Copyright Law Final Exam

Intellectual property (sub category of personal property)

Type of property of Copyright

Author's right (Author's Right Philosophy)

where an author is believed to be morally entitled to control and exploit the products of the author's intellect.

User's Right (The Utilitarian Philosophy)

encourages the wides possible production and availability of artistic works. Assumes that authors will only invest sufficient resources in creating and publishing new works if they will have the ownership rights that will enable them to control and profit from their works' distribution to the public.

Economic Right? (trade based)

making copyright laws based on what is best for the economy and makes the most money.

Foreign countries use a large quantity of American copyrights as opposed to other trade items, so the US has gotten stricter on international copyright

Patents, Trademarks, Trade secrets

Other types of Intellectual Property

Patents (obtained by filing an application with the United States Patent & Trademark Office)

provides protection for certain inventions, discoveries, and product design.

Trademarks ( can be registered with state or federal government, although it is not required)

any word, name, symbol, or device or any combination thereof used to identify products or services and to distinguish them from those manufactured or sold by others. Can be used to protect names, designs, logos, slogans, symbols, colors, packaging, containers, and any other marks used by businesses to identify the source of their goods and services

Trade Secrets

any business information that is kept secret and gives a business a competitive advantage

Can be traced back to ancient Greece, where singers were paid for their performances of music

origins of copyright

The Copyright Act of 1790

First copyright act in the US; largely based on the statute of Anne and signed into law by President George Washington

The Copyright Act of 1831

First major overhaul of the US copyright act; Changed the initial term of copyright protection to 28 years in order to give American copyright owners the same period of protection that many foreign authors enjoyed at that time. It also allowed the renewal right to pass to the author's widow or children if the author was not alive at the end of the initial term. Also included musical compositions as a class of copyrightable subject matter, although a public performance right was not included until later.

The Copyright Act of 1909

Second major overhaul of the US Copyright Act; President Theodore Roosevelt called for a complete revision of the Copyright Act in order to bring it line with technological advances that had taken place

The Copyright Act of 1976

Third major overhaul of the US copyright Act; Gave duration of life of the author plus 50; Made it where any original works of authorship can be protected by copyright; included Fair Use doctrine

Originality, expression, and fixation

Required in order for a work to be protectable by copyright

Literary Works;

Musical Works;

Dramatic works;

pantomimes and choreographic works;

pictorial, graphic, and sculptural works;

motion pictures and other audiovisual works

Sound recordings

Architectural works

Types of works that can be protected by copyright law

Compilations

A work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship

Collective works

A type of compilation and is "a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole." In other words, a collection of copyrighted works.

The public domain

Ideas

Facts

Names, Titles, Slogans, and short phrases

Unfixed Works

Works of the United States Government

Not protected by copyright law

Upon Creation

when the ownership in a copyright begins

-Intent (authors must intend to combine their contributions into a unitary whole)

-Copyright ability of Individual Contributions ( each contributor must contribute some original expression that would be copyrightable on its own)

requirements of joint ownership

Equal, undivided interests unless joint authors clearly indicate otherwise

how splits are determined in a joint work

1. Works prepared by employees within the scope of employment

2.Specially ordered or commissioned works

Two categories for works made for hire

(1) whether the worker is paid a salary

(2) whether the hiring party provides employee benefits

(3) whether the hiring party pays the worker's Social Security taxes

The factors the court will consider in determining whether or not a work was a work made for hire

Community for Creative Non-Violence v. Reid

the case that gave the guidelines for what is considered a work for hire work

It must be put in writing somehow. Could be through an exclusive license

required in order for copyright ownership to be transferred

The termination of transfer right

can be exercised by the author or the author's successors. Gives author back the ownership to their copyright

It can be made at any tine during a five-year time period between 35 and 40 years after the date of transfer or from publication

When can a termination be transferred

Reproduction Right

gives the copyright owner the exclusive right to reproduce, and to authorize others to reproduce, the copyrighted work. It involved producing a retrial object in which the copyrighted work is contained or embodied.

Compulsory Mechanical License

this license gives the licensee (a record company or artist) permission to reproduce and distribute a copyrighted musical work in recordings

9.1c

the current statutory mechanical rate

The Digital Performance Right in Sound Recordings

the right involved in a DPD (Digital Phonorecord Delivery)

The AHRA (Audio Home Recording Act)

designed to allow consumers to copy recordings of copyrighted music for private, noncommercial use while also compensating copyright owners for lost income due to such copying

The Diamond Rio Case

Diamond Rio v. Recording Industry Association of America (RIAA)

the first highly publicized case involving the AHRA (Audio Home Recording Act)

Sampling

using part of an existing work in order to create a new work

Bridgeport Music v. Dimension Films

the 6th circuit case the basically eliminated "de minimis" use

Derivative Work

takes an existing work and adapts it some way in order to create a new work.

OR

a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted

(1) It must borrow from another work

(2) It must recast, transform, or adapt the work upon which it is based

requirements of a derivative work

Editorial Revisions

Fictionalizations

Dramatizations

Translations to New Language

Translations to New Medium

Abridgments and Condensations

types of derivative works

the copyright (or what is protected) only extends to the material contributed by the author of the derivative work. The parts created by the original work still owns all of the parts that he created

the degree to which derivative works are protected

"arrangement shall not change the basic melody or fundamental character of the work."

the limitation in making changes to a work under the compulsory mechanical license before a derivative work results

Distribution Right

right to distribute "copies or phono records of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." including giving away or renting copies of phonorecords and all forms of transfer

First Sale doctrine

Limitation of the distribution right

First Sale Doctrine

allows the owner of a CD or phonorecord to rent or sale or dispose however they choose

Public Performance Right

the right to perform and to authorize others to perform their works publicly

Performance

to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible

Public Performance

occurs anytime a work is performed at place open to the public, performed at a place where a substantial number of people other than family and friends are gathered, when a work is transmitted by a device, regardless of whether the public receives it in the same or separate places or at the same or different times

SESAC, BMI, ASCAP

The 3 public performance organizations that pay royalties to songwriters and

publishers

Sound-exchange

the public performance organization that pays royalties to recording artists and record

companies

*Face-to-Face Teaching Activities (exempts instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction)

*Religious Service (exempts performances of nondramatic literary or musical works and dramatic musical works of a religious nature in the course of services at a place or worship or other religious assembly)

*Non-profit performances of nondramatic literary or musical works

limitations on the public performance right

Homestyle Recording Apparatus Exemption

an exemption from the performance right if you have these three things:

1.the reception of the transmission containing the performance must be on a single receiving apparatus of a kind commonly used in private homes

2. no direct charge can be made to see or hear the transmission

3. the transmission cannot be further transmitted to the public

Fairness in Music Licensing Act

under this act, certain businesses that perform music received from licensed radio, television, cable, and satellite broadcasts are exempt from having to obtain permission to publicly perform music in their establishments.

In order the fit this exemption the business must meet these requirements:

1. the business cannot re-transmit a performance beyond its establishment

2.no admission fee can be charged

3. the business must meet a certain size requirement

subscription transmission; webcasters; and companies that transmit music to specially equipped automobiles, cell phones, and other devices

the digital transmissions that are not exempt, but are subject to a compulsory license

interactive transmission and subscription transmissions that do not apply for the compulsory license

the digital transmissions that are subject to negotiated licenses

initial term of 28 years and a renewal term of an additional 28 years. (max 56 years)

the duration of copyright under the 1909 Act

during the last year of the initial term

when the owner could renew their copyright

life plus 70

the CURRENT duration of copyright under the 1976 Act

copyright renews on its own (renewal is automatic) now; term was extended

How does the copyright duration differ between the 1909 Act and the 1976 Act?

1. Works created beginning in 1978

2. Works created but not published before 1978

3. Works published before 1978

Three categories used to determine the duration of copyright

Protection will last for 95 years from the work's first publication or 120 years from the work's creation, whichever expires first.

the duration of copyright for anonymous, pseudonymous, and works made for hire

1.the work must have been created by an author who is a citizen or resident of a member country of the Berne Convention, World Trade Organization, or another copyright treaty with the United States

2.The work must have been first published in the foreign country and not published in the US within 30 days after foreign publication

3. The work's copyright must not have expired under the foreign country's copyright law

the circumstances where copyright may be restored in a foreign work in the US

The Register of Copyrights

the person responsible for running the copyright office

*Registration creates a public record of your claim of copyright ownership

*Registration provides what is legally known as prima facie (at first sight) evidence of ownership

*Registration gives the copyright owner the ability to file suit

*Early registration entitles the copyright owner to attorneys' fees and statutory damages

*Registration allows copyright owners to collect mechanical license royalties

*Registration allows copyright owners to block importation of illegal copies

the reasons that an owner should (may want to) register their works with the Copyright

Office

anyone who owns all of part of the exclusive rights to a copyrighted work

who can register the work?

within three months after a work's initial publication in order to have the right to receive statutory damages and attorney's fees in an infringement action

it is most advantageous to register a work when...

1. The word "Copyright," the abbreviation "Copr.," or the copyright symbol "c".

2.The year of initial publication of the work or, if the work is unpublished, the year of creation

3. The copyright owner's name (current owner)

three things a copyright notice should contain

Copyright Infringement

occurs whenever someone exercises any of the copyright owner's exclusive rights without permission to do so

Notify alleged infringer and ask that they stop infringing (Cease and Desist Letter)

the first step you should take if you believe your work has been infringed

the copyright owner or the exclusive licensee of a wok (exclusive licensee can only sue for the part the have the license for)

the person who can sue for copyright infringment

one of the federal district courts in the US

the court that a copyright infringement suit must be brought to

1.Ownership of a Valid Copyright

2.Show that there has been copying of the copyrighted work

ways to prove infringement

present a copyright registration certificate in court

best way to prove ownership

within 5 years

When must the work be registered in order for the plaintiff not to be required to provided other

evidence of ownership?

You could show that the work was extremely well known, or widely available. Or you could just prove that the work was specifically available to the defendant

How do you prove copying through circumstantial evidence?

substantial similarity test

the works are played for an audience of ordinary people and they are asked if they believe the defendant stole the music from the plaintiff's work. Sometimes an expert will also be brought in though to testify for this as well

Fragments Similarity

may deem copying to have occurred when small portions of a work have been copied, even when those portions are insubstantial, whether quantitatively or qualitatively

Bridgeport Music, Inc. v. UMG Recordings

the case that applied this fragmented similarity

Striking Similarity

when the court believes that the similarities between the two works are so striking that there is no reasonable possibility that the defendant independently created the work and that the similarities are coincidental

a defendant could offer evidence of the existence of other works containing the same similarities and showing that it was these other works rather than the plaintiff's that were copied. If the other works are in the public domain, they can be freely copied by anyone. Alternatively, a defendant could offer evidence that its work was created before the plaintiff's work. A defendant could also attempt to prove that regardless of any similarities, it created the work independently.

How may a presumption of copying be rebutted?

1.Contributory (occurs when a party has knowledge of the infringing activity and induces, cases, or materially contributes to the infringing conduct of another)

2.Vicarious (occurs when a defendant has the right and ability to control an infringer's activity and receives a direct financial benefit from the infringement)

3.Inducement (occurs when the infringer not only gives rise to secondary liability for the infringement that results, but also the distribution of a product can itself give rise to liability where evidence shows that the distributor intended and encouraged the product to be used to infringe)

types of liability for infringement

MGM v. Grokster

the case that first applied inducement liability to copyright law

1.Statute of Limitations ( 3 years)

2. Abandonment of Copyright

3.Independent Creation

4. Fair Use

5.De Minimis Copying

6.Innocent Intent (not a defense but will often limit the extent of liability for infringement)

the defenses to copyright infringement

3 years from when the infringement begins. If the infringment is of continuing nature, the limitations period begins to run from the date of the last act of infringement.

What is statute of limitations for copyright infringement?

This would happen in cases where the infringer conceals the infringing activity from the copyright owner. The court may "toll" the statute of limitations, meaning the period does not begin until the owner knew about it.

What does it mean to toll the statute of limitations?

donating your copyrighted work to the public

What is abandonment of copyright?

when a creation was made independently (without using a copyrighted work)

What is independent creation?

when a copyrighted work is under certain circumstances other people may use it under certain circumstances

What is fair use?

Folsom v. Marsh

What case gave us the Fair Use Doctrine?

1.The purpose and character of the use

2.the nature of the copyrighted work

3.the amount of substantiality of the portion used

4.the effect of the use upon the potential market for or value of the copyrighted work

What are the four factors a court will apply to determine if a use is fair?

a literary or artistic work that imitates the characteristic style of an author or work for comic effect or ridicule

What is a parody?

Satire does not make fun of the work itself, it usually makes fun of something else

How does a parody differ from a satire?

the amount copied is insubstantial and inconsequential

What is de minimis copying?

when someone infringes unintentionally. The person will still be liable, but will often not be as liable

What is innocent intent?

Coercive Remedies and Compensatory Remedies

What are the two types of legal remedies available to a party who has been successful in a

copyright infringement lawsuit?

1. Injunction (a court order telling someone to do or stop doing something)

2.Impoundment (taking of all infringing goods, as well as equipment and materials used to make such goods)

3.Destruction (destroying all the articles that are infringing)

What are the three types of coercive remedies?

1. Actual Damages and Profits

2.Statutory Damages

3.Costs and Attorneys' Fees

What are the three types of compensatory remedies?

$750 to $30,000

What is the general range of statutory damages in a civil copyright infringement suit?

$150,000

If the infringement is found to be willful, what is the high end of the range?

$200

If the infringement is found to be innocent, what is the low end of the range?

Imprisonment for up to 1 year, or a fine up $100,00 or both

What is the penalty for misdemeanor criminal copyright infringement?

if they defendant reproduced or distributed at least 10 copies or phono records of one or more copyrighted works with a retail value of more than $2,500 during any 180-day period

What are the minimums required in order for a criminal copyright infringement to be punishable

as a felony?