Statute of Anne: 14-year term with a possible second 14-year term.
1909: 18-year term with a possible second 28-year term.
1976: Life plus 50 years.
1989: US finally recognizes Berne Convention of 1866.
1998 (Sonny Bono Amendment): Life plus 70 years.
Copyright & Constitution
Article I, Section 8 of the Constitution grants Congress the power to protect inventions (patents) and writings (copyright).
The first Copyright Act was in 1790, protecting writing.
Copyright Evolution
1802: Protection for prints was added.
1831: Music was included.
1865: Photos gained protection.
1870: Paintings were added.
The Copyright Act was rewritten in 1909 and again in 1976 (implemented Jan. 1, 1978).
Copyright Eligibility
Originality: Work must be original.
Minimal Creativity: Work must possess a minimal degree of creativity.
Fixation: Work must be fixed in a tangible medium.
Facts themselves cannot be copy protected, but the way facts are presented (e.g., the style) can be.
Early History: Donaldson v. Beckett (1710)
The court ruled that a term for copyright ownership is legal.
Early History: White Smith Music Pub. v. Apollo (1908)
Player piano rolls could not be copyrighted.
The 1976 Copyright Act addressed this issue for computer programs.
Early History: Mazer v. Stein (1954)
The court declared that encouraging individual effort through personal gain is the best way to advance public welfare using the talents of authors and inventors.
Early History: Scene a Faire
Scene a faire refers to expected components of a story that cannot be copy protected (e.g., a shootout in a Western).
Register the work by sending it to the Copyright Office, Washington, D.C.
Send the appropriate fee (e.g., 35 - $65, depending on the written form).
Send two copies of the best works within 3 months of publication.
Advantages of Registering Work
Ability to file a lawsuit with registration in hand.
Entitlement to statutory damages.
Recovery of lawyer’s fees.
Ability to obtain an injunction.
Additional Copyright Facts
Group copyright can be used for photography or publications over an extended period.
Distinction between Creator vs. Work for hire.
Section 101 of the Copyright Act: Work Made for Hire
A Work Made for Hire is defined under three conditions:
(1) Employee within Scope of Employment: A work prepared by an employee within the scope of his or her employment, then the employer is the author.
Section 101 of the Copyright Act: Work Made for Hire (cont.)
(2) Prior Agreement:Prior to commencement of work, both parties must expressly agree in a signed document that the work shall be considered a work made for hire; and
Categories Eligible for Protection
(3) Commissioned Work: The work falls within one of 9 broad categories of commissioned work.
A work specially ordered or commissioned for use
as a translation
as a supplementary work
as a compilation
as an instructional text
motion pictures and other audiovisual works
as a test
as answer material for a test
as an atlas
Categories of Eligible for Protection (cont.)
If the work falls into one of 9 categories AND there is a written contract, then it is a work for hire, i.e., the employer owns the copyright.
If the work neither falls in one of 9 categories nor is there a written contract, then it is not a work for hire, i.e., the creator owns the copyright.
Work For Hire: Community for Creative Non-Violence v. Reid
Criteria for determining “work for hire” was articulated in the Community for Creative Non-Violence v. Reid.
Facts: James Earl Reid was a sculptor working on commission for the CCNV. Both wanted to copyright work.
Work for Hire Considerations
Was the person supervised?
Did the company provide a place to work or the tools to work with?
Did the person receive fringe benefits?
Work for Hire Considerations (cont.)
Was there a long-term relationship between the employee and employer?
Importance: USSC established these criteria for “independent contractors.”
Rights of the Copyright Holder
Right to copy the work.
Right to Divisibility of the work - each version or derivative work can have a separate copyright, and only the copyright holder can sue for infringement.
Right to Publicly perform the work.
Right to Publicly display the work.
Right to Publicly distribute the work.
Right to transmit a sound/video work through digital means.
Case Law: Feist Pub. v. Telephone Service Co. (1991)
Facts: Feist created a new phone book by copying information from another source.
Case Law: Feist Pub. v. Telephone Service Co. (1991) (cont.)
Importance: USSC rejected the “sweat of the brow” argument.
Feist Telephone Service had not created works that could be copyrighted.
No copyright infringement because what he copied lacked originality, which is what copyright protects and not effort.
Distribution Rights: Droit de Suite
Droit de suite - the right to follow a work, ensuring owners continue to receive royalties from all works sold.
Distribution Rights: Driot moral (Moral Rights)
Driot moral (Moral Rights) - a person can protect alterations of a painting, drawing, and photography; but not motion pictures, posters, charts, books, magazines or newspapers.
Congress passed the Visual Artists Rights Act in 1990.
Plaintiff’s Burden in Copyright Infringement Cases
Entity has a valid copyright.
The work is registered.
Reasonable opportunity or access to work.
Substantially similar works.
Courts have used the “extrinsic” test - comparison of things like plot, dialog, etc.
Then apply “intrinsic” test - whether a reasonable person would judge the two works similar.
Case Law: Great American Hero v. Superman (1981)
Facts: Superman Comic Books sued the parties involved in the television program, Greatest American Hero for infringement.
Case Law: Great American Hero v. Superman (1981) (cont.)
Importance: The court ruled that the program was not substantially similar and there was no infringement.
Fair Use: Section 107
Four factors considered in determining fair use:
Purpose and character of the use.
Nature of the copyrighted work.
Effect upon the potential market.
Amount and substantiality of the portion used in relation to the work as a whole.
Case Law: Williams and Wilkins v. US (1973)
Facts: Libraries run by the National Institutes of Health and the National Library of Medicine made multiple copies of articles from a single scientific journal for library patrons.
Case Law: Williams and Wilkins v. US (1973) (cont.)
Importance: The court ruled that preventing noncommercial copying would hamper medical research.
Also, there was insufficient evidence that the multiple copies hurt the journal publishers financially.
Case Law: Wainwright Securities Inc. v. Wall Street Transcripts (1978)
Facts: Wall Street Transcripts summarized Wainwright Securities’ report.
Wall Street Transcripts then advertised that it was unnecessary to buy the reports.
Case Law: Wainwright Securities Inc. v. Wall Street Transcripts (1978) (cont.)
Importance: The US Court of Appeals held that summaries of commercial reports infringed on Wainwright’s copyright because the summaries made it unnecessary to purchase the original.
Case Law: Harper and Row v. Nation (1985)
Facts: The Nation published 300-400 words from President Ford’s memoirs, which was under contract to Harper and Row.
This action by Nation also voided a contract H & R had with Time.
Case Law: Harper and Row v. Nation (1985) (cont.)
Importance: The USSC held that Nation had captured the “heart” of the book.
This action by Nation was determined not to be fair use.
Case Law: Salinger v. Random House (1987)
Facts: An author working for Random House quoted from letters written by Salinger for an unauthorized biography.
The letters had been donated to a university library collection.
Case Law: Salinger v. Random House (1987) (cont.)
Importance: The Court of Appeals ruled that unpublished letters are assumed to have a copyright on them.
The writer of the letters may acquire an injunction to stop publication.
Case Law: New Era Pub. Int’l v. Henry Holt & Co. (1990)
Facts: Henry Holt had a work based on letters by L. Ron Hubbard, founder of the Church of Scientology.
New Era claimed copyright over the letters.
Case Law: New Era Pub. Int’l v. Henry Holt & Co. (1990) (cont.)
Importance: A Federal Appeals Court declared a person’s unpublished material is deemed to have a copyright, and a court must issue an injunction against any book or magazine violating such copyrights.
Case Law: Sony v. Universal Studios (1984) (cont.)
Importance: The USSC held that technology wasn’t in violation of the fair use standard because people used the technology to “time shift.”
Case Law: Basic Books v. Kinko’s Graphics (1991)
Facts: Kinko was sued for putting student course packets together without securing copyright.
Case Law: Basic Books v. Kinko’s Graphics (1991) (cont.)
Importance: The court declared course packets as commercial ventures in violation of fair use.
Case Law: Acuff-Rose Music Inc. v. Campbell (1993)
Facts: 2 Live Crew did a parody of Roy Orbison’s “Pretty Woman” without securing copyright permission.
Case Law: Acuff-Rose Music Inc. v. Campbell (1993) (cont.)
Importance: USSC ruled that the music parody was not a copyright infringement; it was a transformative use of the original.
Case Law: Burnett v. Twentieth Century Fox Film Corp. (2007)
Facts: A cartoon character in the animated program Family Guy characterized Burnett’s famous cleaning lady character mopping up an X-rated book store with a slightly altered Carol Burnett theme song running in the background.
Case Law: Burnett v. Twentieth Century Fox Film Corp. (2007) (cont.)
Held: Court ruled this was a classic protected parody: “The 18-second clip of the animated figure resembling the ‘Charwoman,’ mopping the floor next to ‘blowup dolls,’ a rack of ‘XXX’ movies, and ‘video booths’ in a porn shop is clearly designed to imitate [Ms. Burnett’s] characteristic style.”
Home Recording Act of 1992
This legislation allows people to record one copy of a record or CD for personal use.
AHRA limited to nearly obsolete digital technology.
Music Rights Associated with BMI, ASCAP, or SESAC
Price paid depends on three criteria:
Use
Where it’s used
Length
Types of Licenses
Synchronization - Putting an image with music.
Performance
Mechanical - Gives limited permission to create copies of a work - recording, sheet music, lyrics, etc.
Music with Visuals
Synchronization licenses - obtained from music publishers.
Used for music with video, film, slide, or multimedia.
Use of Record
Permission from the record company.
Performance license from ASCAP or BMI.
Use of Audio-Only Music
Obtain a mechanical license from ASCAP, BMI, or SESAC.
Use of Live Music
Pay ASCAP, BMI, or SESAC.
Sound Recording Issues
A sound recording must have originality for a separate copyright - two elements - performers bring the performance to life, and second, things added by the record producer, sfx, etc.
Three rights for sound recording copyright holders:
No one may copy the sound recording without permission.
Consent is required to make a derivative work.
Only the sound recording copyright owner may decide to publicly distribute the recording.
Case Law: Marya v. Warner/Chappell Music (2015)
Facts: Rupa Marya filed suit claiming that Warner/Chappell Music did not have a copyright on the song “Happy Birthday.”
Holding: The court held in favor of Marya, stating that the original lyrics were in the public domain.
Millions of dollars had been collected by Warner/Chappell for the use of the popular song.
Use in Trade Show or Convention
Need synchronization license if used with a visual image.
If audio only - no license needed.
Event sponsor has to obtain ASCAP or BMI license.
Typical charge is 4 cents per person with a 50 minimum for less than 1250.
Examples of Prices for Performers
Performers - one-time use 500−1,000 or for one year 1-$3,000.
Some performers don’t allow use at all (e.g., Dylan).
Case Law: INS v. AP (1918)
Facts: International News Service (INS) was accused of misappropriating the news from the Associated Press (AP).
Case Law: INS v. AP (1918) (cont.)
Importance: The Court held that a news service could not take material that is a result of organization and expenditure of labor, skill, and money.
Brings up the question of “unfair competition” - situations where blogging from a sports event has been determined in violation where a group has exclusive rights to the content, such as the NCAA, NFL, etc.
Copyright Term Extension Act of 1998
The Sonny Bono Copyright Term Extension Act or the Mickey Mouse Protection Act.
Makes the works created after 1998 for the life of the author + 70 years, in part to “save the Mouse” and in part to line up with the Berne Convention agreements.
Additionally, life of author plus 70 years; for anonymous and pseudonymous and work for hire 120 years from publication or 95 years from creation (whichever is less).
Case Law: MGM v. Grokster (2005)
Facts: Grokster and StreamCast distributed free software products that allowed P2P of MGM products.
Holding: Grokster’s P2P product was found to be in copyright infringement and not in “safe harbor” of DMCA.
Importance: Motion Picture and Recording Companies are free to go after P2P and BitTorrent providers of illegally distributed music and movies.
World Intellectual Property Organization (WIPO)
Representatives of 160 nations met in 1996 to adopt new regulations for the digital age.
Adopted two treaties in December 1996:
One covers artistic and literary works (including films and computer software).
One covers recorded music.
Digital Millennium Copyright Act (DMCA)
US Congress signed on to WIPO treaties in 1998.
Act:
Prohibits circumvention of technology measures.
Exempts ISPs from liability when simply transmitting information.
Digital Millennium Copyright Act (cont.)
Imposes a compulsory licensing and royalty distribution scheme for the transmission of music on the Internet.
A three-person arbitration panel is presently working on the royalty fee issue.
Digital Millennium Copyright Act: Takedown Notices
DMCA protects ISPs from copyright infringement suits if the ISP removes material that a copyright holder tells the website is posted without permission.
This is called a “takedown notice.”
Case Law: Eldred v. Ashcroft (2003)
Significance: The USSC upheld the Bono Extension Act.
The Court ruled that the Constitution gives Congress “wide leeway to prescribe ‘limited times’ for copyright protection.”
Trademark Definition
Definition: A word, name, or symbol used by a company to identify itself as the source of the goods.
The main idea is not to confuse the public.
TM is used if in the process of registering, and a circle R (®) is used if registered.
Trademark Registration
The U.S. Patent and Trademark Office is where you would register your trademark.
Marks registered before Nov. 16, 1989, were enforced for 20-year periods.
Marks registered after that date have 10-year terms.
You can renew your trademark indefinitely.
Case Law: WCVB-TV v. Boston Athletic Association (1991)
Facts: The trademark holder of the “Boston Marathon” did not want a TV station to use the phrase in its coverage of this athletic event.
Case Law: WCVB-TV v. Boston Athletic Association (1991) (cont.)
Importance: A federal court rejected the trademark holder's argument.
Trademark Types
Service Marks (MGM – lion roars)
Collection Marks (franchise marks or union stamps)
Certification Marks (Seals of approval or marks of origination)