Copyright Basics

What types of works are copyrightable under the current copyright act?

• Literary works

• Musical works

• Dramatic works

• Pantomime and choreographical works

• Pictorial, graphic, & sculptural works

• Motion pictures

• Audiovisual works

• Sound recordings

• The creative portion of architectural works

When does copyright protect the owner under the current copyright act?

As soon as an author fixes the work in a tangible form of expression

What is required for a work to be “original”?

• Independent creation

• By a human author

• With a minimal degree of creativity

What does independent creation require?

That the work is the product of the author’s own independent judgment, not copying someone else’s.

How is a human author defined?

An author is he to whom anything owes its origin; originator; maker; one who completes a work of science or literature (Burrow-Giles).

What does “creativity” refer to?

Expressiveness

How do you know if a work is expressive?

This refers to the amount of creativity added to the work.

How much creativity is required?

At least a minimal amount that exceeds the basic societal level

Are facts copyrightable?

Not generally, but compilations of facts may be (Feist Publ’ns).

What is the idea/expression dichotomy?

Copyright never protects any ideas, procedures, processes, systems, methods of operation, concepts, principles, preparatory steps, or discoveries described, explained, illustrated, or embodied in the copyrighted work, but the expression of those elements is protected (Coscarelli).

What is the sweat of the brow principle?

There must be more than the sweat of a brow to be copyrightable; the work must contain some creative choices in the selection and arrangement (Feist Publ’ns).

What test is used to determine if a character is copyrightable?

Towle Test:

(1) physical & conceptual qualities

(2) sufficiently delineated to be recognizable as the same character whenever it appears and displays consistent, identifiable character traits and attributes, and

(3) especially distinctive and contains some unique elements of expression (Carroll Shelby).

What if the work is a stock element of nature?

Settings independent or at least standard in the treatment of a given topic are not copyrightable (Satava).

What does fixation require?

That the work is embodied in some semi-permanent form.

Can the copy take different shapes and still be considered fixed?

Yes, because material objects are copies and the expression is fixed even if the work takes different poses (Tangle).

What are the steps to evaluating a copyright claim?

(1) Is there a copyrightable work?

(2) Are you/client the author/owner of the copyright?

(3) Is one of the exclusive rights being infringed upon?

(4) If so, can the alleged infringer be stopped, and how?

Who originally owns the copyright?

It vests initially in the author of the work under Section 201(a).

How is a joint work defined?

• Copyrightable work

• prepared by 2+ authors

• with intention to merge contributions into inseparable or interdependent parts of a unitary whole

• contributions are independently copyrightable

How is an author of a joint work determined?

• Superintendence over work by exercising control over it

• Receiving objective manifestations of a shared intent to be a co-author

• Audience appeal of the work turns on the contributions in combination

How much profits be shared in a joint work?

Evenly (Armes).

How can coauthorship be repudiated, and how long thereafter can it be challenged?

• A direct statement

• Denial of published credit, or

• failure to pay royalties owed

3 years

What is the test for a work-for-hire under the 1909 Act?

Instance & expense test

What is the test for a work-for-hire under the 1976 Act?

• Prepared within the scope of employment, or

• One of 9 types of work specially ordered or commissioned

What is the only type of license that creates standing to sue?

Exclusive license

What does an exclusive license require under 204(a)?

A writing

What if there is an oral agreement for an exclusive license?

There must be a substantially contemporaneous confirmatory writing (Konigsberg).

Can exclusive licenses be transferred?

Only with the consent of the licensor (Gardner).

What type of copyright does not carry termination rights?

Work-for-hire copyrights

What is a transfer in gross?

A transfer of the entire copyright (Greenfield).

What are the requirements for termination of a copyright transfer?

• Owned by a natural author

• Signed by author/heirs/agents, specifies date of termination within statutory window, and specifies the work

• Notice is sent 2-10 years ahead of time, and

• Notice is sent to the Copyright Office

What rights are afforded to the owner of a copyright?

• Reproduction

• Adaptation

• Distribution

• Public performance

• Public display

• Digital transmission

How do you know if the reproduction right has been violated?

A new fixed copy of work sufficiently stable or permanent has been created.

If the adaptation right has been violated, what else has necessarily been violated?

Either reproduction or performance right

Does the first sale doctrine apply to a licensee?

No (Adobe Sys).

How are most public performance right violations litigated?

Under the transmit clause

What questions are relevant to a public performance right violation?

(1) Who is your establishment open to, and for what purpose?

(2) Which party is actually rendering the performance?

What is the basic general rule under the transmit clause?

One user, one copy (Cablevision, VidAngel, Zediva, Aereo).

What test controls for public display rights violations online?

The Server Test (Perfect 10).

What is required for standing?

(1) ownership, transfer, or exclusive license, and

(2) actual or threatened injury that can be shown

What elements must be proven to show infringement?

(1) ownership of a valid copyright

(2) copying of constituent elements of the work that are original (Feist Publ’ns).

How do you prove actionable copying?

(1) Direct evidence or

(2) Access + probative similarity

What types of circumstantial evidence are generally accepted to show access?

(1) chain of events

(2) widespread dissemination

What is the only complete defense against infringement?

Independent creation

What is the unauthorized derivative works doctrine?

They are never copyrightable, no matter how much creativity has been added, but are usually tolerated under the guise of fair use (Anderson; Polychron).

What is the merger doctrine?

The idea and expression are so closely linked that they don’t elevate themselves to the level of creativity required for copyrightability.

How are copyrights of artistic designs of useful articles handled?

Functional aspects cannot be copyrighted; an artistic feature can be if it (1) can be perceived as a 2D or 3D work separate from the useful article, and (2) would qualify as a protectable work on its own or in some other medium if imagined separately from the useful article (Star Athletica).

What is selection & arrangement?

The selection must be sufficiently numerous & the arrangement sufficiently creative (Gray).

What are scenes a faire, and why are they important?

Incidents, characters, or settings independent or at least standard in the treatment of a given topic are not copyrightable (Horizon Comics).

What is striking similarity?

Something so crazy that there is no way it could have been generated or created without being copied

How is substantial similarity evaluated?

Extrinsically & intrinsically, using various tests

What tests are used to determine substantial similarity?

(1) Fragmented Literal Similarity

(2) Comprehensive Nonliteral Similarity

(3) Abstraction

(4) Pattern

What is the extrinsic test, and who uses it?

An objective comparison of expressive elements by filtering out and disregarding unprotected elements, unless they form a protectable selection & arrangement; judge

What is the instrinsic test, and who uses it?

Subjective concept of the total “concept & feel”; trier of fact

Where does fair use come into the equation?

Affirmative defense

What are the factors of fair use?

(1) Purpose & Character

(2) Nature

(3) Amount & Substantiality

(4) Effect of Use on Market

What is asserted truths?

An affirmative defense, similar to estoppel

What are the reliance defenses based on inaction?

SOL & laches

What are the reliance defenses based on overt conduct?

License, waiver, and estoppel

What question is asked for the inaction reliance defenses?

Has the plaintiff’s passive conduct given the court a reason to believe they should not be able to maintain a lawsuit in its current form?

What question is asked for the overt reliance defenses?

Has the plaintiff’s overt conduct given the court a reason to believe they should not able to maintain a lawsuit in its current form?