of expression, and common law copyright is preempted.

How did the 1976 Act define publication?

distribution of copies to the public by sale or other transfer of ownership, or by rental, lease, or lending.

Offering to distribute copies to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.

public performance or display of a work does not of itself constitute publication.

When does Berne Convention require deposit?

Deposit at the Library of Congress is mandatory only for published works.

When must registration occur under the Berne Convention?

Within 5 years of first publication

When are statutory damages and attorney’s fees available?

only if registration preceded the infringement or if the work was registered within three months after publication.

How has registration of copyright always been treated?

always boluntary,

Despite registration being made optional, how did congress encourage the system?

successful registration constitutes prima facie evidence of the validity of the copyright.

copyright holder must register the copyright before bringing an infringement action, so in practice an unregistered copyright is only a potential right rather than an actual right.

Powerful incentive for early registration: a copyright holder can obtain statutory damages and attorneys’ fees only for infringements that occurred after registration (or which occurred after publication if the work was registered within three months after publication).

Copyright Act provides preregistration…

of classes of unpublished works that are prone to prerelease infringement (motion pictures, sound recording, computer programs, etc.)

How are inaccuracies on registration treated by the Copyright Office?

do not affect a plaintiff’s ability to bring a civil action unless those inaccuracies were knowingly included by the applicant in its application and the inaccuracy would have resulted in a denial of registration.

In terms of deposit, Copyright Act requires…

deposit of two copies of each work published in the United States for which copyright is claimed within three months after publication in Library of Congress as well as Copyright Office

Copyright office differs because…

failure to comply results ina refusal to register copyright

Failure to comply with deposit measure does not…

affect validity of copyright or author’s right to bring suit

Failure to comply with deposit measure can..

give rise to fines and delays completion of registration process (however DC Circuit held physical deposit unconsitutional)

What is the retrospective problem in regards to foreign copyrighted works?

Foreign copyrighted works enter public domain in US because authors failed to comply with then-applicable notice requirements, fixed by Copyright Act

What potential problems does copyright restoration present?

protection in restored works is not retroactive, however owner does have right to “cut off” future uses after grace period

“derivative works”: works created in reliance on public status of foreign work, Act provides may continue to use buy pay “reasonable compensation”

In regards to copyright restoration, Supreme court….

rejected argument that IP clause or First amendment barred copyright restoration