Copyright

Towle Test (9th Circuit) Element 1

Physical and conceptual qualities

Exclusive Rights

Reproduce, prepare derivatives, distribute copies, perform publicly, display publicly

9th Circuit Substantial Similarity Test - Extrinsic

Objective comparison of protectable elements.

2nd Circuit Substantial Similarity Test

Would an ordinary observer recognize the defendant’s work as being copied from the plaintiff’s work?

Fair Use Factor 1

Purpose and character of the use

Towle Test (9th Circuit) Element 2

Sufficiently delineated to be recognizable as the same character wherever it appears

Towle Test (9th Circuit) Element 3

Especially distinctive and unique elements of expression

9th Circuit Substantial Similarity Test - Intrinsic

Subjective comparison of the total concept and feel by an ordinary observer

Fair Use Factor 2

Nature of copyrighted work

Fair Use Factor 3

Amount and substantiality of portion used

Fair Use Factor 4

Effect of use upon potential market

The Copyright Act of 1976 applies to

Works created on or after January 1st, 1978

What you can copyright

Original works of authorship fixed in any tangible medium of expression

When can useful articles be copyrighted?

When design features can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article

How do you know who is the author? (Generally)

Titanic case says when plaintiff exercises such a high degree of control over work, that individual may be considered the author

Joint Works

Works prepared by two or more authors with the intent that their contributions be merged into one work (Malcom X)

In joint works, consider:

Who has decision making authority; how the parties bill themselves; any contracts; other objective manifestations of intent to be joint authors

Erickson

Each author’s contributions have to be copyrightable

What do you need for it to be a commissioned work?

Work specially ordered or commissioned and a signed agreement specifying it is a work for hire

Prima Facie Case of Copyright Infringement - 1

Ownership of valid copyright

Prima Facie Case of Copyright Infringement - 2

Unauthorized exercise of a section 106 right, or “copying”

Within “copying”, there is (for a prima facie case)

Copying in fact AND improper appropriation (substantial similarity)

What is copying in fact?

The defendant obtained and used the copyright owner’s protected work as opposed to independently creating the work

How to show direct evidence of copying in fact

Admission, documentary, or eyewitness

How to show circumstantial evidence of copying in fact

Access and Similarity

How to show access

Prior dealings, a mutual friend in common, or widely disseminated

How to show similarity (in circumstantial evidence of prima facie case)

Ty case said access can be inferred when there is a striking similarity between the works when the subject isn’t in the public domain

How to rebut similarity

Independent creation

Improper Appropriation

Can be factual copying or similarities are substantial and involve protected elements of plaintiff’s work

Factual Copying

Similarities one wouldn’t expect to arise in independently created works

The Purpose and Character of the Use

Has the original been transformed? Warhol says the degree of transformation must go beyond that which would qualify it as derivative. Is the new a substitute for the original? Is it commercial?

Parodies

Under Campbell, parodies are transformative. A parody needs to mimic enough of the original to make the parody

The Nature of the Copyrighted Work

Is it creative or factual? Has it been published?

The Amount and Substantiality of the Portion Used

Quantitative vs. Qualitative

Some things that may be fair use (but not automatically)

Criticism, comment, news reporting, teaching, scholarship, or research

Defenses to copyright infringement

De minimis, fair use, independent creation, scenes a faire

Musical works

Protect lyrics, melody, harmony, rhythm, sheet music, score, and arrangement of song, but not the audible form

Who owns the rights in a musical work?

Whoever writes the lyrics, music, or both

4 Types of Licenses

Mechanical, public performance, print, and synchronization

Mechanical License

Allows a record company/recording artist to reproduce and distribute a copyrighted musical work in recordings such as CDs

Compulsory Mechanical License

The first reproduction of the work has been done, so anyone can record their own version of the song, but they have to pay for it

Cover versions of musical works can’t do what

Change the basic melody or fundamental character of the work

Public Performance License

Allows the licensee to publicly perform a copyrighted work (owning a CD isn’t enough)

Print License

Gives someone permission to print lyrics in books or sheet music. Must get this from the copyright owner

Synchronization License (and Master Use License for Sound Recordings)

If you’re going to use the song in an audiovisual recording (TV, video game, etc.), then you must get this from the copyright owner

Sound Recording

Actual fixation of sounds

How do sound recordings differ from musical works?

They receive less protection, have fewer exclusive rights, and there is no right to perform publicly

Who owns the copyright under a recording agreement (for sound recordings)?

Record companies because agreements typically classify it as a work for hire, but if the artist’s contributions aren’t deemed a work for hire, then the agreement usually says the artist will assign the copyright to the record company

Circuit Split on De Minimis for Music

6th Circuit rejected the substantial similarity and de minimis concept for sound recording infringement, but 9th circuit accepted them

There is vicarious infringement if

right and ability to control or supervise the infringing activity and direct financial interest in such activities

There is contributory infringement if

knowledge of infringing activity and induces, causes, or materially contributes to the infringing conduct (Fonovisa flea market case)

2 types of secondary liability

Vicarious and contributory

DMCA provides

Safe harbors if you accept and use the repeat infringer policy and have a DMCA agent

Without the protection of safe harbors, what would happen?

OSPs face direct and secondary liability

The Copyright Act of 1976 does or does not have renewals?

Does not

The Copyright Act of 1909 does or does not have renewals?

Does, and it is for 28 years

Who is entitled to renew?

The author of the work if still living, or the widow, widower, or children, then the author’s executors, or in the absence of a will, the next of kin

How long is the copyright for individuals

Life of the creator plus 70 years (for anything after 1978)

Length of copyright for works made for hire

95 years from its first date of publication or 120 years from its date of creation, whichever expires first

Works before 1929 are considered

in the public domain

Copyright Termination term with grants

Must be terminated within a 5 year period beginning 35 years from the date of execution of the grant

Termination of transfer doesn’t apply to

Works made for hire

When can the copyright claims board hear claims?

Where the total monetary recovery doesn’t exceed $30,000; declarations of non-infringement; and misrepresentation in connection with DMCA takedown notices

Copyright Notices

Not required for works published on or after March 1, 1989

Under the 1909 Act once you publish a work, one of 2 things happen:

if you affix copyright notice and promptly deposit with Copyright Office, you get 28 years of protection, or if you don’t, the work immediately went in the public domain

Do you need to register the copyright under the 1976 Act?

No, unless you want to sue

What is presumptive proof of a valid copyright?

Registration within 5 years of first publication

What are the types of damages you can get for copyright infringement?

Actual, statutory, injunction, attorney’s fees (maybe), criminal offense, infringing copies can be impounded, infringing copies and machinery used to make them can be destroyed