Copyright Law

Fixation

1. the embodiment requirement - the work must be placed in a medium from which it can be perceived or reproduced; and

2. the duration requirement - it must remain embodied "for a period of more than transitory duration.” (more than 0.1-1.2 seconds)

Copyrightability of Photographs

Photographs involving artistic choices, creativity, and intellectual input can qualify.

Ex: Originality through creative decisions in posing, lighting, costume selection, and artistic arrangement.

Originality

17 U.S.C. § 102(a): “[O]riginal works of authorship fixed in any tangible medium of expression.”

Feist: [to be original] the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” (facts cannot be copyrighted nor arrangements like alphabetization)

Court rejects the “sweat of the brow” reasoning.

Derivative Work

“A work based upon one or more preexisting works . . . in which a work may be recast, transformed, or adapted.”

1. A work is not derivative simply because it is "based upon" preexisting works

2. Must be "recast, transformed, or adapted" into another medium, mode, language, or revised version while still "representing the original work of authorship"

Originality for Derivative Works

The originality requirement for derivative works is not more demanding than for other works.

The key inquiry is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the underlying work in some meaningful way.

Cannot merely be a “slavish copy'“

Durham Test (Derivative Works)

A derivative work is copyrightable when:

(1) original aspects of the derivative are more than trivial; and

(2) must not affect the scope of copyright in the original.

Idea/Expression Dichotomy

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Ex. Baker - tried to copyright a book-keeping system idea, but that could not be protected. The book itself that expressed that idea, though, could be.

Merger Doctrine

• When an idea and its expression are inseparable, the expression is not protectable.

• If the elements are so commonplace and standard for a genre, they are unprotectable.

• If you represent things to be facts, you are estopped from asserting copyrights.

Abstraction Test (Idea/Expression)

No fixed boundary.

Case-by-case.

There is a point in the series of abstractions where the expression is unprotectable.

Government Works

Receive no protection under Copyright Law.

Useful Articles

Copyright does not protect the pictorial, graphic, or sculptural features of useful articles.

Useful article will be considered a sculptural only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.

Star Athletica (Useful Article Test)

1. Can be perceived separate from the useful article; and

2. Qualifies for protection on its own or on some other medium of expression.

Ex. fashion designers can’t protect the design (like a t-shirt) but can protect the ornamental design on clothes (logo on t-shirt).

Copyight Categories

1. Literary works;

2. Musical works, including any accompanying words;

3. Dramatic works, including any accompanying music;

4. Pantomimes and choreographic works;

5. Pictorial, graphic, and sculptural works;

6. Motion pictures and other audiovisual works;

7. Sound recordings; and

   1. i.e. fixed performance

8. Architectural works.

Software / Abstraction Test

Fall under “literary work.”

The Computer Associates court talked about the:

Three-step test for analyzing substantial similarity in non-literal elements of computer programs–

1. Abstraction: Break down the allegedly infringed program into constituent structural parts at different levels of abstraction, from code to ultimate function

2. Filtration: Filter out non-protectable elements including: 

   1. elements dictated by efficiency concerns where merger doctrine applies,

   2. elements dictated by external factors (hardware specifications, compatibility requirements, industry standards), and

   3. elements taken from the public domain

3. Comparison: Compare the remaining core of protectable expression with the allegedly infringing program's structure.

It held deleting copied code and replacing it with new code did not infringe the “expression” in the software architecture, absent evidence of that original expression.

In Lotus Development, absent copying the code, the menu structure was a method of operation.

Architectural Works

Architectural work need not be built to qualify for copyright protection, they just need to be fixed in any tangible medium of expression as required by 102(a). So, copyright plans qualify to fix an architectural work.

Zalewski - Similarities between architectural works do not prove wrongful copying if they involve only unprotectable elements. Colonial home designs that adhere to pre-existing architectural styles receive only thin copyright protection.

• there are a lot of scènes à faire in the architecture of a house

Authorship

No definition in the statute. Ownership of a copyright vests in the author or authors.

• The author of a work is the person who actually creates the work by translating an idea into a fixed, tangible expression entitled to copyright protection. Where a plaintiff exercises a high degree of control such that the final product duplicates his conceptions and visions, the plaintiff may be considered an "author" within the meaning of the Copyright Act.

Authorship for Actors

Copyright Office's longstanding practice does not allow copyright claims by individual actors in performances contained within motion pictures.

• This theory would create a "legal morass" by "splintering a movie into many different works.” Garcia never fixed her performance in a tangible medium as required by statute–Youssef and his crew fixed Garcia's performance, not Garcia herself. Garcia cannot argue the film was fixed "by or under her authority" since she never agreed to the film's ultimate rendition.

Can Machines be Authors?

No. Copyright ownership provision assumes author's legal capacity to hold property, duration tied to author's lifespan, inheritance provisions, signature requirements, nationality/domicile, authors require “intention,” and Act refers to machines as "tools," "devices," or "process" used by authors, not as authors themselves.

Authorship & Ownership in Joint Works

A “joint work” is 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.

Joint Work Test

1. For a work to be a "joint work" under 17 U.S.C. § 101, there must be: A copyrightable work.

   1. Two or more "authors"

   2. Authors must intend their contributions be merged into inseparable or interdependent parts of a unitary whole

   3. Each author must make an independently copyrightable contribution

      1. Purported author with no control over the final product likely not an author

   4. The court established additional factors for determining joint authorship in movies:

   1. An author superintends the work by exercising control

   2. Putative co-authors make objective manifestations of shared intent to be co-authors

   3. The audience appeal of the work turns on both contributions and the share of each cannot be appraised

   4. Control is often the most important factor

Works Made for Hire

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.

Employee vs. Independent Contractor

To determine if the hired party is an "employee," refer to the agency test (IC test):

• right to control, skill, source of tools, location, duration of relationship, discretion, method of payment, whether work is part of regular business, etc.

• No single factor is determinative.

Specially Ordered or Commissioned Works

1. In order for a commissioned work to be a work made for hire, two requirements must be fulfilled.

   1. Must fit within the specified types of works in the statute;

      1. contribution to a collective work;

      2. as a part of a 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. or as an atlas.

   2. The parties must agree, in a written instrument signed by both of them, that the work shall be considered a work for hire.

Copyright Infringement - Arnstein v. Porter

Test: Actual Copying/Improper Appropriation (“Ordinary Observer”)

Circuits: 1st, 2nd, 3rd, 5th, 8th

Copying in Fact: Access + some kind of similarity

Copying in Law: Would an ordinary observer think the D took protected expression?

• Both are questions of fact

Expert Testimony: Experts are allowed for 1st step only, except for software or other complicated arts.

Emphasis: Emphasis on whether D copied AND whether the copying is wrongful (improper appropriation)

Copyright Infringement - Kroft v. McDonald’s

Test: Extrinsic/Intrinsic Test

Circuits: 4th, 6th, 9th, 11th

Copying in Fact: Access + similarity (of some name)

Copying in Law:

• Extrinsic: detailed, objective analysis of the similarities of the protectable expression

• Intrinsic Test: Ordinary observer test. Focuses on “look and feel” of the works.

  • Both are questions of fact.

Expert Testimony: Experts are allowed for 1st step only, except for software or other complicated arts.

Emphasis: Emphasis on filtering out unprotectable elements, then comparing protectable expression

Exclusive Rights of Owner

1. to reproduce the copyrighted work

2. to prepare derivative works

3. to distribute copies

4. to perform the work publicly

5. to perform by means of a digital audio transmission

Elements of Infringement

1. copying in fact (access + substantial similarity)

2. copying protectable elements

Copying in Fact

Proving Copying:

• direct evidence (rare); OR

• Access (“reasonable opportunity” more than bare possibility) + substantial similarity OR they are so similar they must have had access

  • Substantial similarity requires both that the work is protected expression and that the amount copied is more than de minimis.

De Minimis Copy

found when the D’s copy is minimal in a legally salient way

Two recurring scenarios: (1) when D copies P’s entire work but it appears as an insignificant aspect of D’s work; or (2) when D copies but a minimal part of P’s work.

• ex: background depiction of graffiti that appears for only 2-3 seconds and is barely visible is de minimis and doesn’t support copyright infringement claim.

Copying in Law

Would an ordinary observer think the D took protected expression?

Where a plaintiff’s work incorporates elements from the public domain:

a "more discerning" ordinary observer test applies.

• Under the "more discerning" test, there must be substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed compilation. The test is guided by comparing the "total concept and feel" of the contested works using “common sense”.

Extrinsic/Intrinsic Test

Step 1 - Extrinsic: depends not on the responses of the trier of fact, but on specific criteria which can be listed and analyzed like type of artwork involved, the materials used, the subject matter, and the setting for the subject.

Step 2 - Intrinsic: If there is substantial similarity in ideas, then the trier of fact must decide whether there is substantial similarity in the expressions of the ideas so as to constitute infringement. “Total concept and feel”

First Sale Doctrine

Owner of a copy, lawfully made, can sell or otherwise dispose of the copy.

• Cannot control future sales, unless you’re making another unlawful copy (ReDigi).

• Applies to works lawfully purchased outside the country.

Fictional Characters - Towle test

1. the character has physical and conceptual qualities,

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

3. the character is especially distinctive and contains some unique elements of expression.

Fictional Characters - Warner Bros test

• A character constitutes protectable subject matter only if the character really constitutes the story being told;

• if the character is merely "a vehicle for telling the story" and not the story itself, the character is not within the area of copyright protection.

Moral Rights

Authors shall retain the right to:

• Claim authorship

• Prevent the use of his or her name on work they did not create or in the event of a distortion, mutilation, modification of their work.

• prevent any intentional distortion

• prevent destruction of a work of recognized stature

  • e.g. wall art had achieved “recognized stature” → most important will generally be artistic quality.

Work of Visual Art

• painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer.

• a still photographic image reproduced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer.

Lanham Act

NOT an extension of copyright law.

Prohibition in the Lanham Act refers to the producer of the tangible goods that are offered for sale, not to the author of any idea, concept, or communication embodied in those goods.

Public Performance / Public Display

To perform or display a work “publicly” means —

1. To perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and social acquaintances is gathered; or

2. to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Condensed:

1. Performed or displayed at a place open to the public or where a substantial number of people beyond family and close friends are gathered; or

2. Transmitted or communicated to such a place or to the public by any device or process, regardless of whether recipients are in the same or different locations or times.

More on Public Performance

• Allowing public to come into a video rental store and watch movie in a private room was a public performance because it was open to the public.

• Cartoon Network - “transmit clause” contemplates non-public performances, the cloud DVR was for one person and user directed the recording. NON PUBLIC

• Users could activate a unique antenna to have broadcast TV streamed to their connected device, compared users to CATV providers. The same performance to many users, so this was a public performance.

“Server Test”

• Under the "server test," a computer owner displays an image when it stores the image as electronic information and serves that information directly to the user. A computer owner that does not store and serve the electronic information is not displaying it, even if the owner in-line links to or frames the information.

• Perfect 10 where Google infringed P10’s display right when they stored and communicated thumbnail images but not when they provided in-line links to the full sized images stored on 3rd party computers.

Music Sampling - 9th Circuit

• Rejected the 6th Circuit bright-line rule that sampling of a sound recording constitutes infringement.

• Held that § 114(b) gives the right to directly or indirectly recapture the actual sounds fixed in the recording, even against de minimis copying.

• Section 114 provides limitations on exclusive rights; it does not expand them. Thus, if de minimis copying is not an infringement for other works, it is also an exception for sound recordings.

Fair Use

1. purpose and character of the use

   1. commercial or nonprofit, transformative

2. nature of the copyrighted work

   1. functional works can’t be copyrighted

3. amount and substantiality of the portion used in relation to the copyrighted work as a whole

   1. did you take the “heart” of the work

4. effect of the use upon the potential market

The fact that a work is unpublished does not bar a finding of fair use if such finding is made upon the consideration of all above factors.

Parody v. Satire

Parody has a claim to transformative value by shedding light on the original while creating a new one.

• If commentary has no critical bearing on the original, which it used simply to avoid working up something fresh, claim of fair use diminishes.

Parody needs to mimic original, satire can stand on its own two feet.

Satire, by contrast, has no critical bearing on the substance or style of the original and merely uses it to get attention.

Direct Liability

• volitional conduct is important element to establish direct liability.

Vicarious Liability

1. ability to control (infringing activity); and

2. a direct financial benefit

e.g. swap meet case, Cherry Auction had right to control and reaped benefit.

Contributory Infringement

1. with knowledge;

2. induces, causes, or materially contributes to the infringing conduct of another.

e.g. swap meet case, infringement could not have happened without the support offered by the swap meet—they knew of the infringement.

DMCA

§512 Safe Harbors (for OSPs)

§512(c) - hosting user content:

• No actual/red flag knowledge

  • "Red flag" knowledge = specific infringing activity apparent (not generalized knowledge)

• Expeditious takedown upon notice

• No financial benefit + right/ability to control

  • The "right and ability to control" requires something more than merely the ability to remove or block access to materials

• Registered agent + repeat infringer policy

§1201 Anti-Circumvention

• (a)(1): Can't circumvent access controls

• (a)(2): Can't traffic in tech designed to circumvent access

• (b): Can't traffic in tech designed to circumvent rights controls

• Must have nexus to copyright infringement (Chamberlain)

Criminal Copyright Infringement

1. willfully infringes a copyright—

   1. for private financial gain;

   2. by the reproduction or distribution of works with a total retail value of more than $1,000; or

   3. by distribution of a work prepared for commercial distribution if person knew or should have known it was intended for commercial distribution.

Liu: intent requirement is that the defendant must have known the actions would violate someone’s copyright.

Remedies

Owner is entitled to recover the actual damages and any profits attributable to infringement.