SMAD 450 Test 2 Notes PDF

copyright overview, history, and standards “The general rule of law is, that the noblest of human productions –knowledge, truths ascertained, conceptions and ideas – become after voluntary communication to others, free as the air to common use” International News Service v. Associated Press, 248 U....

copyright overview, history, and standards “The general rule of law is, that the noblest of human productions –knowledge, truths ascertained, conceptions and ideas – become after voluntary communication to others, free as the air to common use” International News Service v. Associated Press, 248 U.S. 215, 250 (1918) (Justice Brandeis, dissenting) informational products (products of the mind) governed by intellectual property law ○ patent law - limited monopoly for new and inventive products processes and designs ○ trademark law - prevents product imitators from passing off their goods and services as the product of someone else ○ copyright law - original works of authorship ○ loose collection of state laws provide additional protection copyright law creates system of property rights for certain kinds of intangible products - “works of authorship” ○ literally means the right to make copies reflects the notion that undesirable economic results will occur if unimpeded copying is allowed for the works focus on the benefits derived by the public from the labors of authors reward to copyright owner is a secondary concern origins of copyright law ○ first copyright statute a reaction to a 15th century piece of new technology ○ printing press enriched publishers and booksellers ○ Crown threatened by printing press ○ 1534 royal decree prohibits publishing without a license and approval from official censors ○ Stationer’s Company conferred a publishing monopoly in 1557 ○ Parliament passes first copyright act - the Statute of Anne in 1710 Statute of Anne ○ Preamble - An Act for the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies during the Times therein mentioned ○ despite the appearance of a limited term of protection, Stationer’s Company claimed perpetual rights over the works ○ Donaldson v. Beckett - House of Lords established the the term of copyright is finite ○ Statute of Anne became model of U.S. Copyright law from the U.S. Constitution to the 1909 Copyright Act ○ American colonists had some forms of copyright law ○ Framers of Constitution saw need for uniform law of copyright and patents ○ Article 1, § 8, Clause 8:  “To promote the Progress of Science and the useful Arts, by securing for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries.” ○ First copyright act passed in 1790 pursuant to this constitutional authority ○ No real protection for foreign works 1909 Copyright Act ○ copyrightable subject matter includes “all writings of an author” ○ protection for one 28 year term with a second 28 year renewal term (total 56 years of protection ○ copyright begins at the moment of publication ○ unpublished works not covered by the act could be protected by some state laws but nothing federal ○ did not solve issues that kept U.S. from joining the principle treaty governing international copyright law (Berne Convention) Berne Convention and 1909 Act ○ Berne concluded in 1886 - still the principle international copyright convention ○ by the mid 1980s, most major nations were Berne members, except China, Soviet Union, and U.S. ○ 1909 act did not fix the stumbling blocks for U.S. admission into Berne ○ Act insisted on compliance with certain formalities ○ copyright duration was also problematic changes to 1909 Act ○ motion pictures added to copyrightable subject matter in 1912; performance right for profit for nondramatic literary works in 1952 ○ in 1955 Congress authorized a copyright revision process project ○ 20 years of legislative hearings and reports led to the current copyright law - the 1976 Act 1976 Copyright Act ○ preemption of common law copyright - all works fixed in tangible medium of expression protected under the federal act from the moment of creation ○ duration - life of author plus 50 years; for anonymous and pseudonymous and work for hire 75 years from publication or 100 years from creation (whichever is less) ○ formalities continue to be important ○ expansion of subject matter of copyright ○ changes to exclusive rights and their limitations ○ compulsory licenses and the Copyright Royalty Tribunal ○ several changes since the ‘76 Act continuing importance of the 1909 Act ○ there are works today that are still governed by the 1909 act ○ difficult work for the copyright lawyer or scholar to navigate copyright issues - need to be conversant with 1909 Act, 1976 Act and the changes since then to know what law actually governs a particular situation justification for copyright law  ○ why have a copyright law? natural law rational - person’s moral right to reap the fruits of his or her own labor utilitarian rational - copyright law provides an incentive to produce an optimal quantity of intellectual property that enhances the public welfare copyright law has always embraces this argument to justify the law ○ Mazer v. Stein “The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance the public welfare through the talents of authors and inventors in science and the useful arts.” authors rights model ○ fundamentally different legal tradition ○ copyright is impersonal and removed from the author ○ with author’s rights view - the work is an extension of the creators personality that springs into existence by a personal act of creation ○ author is deemed to moral entitlement to control and exploit the product of his or her intellect ○ work associated with author through out the existence of the work and the author is given the right to publish and prevent injury or mutilation of the work future of copyright law ○ the challenge of digitization of information ○ photo prints, negatives, screen projections and visual displays have an analog embodiment of an image--they represent that image in shape, density, contrast, color, etc., directly to the human sense of sight ○ that same picture image encoded on a CD is not the same. You cannot discern the image by looking at the surface of the CD--what the CD contains is not a representation but a detailed description that it can use to reconstruct the image by electronic means ○ the notion that these digital records describe rather than represent information has implications for new technology and the law of intellectual property writings requirement any “physical rendering” of the fruits of the authors creativity fixation requirement–two sides author in the constitutional sense is the creator of a work copyright comes into existence when the author places the work on a material object (paper, CD, block of marble, etc.) copyright is not a government grant (like a patent), but is created when an author fixes the work in a tangible medium of expression need to make distinction between the copyright and the material object one single work of authorship no matter how many different material objects on which the work is placed fixation can take place on an infinite variety of material objects; just copies and phonorecords are recognized by the Copyright Act  fixation requirement - work is fixed when it is placed in a relatively stable and permanent embodiment ○ perception by machine or device ○ language in 1976 act explicitly overturns heavily criticized case that came under the 1909 act ○ White Smith Music Publishing v. Apollo Co. ○ the video game challenge ○ Stern Electronics, Inc., V. Kaufman ○ Williams Electronics Inc., v. Arctic International, Inc. works of authorship categories of copyrightable subject matter 8 broad categories of authorship ○ literary works ○ musical works, including any accompanying words ○ dramatic works, including any accompanying music ○ pantomimes and choreographic works ○ pictorial, graphic and other sculptural works ○ motion pictures and other audiovisual works ○ sound recordings ○ architectural works excluded writings ○ express exclusions industrial designs typeface designs ○ historical exclusions literary characters titles comparing categories between 1909 and 1976 acts ○ categories in §102(a) of 76 act intended to be illustrative, not limitative ○ 14 categories in 1909 act — if work didn’t fit into a category, courts tended to not find it copyrightable some categories based on material object embodying the work - book, periodical, etc. categories difficult to navigate - implications for protection ○ Registrar of Copyrights classification for registration (under 76 Act) 8 statutory categories collapsed into 4 broader ones (TX, PA, VA, SR) importance of how work is categorized ○ impact the rights a work enjoys sound recording does not have performance right only non dramatic musical works subject to compulsory license library’s reproduction right much wider for literary and dramatic works than other categories  ○ Court is ultimate arbiter of how work is categorized copyright office very influential when does protection for a work start? ○ FourthEstate Public Benefit Corp. v. Wall-Street.com 586 U.S. 296 (2019), 139 S.Ct. 881, 203 L. Ed. 2d 147 Supreme Court resolves question of when a copyright holder is able to file suit to protect copyright work is protected from the moment it is fixed in tangible medium of expression case holds that copyright owner cannot file suit to protect work until Copyright Office has issued certificate of registration the categories ○ literary works “works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phono records, film, tapes, disks, or cards, in which they are embodied.” 17 U.S.C. § 101 (literary works) computer programs ○ formal recognition for copyright did not happen until 1980 amendment to copyright act ○ presumption of programs as literary works when 76 Act was passed ○ Congress appoints Commission on New Technological Uses of Copyrighted Works (CONTU) CONTU ○ issues final report in 1979 ○ new definition of computer programs “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” doubts remained computer programs are basically mechanical, labor saving devices, unlike other types of copyrightable material full protection for software strains the meaning of writings and authors in the Constitution computer hardware ○ integrated circuitry of computer (hardware) housed on centra; processing unit (CPU) can do nothing without instructions ○ instructions come from software that tells computer how to carry out a certain task - produce patterns for video game, arrange columns in a spreadsheet, create a hyperlink, make an over right edit, etc. ○ design of program based on an algorithm - procedure for solving a given type of mathematical equation ○ algorithm sometimes known as the “logic” of a program computer software  ○ several development stages before its ready to instruct the CPU express logical structure of the program implement logic by coding in human readable language program re-written in Assembly language Assembly language re-written into machine language for computer to run source code vs object code can be fixed on a variety of devices application vs. operating system programs ○ application programs perform specific tasks on a computer - process words, edit video, create or navigate internet sites, work with email, balance checkbooks, play games, etc. ○ operating system programs manage the internal functions of the computer, facilitate application programs, perform common tasks that every program on a computer uses Apple Computer, Inc. v. Franklin Computer Corp., [714 F.2d 1240 (3d Cir. 1983); cert. denied 464 U.S. 1033 (1984)] ○ 3 issues before the court does copyright exist in computer program expressed in object code? does copyright exist in computer program embedded on a ROM does copyright exist in an operating system program Court answered all 3 questions affirmatively Apple v. Franklin and other first generation cases firmly established copyright ability of computer software questions remain about the scope of protection for software what about copying that is not verbatim? can someone copy basic structure, layout, organization or sequence of program? what about reverse engineering? other protection for computer software ○ trade secret protection ○ patent protection ○ state contract law ○ Digital Millennium Copyright Act semiconductor chips ○ contain thousands of switching devices on a fingernail size silicon wafer ○ produce a series of drawings representing the electronic circuitry ○ from the drawings, masks are produced ○ each mask corresponds to one layer on the chip ○ traditional intellectual property laws unavailable ○ Semiconductor Chip Protection Act (1984) - provides 10 years of protection the categories ○ pictorial, graphic and sculptural works “includes two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes,  charts, technical drawings, diagrams and models” 17 U.S.C. § 101 (pictorial, graphic and sculptural works) art often fuses functional elements with aesthetic elements producing objects for everyday life - telephones, lighting fixtures, automobiles, kitchen utensils, etc. how do you protect the artistic elements without conferring too much protection on the utilitarian elements? Mazer v. Stein [347 U.S. 201 (1954)] industrial design and the 76 Act ○ “the design of a useful article...shall be considered a pictorial graphic or sculptural work only if, and 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” 17 U.S.C. § 101 (pictorial, graphic, and sculptural works) Star Athletica L.L.C. v. Varsity Brands, Inc. (2017 case) ○ artistic feature of a design of useful article is eligible for protection if the feature: can be perceived as 2 or 3 dimensional work of art separate from useful article would qualify as protectable pictorial, graphic or sculptural work on its own or in some other medium if imagined separately from the useful article the categories ○ musical works 1976 Copyright Act does not define musical works encompasses both the words of a song and its instrumental component can be embodied in various objects - musical notation written on paper or recorded on a phonorecord author needs to add very little to the public domain to meet the originality standard for music ○ sound recordings “works that result from the fixation of a series of musical, spoken, or other sounds, but do not include the sounds accompanying a motion picture or other audio visual work, regardless of the nature of the material objects, such as disks, tapes or other phonorecords, in which they are embodied” 17 U.S.C. § 101 (sound recordings) originality in sound recordings could come from the performer and the choices made in interpreting a tune, a story or a literary work could come from producer who sets up the recording through the capture, processing, editing or selection of material by nature they are derivative works determining who owns the copyright should be arranged by contract prior to recording the performance  sound recordings not recognized until the Second Recording Act of 1971 (changed by MMA in 2018) ○ dramatic works not defined by the 1976 act copyright office definition: “[work] that portrays a story by means of dialogue or acting and [that] is intended to be performed. It gives directions for performance or actually represents all or a substantial portion of the action as actually occurring, rather than merely being narrated or described.” dramatic works vs non dramatic works ○ motion pictures and other audiovisual works “works that consist of a series of related images that are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sound, if any, regardless of the nature of the material objects, such as films or tapes, in which the works or embodied.” 17 U.S.C. § 101 (audiovisual works) “works consisting of a series of related images which, when show in succession, impart an impression of motion, together with accompanying sounds, if any.” 17 U.S.C. § 101 (motion pictures) publication, notice, and formalities publication ○ author’s dissemination of the work to the public ○ perpetual protection until publication ○ once published, subject to federal copyright law ○ without proper notice of copyright, work injected into public domain ○ 2 key dates work published prior to Jan. 1 1978 Copyright Act of 1976 goes into affect work published after March 1, 1989 we became members of the international copyright convention and signed the Berne Convention work published between Jan. 1, 1978 and March 1, 1989 ○ 1976 Act copyright exists when work fixed in tangible medium federal protection - generally for author’s life + 70 years ○ 1909 Act dividing line between state and federal copyright law “divested” vs “invested” divest common law for state protection invest federal protection  federal protection as incentive to disclose work to the public; support public domain with limited time for copyright ○ divestiture of common law rights idea originated in England after passage of Statute of Anne Millar v. Taylor Donaldson v. Beckett U.S. consideration in Wheaton v. Peters can’t hold both rights at the same time ○ justification for divesture “limited times” phrase from the Constitution common law protection and right of privacy for author vs economic incentive ○ publication critical concept in 1909 act criticized as act’s major flaw highly technical ○ what is “publication” undefined in 1909 act under the 1976 act: “...the distribution of copies or phono-records of a work to the public by sale or transfer of ownership, or by rental, lease or lending. The offering to distribute copies or phono-records to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a works does not of itself constitute publication.” 17 U.S.C. § 101 ○ importance of publication and the 1909 Act still applies to works published prior to Jan. 1, 1978 works in public domain because of the technical issues under 1909 act were not restored with passage of 1976 act failure to affix proper copyright notice under 1909 act could inject work into the public domain once work enters public domain, it stays there unless restored by Uruguay Round Agreements Act court efforts to undo harsh effects of 1909 requirements ○ failure to comply with affixing required notice could unwittingly inject work into the public domain act of publication “divested” authour’s common law rights failure to meet notice requirements means federal copyright protection was not “invested ○ American Visuals Corp. v. Holland larger public distribution to divest common law ○ second court doctrine - limited and general publication  both cases involve MLK Jr. “I Have a Dream” speech and if it was copyrighted when he gave copies to news outlets without a copyright notice King v. Mister Maestro, Inc. [224 F. Supp. 101 (S.D.N.Y 1963)] limited publication to a limited audience you do not divest your common law rights, he can claim copyright on the speech Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. [13 F. Supp 2d (N.D. Ga. 1988)] too big of a group, it’s in the public domain ○ more recent case law Academy of Motion Picture Arts and Sciences v. Creative House Promotions, Inc. [944 F.2d 1446 (9th Cir. 1991)] 158 copies of the Oscars statue, have no copyright notice on them 1929-1941, no expressed restrictions on what receivers could do with it Academy sues because Creative House Promotions is selling copies of the award statue for anything Academy wins saying there were restrictions to limited publication: personalized to the recipient, never gave permission to sell or recreate, no one has tried to sell or give away their award Public Affairs Associates, Inc. v. Rickover [284 F.2d 262 (D.C. Cir. 1960)] Rickover, nationally recognized military admiral gave out copies of his speeches, none had a copyright notice on them speech is in the public domain now general publication and Rickover loses copyright publication and the 1976 Act ○ for works published on or after Jan 1, 1978 publication still important publication necessitates compliance with formalities like notice and deposit for works publicly distributed between Jan. 1, 1978 and March 1, 1989 notice is permissive - for foreign born authors issues with international copyright law act of publication can determine copyright duration ○ compliance with formalities work published between 1/1/78 and 3/1/89 - notice showing date of publication required on all publicly distributed copies of the work with passage of Berne Convention Implementation Act amendments, notice no longer required but still highly recommended (still required for U.S. authors) deposit requirements register work special publication contexts 1909 and 1976 acts ○ performance is not a publication  ○ publication by display ○ distribution of phono-records as publication of the sound recording and the musical work 17 U.S.C § 303(b) ○ publication of a derivative work 1976 Act - form and position of notice for Copies ○ notice consists of 3 elements (placed in any order) ©, “Copr.” or the word “Copyright the name of the copyright owner date of first publication © John Q. Public 2008 affixed in such a manner and location as to give reasonable notice of copyright 1976 Act - form and position of notice for phono-records and sound recordings ○ notice consists of 3 elements (placed in any order) The symbol ℗ The name of the copyright owner Date of first publication ℗ John Q. Public 2008 Notice must be placed on the surface of the phono-record or phono-record label or container to give reasonable notice of copyright notice under the 1909 act ○ failure to provide notice of copyright could inject work into the public domain elements similar to 1976 act - copyright symbol, proprietor’s name and year of first publication short form permissible with pictorial, graphic and sculptural works (initial monogram or trade symbol accompanied by ©) if the symbol is not identified with the copyright owner, then the name had to appear in accessible location ○ location of the notice was very specific on books, periodicals and musical works - failure to comply could send the work to the public domain reasonable standard applied to other works like motion pictures and pictorial, graphic and sculptural works date only required for literary, musical, dramatic word and sound recordings omission and errors with notice ○ saving provision must act in timely way to save work overview works made for hire and joint works employers vs independent contractors scope of employment works for hire under 1909 act  joint works and 1976 act ownership ○ pushman doctrine transfer of copyright interests works made for hire sub part 2 of definition lays out 9 categories ○ contribution to a collective work ○ a part of a motion picture or other audiovisual work ○ a translation ○ a supplementary work ○ a compilation ○ an instructional text ○ a test ○ answer material for a test ○ an atlas distinguishing between employers and independent contractors clarifying the categories ○ issues dividing the case law ○ the clause “employee within the scope of his or her employment” in sub division 1 does this encompass independent contractor in some instances? in some cases - courts interpret employee expansively extending it to relationships involving independent contractors Community for Creative Non-Violence v. Reid meaning of employee resolved Supreme Court holds that Reid was independent contractor aftermath of the case ○ Court doctrine still muddled hiring party’s right to control manner and means of creation skill required provision employee benefits tax treatment of the hired party whether hiring party can assign additional projects to hired party ○ are independent contractors or freelancers better off? work done in scope of employment these issues are appearing more frequently in case law 3 part test to determine if employee created copyrightable work within the scope of his/her employment ○ whether the work was of the type the employee was hired to perform;  ○ whether the creation of the work in question occurred “substantially within the authorized time and space limits” of the employees job; and ○ whether the employee was “actuated, at least in part, by a purpose to “serve” the employer’s purpose cases ○ Avtec Sys v. Peiffer - computer program created after hours at employee’s home was not created within scope of employment ○ Cramer v. Crestar Fin. Corp. - plaintiff created the work within the scope of employment despite the fact that he did the work at home, outside regular hours, on his own initiative and on his own equipment ○ expectations of the parties and the custom of the industry are utilized in determining scope of employment intent to create a joint work even if collaborating authors contribute copyrightable elements to the work, there is no joint work unless the authors intended at the time of the writing to create a joint work does joint authorship of an underlying work confer any joint ownership in a new work created by one of the authors that is substantially based on the underlying work primary intent to create a joint work Childress v. Taylor - rejecting defendant’s claim of joint authorship for a play based on the life of comedienne “Moms” Mabley must be intent of both participants in the venture to be authors each author must have considered joint authorship even if they didn’t fully understand concept copyrightability and ownership of individual contributions for joint authorship, each collaborator must contribute sufficient original expression that could stand on its own as copyrightable subject matter collaborative efforts can be substantially unequal highly collaborative works ninth circuit redefined meaning of author for purpose of creating a joint work Aalmmuhamed v. Lee - court held that plaintiff was not a joint author on Spike Lee’s “Malcom X” movie despite substantial contribution ○ 2 reasons for the decision no intent for Aalmmuhamed to be considered joint author new definition of author in determining joint work copyright in collective work and copyright in a contribution to a collective work recall a collective work is like a periodical, anthology or encyclopedia in which separate and independent works are assembled to create a collective whole distinguish from a joint work where the separate elements merge into a unified whole  confusion in the 1909 act about copyright in the collective works vs copyright in the individual works revision rights in the digital era Tasini v. New York Times Company - republishing of articles in online databases was not a “privileged” revision of the collective work copyright, but a separate exploitation of the constituent work key factor was the manner in which the articles are “presented to, and perceptible by, the user of the databse” seemingly big victory for freelancers? Faulkner v. Nat’l Geographic Enters., Inc. - publication of digital archive of Nat’l Geo. articles and pics OK on CD and DVD because articles and photos presented in original context Pushman doctrine the 1976 act codifies the distinction between ownership of the copyright on a work and ownership of material object in which the work is embedded - such as a book, canvas, master tape, etc. sale of the material object does not transfer the copyright ○ Pushman doctrine possible exception to this rule author or artist who sold unpublished work of art or manuscript is presumed to have transferred common law copyright (Pushman v. N.Y. Graphic Soc’y Inc.) 17 U.S.C. § 202 intended to overturn Pushman overview how long should a copyright last? duration under the 1976 act renewal and importance of the 1909 act termination of copyright restoration of copyright duration of copyright currently - life of author plus 70 years originally enacted as life of author plus 50 years (1976 act) 1909 act - two 28 year terms ○ must renew after the first 28 year term why switch to unitary term? ○ 3 main reasons fairness to authors administrative convenience entry in to Berne duration of copyright Copyright Term Extension Act (CTEA) (1998) ○ added 20 years to term of copyright ○ extended renewal under 1909 act from 47 to 67 years ○ extension was challenged Eldred v. Ashcroft [537 U.S. 186 (2003)] challenge to the CTEA rejects constitutionally challenges to the act Supreme Court rejected constitutional challenges to term extension Eldred v. Ashcroft ○ 2 fundamental challenges to term extension “limited times” constitutional clause adding 20 years strains the meaning of “limited times” Congress has power to decided what limited times means; consistent practice of term extensions; Congress exercised its authority rationally Court used same rationale to uphold restoration of copyright in 2012 case of Golan v. Holder First Amendment issue Eldred argued that CTEA is content-neutral regulation of speech that fails heightened judicial review under the First Amendment Court highlighted idea/expression dichotomy and Fair Use as part of definitional balance that retains a free marketplace of ideas while protecting author’s original expression mechanics of duration under the 1976 Act all terms run to the end of the calendar year life of author plus 70 years anonymous works, pseudonymous works and works for hire - 95 years from first publication or 120 years from creation - whichever is shorter life plus 70 years applies to joint works - based on death of last author special status for sound recordings copyright office - public record of death of authors works created but not published before Jan. 1, 1978 [Dec. 31, 2002] category date of protection nature length of term of term works created on or when work is fixed unitary life of author + 70 yrs. or 95 or 120 after 1/1/78 in tangible medium yrs  works created but federal protection unitary same as above through 12/31/02 if not published before began on 1/1/78 work not published or until 1/1/78 12/31/2047 if published 1/12/2003 works published when work was dual 28 year first term; automatic renewal between 1964 and published with term of 67 years 1977 notice works published when work was dual 28 year first term; renewal of 67 years between 1930 and published with term but only if renewal was properly 1963 notice obtained works published N/A N/A work now in public domain before 1930 on jan. 1, 2019, works began entering the public domain again for the first time in 20 years result of the CTEA 20 year extension date works prior to this year enter the public domain jan 1 2025 1931 jan 1 2026 1932 jan 1 2027 1933 jan 1 2028 1934 jan 1 2029 1935 jan 1 2030 1936 renewal term math under 1909 act renewal term was 28 years when 1976 act passed renewal term became 47 years when CTEA passes in 1998, renewal term became 67 years under the 1909 act, and subsequent duration extensions of copyright a work could be protected for 95 years work published prior to jan. 1 1978 apply 1909 rule a 28 year term  renewed or auto renew? add another 28 year term is result 1963 or later - add 19 years is result 1998 or later - add 20 years a work published in 1935 and is properly renewed. when will the copyright expire? ○ 1935 +28 initial term = 1963 ○ 1963 + 28 renewal term = 1991 ○ 1991 + 19 added by 1976 Act = 2010 ○ 2010 + 20 added by CTEA = 2030 work published on or after jan. 1 1978 apply 1976 act rules life of author + 70 years author writes and published a bestselling work in 1982. Author publishes additional bestselling works in 1990 and 2010. Author dies in 2020. When do all the works go into the public domain? ○ 2020 date of death + 70 years = 2090 work for hire, anonymous or pseudonymous work rule is the same under both 1909 or 1976 Act 95 years from date of publication or 120 years from date of creation whichever is shorter In 1911, Photographer took a photograph of a group of his fellow employees at the Artist Studio, owned by Employer. The photograph was a work for hire. Photographer died in 1934. The photograph was hung on the wall of Employer’s private office until his death in 1954. The photograph was first published in 2004 as part of a collection of turn of the century photographs. At the end of what year did/will the photograph’s copyright protection cease? ○ 1911 date of creation + 120 = 2031 ○ 2004 date published + 95 years = 2099 work created under 1909 act but never published rule is the same as 1976 act, life of author plus 70 years, but never less than 2002; if published prior to 2003, extend to 2047 A novel was written by Author in 1863. The manuscript was left in a desk drawer until it was discovered by Author’s nephew in 1991. Author died in 1905. The novel was first published in 1994. Copyright protection for the novel: ○ 1905 date of death + 70 additional years = 1975 ○ 1975 is less than 2002 and look for publication prior to 2003; if yes, extend to 2047 ○ 1970 + 70 = 2040 special status for sound recordings music modernization provides protection for pre-1972 sound recordings ○ duration term follows same term as post 1972 SRs 28 year initial term, 67 year renewal term (total 95 years) from date of publication exceptions pre-1923 SRs get 95 years plus 3 additional years 1923-1946 SRs get an additional 5 years 1947-1956 SRs get an additional 15 years 1957-1972 SRs will not expire until 2067 renewal - copyrights in the first term as of 1978 rationale for having renewals rather than unitary term ○ paternalistic protect authors and their families against bad deals that may have been made during first term ○ renewal procedures file in Copyright office during 28th year of first term could be filed by anoyone on behalf of someone else but had to be filed in name of person entitled to renewal term failure to follow procedures reuslted in work being dedicated to the public domain transfer of renewal term ○ Fred Fisher Music Co. v. M. Witmark & Sons--Supreme court held that assignment by an author of the renewal term, before the right had vested, was binding on the author after case it became industry standard to require an assignment of author’s renewal rights in initial contract ○ Miller Music Corp. v. Charles N. Daniels, Inc--limitation on Fred Fisher holding. Here the Supreme Court held that when an assigning author died before the renewal vested, the right to the second term would vest in statutory successors ○ so, assignees of renewal rights sought to bind all statutory successors by contract (largely upheld in courts) automatic renewal ○ comes from Copyright Renewal Act of 1992 ○ applies to works originally secured between jan. 1, 1964 and dec. 31, 1977 (pre 1964 works not affected) ○ automatic 67 year renewal without having to register--still advantageous to register ○ renewal vested at start of 29th year, even if person dies before renewal term begins (presumes renewal application was filed during 28th year by person entitled to renewal) validates any preexisting agreements of the renewal term  incentives to register rather than wait for automatic renewal ○ derivative works if timely renewal is filed, first term grants of renewal rights in derivative works may be nullified ○ evidentiary weight accorded to registration prima facie evidence of the validity of facts in renewal certificate ○ remedies available to those who have properly registered renewal term and derivative works ○ two competing viewpoints renewal term creates a new right - one that reverts to author and his/her family; new right is unencumbered by assignments or licenses granted during initial term this suggests that license to prepare derivative work would terminate at the end of the initial term on the other hand - derivative work itself may be individually copyrighted and its author will own the copyright in the original elements case law very mixed Stewart v. Abend [495 U.S. 207 (1990)] ○ Supreme Court rejects new property right theory of derivative work ○ assignment of renewal rights by author does not defeat right of author’s statutory successors to those rights if author dies before renewal right vests ○ case denies continued exploitation during the renewal period of derivative work prepared during the initial term unless rights during the renewal term were properly obtained ○ gives primacy to authors of preexisting works at the expense of derivative work authors derivative work author can still exploit original elements in the derivative work ○ changes the way licenses for these derivative works are negotiated - potentially high transaction costs reduced value?