COPYRIGHT OUTLINE 2024 PDF

COPYRIGHT FALL 2024 GENERAL COPYRIGHT PRINCIPLES & POLICY RATIONALES 17 U.S.C. § 101: Definitions for Copyright Protections (Specific Definitions for all Copyrightable Materials) = Refer to the Hardcopy book Comprehensive list of definitions that determine what is protected by copyright and other authorship elements Refer back to this for SPECIFIC help U.S. Constitution Article I -- Section 8 -- Clause 8 "To Congress shall have Power... [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Courts come back to this provision all the time -- every copyright case will refer back to this, you will see it again What is a copyright? Temporary monopoly of rights -- establishes cause of action for protecting an individual's intellectual property Copyright law is a balancing act = between providing protections for artists and not limiting creative expression by granting temporary monopolies When is there copyright protection? [17 USC § 102] 1. Originality: Independent Creation and Creativity (Some modicum of creativity) 2. Fixation: In a tangible medium 3. Authorship: Authorship is created by a person [Human Authorship] Ideas v. Expression/Facts vs. Expression: Facts are not copyrightable, expression IS Time Period: Beyond a transitory period You don't need the C in a circle anymore -- onc e published there is some level of protection Under 17 USC § 101, 102: appl icable Literary Works Copyright is AUTOMATIC. Copyrights are Musical Works enfo rceable upon their creation under U.S. law Dramatic Works so long as it satisfies the requirements of a Pantomines/Choreography cop yright Pictorial, Graphic, Sculptural Motion Pictures/AV Works The Exclusive Rights w/in a Copyright Architectural 1. Initiate a lawsuit to enforce rights Sound Recordings 17 U.S.C. §§ 109 [First Sale Doctrine] General Rule: ◦ The First Sale Doctrine allows the lawful owner of a copy of a copyrighted work to sell, transfer, or dispose of that copy without the copyright owner's permission. ◦ This doctrine applies only to the particular copy lawfully made under the Copyright Act. Limitations on § 109: ◦ Does not allow reproduction of the work; only applies to the distribution right. ◦ Does not apply to digital transmissions, such as reselling digital copies, since making a new digital copy would infringe the reproduction right. 2. Reproduce 3. Create Derivative Works 4. Distribute/Import Bleinstein v. Donaldson Lithographic: Alfred Bell v. Catalda Fine Arts: Advertisements are protected by Copyright law You can claim copyright protection of a recreation of Concept of Aesthetic Neutrality something that is not copyrightable and in the public Broad takeaways of "who is an author" domain You can have accidental creation of copyrightable Burrows-Giles Lithographic Co v. Sarony work Congress having the authority to add photographs to the Copyright Act Forward v. Thorogood Could be protected b/c of authorship = The Physical possession does NOT equal ownership of the originality/creative elements can be protected copyright because of authorship, combination of factors Must intend to convey or agree to convey to hold = warrant copyright protection 17 U.S.C §§ 202 [Ownership of Copyright as § 102. Subject Matter of Copyright: In General Distinction from Ownership of Material Object] (a) Copyright protection subsists, in accordance with General Rule: this title, in original works of authorship fixed in any ◦ Ownership of a physical copy (material tangible medium of expression, now known or later object) does not grant copyright ownership. developed, from which they can be perceived, ◦ Copyright protection is separate and reproduced, or otherwise communicated, either directly independent from ownership of the tangible or with the aid of a machine or device. Works of item that embodies the work authorship include [interpreted as including but not ◦ Transfer of ownership of any material limited to] the following categories: object DOES NOT itself convey ANY (1) literary works; RIGHTS in the copyrighted work (2) musical works, including any embodied in the object accompanying words; Examples: (3) dramatic works, including any ◦ Buying a painting does not give the buyer accompanying music; the right to reproduce prints of it. (4) pantomimes and choreographic works; ◦ Purchasing a book does not grant the right (5) pictorial, graphic, and sculptural works; to create derivative works (e.g., turning it (6) motion pictures and other audiovisual works; into a screenplay). (7) sound recordings; and (8) architectural works. WHO (OR WHAT) OWNS THE COPYRIGHT? 5. Public HUMAN AUTHORSHIP: Performance/ Who can create a copyrighted work? Display General Rule: In original works for authorship fixed in any tangible medium of expression = Works of authorship include the following categories Copyright Act states that: Office will not register "works that lack human authorship" -- Copyright Act protects "original works of authorship" ◦ The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spiri Kelley v. Chicago Park District: Naruto v. Slater: Flower art installation -- Court stating Monkey taking pictures on camera that the art exhibit is NOT copyrightable Cannot copyright = for there to be Flowers are a product of natural force -- authorship = must be human he did not author the work = no copyright (lacking human authorship) A. Extends to Preventing and Licensing) Thaler v. Perlmutter: Zarya Case & Suryast Case: Computer program generated visual art AI generated images cannot be KE on its own accord copyrighted since they lack human Y CA AI works do not have the requisite level authorship and lack the "creative SES: of human authorship = copyright spark" 17 U.S.C. § 201(a) (a) Initial Ownership—Copyright in a work protected under this title vests initially in the author or author of the work. The authors of a joint work are coowners of copyright in the work. Lindsay v. RMS Titanic: Lindsay contracted w/ TV company to direct and film a documentary about RMS Titanic -- RMST (defendant) licensed footage to Discovery channel Court's Holding: An individual will qualify as an author for a copyright if they exercise a high degree of control over a work's creation ◦ Lindsay exercised significant control over filming process (even though he didn't physically touch film equipment) = made him author under Copyright Act ◦ Determined by CONTROL over the creative process and final expression of an original intellectual conception Andrien v. So. Ocean Chamber of Commerce: Printer was printing the author's ideas of a map compiled from pre-existing maps = printing company worked closely and tried to be a co-ower but court said NO (NO INTELLECTUAL MODIFICATION OR TECHNICAL ENHANCEMENT) Court's Holding" A party can be considered an author when his or her expression of an idea is transposed by mechanical or rote description into tangible form under the authority of the party Transformation of concepts/ideas = authorship interest "A mere 'amaneunsis' is not an author = Legal distinction -- someone that writes down or copies what someone else dictates/transcribes = IS NOT AN AUTHOR!!!! 17. U.S.C. § 101: Works Made for Hire A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or [SCENARIO #1] (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.... [SCENARIO #2] 17 U.S.C. § 201(b) ~ Works Made for Hire (b) 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 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. COPYRIGHT AUTHORSHIP/OWNERSHIP RELEVANT CASES: WORKS MADE FOR HIRE Realistically there are TWO (2) types of WORK FOR HIRE: 1. Employee in Scope of Employment A. Agency Analysis: a. Hiring party’s right to control the manner and means of creation (Give more weight - Aymes) b. Skill required; (Give more weight - Aymes) c. The source of the instrumentalities and tools; d. The location of the work; e. The duration of the relationship between the parties; f. Whether the hiring party has the right to assign additional projects to the hired party; (Give more Community for Creative Non-Violence v. Reid: Artist hired to create a sculpture to dramatize and publicize the homeless = dispute occurred b/c of creative vision, no signed agreement between the two parties -- CCNV wanted to take sculpture on tour (Reid = NO) Issue was around ownership -- statute applied: ◦ 1. Not an employee (no authority under agency analysis) ◦ 2. He was a non-employee = but his work did not fall under specifically ordered/commissioned prong materials Aymes v. Bonelli: Aymes hired by swimming pool company to create computer program for their business -- absence of a written agreement (who owns the program?) Applies test from Reid case = in absence of written agreement to the contrary = the employer is considered the author of a work made for hire Those (5) factors listed above = considered more heavily Martha Graham Foundation v. Martha Graham Center: Graham was a choreographer and created works while employed by the center After death = center claimed ownership of her copyrights (arguing works for hire) Court ruled = she was an employee and made choreography within the scope of her employment Lulirama v. Axcess: Axcess hired Lulirama to make gingles as a work for hire = Lulirama failed to deliver They tried to assert that it fell under #2 of Prong 2 = Part of motion picture or other audiovisual work But there were jingles (audio only) = Court rejected this claim weight - Aymes) g. The extent of the hired party’s discretion over when and how long to work; Estate of Kauffman v. Rochester Inst. Tech Verbal agreement entered for Kauffman to write movie reviews in New Republic magazine = no written agreement until 5 years after the articles were written Court says this does not qualify as a proper written agreement under work for hire standard = should have been done closer to the date, formality requires that it is done BEFORE the work is executed and only can be AFTER in rare circumstances (And if it is done after, must explain a commitment/waiver to be bound by works for hire terms) h. The method of payment; the hired party’s role in hiring and paying assistants; i. Whether the work is part of the regular business of the hiring party; Joint Works 17 U.S.C. § 101 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. 17 U.S.C. § 201(a): Initial Ownership (a) Initial Ownership—Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work. Joint owners are treated as though they are "tenants in common" -- each co-owner/joint owner absent an assignment would have the ability to license out the work without the permission of the other joint owner = but would then have to account to those joint owners, the joint owners' pro rata share from licensing the work j. Whether the hiring party is in business; k. The provision of employee benefits; (Give more weight - Aymes) l. The tax treatment of the hired party. No one of these factors is determinative (Give more weight) 2. Non-Employee -- Specifically ordered or commissioned for use as: 1. Contribution to Collective Work 2. Part of motion picture or other audiovisual work 3. Translation 4. Supplementary Work 5. Compilation 6. Instructional Text 7. Test 8. Answer material for a test 9. Atlas ◦ ALL MUST = If expressly agreed to in a written instrument (These are the only situations where work for hire is allowed outside of employee relationship) mix RELEVANT CASES: Thomson v. Larson: Aronson and Larson had collabated on Rent -- when they aprted ways they entered into a written agreement that Larson would be credited as author but OG concept/lyrics credited to Aronson Thomson hired to make thematic/structural suggestions = clear that Aronson to be sole author Thomson asserting joint ownership = key touchstone is INTENTION of co-ownership Court Holding: A party paid to provide creative suggestions = is not automatically a joint/co owner -- bear the burden of proving intention/contributions = they did not Aalmuhammed v. Lee: Spike Lee was directing Malcom X -- hired consultant for religious/historical accuracy Consultant was found NOT to be co-author No mutual manifestation of intent or independently copyrightable contributions (Spike approving everything) Richlin v. MGM Richlin and Edwards co-wrote the treatment for the film -- claiming co-authorship of the treatment Audience appeal was found to be a subisidary factor = not enough weight to establish co-authorship when there isn't enough to prove other two factors Lack of intent/control = one factor out of the film wasn't enough to wrestle sole authorship away WHAT IS PROTECTED BY COPYRIGHT? I. ORIGINALITY & FIXATION Originality and fixation have a very low threshold but not non-existent 9 Requires independent creation and minimum creativity Does not require novelty or uniqueness 17 USC § 101 Definitions: Works of Authorship: Describes what constitutes "works of authorship," such as literary, musical, and artistic works. Derivative Work: Defines a "derivative work" as one based on or derived from one or more pre-existing works. Collective Work: Refers to a collection of individual wo\rks, such as anthologies. Fixed in a Tangible Medium: A work is considered "fixed" when it is recorded or written in a way that it can be perceived, reproduced, or otherwise communicated. [FIXATION] A work is "fixed in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration. Publication: Defines "publication" as the distribution of copies or phonorecords of a work to the public by sale, transfer of ownership, or by rental, lease, or lending. Feist Publications, Inc. v Rural Telephone Magic Marketing v. Mailing Services of Pittsburg: Service: Envelopes for mass mailing ad campaigns for Phone book listing -- Court held that the businesses = original business making the alphabetical phonebook was not sufficiently envelopes sold the "infringing copies" to another original to warrant copyright protection business (pretty standard instructions) Facts are not copyrightable though compilations Not a sufficiently level of originality/creativity of facts can be = there wasn't a minimal degree = words and phrases on an object that are of creativity GENERIC in nature = ARE NOT copyrightable JOINT IC v. Delta Galil USA: WORKS Claiming co- T-shirt designer made minor changes in design of the t-shirt (while ownership? This is what you the said face/hi/bye was not itself copyrightable) = need... (Burden of proving) Selection, coordination, structure of the design was enough that 1. P made it was not dismissed (some copyrightability here) independently copyrighta ble contributions to the work 2. The P and the other author (or authors) fully intended to be coauthors (manifested intent) ◦ In evaluating the second factor ‣ Decision-making authority ‣ Ability to enter contracts respecting the work ‣ Mutual intent to be coauthors 3. Audience appeal ◦ Found to be a subsidiary factor RELEVANT CASES: ORIGINALITY/CREATIVITY ORIGINALITY REQUIREMENT: [TWO-FOLD] Independent Creation ◦ Independently Created by the Author, Creation of the Work "Originates" with Her Minimum Level of Creativity ◦ A minimal degree of creativity, some "creative spark" "Original" does NOT necessarily mean: Novel, unique, newly-discovered, or one-of-a-kind How much creativity is required? The standard is VERY low... but it is not non-existent ◦ Examples: ‣ Mere facsimiles/copies of other works of authorship, even if in a different medium ‣ "De Minimis" authorship (minor changes for format or medium) ‣ Words/Short Phrases ‣ Lists of Contents or Ingredients ‣ Familiar symbols or designs KEY CASES: FIXATION A work is "fixed in a tangible medium of expression when its embodiment in a copy or phono record, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration. What is required for Fixation? ◦ Very broad definition of WHAT qualifies, copies and phonorecords capture a wide swath of works... but not everything ◦ Very LOW standard = perceivable §102. Subject Matter of Copyright: In General [Limitations on Copyright] b) 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 Functions as another limitation on Copyright: The Idea/Expression Dichotomy Baker v. Selden: Bikram Yoga v. Evolation Yoga: Morrissey v. Procter & Gamble Bookeeping system had been Bikram founder had selected Co.: copyrighted by Selden w/ poses/breakthing/etc = teaching Plaintiff owned copyright for a systems = Baker reproduced classes in that style (someone set of rules for a sweepstakes illustrated examples of the took poses and began teaching (pretty basic) system the class in Evolation) Copyright was too narrow = Copyright cannot protect Again, the collection of the when there is only one or two IDEAS only EXPRESSIONS poses/reading exercises could ways to express it = OF AN IDEA not be protected by copyright expression of such subject Copyright protected the Protection of compilations/ matter is NOT copyrightable description of the book-keeping choreographic works = don't system = not the illustrated extend to the ideas WITHIN examples of that system (bc them they represented the idea itself) Facts/ideas = not protected TAKEAWAYS: ORIGINALITY/FIXATION Originality requires creativity and human authorship. Some creative spark is required, but its not limitless Work of authorship must be fixed in a tangible medium. This is very borad, but like above, it is isn't limitless § 101. Definitions A "compilation" is 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. The term "compilation" includes collective works. § 103. Subject Matter of Copyright: Compilations and Derivative Works (a)The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b)The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. (DISTINGUISHING BETWEEN FACTS THEMSELVES AND COLLECTION/SELECTION 17 U.S.C. § 101 A “compilation” is 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. The term “compilation” includes collective works. 17 U.S.C. § 102(b) “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.” Once fixation occurs, copyright subsists The work protected by Copyright is itself intangible (aka "incorporeal") Facts are NOT copyrightable. THE "IDEA/EXPRESSION DICHOTOMY" An IDEA is not copyrightable, the EXPRESSION of an idea IS copyrightable. Copyright does not preclude others from using the ideas or information revealed by the author's work -- does not expand the scope of copyright protection Final thoughts re Idea/Expression Dichotomy.. MERGER DOCTRINE: “Under the merger doctrine, courts will not protect a copyrighted work from infringement if the idea underlying the work can be expressed only in one way, lest there be a monopoly on the underlying idea. In such an instance, it is said that the work's idea and expression ‘merge.’” “Under the related doctrine of scenes a faire, courts will not protect a copyrighted work from infringement if the expression embodied in the work necessarily flows from a commonplace idea KEY CASES: II. FACTS & COMPILATIONS General Rule: Facts themselves ARE NOT COPYRIGHTABLE. Violates the idea expression dichtomy = learning that facts in their very right are not copyrightable General Rule: Work formed by the collection and assembling of preexisting materials or of data that are Feist Publications v. Experian Info v. Nash v. CBS Inc.: CCC info v. Maclean Rural Telephone Services Nationwide: Nash wrote books with Red Book had used Phone book that listed Consumer data a theory (gangster isn't sufficient originality, alphabetically = but compiler -- competitor dead)= CBS aired creativity, and competitor decided to used their compilation episode of crime series independent judgment distribute similar of consumer names/ and incorporated in arranging existing phonebook w/ larger addresses details/theories from information (car prices/ geographical area Database was the book etc.) in a new creative Compilations ARE copyrightable as the Presented info as way copyrightable = choices selection/arrangement factual = cannot Compilation qualified as to the selection/ was CREATIVE protect FACTS only as an original work of arrangement were ENOUGH EXPRESSION authorship = thus CREATIVE Lots of ways to express Theory was = copyrightable ENOUGH data = helps copyright marketed as history "Thin copyright" argument (not protectable) selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship That new work is copyrightable = but the material inside the compilation is NOT if it has original authorship (other people) 1909 Standard: Referred to the "sweat of the brow" or "industrious collection" notion = a copyright was a reward for the hard Mason v. Montgomery Data: Mason was a mapmaker and had identified things like track shapes/sizes/topography etc. Attempted to apply the Merger Doctrine (if there isn't a multitude of ways to express = not protectable) Court said this isn't applicable here = there are substantial ways to put a map information together = did not merge with the information it expresses (many ways to depict this info) COPYRIGHTABLE CLAIM work that went into compiling facts There were a couple of references in the statute that could have been better defined = bc of those confusing/ ambiguous provisions in the act, certain courts had got it wrong and allowed to broad of a swath of works to be copyrightable simply bc of the amount of work that had gone into it SWEAT OF THE BROW = DOES NOT MATTER (Doesn't matter how much work you put into it) 17 U.S.C. § 106: Exclusive Rights of Copyright Owner [T]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords... (4) in the case of [certain types of works], to perform the copyrighted work publicly; (5) in the case of [certain types of works], to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. 17 U.S.C. § 101: What is a Derivate Work? A “derivative work” is 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.... Changing the work in some fashion -- building upon something old to create something new 17 U.S.C. § 103: Derivative Work (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. The material developed not based on the original preexisting material = is copyrightable ◦ Cannot copyright work based on other content that is already copyrighted Must distinguish between what is derivative and what is not Three Distinct Elements/Requirements for a work to qualify as a COPYRIGHTABLE compilation: 1. The collection/assembly of pre-existing material, facts or data; 2. The selection/coordination/arrangement of those materials and 3. The creation, by virtue of the particular selection, coordination, or arrangement, of an "original" work of authorship KEY CASES: III. MAPS General Rule: Maps were always protected by copyright, identified as one of the first gropus that could be protected by copyright (somewhat covered by PGS) = Merger Doc Ets-Hokin v. Skyy Spirits: L. Batlin & Son: Durham Indus v. Tomy Corp Vodka brand had employed Underlying patent existed = patent Durham had created plastic a photographer to take expired -- Snyder created a plastic toys based on Disney pictues of the bottle = but version with some minimal characters (had licensed from another photographer did so changes them -- but different designs) as well Attempted to copyright this = Tomy imported/sold similar Old photographer sued new Court did not allow toys = issue was whether photographer bc photos A reproduction is not Durham had a valid copyright were very similar copyrightable if the Durham's contributions were The work was NOT reproduction neither requires a merely trivial variations on derivative becuase it high degree of skill in scaled pre-existing Disney character needed to be based on pre- duplication nor includes a desings existing work = for it to be substantial variation from the Lacked SUFFICIENT pre-existing, the original. ORIGINALITY in its works = underlying work MUST Not protectable = not enough did not meet the threshold to BE COPYRIGHTABLE creative/original elements to qualify as derivative Inherently NOT derivative constitute a derivative work = bc underlying work was not essentially a copy (derivative must copyrightable contain some substantial, not Schrock v. Learning Curve: UIRC-GSA v. William Blair ABS Ent'mt Inc. v. CBS: HIT owned Thomas train UIRC developed documents for The Ninth Circuit reversed the characters copyright -- had bond offerings and hired William district court's ruling in favor licensed to Learning Curve Blair to create them = used them of CBS, finding that the to make toys to help another client remasters lacked the originality Photographs taken and Documents heavily based on to be protected by copyright. Learning Curve used those Idaho Housing/Finance The court ruled that the photos (photographer said association documents with some remasters presumptively lacked they were depicting toys small changes originality because the "slightly better than in UIRC's documents lacked the remastering engineers did not person") = attempting to requisite originality because the add, remove, edit, or assert that photographs were language was largely copied resequence any sounds derivative from Idaho Housing association The court's ruling established Derivative works are NOT materials that there is no new copyright held to a higher standard Portions drafted did not vary for digital remasters of originality than original enough expressive variation to be works ***** readily distinguished from Must be enough non- predecessors trivial variation = distinguishable from OG RELATED CASE: IV. DERIVATIVE WORKS General Rule: Under the exclusive rights of a copyright owner = if there is a valid copyright, the copyright owner has the right to prepare derivative works based on the copyrighted work Where there work is recast/transformed/adapted = building on old to make something NEW How much Originality is needed to be Copyrightable? (Originality of the new Derivative Work) 17 USC § 101: Definitions [Pictorial/Graphic/Structural Works] "Pictorial, graphic, and sculptural works" include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; The design of a useful article, as defined in this section, 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.” ◦ Must be able to pull the PGS copyrightable elements OUT OF the utilitarian work and identify/ evaluate those elements SEPARATELY L. Batlin & Son (“some substantial, not merely trivial, originality”) Durham, ABS Entm’t (“more than trivial” & must not affect scope of copyright protection in preexisting material) Schrock, UIRC-GSA (“enough expressive variation... to be readily distinguished from its predecessors” ~ not “substantially different”) ◦ Is there sufficient, non-trivial variation in the work to make it distinguishable from original works? Catalda Arts (“more than merely variation... something recognizably his own”) Alva Studios (“great skill & originality,” “labor & judgment” KEY CASES: V. PICTORIAL, GRAPHIC, SCULPTURAL (PGS) WORKS PGS INCLUDES: Two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans = ONLY PROTECTS FORM OF THE WORK AND NOT MECHANICAL OR UTILITARIAN ASPECTS OF THE WORK ◦ Useful Article: Design of a useful article shall be considered a PGS only to the extent that such a design Mannion v. Coors Brewing Company: Mannion shot campaign for basketball magazine w/ Garnett = particular campaign, clothes, background, jewelry, etc. Comp board created by ad company to show client what the vibe of the shoot is = Coors used the Garnett photo and put Iced Out on photo = forwarded comp boards and got bids for the photograph opp (Mannion didn't get the opportunity) Garnett photo = was ORIGINAL WORK = arrangement/artistic creativity warranted some level of right to prevent duplication Kaplan v. Stock Market Photo Roger v. Koons Bill Diodato v. Kate Spade: Agency: Photographer owned copyright -- Heels/purse in a bathroom photo Kaplan created/copyrighted a Koons used photograph to create a for Kate Spade campaign photo of businessman sculpture Kate Spade used a highly similar contemplating suicide Photographer's work was original photograph in an advertising Bruno took similar -- sued for and creative = protectable by campaign without Diodato’s copyright infringement copyright permission. Court Holding: Copyright Copied the expresion of Rogers Highly stylized photo, unique laws do not protect ideas or work in nearly identical manner = choices in lighting, angles, and artworks depicting standard rejected the fair use defense here composition situations related to an idea Both fixation (Rogers’ photo was Ruled in favor of Diodato = Kate ◦ Protected expression of tangible) and originality (his Spade’s violated his copyright. The the idea = not idea itself creative choices in arranging the unique elements of Diodato’s Elements central to the idea subjects) were present, solidifying photograph were sufficiently like the business/suit/vantage the photograph as a protected original and protectable under the point weren't protected PGS work. PGS category. Pohl v. MS Sub I: Cosmetic dentist alleging the unauthorized use of his before/after photos on competitors website His photographs did not meet the originality standard = functional depictions meant to document dental results (lacked the "minimal creative spark necessary" Examines whether photograph exhibits creative/artistic choices = even if minimally incorporates PGS features that can be identified separately from and are capable of existing independently from the article 17 U.S.C. § 101 “... [T]he design of a useful article...shall be considered a pictorial, graphic, or sculptural work only if, and only tothe 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.” "Separate-ness" = standard, what is capable of existing INDEPENDENTLY OF THE UTILITARIAN aspects of the article" 17 U.S.C. § 113 (a)... [T]he exclusive right to reproduce a copyrighted pictorial, graphic, or sculptural work in copies under section 106 includes the right to reproduce the work in or on any kind of article, whether useful or otherwise. (b) This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law... in effect on December 31, 1977.... Only a copyright interest in what is created -- Examples: if you take a picture of a car, can't stop someone from making the car (c) In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports. 1. PHOTOGRAPHS General Rule: Photographs can be protected by copyright = covered under the PGS code section How do you determine when a photograph is original? 1. Rendition Mazer v. Stein: Stein created statuettes in the form of dancing figures = registered copyright for the statuetts Mazer incorporated the statuettes into lamp bases = mass produced and sold them (Stein sued for C infring.) Can a work of applied art receive copyright protect? Held that artistic works (even when used as part of a utilitarian object) are eligible for copyright protection Established the principle that the copyrightability of a work does not depend on its intended use (artistic vs. functional) A. Specialities of angle/shot/technique/developing/filter etc. B. Protection of how it was depicted = not WHAT was depicted 2. Timing A. Originality in the TIMING = "right place right time" B. Same type of protection in rendition -- exhibits originality in the TIMING of the shot 3. Creation of Subject A. Originality to the extent that the photographer created the scene or subject to be photographed B. Originality in the creation of the subject = Artist arranging/photographing a scene -- is granted some level of right to prevent others from duplication KEY CASES: 2. STATUTOR Y LIMITATIO NS ON PROTECTI ONS - APPLIED ART What does "applied art" mean? Expressive works applied to some kind of item (2D or 3D) that has utility beyond just the art itself Creative works that serve a functional purpose while incorporating artistic elements ◦ Examples include: furniture design, textiles, jewelry, product packaging Generally copyright law is ONLY PROTECTING THE ARTISTIC aspects of the applied art object, not the utility/functional features Applied Art Definition: Applied art refers to the creative and artistic elements incorporated into functional objects. These designs are aesthetically driven but may serve a practical purpose. Focus: The emphasis is on the artistic aspect. Copyright protection applies to the original, creative parts of the 17 U.S.C. § 101 A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article.” “... [T]he 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. Star Athletica v. Varsity Brands: Varsity Brands made cheerleading uniforms w/ 2d designs like chevrons/stripes = Star Athl. sold similar Establishes "separability test" = is the design feature of the useful article identifiable separately from the useful article and protectable as artwork standing alone/another medium? Designs here were protectable because you could separate the designs from the tangible medium (the uniform itself) design, separate from the object's utility. Examples: Decorative patterns on textiles, artistic engravings on furniture, or ornamental designs on jewelry. Protection: The artistic features must meet the standard of originality and separability (either physical or conceptual) from the functional object. Useful Articles Definition: A useful article is a physical object with an intrinsic utilitarian function, beyond mere aesthetic or informational purposes. Focus: The emphasis is on the functionality of the object. Copyright law does not protect the object's utility but may protect separable artistic components. Examples: Clothing, furniture, or a teapot where the function is the primary purpose of the object. Protection: Only the separable artistic components are eligible for copyright. The utilitarian aspects are not protected. 17 U.S.C. § 101: ARCHITECTURAL WORKS An “architectural work” is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features. Byrne Convention International treaty for copyright = the US did not come on as a signatory until 1988 They hadn't protected architectural works = but added once they became a signatory and had to comply with international copyright standards 17 U.S.C. § 120 (Architectural Works) (a) Pictorial representations permitted.—The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place If its in public -- you can take a picture of it, must make an exception for things embodied in a public place = cannot prevent people from taking pictures (b) Alterations to and destruction of buildings.—Notwithstanding the provisions of section 106(2), the owners of a building embodying an architectural work may, without the consent of the author or copyright owner of the architectural work, make or authorize the making of alterations to such building, and destroy or authorize the destruction of such building. If you own the building = you can change the building You don't need to be liable for changing the building by violating the rights of the copyright holder Illustrative Case Law Falkner v. GM: Artist created an outdoor mural on a parking garage's wall and was licensed to do so GM had taken a photo of the mural and posted on multiple social media pages = without his signature in it GM argued that part of architectural work = thus excluded from copyright protection w/ respect to unathorized photo Court's Holding: Architecture of the parking garage and accompanying building were already complete before P started painting. The painting was NOT a part of the architectural work and THUS reproducing this image w/o copyright owner's permission WAS an infringement (if it had been part of the work = this case would have gone the other way) Leicester v. Warner Bros: Building 801 tower (office building) and structure had artistic elements built into it by an artist -- scenes from Batman Forever had this building/art within in The towers designed were considered "functional and architectural requirements = thus were exempt from copyright protection) The installation was NOT protectable = the design of the building also had functional purposes and directed traffic Photos of architectural works are exempted under the statute = specifically if the building is in a public space (thus making this copyright infringement case invalid) Applied Art: In Mazer v. Stein (1954), the court held that a lamp base shaped as a sculpture was copyrightable as applied art because the artistic design was original and separable from the lamp's utility. Useful Articles: In Star Athletica, LLC v. Varsity Brands, Inc. (2017), the court upheld copyright protection for cheerleading uniform designs that could be identified separately from the uniform's functional purpose. USEFUL ARTICLES Key Concepts aligned with Applied Art AND Useful Articles: 1. Separability Doctrine A. Courts use this doctrine to determine if artistic elements of an applied art object can be protected by copyright. The artistic features must be: a. Identifiable separately from the useful article (independently from utilitarian function) and Warner Bros v. CBS: Hammett wrote a book and licensed the rights in film/radio/TV = Warner Bros While license still in place = licenses to CBS for the names/characters of the book in radio (outside of the context of the story) Court ruled that a literary character like Sam Space could not be copyrighted unless it was sufficiently delineated to constitute MORE THAN A MERE IDEA Holding: If the owner of a copyrighted story assigns ALL rights in that copyright to a 3rd party = characters and names are NOT included in the assignment unless explicitly stated in the agreement "Constitute the Story Being Told" Test: ◦ Test examines whether elements taken from the copyrighted work (like the characters) constitute the ESSENCE of the story itself, rather than being incidental or peripheral b. Would qualify as a protectable PGS either on its own or fixed in some other medium (if imagined separately from useful article that it is incorporated within Anderson v Stallone DC Comics v. Towle Gaiman v. McFarlane Klinger v. Conan Doyle Anderson wrote an Towle was making Gaiman created Estate unauthorized screenplay custom replicas of Sandman for DC The court held that using characters/plot Batmobile and other Comics copyright protection elements from previous memorabilia = "Sufficiently may extend to Rocky films without distinctive to be distinctive literary Stallone apparently authorization copyrightable" characters in a incorporated elements Batmobile/Batman copyrighted book, but of the screenplay into character was only to the extent that the final movie script sufficiently derivative works Court Holding: THe delineated and include original Rocky characters were displayed elements. so delineated that they consistent widely While distinctive were protected from identifiable traits characters in transposition = they Set out the test copyrighted works are were so highly listed at the protected, this developed and central beginning of the protection only covers to the three movies section! new, original elements made that they added in derivative CONSTITUTED THE works = Did not STORY BEING infringe on Doyle's TOLD copyrights B. Case Example: Star Athletica, LLC v. Varsity Brands, Inc. (2017) clarified the conceptual separability Daniels v. Walt Disney Co: Daniels created "Moodsters" -- line of characters representing different emotions = Sued Disney for Inside Out Court held: Lightly sketched characters without consistent, identifiable attributes do not qualify for copyright protection ◦ Characters must have consistent, identifiable traits to be recognizable across different contexts (Moodsters did not) test, holding that designs on cheerleading uniforms were copyrightable because DIVISIBILITY & LICENSES they could be perceived as two- TRANSFERS OF COPYRIGHT OWNERSHIP AND GRANTS OF NONEXCLUSIVE LICENSES ANY COPYRIGHT INTEREST CAN BE TRANSFERRED FROM THE OWNER OF THE COPYRIGHT TO ANOTHER PARTY, AND IT CAN BE SLICED VERY THINLY IN TERMS OF THE RIGHTS YOU ARE GIVING TO THE THIRD PARTY ◦ Can be a transfer for a specific thing, specific reproduction, derivative work etc. ◦ This factor is DIVISIBLE (Can be for a specific amount of time, license can be limited, can be in specific countries) ◦ Idea of the "bundle of sticks" 17 U.S.C. §§ 101: Definitions (Transfer of Copyright Ownership) A “transfer of copyright ownership” is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license. Transferring ownership of a copyright interest via an assignment, mortgage, excl. license or OTHER ◦ DO NOT INCLUDE NONEXCLUSIVE LICENSE 17 U.S.C. § 201(d) Transferring Copyright Ownership (d) Transfer of Ownership ◦ 1. The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. (Divisibility Concept) ◦ 2. Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title. ‣ Non-exclusive licensee= cannot enforce rights like an exclusive licensee 17 U.S.C. § 202 Ownership of copyright as distinct from ownership of material object Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object. 17 U.S.C. § 204 Execution of Transfers of Copyright Ownership (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. ◦ Must be in writing and signed (whoever is giving the exclusive right) DIVISIBILITY: Indivisibility doctrine made it advisable for contributing authors and periodicals to structure their arrangement in order to effect a complete transfer or "assignment" to the publisher -- so that a single notice in the name of the publisher would thus secure copyright 1976 Copyright Act: Expressly contemplates a divisible copyright by providing: ◦ Copyright owner, with respect to any one of the rights = refers to the owner of that particular right ◦ Allows for rights to be transferred/owned separately = subdivision of ay of the rights IMPLIED LICENSES, EXPRESS NONEXCLUSIVE LICENSES, AND SOCIAL MEDIA PLATFORMS Effects Associates v. Cohen: Film director contracted w/ Effects to create special effects -- Director unhappy with the quality but still used -- Effects sued = Cohen should not have used without written agreement that transferred the rights Implied a license to incorporate and exploit the film sequence when the special effects producer created the sequence on commission and delivered it Court held: There is was an implied non-exclusive license established (which CAN BE IMPLIED THROUGH CONDUCT) -- usually would be invalidated if transfer of ownernship did not have writing (but this wasn't that) Is similar inference of permission to exploit appropriate absent such a direct course of dealing "Implied License to Exploit" -- based on assumption that by placing content on the internet without any restriction = copyright owner intended to grant others the right to freely exploit that content (kinda problematic) From social media perspective -- no need to resort to a defense of implied license if the author will expressly grant the same permission dimensional artworks apart from the functional uniforms. RECORDATION OF TRANSFERS AND OTHER DOCUMENTS 1976 Act expressly provides that transfers of copyright ownership as well as any signed document pertaining to a copyright may be recorded with the Copyright Office Constructive Notice is assumed subject to TWO conditions: ◦ 1. Registration in the Copyright Office of a claim to copyright in the work to which the document pertains AND ◦ 2. Identification of the work in the document sufficient for it to be revealed by a reasonable search of the Copyright Office's records Difficulties when there is conflicting transfers/nonexclusive licenses -- may not be recorded ◦ BUT written, signed nonexclusive licenses prevail over conflicting transfers (regardless of if they are written or not) -- if the license was taken either before the transfer or is in good faith before recordation of the transfer and without notice of it SCOPE OF THE GRANT/TRANSFER OF OWNERSHIP Effects Assocs v. Cohen -- No signed (or even written) transfer of copyright (but saved by implied non- exclusive license) Cohen v. Paramount -- Right to exhibit "by means of television" did not include video cassettes b/c no evidence that parties intended it and no "methods now or hereafter known" language Boosey & Hawkes v. Disney: Right to record in any manner, medium or form" did include video format bc it was reasonably read to include new use when forseeable at the time and burden is on grantor to exclude; video is same medium as theatrical Random House v. Rosetta: Right to "print, publish, and sell" "in book form" did not include eBooks b/c of other contract language re specific editions, industry practice, and different media ◦ Court determined that for ebooks to have been included -- it wouldn't have made sense to include all these other categories = or e-books would have been included realistically 17 U.S.C. § 201 Ownership of Copyright [Contributions to Collective Works] (c) Contributions to Collective Works -- Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series. Specifies what rights the creator of a collective work owns If you are a creator of a collective work = you have certain limited rights with respect to what you can do with the work once published ◦ You have the right to reproduce/distribute any of the pieces of the collective work = in the absence of the express transfer of the copyright, you only have the right to reproduce/distribute that specific article in the collective work as a part of a collective work ◦ You cannot license separately or create a brand new collective work New York v. Tasini Creative of collective work = magazine publisher -- NYT published their newspaper which included the works of these authors and others (newspapers themselves are collectivew orks) They have independent copyrightable works as a whole, and maybe individually for the writers/materials ◦ The articles in this case = NYT sends their edition in digital format to LexisNexis and other digital databases -- You can find all these author's works = separately presented to you in these databases Court Holding: The owner of a copyright in a collective work is not entitled to reproduce and distribute the individual works separately. ◦ No value to the author now (must not be able to reproduce/distribute separately) FORMALITIES/PUBLICATIONS Formalities (and the Evolution Timeline) 1990 Act --> 1976 Act --> 1989 (Berne Harmonization) ◦ C Notice = Eliminated, no longer needed for protection, even for published works ◦ Registration & Renewal = Still important for litigation (but not required for protection) ◦ Recordation = Provides constructive notice to public about transfer (not required, but helps against claims) ◦ Deposit Copies = Automatic copyrights = does not lead to loss of copyrights anymore, but may get fined) These are all formal requirements = required They have changed = the US has become less formalistic in applying these requirements (publication status no longer affects the copyright status of a work) General Publication: Under the Copyright Act of 1909 (the act), a work obtains common-law copyright protection at the time of creation, but common-law protection is lost upon general publication. However, if publication is limited to a specific audience for a limited purpose, the publication does not result in loss of copyright protection. General publication occurs when a work is made available to the public for general use. A live performance is not considered a general publication. (Not really applicable anymore = every work is granted copyright protection to any qualifying work immediately UPON CREATION. Estate of Martin Luther King Jr v. CBS, Inc.: MLK had delivered "I Have a Dream" speech during march -- filed for copyright protection of the speech and estate sued CBS for copyright infringement when they aired w/o license ◦ Publication of a copyrighted work to news and media outlets, on its own, is not a general publication such that common-law copyright protections are extinguished. ◦ Reinforced that public performance is not the same as general publication Court held that MLK's speech constituted a limited publication = even though broadly published, he retained the copyright bc it was not released in a way that allowed unrestricted public access to reproduce or use it freely 2. Excluded Features: A. Purely functional aspects of a work, even if aesthetically pleasing, are not eligible for copyright protection. For example, the shape of a teapot, if dictated purely by utility, cannot be copyrighted, but intricate decorative patterns on it might be. 3. Overlap with Industrial Design: A. Applied art often overlaps with industrial design, but copyright law focuses on originality and artistic merit rather than functional innovation. Patents, rather than copyrights, protect the utilitarian aspects of industrial designs. ARCHITECTURAL WORKS You may own rights/copyright interest in architectural work -- this does not include the broad right to prevent EVERYTHING RELEVANT CASES: CHARACTERS The Copyrightability of Characters - What is required? 1. Must have physical & conceptual qualities 2. Must be "sufficiently delineated to be recognizable: A. This means consistent, identifiable character traits B. Apply the "Story Being Told Test" a. Whether the elements (like the characters) are so central that they effectively convey the narrative or the story 3. Must be "especially distinctive" and "contain some unique elements of expression" RELEVANT CASES: Academy of Motion Pictures v. Creative House: Academy owned copyright to Oscar statuette -- Creative House distributed promo ad featuring replica of Oscar statuette for corporate client Argument revolved around whether the statuette had become a general publication thtat divested common law copyright (under 1909 Act) and thrust statuette into public domain Court held that the statue was a LIMITED PUBLICATION therefore not GENERAL: ◦ 1. Awarded only to select group of persons ◦ 2. Purpose of distributing the award was limited ◦ 3. Oscar recipients have no right of sale or further distribution Warner Brothers v. X One X Prods: WB owned copyrights to several short films/movies -- publicity materials were distributed w/ still photographs of characters (but these were not from the movie itself) -- none had a copyright notice (required under 1909 Act and did not have federal copyright protection) Defendant obtained restored versions of promo materials -- licensed the products with images extracted from promo Court held that: ◦ Copyright protection for film characters is lost to the extent that widely identifiable characteristics of the characters enter the public domain ◦ Court reasoned that film characters receive copyright protection if they are distinctive from generic stock characters, including their appearance, mannerisms, backstory, and personality ◦ However, if these characteristics are introduced to the public domain through publicity materials, protection is lost only for the exact reproduction of those images. Combinations of separate public- domain images constitute infringing compilations Using these principles to apply to: DURATION Publishing issues changed from 1909 Copyright to most recent version: Under the 1909 Act, a properly registered artistic work receives copyright protection for 28 years from the date of first publication, renewable once for another 28 years This was amended by the 1997 Amendment to the Copyright Act 17 USC § 302 - Duration of Copyright (a) Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death. Copyright lasts = 70 years after author's death (b) In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author’s death. Joint work provision Copyright lasts = 70 years after LAST author dies (c) In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.... If you don't know who it is, pseudonymous work, or work for hire Copyright lasts = 96 years from the year of its first publication ABKCO v. LaVere: The court (Ninth Circuit) ultimately held that Section 303(b) should apply to all cases, even those pending at the time of its enactment. Thus, for purposes of this course, assume that is the rule Eldred v. Ashcroft: The Sonny Bono Copyright Extension Act ("The Mickey Mouse Protection Act") Case considered the constitutionality of the Copyright Term Extension Act (CTEA) of 1998 -- this act was attempting to extend the duration of existing/future copyrights by 20 years (most countries had already adhered to a 70 year PD copyright term and the US had not yet done so) ◦ For works created by individuals = life of author + 70 years ◦ Corporations = 95 years after publication Court held that: The Copyright Clause of the U.S. Constitution gives Congress the power to grant copyright protection for "limited times" to promote the progress of science and useful arts (Art. I, Sec. 8, Cl. 8). Congress acted within its authority in extending the copyright term ◦ "Limited times" does not prescribe any specific duration, leaving Congress w/ discretion to extend copyright terms as long as they remained finite Takeaway: Congress has WIDE BERTH as to how they can legislate under this case (Congress had the authority in extending the copyright term) 17 U.S.C. § 303 ~ Created but Not “Published” Pre-1978 (a) Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. In no case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047. (b) The distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of any musical work, dramatic work, or literary work embodied therein. The 1909 Act & the Renewal System Two terms of 28 years ~ Each is a “new estate” (reversion absent contractual provision to the contrary) ◦ Acting as a new interest/term = acting like the first term did not EXIST ◦ Everything that was implemented in the terms of a convenyance given in first term = wiped clean in second term Renewal possible in final year of 1st Term; No renewal=PD! Renewal either by author or by statutory heirs Why? What are the policies underlying this system? ◦ Two bites at the apple ◦ Providing for those who the author supported ◦ Ensuring continued exploitation of the work vs PD But could authors assign/sell/alienate their renewal rights? Fred Fisher Music v. Witmark & Sons Under the 1909 Copyright Act, copyright had a 28-year initial term with a 28-year renewal option. Fred Fisher sold a composer’s copyright, including future renewal rights, to Witmark & Sons, a publishing company. Issue: Can an author assign their copyright renewal rights before the original term ends, or do those rights only vest in the author or heirs at renewal? The 1909 Copyright Act allowed for a 28-year renewal term intended to benefit authors or heirs, but the Act did not expressly forbid assigning renewal rights before the initial term ended. Holding: Authors can assign their renewal rights before the term expires, and such assignments are valid if the author survives until renewal. Congress could have prohibited this but did not. The Court ruled in favor of Witmark & Sons. The decision reduced protections for authors by allowing publishers to contractually secure renewal rights early, effectively undermining the Act’s intent to benefit authors/heirs DateofWork WhenProtection Attaches First Term Renewal Term created in upon being unitary term of life 70years 1978 OR fixed in a or if anonymous or pseudonymous Work or WFH 95yearsfrompublic tangible LAIR medium or120yearsfrom creation whichever is SHORTER in Published Upon publication 67years 2ⁿᵈ W properNotice 28years 1964 1977 term began automatically renewal req OPTIONAL Published b w Upon publication 67 years if renewal 1923 1963 W properNotice 28years was SOUGHT otherwise inclusive inpublicdomain Published over public workis now in the 95yearsago DOMAIN public domain on Jan1 1978 Unitarytermof atleast life 70years or if createdbutnot when fed copy anonymous pseudonymousorWFH 95yrs publication or 120 yrsfromcreation weur published before displaced statecopy from shorter is but no expiration before 1978 12312002 it workremained unpublished or 1231 2047 ifworkwaspublishedbyend of2002 17 U.S.C. § 304 ~ Subsisting Copyrights (a) Copyrights in their first term on January 1, 1978 – (1)(A) Any copyright, the first term of which is subsisting on January 1, 1978, shall endure for 28 years from the date it was originally secured. (1)(B) In the case of... (ii) any work copyrighted by a corporate body... or by an employer [as] a work for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of 67 years. (1)(C) In the case of any other copyrighted work,... (i) the author of such work... shall be entitled to a renewal and extension of the copyright... for a further term of 67 years.... (b) Any copyright still in its renewal term at the time that the Sonny Bono Copyright Term Extension Act becomes effective shall have a copyright term of 95 years from the date copyright was originally secured. Eventually, the Renewal System Was Not “Renewed”: Copyright Renewal Act of 1992 provided: ◦ Automatic renewal for pre-1978 works still in first term ◦ Renewal term was 47 years (giving a total of 75) Sonny Bono Copyright Extension Act added 20 more years (thus the 95 years now applicable) The effect was that works published from 1964 to 1977 were not at risk of falling into the PD because of non- Renewal Berne Convention (1886) The Berne Convention is “based on three basic principles”: “(a) Works originating in one of the Contracting States (that is, works the author of which is a national of such a State or works first published in such a State) must be given the same protection in each of the other Contracting States as the latter grants to the works of its own nationals (principle of ‘national treatment’). (b) Protection must not be conditional upon compliance with any formality (principle of ‘automatic’ protection). (c) Protection is independent of the existence of protection in the country of origin of the work (principle of ‘independence’ of protection). If, however, a Contracting State provides for a longer term of protection than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases.” Golan v. Holder: Berne Principles: Berne convention principles = agree to treat authors from other member 1. Principle of National countries as well as they treat their own Treatment Nationals of a member country/any author who publishes in one of the 2. Principle of Automatic member state = enjoy copyright protection across the world Protection Must afford minimum level of protection specified by Berne 3. Principle of Copyright term = author's lifetime + at least 50 additional years 'Independence of (whether or not legal formalities are complied with) Protection Work must be protected abroad unless its copyright term has expired in either country or origin or where protection is claimed Russell v. Price: 1913 stage play Pygmalion --> 1938 Feature Film --> 1956 Stage Musical Based on 1938 Film Shaw copyrighted stage play Pygmalion in 1913, and '38 a film version of the paly was made and copyrighted by MGM Shaw renewed copyright on his play in 1941 and died in 1950 = Heirs inherited copyright ownership of the play which extended to 1988 MGM's copyright on Pygmalion film expired in 1966, causing the film to become public domain -- but the underlying Shaw Play was STILL protected Daniel Price began distributing copies of the film = lawfully distributing the film based on Pygmalion bc the derivative work was in the public domain AND they had a license Court holds: If a work in the PUBLIC DOMAIN is derived from a copyrighted work, distribution of the PUBLIC DOMAIN work constituted copyright infringement ◦ = They needed to acquire the rights to the original play bc it was still protected by copyright ◦ DERIVATIVE COPYRIGHT ONLY PROTECTS THE CONTENT THAT WAS ADDED BY THE AUTHOR OF THE DERIVATIVE WORK; not the material derived from the underlying work ‣ If a derivative work enters the public domain, any content in the derivative work taken from a copyrighted underlying work remains subject to the underlying work's copyright ‣ Copyright on the play is in effect until 1988 any distribution or exhibition of the film version before 1988 constitutes copyright infringement Stewart v. Abend: Woolrich assigned film rights to It Had to be Murder, which became Rear Window. He died before the renewal term -- and his estate assigned the renewal rights to Abend. Paramount continued distributing the film without Abend's consent Issue was whether derivative work creators need NEW permissions to distribute the work during the RENEWAL term if the OG copyright holder dies before renewal -- Renewal rights revert to the author’s heirs or estate if the author dies before renewal. Derivative works require new permission for use during the renewal term. Paramount needed Abend’s consent to distribute Rear Window during the renewal term. The renewal term ensures authors or heirs can renegotiate rights TERMINATION/REVERSION 17 USC § 203 (post-'78 grants): COPYRIGHT TERMINATION a) Conditions for Termination -- In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions: 1) In the case of a grant executed by one author, termination of the grant may be effected by that author or, if the author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s termination interest. In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it; if any of such authors is dead, the termination interest of any such author may be exercised as a unit by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s interest. ‣ One author = author can terminate ‣ If author is dead = those who own and are entitled to exercise a total of more than one-half of author's termination interest (that person can terminate = of a deceased author) Essentially the same under both statutes = but statutory errors ‣ If 2+ authors = termination can occur by more than 50% of joint authors (if 2 of them, you need both, if 3 you need 2/3) 2) If author is dead: Widow/widower unless surviving children (in which widow owns 1/2), children/ grandchildren, if not living = trustee/estate executioner Overview: If work for hire = not susceptible to Copyright Termination (applicable under 304 and 203) Concept of divisibility ("of any right under a copyright") = grant could be very narrow and still be accounted for/assigned Date (Executed by the author....) = Key Aspects of Copyright Termination under the 1978 Act: Election and Notice Required ◦ May be effected at any time during a period of 5 years beginning at the end of 35 years from the date of execution of the grant; of if covers right of publication of work = period begins at the end of 35 years from date of publication of the work under the grant or at the end o f40 years from teh date of execution of the grant (whichever is earlier) ◦ Must be served notice in writing, signed by the number and proportion of owners of termination interests required ‣ Must state effective date of termination (must fall within 5 year period specified in section) ‣ Shall be served not less thant 2 or more than ten years before the date Cannot be waived ◦ An author cannot waive their rights to terminate = can put it in a contract all you want = but it is UNENFORCEABLE Applies to only the Author's Grants Not Work for Hire Works Whose grants can be terminated? ◦ Depends on pre/post ◦ Post: Only the author's grants can be terminated (anything after his death cannot be terminated) Who can Terminate? ◦ Joint Authors: 50$ + 1 ◦ Authors of the work or the statutory heirs of the work ◦ Only occurrs if and after the author(s) have provided notice and have taken a number of steps by formal statute to effectuate that termination ‣ Must inform when it happens (no less than 2 years of lead time = prior to termination) ‣ To protect the licensees who have these rights ◦ Requires some affirmative action & knowledge that there is such a termination right = most important piece is.... timing Recordation ◦ Date you are identifying as date of effective termination (at least 2 years) Timing of Termination ◦ Must be at least 2 years prior to termination date ◦ Right to terminate a grant doesn't "open" until decades after grant is made ◦ DIFFERENT STANDARD BETWEEN THE TWO ‣ Under 203 = Window doesn't open until 35 years after grant was made ‣ Under 304 = 56 years after grant was made Timing of Regrant ‣ If there is a termination = often the licensee will start negotiating with the heirs to regrant those rights Grant‣that is beingtoterminated A regrant = rights anyone except are flowing licensee back to whose rights the terminated were author = can only occur after the If grant is for something that termination has OCCURRED occurred prior to January 78 = Guided by § 304 If a‣grant The is something author cannotthat go occurred AFTER out into the worldtoandJanuary regrant78the = Guided rights toby § 203 a 3rd party until AFTER the FIRSTeffective QUESTION TO ASK YOURSELF IF THERE IS A COPYRIGHT TERMINATION date has passed (protecting licensees) -- helps facilitate negotiations ISSUE ‣ Only applies to rights in the US (copyright interests) Limited to Rights Under 17 USC § 101 Horror Inc v. Miller: IMPLIED NON- Scorpio Music v Willis: EXCLUSIVE LICENSES Willis was commissioned to write lyrics/translate Miller wrote Friday the 13th screenplay = songs for Scorpio music -- He was one of terminated his 1979 Copyright grant to Manny multiple credit authors, and transferred all his Co in 2016 -- Manny Co arguing that termination copyright interests in 33 compositions to them was not valid because this was a WORK FOR (all of the agreements were separately executed HIRE = which cannot be terminated Issue was whether Willis could unilaterally Agreement originally had not established whether terminate his rights to these works -- when the the screenplay was a work for hire --- Court joint authors all executed their interests/transfers decided that since they had created an agreement separately and Miller had delivered the screenplay -- intent Court held that YES, only the joint author(s) was for it to be used who conveyed the grant at issue are required Miller had granted Manny an implied license for termination, not ALL these authors were -- conditions necessary to create a grant of a JOINT authors nonexclusive license (which could be Court stated that a joint author who terminated) separately transfer his copyright interest may ◦ Right originally vested in Miller = he UNILATERALLY terminate that grant could pass along to Manny and could terminate that implied non-exclusive Marvel Characters, Inc. v. Simon: TERMINATION MAY BE EFFECTED NOTWITHSTANDING ANY AGREEMENT TO THE CONTRARY Dispute over Captain American (in the 60s) resulted in a settlement that indicated after character was created that Simon did this work as a work for hire = and assigned his interests away Any statutory termination provisions state that termination may be effected notwithstanding any agreement to the contrary WFH agreement AFTER creation may be deemed "an agreement to the contrary" Here the court held that an agreement made subsequent to a work's creation which retroactively deems it a "work for hire" constitutes an "agreement to the contrary" = making the party not bound by the statement in a settlement agreement that he created the Works as an employee for hire Markham v. Hasbro: 1909 APPLICATION (WORK FOR HIRE NOT DEFINED UNDER 1909) Dispute between Klamer (toy developer who came up with the game of life) before it was introduced in the 60s by Milton Bradley Company and Markham (game designer) -- Klamer had recruited to design and create actual prototype of the game Heirs of Markham tried to terminate the assignment = Court held that they could not invoke termination rights becuase the game was created as a WORK FOR HIRE = thus could not terminate the rights Looking under 1909 Act = Applied the Instance and Expensive Test under 1909 Application ◦ 1909 Application of Test: Did the employer cause the work to be created and did they PAY for it ‣ Who caused bore the risks/costs of the project? ‣ Who was the impetus behind it? ◦ Determined that the test applied = deemed this to be work for hire, and Markham did not create on his own and did not convey any of the rights to the game to Milton Bradley ◦ Was a work for hire = not terminable Peretti v. Authentic Brands: Peretti's heirs attempted to terminate transfer of renewal rights in song to Authentic Brands Composition registered for copyright in 1961 1983: Peretti/wife/daughters all signed contract assigning rights to Authentic Brands Under 1909 Copyright Act = renewal rights to composition would not vest until expiration of original term of copyright (28 years after copyright initially secured) -- he held the renewal right ◦ He died BEFORE renewal right vested (only widow and daughters held the valid renewal rights) 2014: Wife/children/heirs served a notice of termination = attempting to terminate 1983 assignment Section 203: "Terminate grants of copyright if grant was executed by author" = gave authors the chance to renegotiate terms after 35 years if rights were initially transferred COURT'S HOLDING: ◦ Peretti did not hold renewal rights at his death = only his family did (but required grant "executed by author" -- he was dead, could not execute the grant) ◦ His interest had never vested -- Peretti had not executed the transfer in the required sense ‣ A grant cannot be considered "executed by the author" merely because an author's name is on it = the author must possess and convey an actual vested right in the copyright @ time of signing EXCLUSIVE RIGHTS OF A COPYRIGHT HOLDER 17 U.S.C § 106: EXCLUSIVE RIGHTS (Copyright Owner's Rights to Enjoy) The owner of a copyright under this title has the exclusive rights to do and to authorize ANY OF THE FOLLOWING: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and Pictorial, graphic, or sculptural works, including the individual images of a motion or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio NOTES: These rights can be owned separately = if you are utilizing/exploiting one of these, you after often doing more than one Usually to distribute/display/etc. = you have to REPRODUCE the copyrighted work first (usually if there is a copyright infringement, you are infringing on MULTIPLE rights at the same time Not an infringement by preventing a copyright owner from using one of these rights -- so if you stop someone from being able to use one of their copyright owner rights (it ISN'T CONSIDERED AN INFRINGEMENT on their part) THE RIGHT TO REPRODUCE & SUBSTANTIAL SIMILARITY General Rule: The copyright owner under this title has the exclusive right to reproduce the copyrighted work in copies or phonorecords Generally, exercising any other right = requires REPRODUCTION of the copyright work first (thus, when there is copyright infringement, it is usually a violation of the right of reproduction + whatever other exclusive rights that is pertinent to the situation) How do courts deal with electronic/digital copies? RULE: Electronic/digital copies have been deemed sufficiently fixed for the purposes of duration/reproduction London-Sire v. Does: [DIGITAL FIXATION REQUIREMENT] Lawsuits brought against John Doe's -- alleging copyright infringement because defendants had downloaded/ distributed copyrighted music through P2P file-sharing networks Electronic files can satisfy the fixation required for reproduction -- not limited to distribution of physical objects = protections extend to digital mediums like electronic files ◦ Only infringed if an ACTUAL DISTRIBUTION of the copyrighted work = making material available is not enough to prove distribution BUT: If someone has taken the steps to make public distribution possible = Court can reasonably infer that distribution happened PROVING INFRINGEMENT OF REPRODUCTION RIGHT: [ELEMENTS] Three Elements required to prove Copyright Infringement ◦ (1) a Valid Copyright in the first work, and ◦ (2) that Defendant COPIED protected aspects of the first work; ◦ Copying has two required sub-elements: ‣ (a) COPYING: must prove that the defendant actually copied first work (must prove that someone ACTUALLY COPIED the works as opposed to independent creation)— either by (i) direct proof (e.g., defendant admits copying), OR (ii) circumstantial proof, which requires: (I) access, and (you have to show that D had access to P's work) (II) probative similarity (some degree of similarity that would suggest there is copying -- even similarity of uncopyrightable elements like facts or idea) ◦ (3) UNLAWFUL MISAPPROPRIATION: the plaintiff must show that the works share substantial similarities, i.e., that unlawful appropriation took place ‣ Enough of a copying of copyrightable elements*** to be unlawful ‣ SUBSTANTIAL SIMILARITY standard 1. Focus on protectable Elements = only original and copyrightable aspects of a work are relevant for substantial similarity analysis (non-protectable if based on general ideas, facts, etc.) 2. Ordinary Observer Test = would an average person recognize the defendant's work as appropriating the original's expressive elements? Arnstein v. Porter: [SETTING STANDARDS FOR VIOLATION OF REPRO.] Case set the test/elements for proving the infringement of the reproduction right Arnstein was composer -- had commercial success originally but fell off (serial litigant) Made claims against Porter = alleging Porter stole his works and his employees broke into apartment Arnstein's claims lacked sufficiency and did not pass the elements set Price v. Fox Entm't: Involved dodgeball movie and screenplay = similar scripts and same manager/agent Overlap between them = and there was sufficient similarities (defendant had drafted first draft with incredible speed) Enough overlap between P/D to suggest access ◦ Probative similarity between characters/names/storyline etc. Summary judgment case = enough dispute to deny motion SUBCONSCIOUS INFRINGEMENT CASES: (RIGHT TO REPRODUCE) General Rule: Subconscious infringement, even without intent, violates the plaintiff's exclusive right to reproduce work -- treated the same as intentional copying = liability can still arise Bright Tunes v. Harrison's Music, Three Boys Music v. Bolton George Harrison was found liable for subconsciously infringing He’s So Fine when he composed My Sweet Lord. The court held that subconscious copying, even without intent, violated the plaintiff's exclusive right to reproduce the copyrighted work. Bolton publishes a song that was very similar to the Isley Brothers, exact same title and same subconscious infringement standard In general -- there is a balance between whether something is considered de minimis = wholesale copying or reproduction of another's copyrighted/protected work = cannot be considered de minimis copying Balance between the defenses being asserted and what the facts actually say SUBSTANTIAL SIMILARITY General Rule: To determine substantial similarity: 1. Focus on protectable Elements = only original and copyrightable aspects of a work are relevant for substantial similarity analysis (non-protectable if based on general ideas, facts, etc.) 2. Ordinary Observer Test = would an average person recognize the defendant's work as appropriating the original's expressive elements? More flexible of a test, focus on the quantity/quality of copied material, and on the EXPRESSION, not the underlying ideas (weigh how the alleged infringing work captures the overall ESSENCE of the protected work Ringgold v. BET: Bell v. Wilmott Storage Services: Case hinged on whether the use was enough to be Photographer took pictures and posted on his own deemed an unlawful appropriation under the controlled website and it ended up on USA.com -- second prong of the test and you couldn't navigate to his original site from ◦ Artwork was depicted in its entirety and not the photo being posted on the website so fleeting that it would have been There was no dispute that the photograph had unrecognizable = recognizable and been there and distributed = issue was whether or identifiable = Clearly recognizable and not it was a public display played a role in visual composition of Court held that: Wholesale copying or program reproduction of another's protected work, like De minimis use would have been so minimal that this photo, by definition CANNOT be de minimis it does not constitute actionable copying under copying copyright law = falls outside of copyright ◦ De minimis test/defense = does NOT apply entirely

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