Copyright and Trademark Law Notes

Copyright Law and Technology

  • Landmark case: Sony vs. Universal Studios
  • Dealt with technology and copyright law.
  • Opened up the idea of technology violating older copyright law.
  • Law often lags behind technology.
  • Courts determine how laws apply to modern technology.

Facts of the Case: Sony vs. Universal Studios

  • Sony developed a video tape recording system.
  • Individuals taped programs to watch later or copy.
  • Universal Studios and Disney saw this as copyright infringement.
  • They thought individuals would not buy their movies, causing them to lose money.
  • They challenged the existence of the video tape recorder, stating it constituted copyright infringement.

Supreme Court Ruling

  • The court ruled that the technology was not a copyright law violation.
  • It was considered fair use because of time shifting.
  • Time shifting: watching a program at a later time than its original broadcast.
  • The technology had constitutionally protected usage.
  • The tool allowed time shifting.
  • The courts placed heavy burden on companies to prove lost money and that the technology's only use was to circumvent existing laws.

Kinkos Case

  • Professors created course books by Xeroxing articles.
  • Kinkos was binding these packets together to be sold to students for a profit.
  • Kinkos did not secure copyright permission.
  • Basic Books sued Kinkos for gaining a financial edge over others who paid copyright fees.
  • Federal courts ruled that this was a commercial venture that harmed anthologies.
  • It was a violation of the Copyright Act, not fair use.
  • Basic Books won the case.
  • Xeroxing companies now require paperwork to indicate that only a small percentage of the work is being used and that copyright law is not being violated.

Two Live Crew Case

  • Musical group Two Live Crew wanted to do a rap album of the song "Pretty Woman".
  • Roy Orbison originally sang "Pretty Woman," but Acup Rogue Music owned the copyright.
  • Acup Rogue Music denied Luther Campbell permission to use the song.
  • Luther Campbell created a parody called "Ugly Woman," using 8-10 bars of the original music.
  • A Cup Rose said it was a violation of their copyright agreement and therefore was in violation of federal law.

Supreme Court Ruling on Parody

  • The court ruled that it was a parody, and parody is not a copyright infringement.
  • Parody is a transformative act, creating a brand new piece of work.
  • Musicians often disagree with this ruling, arguing that parody groups copy important components and it is not a transformative act.

Carol Burnett and Family Guy

  • Carol Burnett was parodied on Family Guy.
  • She was portrayed cleaning up an x-rated bookstore with her theme song playing.
  • Carol Burnett felt offended by the portrayal of a character that she developed.

Supreme Court Ruling on Carol Burnett Parody

  • The court said it was a pure and simple parody.
  • It was an imitation of Ms. Burnett's characteristic style, but not a violation.
  • Parody is a transformative act, and Family Guy brought a brand new perspective.

Home Recording Act of 1992 (AHRA)

  • Congress created the act because of the fear the individuals would have when buying records and cassettes would be damaged and that their original investment would be lost.
  • It applies to audio home recording only (CDs, LPs).
  • You can make a home copy of audio recordings.
  • Never applied to video recording.
  • You cannot make a recording of a video to protect it in case technology changes.
  • Because of streaming and the cloud, the AHRA is obsolete.
  • With the movement back into vinyl, it's important to understand this law still exists and can protect you in making a duplicate copy.

Copyright Monitoring Groups

  • BMI (Broadcast Music Incorporated)
  • ASCAP (American Society of Composers, Authors, and Publishers)
  • CSAC (Society of European Stage Actors and Composers)
  • BMI and ASCAP are the primary groups in the U.S.

Criteria for Copyright Permission Pricing

  • How the work is used (commercial vs. non-commercial).
  • Location of use (auditorium, open area).
  • The amount of the original work used (portion or entirety).

Types of Licenses

  • Synchronization License: Putting music to a visual image (multimedia, Keynote, PowerPoint).
  • Performance License: Securing for groups that appear on campus (JMU secures this).
  • Mechanical License: Permission to create copies of work for a performance group (radio, TV stations, intercom within a business).

License Clarification

  • Music with visuals: synchronization license (film, slide projector, multimedia, video).
  • Using a record: permission from the record company and a performance license from ASCAP or BMI.
  • Obtaining a mechanical license: go to ASCAP, BMI, or CSAC.
  • Playing music live: contact ASCAP, BMI, or CSAC.

Sound Recording Issues

  • Performing live vs. performing with special effects or a record.
  • No one can copy the sound recording without permission.
  • Consent is required to make a derivative work (play, book, movie).
  • The sound recording copyright owner may decide to distribute the recording.

Happy Birthday Song

  • Warner Chappell owned the rights to Happy Birthday for a long time.
  • Restaurants would create their own songs to avoid paying copyright fees.
  • Myra said that it was not copywritten by this particular group properly, and therefore the lyrics are now in the public domain.
  • Federal Court of Appeals ruled that the original lyrics had been in existence long past the copyright license.
  • Now Happy Birthday can be sung without violating copyright law in a commercialized setting.

Trade Shows and Conventions

  • Need a synchronization license if playing music and having images change.
  • No license needed if only piping audio in and using original or public domain work.
  • ASCAP or BMI license can be secured based on the number of attendees.
  • Minimum of 5050 if only 1,2501,250 people attend.

Examples of Copyright Fees

  • Using a song one time may cost 500500 to 1,0001,000.
  • Contracting for an entire year may lower prices.
  • Using a song on a regular basis may cost 3,000 dollars, or it could be higher now.
  • If the performer owns the copyright, they don't have to sell it.

News Stories

  • International News Service (INS) was accused of stealing the Associated Press's (AP) wire story.
  • INS bribed AP officials to send stories first to them.
  • INS workers copied stories verbatim and sent them off under the INS logo.
  • The federal courts stepped in, saying that a news service cannot cheat an organization out of the time, money, skills, or labor required to put a story together.
  • This is an unfair competition violation.

Copyright Extension Act

  • Named for Sonny Bono, but pushed by Disney to protect Mickey Mouse.
  • Any work created from 1998 on is protected for the life of the author plus seventy years.
  • Lines up with the Berne Convention.
  • For anonymous or pseudonymous works, or works for hire: one hundred and twenty years from publication or ninety five years from creation, whichever is less.
  • Most writing follows the author plus seventy years rule.

MGM v. Gruggster

  • Demonstrates what happens when technology is advocating circumventing the law.
  • Gloukster and Streamcast had peer-to-peer software, making it easy to post and access copyrighted material.
  • The courts disagreed and said it was copyright infringement, not under safe harbor or fair use.
  • This restricts companies from advocating utilization to circumvent modern technology or law.
  • Glaukster advertised that they can violate copyright with their peer-to-peer software.

World Intellectual Property Organization (WIPO)

  • Nations crafted regulations as they move from the analog period to the digital age in 1996 which included 160 nations.
  • The digital age is scary to copyright holders because it is easy to create hundreds of thousands of exact replicas.
  • Two Treaties.
  • One treaty covers artistic and literary works.
  • We're going to respect one another's literary works.
  • We're also going to respect copyright laws for that country in terms of any artistic work in a tangible medium.
  • Films and computer software were included.

Digital Millennium Copyright Act (DMCA)

  • The United States could not sign on to the WIPO until 1998.
  • Technological measures to inhibit copyright violation duplication.
  • Encrypt things, try to circumvent that encryption, you're in violation of this federal piece of legislation.
  • Exempt Internet service providers from liability when they're transmitting information.
  • Efforts to license and distribute royalties from music downloaded from the internet.
  • Establishment of arbitration panels to address royalty issues.
  • DMCA clearly protects ISPs from copyright suits.
  • If a copyright violation is posted, the copyright holder contacts the ISP, who issues a takedown notice to the website holder.
  • Taking it down within the time period avoids litigation.

Eldridge v. Ashcroft

  • Eldridge decided in 02/2003 that the Sonny Buno Extension Act was truly a violation of the Copyright Act.
  • Eldred contested the “limited period of time” clause in the Constitution.
  • Ashcroft defended the Sonny Bono Extension Act, indicating that Congress could describe limited times in any way they saw fit.
  • The US Supreme Court agreed that limited time can be whatever time the courts wanted it to be as prescribed by the legislative body.

Trademark Law

  • Trademark is unique from copyright, in that trademark is secured by a company or corporation for a word, name or symbol that identifies their brand.
  • For example, the Nike swoosh.
  • Trademarks help companies identify products and prevent others from using the same symbol for shoddy products.
  • ™ indicates that the trademark is still being registered.
  • ® indicates that the trademark is legitimately registered.
  • To register a trademark, you must go to the US Patent and Trademark Office.
  • Originally, trademarks were for twenty year periods.
  • That changed 11/16/1989, when we went to ten years.
  • Trademarks can be renewed indefinitely.

Boston Marathon Case

  • The Boston Athletic Association owns the Boston Marathon trademark.
  • They restricted other stations from using the phrase Boston Marathon when covering snippets of the event.
  • WCVB challenged this restriction.
  • Federal appellate court ruled in favor of WCVB, allowing them to refer to the race as the Boston Marathon.

Types of Trademarks

  • Service Mark: A collection of individuals who perform the same service (e.g., Metro Golden Mayer).
  • Collection Marks: Bringing together a collection of entities that are similar in their making (e.g., Better Business Bureau, union membership).
  • Certification Marks: Indicates a certain level of approval (e.g., UL listed).
  • Trade Dress: The way you package your particular product (e.g., dark green beer bottles). Packaging that companies cannot mimic, because that would cause confusion. Same thing as in terms of the identification logo of a company would be our trade dress.