Copyright Outline - Fall 2024 PDF

Professor: Noti-Victor Fall 2024 Casebook: Copyright Law CASES AND MATERIALS v.6.0 by Jeanne C. Fromer Christopher and Jon Sprigman COPYRIGHT OUTLINE Key: = Main Large Header...

Professor: Noti-Victor Fall 2024 Casebook: Copyright Law CASES AND MATERIALS v.6.0 by Jeanne C. Fromer Christopher and Jon Sprigman COPYRIGHT OUTLINE Key: = Main Large Header = Statute/ Law = Important things to note = Sub-headings ___ = Sub-subheadings = main cases = note cases ** Blue Letters = Info emphasized by professor Copyright law is predominantly federal law. Article I, Section 8, Clause 8 of the U.S. Constitution authorizes Congress to create copyright and patent laws: Congress shall have Power... To 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. Why Do We Have Copyright? Incentive-Based Theory (most used) - Utilitarian Account: Copyright incentivizes creation by protecting originators from competition by copyists, encouraging the "progress of science" and new works. - Some argue Intrinsic Motivation can drive creativity without copyright (e.g., fashion, fanfic; pg. 10). - Democratic Paradigm: Copyright recruits markets to promote free expression and minimize reliance on state funding (variant of utilitarian account) Rights-Based Theories - Lockean Labor Theory: Creators deserve rights over their work because they put labor into it. Limited by: o Enough must remain for others: You can’t take so much that others have nothing left (e.g., copyright protects specific works, not general ideas). o No waste allowed: Rights must be used wisely and not block others unnecessarily. - Hegelian/Kantian Personality Theory: Creative works reflect and express personality; copyright protects autonomy and dignity. The law’s careful use of expressive incentives can bolster the utilitarian inducement to create valuable intellectual property. PART 1: EXISTENCE OF A VALID COPYRIGHT § 102 of the Copyright Act: Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Aka: Copyright protects original works of authorship that are fixed in a tangible medium. "Fixed" means the work can be captured in a way that lets others perceive, reproduce, or communicate it (like in a book, recording, or digital file). The categories of copyrightable subject matter include: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. FIXATION: Statutory Requirement (§ 102): fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine Definition of “Fixed” (§ 101): 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 stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration For copyright protection, a work must be fixed in a tangible medium of expression (It’s a precondition of §102) - it must exist in a stable form that can be perceived or reproduced, either directly or with the help of machines. - Reasons why fixation matters: o The Constitution uses "writings," implying something tangible.  o Fixed works are easier to share and preserve over time. o Fixation provides evidence of the work in case of disputes. o It helps define the part of the work that is protected, separating it from unprotected ideas. The legal definition of “fixed” (§ 101) says the work must be stable enough to be perceived, reproduced, or communicated for more than a brief period. Case Law: Williams Electronics, Inc. v. Artic Int’l, Inc. (3rd Cir. 1982): Facts: Williams copyrighted Defender (computer program, "attract mode," and "play mode"). Artic created a nearly identical program and argued Defender was unfixed because its images change during gameplay. Holding: Williams Wins. Audiovisual effects in a video game meet the fixation requirement when they are stable and repetitive, even if the images change due to user interaction. Audiovisual features of Defender repeat themselves over and over (this makes it fixed despite the argument that users play the game and the images are always changing). The work is permanently embodied in a material object (memory device). - For something to be fixed, it has to be “sufficiently stable.” The court says this means stable enough to permit it to be reproduced or otherwise communicated for more than a transitory period - User manipulation of the images do not make the work unfixed because there is always a repetitive sequence Note Cases: - Whitmill v. Warner Bros. (2011): o Tattoo artist sues for copyright infringement because Mike Tyson’s tattoo was replicated on a character in The Hangover Part II. o The case settled without resolving whether a tattoo on a body can be considered “fixed.” § Warner Bros.' Argument: They argued that a tattoo on a human body doesn’t meet the fixation requirement because a body isn’t a “tangible medium of expression.” ORIGINALITY: Originality Requirement (S. 102): copyright protection attaches to “original works of authorship” To get copyright protection, a work must be original. Originality doesn’t mean it has to be groundbreaking or beautiful—it just needs: - Independent Creation: The author must create it themselves, not copy it from someone else. - Modicum of Creativity: Even the tiniest bit of creativity counts. Standard of creativity is extremely low, even a slight amount will suffice. “some creative spark, no matter how crude, humble, or obvious” (Feist) **Congress left originality intentionally broad to avoid limiting the types of works that qualify for copyright. Aesthetic or artistic quality (how “good” it is) doesn’t matter. Limits on Originality: - Facts, basic ideas, or exact copies aren’t protectable (Feist) - Nature-created works or those lacking human authorship aren’t copyrightable. (Kelly) Case Law: Burrow-Giles Lithographic Co. v. Napoleon Sarony (SCOTUS 1884): Holding: A photograph is original work if the photographer made creative decisions about the subject’s pose, lighting, and background. Copyright protects the artistic choices that make the photograph more than a mechanical reproduction. George Bleistein v. Donaldson Lithographing Co. (SCOTUS 1903): Holding: An illustration designed and produced for use as an advertisement is copyrightable as long as they show originality. Courts should not judge whether a work has artistic value—it’s enough that it appeals to any public interest. - Bleistein Principle: copyright law should not make its protections depend on the aesthetic worth of the work at issue Alfred Bell & Co. v. Catalda Fine Arts (2nd Cir. 1951): Holding: A copyrighted work does need not to be unique in order to satisfy the Constitution’s originality requirement. Low bar: Even minor changes, like tinting or shading, are enough for originality. The mezzotints (engraved reproductions of famous paintings) added subtle creative touches and were copyrightable. Feist Publications Inc. v. Rural Telephone Service Co. (1991): Holding: Facts themselves aren’t copyrightable, but original selection or arrangement of facts can be. The phone directory didn’t qualify because it didn’t show creativity—it was just a list of names. - How do we find whether something is original? You need INDEPENDENT CREATION + MODICUM OF CREATIVITY o Learned Hand: Two poets could create two identical poems. If they did not copy each other, both are original. o An original selection or arrangement is enough creativity - SWEAT OF THE BROW THEORY: copyright is a reward for the hard work that goes into compiling facts. This was rejected for threshold originality requirement because it is overbroad. Meshwerks Inc. v. Toyota Motor Sales USA Inc. (10th Cir. 2008): Holding: A work is a copy and thus not subject to copyright protection if the work is intended to exactly duplicate an existing item. The court said Meshwerks’ models were too much like literal copies of the cars and lacked any independent creative decisions. They didn’t add anything original (e.g., lighting, shading, or new angles). - MW set out to make an identical copy. Intent is never dispositive but can be helpful. Kelley v. Chicago Parks Dist. (7th Cir. 2011): Ownership x Authorship Holding: Works authored by nature that are continually changing are not copyrightable. Kelley, was the “author” of the garden’s aesthetic (e.g., layout). But nature created the expressive elements, the work lacked human authorship and fixation (it kept changing). - There are twin reasons why nature’s role in the creation of this work renders it unprotectable: authorship and fixation issue o Authorship: 7th circuit found that nature is really the author here, it is what is causing the flowers to bloom in ways that contribute to the aesthetic of the work. Lack of human author. “It is cultivated, not authored” o Fixation: at issue – when a work is nature-focused, it lacks fixation because it is constantly changing § Slightly at issue with Williams case (see fixation) § Despite the tension with some other cases, at the end of the day, the stuff that is expressive and original about the work is authored by nature, not Kelley **Kelley does not have protection over the garden but should have protection for his proposal DERIVATIVE WORKS: A derivative work is based on a preexisting work but involves some new, original material contributed by the new author §101 Derivative Works: A derivative work is based on one or more preexisting works and involves recasting, transforming, or adapting the original work (e.g., translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation). - The statute says nothing about the threshold of originality required of a derivative work Copyright Protection (§ 103): - §103(a): Protection includes compilations and derivative works but excludes unlawfully used preexisting material. - §103(b): o Copyright extends only to the author's original contributions, not the preexisting material. o The derivative work's copyright is independent of the original work's copyright. Originality Requirement:  - Must include substantial, not merely trivial, originality beyond the preexisting work (L. Batlin & Son Inc. v. Snyder). Recent cases apply the same originality standard to derivative works as to original works: independent creation plus minimal creativity (Schrock v. Learning Curve). Case Law: L. Batlin & Son Inc. v. Jeffrey Snyder (2nd cir. 1976): (not original) Holding: The “author,” as a statutory and constitutional matter, has to contribute “substantial, not merely trivial, originality” above and beyond the preexisting work. A reproduction is not copyrightable if the reproduction neither requires a high degree of skill in scaled duplication nor includes a substantial variation from the original. (toy banks case) - The court distinguished Snyder’s case from Alva Studios, Inc. v. Winninger (the “Hand of God” case), where a highly intricate sculpture required significant artistic skill to create a reduced replica. In contrast, Snyder’s plastic bank involved simple, functional changes and lacked the same level of artistic complexity. - JNV – The court says there has to be a higher standard in evaluating original contributions to derivative works because the line can get blurrier and it would become harder to figure out what the original elements are, which means public domain works can essentially be brought back into the breadth of copyright. A higher standard means that works that only add a lot or involve extra skill can be protected as independent new works. Schrock v. Learning Curve Int’l Inc. (7th cir. 2009): Holding: Derivative works are not held to a higher standard of originality than wholly original works. The photos are sufficiently original because Shrock orchestrated the lighting, angles, lifelike appearance of the toys, etc. reflects Schrock’s artistic choices. Seems to be enough originality that the photo could be a new copyrightable work. - Defendants say derivative should be subject to higher standard o Gracen v. Bradford Exchange - the court denied protection to an illustration based on a scene from "The Wizard of Oz" because it wasn’t substantially different from the original work. The concern is that granting copyright to derivative works with minimal changes could allow the new creator to police the use of the original work, undermining the original author’s rights and control o The key question for derivative works is whether there is sufficient, nontrivial variation in the work to make it distinguishable from the original work COMPILATIONS: § 101- Compilation: A compilation is a work created by collecting and assembling preexisting materials or data and selecting, coordinating, or arranging them in a way that results in an original work of authorship. - Includes collective works, which are compilations where independent works (e.g., articles in a magazine) are assembled into a whole. Copyright Scope for Compilations (§ 103): THIN! Protects only the original aspects of how the materials are selected, coordinated, or arranged. The underlying data or materials (e.g., facts) are not protected. Competitors can use the same materials as long as they don’t copy the original selection or arrangement. The Copyright Office won’t usually protect (register) a work if it only has a couple of elements (combining just two or three things). They think it’s too minor or simple to deserve protection. Databases: generally, not protectable in light of Feist. No sufficient creativity involved unless the creator does something “weird.” - The US has not extended copyright protection to databases. Europe has sui generis protection to databases where a lot of time, effort, or money has been invested. Case Law: Feist Publications, Inc. v. Rural Telephone Service Co. (1991): Holding: Alphabetizing names lacks originality because it’s a standard, obvious arrangement. Key Elements for Copyrightable Compilation: (1) Collection and assembly of preexisting material (e.g., facts or data) (2) Selection, coordination, or arrangement of those materials. (3) Creation of an original work of authorship through that selection, coordination, or arrangement. - a factual compilation can meet the threshold level of originality (modicum of creativity) if the author arranges the facts in some original way, but a mere alphabetized list of factual information is not it o If this was a random assortment or randomized compilation, this would probably be protectable (JNV) o If organized by last digit of phone number, it might go either way – so different and weird to probably warrant originality (JNV) Note Cases: Roth Greeting Cards v. United Card Co: Greeting cards are considered a compilation because they involve a common phrase and an image. - Shows that the original whole can be greater than the unoriginal sum of its parts. Unoriginal elements can be combined in an original way CCC Info. Services v. Maclean Hunter: About a car transmissions catalog, the court decided the catalog was original because of how it organized its information. For example, it broke the market into regions and chose specific features for the cars. IDEA-EXPRESSION DISTINCTION: Definition (§ 102(b)): Copyright protects the expression of an idea but not the idea itself. Specifically, copyright does not 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." - Ex: You can copyright a book explaining a bookkeeping system, but not the bookkeeping system itself Subcategories of the Idea-Expression Distinction: 1. Process-Expression Distinction: Copyright will not extend to processes. 2. Historical Fact-Expression Distinction: Will not extend to historical facts about the world, nature, etc., only the expression in which the facts are expressed. 3. Idea-expression distinction: Copyright will not extend to the ideas themselves, but it will protect the expression in which the idea is substantiated. Process-Expression Distinction Merger Doctrine: when an idea can only be expressed in a limited number of ways, the expression merges with the idea, and copyright protection is denied to prevent monopolization of the underlying idea (Morrissey v. Proctor & Gamble Co.- rules for a sweepstakes). Scènes à Faire Doctrine: extension of the merger doctrine and applies to fictional works and computer software. It bars protection for elements, characters, or settings that are indispensable or standard to a genre. - Walker v. Time Life Films mentions that drunks, prostitutes, vermin, and derelict cars would appear in any realistic work about the South Bronx police) - Attari, Inc. v. N. Am. Phillips Consumer Elecs. - Copyright does not extend to the “incidents, charters or settings which are as a practical matter indispensable, or at least standard in the treatment of a given topic” Blank Form Doctrine: Blank forms (e.g., templates for recording information) are not protectable because they embody ideas without expressive elements. Case Law: Baker v. Selden (SCOTUS 1879): Holding: Copyright does not protect an idea, only the expression of an idea.  - the book itself (Selden’s explanations, language, and possibly creative layout) can be copyrighted, but the system it describes (the bookkeeping method) cannot-- Copyright protection for a book describing a scientific method or a system does not grant the author control over the practical application of the methods - The drawings (tables) were purely functional—they were used to explain the system, not as a creative expression. - BASICALLY, where one uses an art i.e. a system, to explain that system requires some copying of the art itself in order to even explain the system, that will not give rise to copyright infringement. However, if a little more of the expressive material is taken, like the language the author uses to describe it, that might be infringement. (JNV) *** big part of this case is the fact that this work is better suited to patent law. The court wants to avoid double protection Note Cases: Bikram’s Yoga Coll. of India, LP v. Evolation Yoga, Inc.: sequence of yoga poses and breathing exercises are not copyrightable. The court described it as a healing system or process aimed at yielding physical and mental benefits, which copyright law does not protect, even if the sequence has aesthetic elements. Copyright doesn’t give monopolies over systems. Historical Fact-Expression Distinction A.A. Hoeling v. Universal City Studios Inc. (2nd cir. 1980): Holding: Interpretations of historical events, even novel ones, are not copyrightable. Authors are allowed to rely on prior published material to save time and effort, as long as they do not copy the unique expression of the original work. - Historical events and related tropes, even fictionalized elements (like the beerhall scene, which Hoehling invented), fall into the category of scènes à faire - no single author can monopolize history or common ideas, preserving the public benefit (the development and dissemination of historical and biographical works) Note Cases: Castle Rock Ent. v. Carol Pub. Group: The producer of Seinfeld sued the publisher of The Seinfeld Aptitude Test, a trivia book based on the show. The court ruled that the book was not asking factual questions about historical events but about “created facts” in a fictional show making the questions a form of copying plaintiff’s original contributions Satava v. Lowry: Copyright of Natural Facts-- realistic depictions of natural objects like jellyfish are not copyrightable. (Satava’s glass-in-glass jellyfish sculpture were too typical of jellyfish physiology and too common in glass-in-glass art to warrant protection) CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc: Opinion-Based Facts -- Automobile Red Book valuations were found copyrightable as they were predictions of future prices, based on judgment, not mere historical or mechanical data. N.Y. Mercantile Exch. v. Intercontinental Exchange -- denied copyright protection for settlement prices, reasoning that the exchange was more of a data recorder than a creator. COPYRIGHTABLE SUBJECT MATTER: Copyrightable Subject Matter (Section 102(a) of the Copyright Act): Copyright protects original works of authorship fixed in a tangible medium of expression. Categories of works that can be protected: 1. Literary Works 2. Musical Works 3. Dramatic Works 4. Pantomimes and Choreographic Works 5. Pictorial, Graphic, and Sculptural Works (PGS Works)  o Useful Articles Exception applies only to PGS Works 6. Motion Pictures and Other Audiovisual Works 7. Sound Recordings 8. Architectural Works **Copyright protection does not apply to works authored by the government Distinction Between Work and Fixation (§ 103): A literary work (e.g., a novel) is distinct from the medium in which it is fixed (e.g., a printed book). Similarly, a musical work is different from the sheet music or recording that fixes it. Useful Articles Exception Useful articles (PGS Works) can’t get copyright protection for their functional or utilitarian parts. However, if there’s an artistic feature in the design that is separate from the functional parts, that artistic feature might still be copyrightable. - Example: A chair’s shape as a chair is not copyrightable because it’s functional. But if the chair has a decorative carving, the carving might be copyrightable if it can exist separately as artwork. Useful Article Doctrine (Codified after Mazer) § 101 of the Copyright Act: Definition of a Useful Article: A “useful article” is something with an intrinsic utilitarian function beyond portraying appearance or conveying information (e.g., cars, lamps, dresses). § 101 Requirements for Copyright Protection of a Useful Article: The design of a useful article can qualify as a pictorial, graphic, or sculptural (PGS) work only if: - It has features that can be identified separately from the utilitarian aspects. o Physical separability: Artistic features can be physically removed from the useful item without affecting its functionality. o Conceptual separability: Even if not physically removable, artistic elements are conceptually distinct from the functional aspects of the item. - Those features are capable of existing independently of the functional item. - ** (JNV) Separability! The functional elements are not protectable. We have to separate out the sculptural components from the functional elements Legislative Intent (H.R. Rep. 94-1476): Copyright only applies when a design element is clearly distinct from the item’s utility. - Example: The shape of a car is functional and inseparable, so it cannot be copyrighted BUT A decorative feature on the car, like a hood ornament, is separable and protectable. Two-prong Test of Separability: (Star Athletica) (1) Identifiable separately from the utilitarian aspects: o a judge must look at the work and spot some element with PGS quality (low bar) (2) Capable of existing independently of the utilitarian aspects of the article: o the court must take the designs off of the useful article and they cease to be utilitarian once they are removed in order to satisfy this prong (find a PGS work) o JNV: the question for the second prong is once we separate out the design, is it useful or functional OR is it capable of existing as a PGS work? **The Shape of the Canvas is Irrelevant. For example, the fact that the designs are shaped to fit cheerleading uniforms (the "canvas") does not matter. Artwork painted on a guitar can be copyrightable even if it aligns with the guitar’s shape. Case Law: Mazer v. Stein (SCOTUS 1954): Holding: An artistic work (a statuette) can be copyrighted even if it is used as part of a commercial product like a lamp base. Copyright protection applies to the artistic form, not the functional use, and can coexist with patent laws that protect utilitarian designs The sculptures were separable from the lamps’ utilitarian aspects and thus protectable as PGS works. The aesthetic parts of PGS works can be protected but not the use (utilitarian) aspects of it Star Athletica LLC v. Varsity Brands (SCOTUS 2017): (cheerleading uniforms) Holding: A design feature of a useful article is copyrightable if it is (1) identifiable separately from the useful article and (2) protectable as artwork either standing alone or in another medium. The designs (e.g., stripes, chevrons) were separable and could exist independently as artistic works, even though they were incorporated into a functional article. Created Two-prong Test of Separability Silvertop Assocs. Inc. v. Kangaroo Mfg. Inc. (3rd Cir. 2019): Holding: Costumes, despite being "useful articles" (i.e., clothing), can still have non-utilitarian, artistic features that are separable and independently copyrightable. Rasta Imposta’s full-body banana costume is copyrightable because its artistic elements—such as its colors, shape, and lines—are separable from its utilitarian function as a costume/ we can separate out the banana, the banana is protectable. Kangaroo’s defenses, including the merger and scenes a faire doctrines, failed because the costume’s design is creative and there are alternative ways to create a banana costume without infringing on Rasta’s copyright. AUTHORSHIP: Definition of Authorship Authorship (§ 201 of the Copyright Act) Copyright ownership arises in two main ways: 1. Initial Ownership (§ 201(a)): o Copyright belongs to the author(s) of a work. o If there are multiple authors (a “joint work”), each is a co-owner of the copyright. 2. Works Made for Hire (§ 201(b)): o If a work is created as part of someone’s job or under specific contract terms, the employer or commissioning party is the copyright owner, not the creator (unless the parties have expressly agreed otherwise in writing) Human Authorship Required -- Naruto v. Slater (2018): The Ninth Circuit ruled that the Copyright Act does not recognize non-humans as authors or copyright owners. - assertions of copyright ownership on behalf of a monkey who captured selfies using Slater’s camera. Slater seeks royalties for use of the photo. By conceding the monkey took the photo, that means there is no human author and therefore the image is in the public domain. Case Law: Kelley v. Chicago Parks Dist. (7th Cir. 2011): Ownership x Authorship Holding: Works authored by nature that are continually changing are not copyrightable. Kelley, was the “author” of the garden’s aesthetic (e.g., layout). But nature created the expressive elements, the work lacked human authorship and fixation (it kept changing). ** see originality for more info Alexander Lindsay v. The Wrecked and Abandoned Vessel RMS Titanic (SDNY 1999): Holding: An individual will qualify as an author for copyright purposes if he or she exercises a high degree of control over a work’s creation. Lindsay (director) was the author of Titanic footage because he directed key creative elements (lighting, angles), even though he didn’t operate the camera. Cindy Lee Garcia v. Google, Inc.,: Holding: Cindy Lee Garcia did not have an independent copyright claim over her five-second performance in the controversial film Innocence of Muslims. The court decided that individual performances within a film do not qualify as separate copyrightable works. The performance was part of a larger audiovisual work (the film), and Garcia did not fix her performance in a tangible medium herself. Joint Authorship Joint Authorship (§ 201(a)): Co-authors of a joint work are co-owners of the copyright. (§ 101): A joint work is a work created by two or more authors with the intention that their contributions be combined into a single, unified work Key Rules for Joint Works: - Independent Licensing Rights: Each co-author can license the work without the other’s consent. - Duty to Account: A co-author who licenses the work must share any profits with the other co-authors. - No Right to Alter: One co-author cannot authorize changes (e.g., creating a derivative work) without the consent of the others. - Potential for injunctive relief: A co-author who objects to the licensing may be able to obtain a court order (injunction) prohibiting the other co-author from granting the license, if they can show it would undermine their own rights or interests in the work. Circuit Variations: - Second Circuit: All co-authors must "entertain the concept of joint authorship" for joint works (Childress v. Taylor and Thomson v. Larson) - Seventh Circuit: Requires evidence that parties intended to be joint authors at the time of creation (Erickson v. Trinity Theatre, Inc.). - Ninth Circuit: Focuses on objective manifestations of shared intent, but emphasizes that the level of control exercised by putative co-authors may be more important (Richlin v. MGM Pictures, Inc.). Case Law: Erickson v. Trinity Theatre, Inc. (7th cir. 1994): Goldstein’s Copyrightability Test Holding: A party must show intentional collaboration and an independently copyrightable contribution to establish joint authorship. While Erickson engaged in collaborative sessions with actors, there was no evidence of intent to treat the actors as co-authors. Erickson retained final control over the scripts. Actors provided ideas and suggestions during improvisation, but these were not original expressions fixed in a tangible medium. Erickson alone translated the collaborative input into the completed scripts, making her the sole author. ** See the tests below Tests for Joint Authorship: 1. Nimmer’s De Minimis Test (Rejected in Courts): Collaboration alone is sufficient for joint authorship, even if the contributions are minimal. o Too broad—mere ideas or concepts shouldn’t receive copyright protection. o Ambiguity—Nimmer doesn’t define how much a contribution must rise beyond "more than a word or line." o Restrictive—Discourages collaboration, as authors might fear losing sole authorship by accepting input. 2. Goldstein’s Copyrightability Test (Adopted in most/ used in Erikson): A contribution must be independently copyrightable to qualify for joint authorship. o An author must supply more than ideas or direction—they must create original expression fixed in a tangible medium. o Ideas are not copyrightable, so they cannot qualify as contributions to joint works. o Protects creativity by allowing the free exchange of ideas without authors fearing loss of copyright o JNV – something weird about the Goldstein test might be where a bunch of ppl get together and draw a single line. We end up with a copyrighted work that is owned by no one because no one contributed something independently copyrightable. Just a hypo to consider the limitations. Aalmuhammed v. Spike Lee (9th Cir. 1999): Holding: Jefri Aalmuhammed was not a co-author of Malcolm X. Not at any time did he have superintendence of the work. Lee was not bound to accept Aal’s recommendations. Aal lacked control over the work which is strong evidence for absence of co-ownership; No objective manifestation of intent to be coauthors. Three Prong “Joint Work” Test: For a work to be a “joint work” there must be: 1. a copyrightable work  2. two or more “authors” o Burrow-Giles Lithographic Co. v. Sarony, the court defined an author as the person who originates the work and has superintendence over its creation. For a movie, the author is typically the director, producer, or screenwriter, not someone making contributions under someone else’s control. 3. the authors must intend their contributions be merged into inseparable or interdependent parts of a unitary whole. Works For Hire Works for Hire (§ 201(b)): If a work is created as part of someone’s job or under contract, the employer or commissioning party is the author, not the creator (unless the parties have expressly agreed otherwise in a written instrument signed by them) (§ 101): A work made for hire is either: (1) A work created by an employee within the scope of their employment, or (2) A work specially ordered or commissioned for specific uses (e.g., collective works, audiovisual works, translations, compilations), if there is a written agreement explicitly stating it is a work made for hire 17 USC § 101. **YOU CANNOT CONTRACT INTO A WORK FOR HIRE: It is insufficient to do this by contract (like a contract provision saying “this is a work for hire”). One way to prevent issues like in CCNV is to contract for the author to assign the copyright to the employer 3-part test for determining if an employee’s conduct is within the scope of his employment: (Restatement (2nd) of Agency § 228 (1958)) (Avtec) 1. It is of the kind of work he is employed to perform; (generally most important factor) 2. It occurs substantially within authorized work hours; and 3. It is actuated, at least in part, by a purpose to serve the employer. Case Law: Community for Creative Non-Violence v. Reid (SCOTUS 1989): what does it mean to be an employee? Holding: Reid was an independent contractor, not an employee. The work was not made for hire, so Reid retained the copyright. Reid was hired to create a sculpture to raise awareness of homelessness. He worked in his own studio, used his own tools, had significant creative freedom, paid like an independent contractor, creating sculptures was hardly regular business for CCNV, CCNV is not a business at all, CCNV did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers’ compensation funds. - factors considered: skill required, source of instrumentalities and tools, location of the work, duration of the relationship between the parties, whether the hiring party has the right to assign traditional projects to the hired party, the hired party’s role in hiring and paying assistants, whether the work is part of the regular business of the hiring party, whether the hiring party is in business, the provision of employee benefits, tax treatment of the hired party Avtec Systems Inc. v. Jeffrey G. Peiffer (4th Cir. 1994): What does it mean to create something “within the scope of your employment”? Holding: Made for hire. Although the work was created at home, it was part of Peiffer’s job duties, related to Avtec’s business, and intended to benefit Avtec. An employee’s conduct is within the scope of employment “only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the master.” Formalities Formalities have evolved from mandatory rules to optional mechanisms that strengthen copyright claims and enforcement. Publication (§ 101):  - Defined as distributing copies of a work to the public for sale, transfer, rental, or public use. - Performance ≠ Publication: Public performance (e.g., a speech) does not constitute publication. - Pre-1976 Act: Copyright began with publication; general publication could lead to the loss of protection. - Post-1976 Act: Copyright begins with fixation in a tangible medium; some provisions still depend on whether the work is published. Notice: Alerts the public to the work’s copyright status and identifies the owner. - Pre-1976, lack of notice could forfeit copyright; post-1976, notice is optional but useful. Registration: Provides an official record of copyright ownership. Deposit: Ensures the Library of Congress receives copies of works to archive and bolster registration’s record DURATION: Policy Act Rule 1909 Act Original: 28 years + 28-year renewal → Max 56 years. (For works before 1978) Extensions: 19 years (1976 Act) + 20 years (Sonny Bono Act 1998) → Max 95 years *** Mickey Mouse Protection Act: The 1998 extension was also called the "Mickey Mouse Protection Act" due to lobbying by the Walt Disney Company to delay the entry of Mickey Mouse into the public domain *** Last year governed: 2073 1976 Act General Rule: Lifetime of author + 70 years. (For works after 1978) Joint Works: Lifetime of last surviving author + 70 years. Corporate/Anonymous Works: Shorter of: - 95 years from publication, or - 120 years from creation. Transition Rules for Pre-1978 Unpublished Works: - Published before 2003: Later of relevant rule or December 31, 2047. - Not published before 2003: Later of relevant rule or December 31, 2002. Music Modernization Act Protection lasts 95 years from first publication, with specific durations depending on (Pre-1972 Sound Recordings) when the sound recording was published: - Until December 31, 2021 for works published before 1923. - 100 years total for works published between 1923-1946. - 110 years total for works published between 1947-1956. - Until February 15, 2067 for works published between 1957-1972 Section 305: Copyright terms “run to the end of the calendar year” (meaning even if a term is set to expire on a specific date, it will actually expire on December 31 of that year). Case Law: Eldred v. Ashcroft (SCOTUS 2003): Holding: The Copyright Clause’s requirement that copyrights be granted only for limited times does not bar Congress from extending the terms of existing copyrights. Still must remain limited - Facts: Congress extended the copyright duration to life of the author + 70 years for all future and existing copyrights. Plaintiffs argued this violated the Constitution’s Copyright Clause because extending existing copyrights contradicted the “limited times” requirement. - Justifications: Harmonization with international laws, incentivizing dissemination, and protecting heirs.  - First Amendment concerns are addressed through copyright’s built-in protections (e.g., fair use). Renewals Who Owns the Renewal Rights? - The original author or their heirs own the renewal rights, even if the copyright was assigned to someone else. - If the author dies before renewal, the rights pass to their heirs, not the original assignee. Case Law: Stewart v. Abend (SCOTUS 1990): Holding: “Abend Rule” Authors of derivative works must obtain new permission to distribute derivative works during the renewal term of the original work if the original copyright holder dies prior to renewal. - Renewal rights must vest before they can be assigned. If the original copyright holder dies, the renewal rights pass to their estate. - Holding is specific to pre-1978 works - A derivative work author owns only their contributions, not the original underlying work. Continued distribution of the derivative work during the renewal term requires permission from the renewal-term copyright holder Terminations of Transfers: Termination rights allow authors (or their heirs) to reclaim copyrights they previously sold, assigned, or licensed, giving them a second chance to benefit from their work. This is particularly helpful when a work becomes more valuable over time, or if the author originally entered into an unfavorable deal. 1976 Act Termination Rights: Replaced the 1909 Act's renewal system with a termination of transfer system, allowing authors to reclaim rights under specific conditions. - Who Can Terminate: Authors, or if deceased, their widow/widower, children, grandchildren (descendants per stirpes), or executors. - What Can Be Terminated: Assignments, exclusive licenses, and non-exclusive licenses, but not works made for hire/ made derivative works. - When Can Termination Happen? Commented [DA1]: Example: Poem from 1925 o Works Transferred After 1978 (§ 203): - Original Copyright: Secured in 1925 under the 1909 Act. § A five-year termination window begins 35 years after the transfer (or 40 years if the grant includes - First Term: 28 years publication rights). (1925–1953) § Authors must serve advance notice (between 2 and 10 years before termination). - Renewal Term: 28 years (1953–1981) - Extended Term  Under 1976 Act: +19 years o Works Created Pre-1978 (under the 1909 act) (§ 304(c)): (1981–2000) § Termination window opens 56 years after the original copyright date. - Extended Term  Under 1998 Act: +20 years o 1998 Term Extension Rights (§ 304(d)): (2000–2020). § Congress added 20 extra years to copyright terms (via the Sonny Bono Copyright Term Extension Act). - Termination Under 56-Year Rule (304(c)): The 5-year § Authors (or heirs) have another chance to terminate under § 304(d): Five-year window begins 75 window for termination ran from 1981 to 1986. years after the original copyright date. - Termination Under 75-Year Rule (304(d)): A second 5- year window opened from 2000 to 2005. 17 U.S.C. §§ 203(a)(5), 304(c)(5), 304(d)(1): “Termination of the grant may be effected notwithstanding any If the author (or heirs) missed the 56-year window, they still agreement to the contrary.” had a chance to terminate during the 75-year extension - The 1976 Act specifically states that termination rights cannot be waived in advance window. If neither termination occurred, the copyright would expire in 2020. Workarounds Used by Rights Holders: - Work for Hire Argument: o Some argue the work is a work made for hire (which is exempt from termination), but this only works if it meets the legal requirements for work-for-hire status. - Renegotiation Before Termination: o Rights holders often renegotiate agreements before the termination period begins. This creates a new grant and restarts the 35-year clock. PART 2: COPYRIGHT INFRINGMENT Infringement Elements 1. Ownership of valid copyright o Original work of authorship o Fixed in a tangible medium of expression o Plaintiff owns the work o Copyright remains in effect 2. Infringement o Violation of one or more exclusive rights § Copying in fact § Copying in law o Relevant limitations/exclusions § Fair use defense o Other defenses The exclusive rights of copyright holders are provided under 17 U.S.C. § 106: 1976 Act (1) to reproduce (Reproduction §106(1)) (2) to prepare derivative works (Adaptation – Derivative Work §106(2)) (3) to distribute (Public Distribution §106(3), Import §602) (4) to perform the copyrighted work publicly; (Public Performance §106(4)) (5) to display the copyrighted work publicly; and (Public Display §106(5)) (6) to perform the copyrighted work publicly by means of a digital audio transmission. VARA (1990) - Moral Rights 106A REPRODUCTION RIGHT | COPYING IN FACT | COPYING IN LAW: 17 U.S.C. § 106(1): Grants copyright owners the exclusive right to reproduce their works in copies or phonorecords. - This protection extends beyond verbatim copying and includes copies that are substantially similar to the original. - No distribution is required for infringement: Making a copy and keeping it privately is still a violation of the reproduction right (though unlikely to result in litigation). Two-Pronged Test for Infringement (NEED BOTH) 1. Copying in Fact: the defendant actually used elements of the plaintiff’s work in creating their own work. - Proof: Absent direct evidence of copying, requires evidence of access and substantial similarity o Did the defendant have a reasonable opportunity to view the plaintiff’s work? § Wide Dissemination: If a work was broadly available (e.g., radio play, publication), access can be inferred. Subconscious copying is actionable. (Three Boys Music Corp. v. Michael Bolton) Does not matter if it is subconscious copying because copyright is strict liability (ABKCO Music, Inc. v. Harrisongs Music, Ltd.,) 2. Copying in Law: The defendant took enough protected material from the plaintiff’s work to warrant liability - Did the defendant copy protectable elements (e.g., original expression, not ideas)? - Are the two works substantially similar to an ordinary observer? o General Test (refer to circuit split): whether an average lay observer would recognize the alleged copy as being appropriated from the copyrighted work. **without copying in fact, similarity is insufficient to show infringement 2nd/ 9th Circuit Tests for Substantial Similarity Second Circuit: "More Discerning Ordinary Observer Test" - Applies a more discerning observer test when a work contains elements from the public domain. Filters out unprotectable content to assess the total concept and feel/ assesses protectable expression. - Steps:  o Filter out ideas, public domain elements, and scènes à faire AND Focus only on the original, copyrightable expression. o Consider only the protectable elements AND ask whether the ordinary observer would regard the total concept and feel of the works as substantially similar. Ninth Circuit: "Extrinsic and Intrinsic Test" (need to satisfy both) - Steps: o Extrinsic Test (Objective): § Analyze the ideas and expressions in the two works to determine if there is substantial similarity in the ideas. Dissect the works' objective components like plot, themes, dialogue, mood, setting, characters, etc. If there is no substantial similarity in ideas, the works are not infringing. o Intrinsic Test (Subjective): total concept and feel Evaluate the total concept and feel of the works from the perspective of the intended audience (ordinary observer). Are they substantially similar? De Minimis Copying: Insignificant copying that is trivial or unobservable does not constitute infringement (Itoffee) Inverse Ratio Rule: A higher degree of access requires less similarity to prove copying, and vice versa. (rejected by some courts) -- Skidmore v. Led Zeppelin - access alone does not replace the need to show actual copying Innocent Infringer Defense § 405(b): Protects you when you don’t know something is copyrighted because of missing notice (for pre-1988 works). Case Law: Three Boys Music Corp. v. Michael Bolton (9th Cir. 2000): Yes Infringement Holding: Infringement of a copyrighted musical work can be shown through circumstantial evidence of access to the protected work and substantial similarities between the works. - To prove copyright infringement, the plaintiff must show: (1) Ownership of a valid copyright and (2) Copying of protected elements of the work, which requires: o Access: The defendant had a reasonable opportunity to view or copy the plaintiff’s work. § DJs testified the Isley song was played frequently in Bolton’s area. Bolton admitted he was a fan of the Isley Brothers and could have subconsciously copied the song. o Substantial Similarity: The two works share significant protected elements in their expression. § The two songs shared strikingly similar musical elements. Combined with evidence of access, this created a presumption of copying. - Burden Shifting: Once the plaintiff establishes access and substantial similarity, the burden shifts to the defendant to prove independent creation o jury rejected their explanation and found that the similarities were not coincidental (copying in law) Selle v. Gibb (7th Cir. 1984): No Infringement Holding: Proof of copying (access + substantial similarity) is required for infringement. Without evidence of access, even striking similarities cannot establish infringement because independent creation is always a possibility. - Ronald Selle sued the Bee Gees, claiming that their hit song "How Deep Is Your Love" infringed on his song "Let It End." The court found that he failed to prove that the Bee Gees had access to his song, despite the similarities between the two works. Itoffee R. Gayle v. Home Box Office Inc. (SDNY 2018): No Infringement – De minimis Holding: Itoffee sued HBO for copyright infringement, claiming that his graffiti was used without permission in an episode of Vinyl. The court found that the brief, barely visible use of the graffiti was de minimis, meaning too trivial to be considered copyright infringement. - Observability turns on the length of time the copyrighted work is observable as well as factors such as focus, lighting, camera angles, and prominence. The assessment is to be made from the viewpoint of an average lay observer - In Gottlieb, a pinball machine was shown on screen for several seconds in a movie, it was always in the background, out of focus, and not central to the plot. As a result, the use was de minimis. Saul Steinberg v. Columbia Picture Industries, Inc. (SDNY 1987): Yes Infringing/ substantial similarity Holding: The test for substantial similarity (Copying in Law) is whether an average lay observer would recognize the alleged copy as being appropriated from the copyrighted work. Ruled for Steinberg because an average observer would recognize that Columbia’s poster was based on Steinberg’s drawing. - Ideas are not Copyrightable: A myopic depiction of NYC from a New Yorker’s perspective. Free to use - Expression (Copyrightable): Columbia copied the specific expression of Steinberg’s idea, including perspective (the way the city blocks were drawn), Lettering style, and Whimsical tone. o Columbia argued they made changes (e.g., different street names), but the court said small differences don’t matter if the overall impression is the same. ** Access was Not Disputed: The Columbia art director admitted to using Steinberg’s work. The case focused only on Copying in Law (Substantial Similarity) Judi Boisson v. Banian, Ltd. (2d Cir. 2001): Some Infringing / Second Circuit Approach to substantial similarity Holding: When a work contains elements from the public domain, the substantial similarity test requires a more discerning analysis to filter out unprotectable elements and focus only on the protectable aspects of the work -- we need to filter out the unprotectable stuff): “when we use the more discerning ordinary observer test, we will compare the total concept and feel” (kind of like “I know it when I see it) - The ABCs are not protectable! - Substantial similarity is a legal question which is reviewed de novo (does not consider lower court rulling) - For the Green quilts, the total concept and feel of Boisson's protectable design were copied. For the Blue quilt, the differences outweighed the similarities, so there was no infringement. ** It’s hard to imagine a situation where we wouldn’t apply the more discerning ordinary observer test because ideas are public domain and almost everything involves an idea. Sid & Marty fo Television Productions, Inc. v. McDonald’s Corp. (9th Cr. 1977): Yes Infringing / Ninth Circuit Approach to substantial similarity Holding: The Ninth Circuit applies a two-part test to determine substantial similarity in copyright infringement cases: Extrinsic and Intrinsic (Substantial similarity must be found under BOTH tests) - Extrinsic Test: McDonald’s essentially conceded the works shared similar ideas (e.g., a whimsical fantasyland with anthropomorphic characters) - Intrinsic Test: The court considered the response of the child audience, determining that an ordinary child would find the total concept and feel of the two works substantially similar. Factors like similar characters, whimsical tone, and fantastical settings supported this conclusion. Rentmeester v. Nike Inc. (9th cir. 2018): No Infringement Holding: Nike’s photo and Jumpman logo did not infringe Rentmeester’s copyright - Copying in Fact: Not at issue: Nike licensed Rentmeester’s photo, establishing access - Copying In Law: Using Ninth Circuit two-part test. o Extrinsic Test (Objective Analysis): distinguished between unprotectable ideas (e.g., a leaping pose, Michael Jordan, or jumping) and protectable expression (e.g., the specific combination of pose, angle, timing, lighting, and camera technique in Rentmeester’s photo). § Both photos depict Jordan in a leaping pose inspired by ballet, but Nike’s photo altered key details: Jordan’s limbs were positioned differently; Nike’s photo used different lighting, background, and composition; Nike borrowed the idea but did not copy the specific expression in Rentmeester’s photo. § Nike’s photo was not substantially similar to Rentmeester’s in its protectable expression. o Intrinsic Test: Not applied because the case failed the extrinsic test. DISTRIBUTION AND IMPORTATION RIGHTS: 17 U.S.C. § 106(3): Grants copyright owners the exclusive right to distribute copies or phonorecords of their work to the public by sale, rental, lease, or lending.  This right is distinct from reproduction, as a violation can occur even if the defendant did not create the copy but merely sold or transferred it à Example: Selling unauthorized copies produced by someone else infringes distribution rights even without reproducing the work. First-Sale Doctrine: 17 U.S.C. § 109(a): Once a copyright owner sells or transfers ownership of a copy, they lose the right to control that particular copy. - The buyer of a lawful copy can sell, rent, gift, or otherwise dispose of it without further authorization. - This doctrine is essential for libraries, resale markets, and broad public access. Importation Rights: 17 U.S.C. § 602(a): Importing copyrighted works acquired abroad without the copyright owner's authorization constitutes infringement under the exclusive distribution right Case Law: Bobbs-Merrill Co. v. Straus (SCOTUS 1908): No Infringement / First Sale Doctrine Holding: Under the first-sale doctrine, the legal purchaser of a copy of a copyrighted work has the right to sell that copy without further permission from the copyright owner. Bobbs-Merrill, copyright holder of The Castaway, cannot impose a minimum resale price of $1 after it’s been purchased. Macy sold copies for $0.89 is okay. - No privity of contract between copyright holder / future buyers after the first buyer; to allow the copyright holder to restrict future sales is like an unlawful restraint on alienation (common law property doctrine) Capitol Records v. ReDigi (2nd cir. 2018): Yes Infringement / Digital Transmission and the First-Sale Doctrine Holding: ReDigi violated copyright because transferring digital files involved unauthorized reproduction. - Digital transfer creates a new copy, breaching the reproduction right. - First-sale doctrine does not apply because it requires lawful copies, and the process of uploading and downloading involves duplication, not mere transfer. RIGHT TO PREPARE DERIVATIVE WORKS: 17 U.S.C. § 101: A derivative work is based on one or more preexisting works, such as translations, musical arrangements, dramatizations, fictionalizations, abridgements, or any form where the original work is recast, transformed, or adapted. - Includes editorial revisions, annotations, or modifications that represent original authorship. Why Protect Derivative Works? Potential Downsides of Protecting Works - Enhance the incentive to create - Inefficiency: Original authors may lack skills to produce - Personhood/labor justifications adaptations (e.g., novelists creating screenplays). - Allows author to control the pace - Transaction Costs of things (trying to make a movie - Stifling Creativity: May limit transformative uses. adaptation as fast as possible to (everything borrows from everything) avoid being preempted would - Veto Power: (I don’t want a movie adaptation of my make the movie quality worse) book) Case Law: Mirage Editions, Inc. v. Albuquerque ART Co. (9th cir 1988): Yes Infringement / Derivative Work Holding: The mounting of copyright-protected images physically removed from a book constitutes preparation of a derivative work. The exclusive right of a copyright holder to prepare derivative works is infringed upon when a party creates a transformative version of the work without the copyright holder’s authorization. - Removing artwork from books and mounting it on tiles recasts and transforms the original work into a new medium. - First-sale doctrine does not apply because the work was altered, not merely resold. Lee v. ART Co. (7th cir. 1997): No Infringement / NOT a Derivative Work Holding: The mounting of an artistic work for display is not transformative in a way that constitutes the preparation of a derivative work. The first-sale doctrine allowed A.R.T. to resell Lee’s notecards and lithographs in this new display format without creating a new, unauthorized derivative work. - Court says this does not infringe the derivative work right. Compare this to a museum – it would be wrong for a museum to be found infringing every time they put a painting in a frame - Explicitly says they disagree with 9th cir. They focus on originality aspect, which asks if the work can exist independently. - For a work to be classified as a derivative, there must be some degree of transformation or recasting that changes the original work in a meaningful way Note Cases: Castle Rock Entm’t, Inc. v. Carol Publ’g Grp-- if a secondary work "sufficiently transforms" the original work so that they are no longer "substantially similar," the secondary work is neither a derivative work nor an infringement. Castle Rock Entm’t-- Second Circuit held a copyright holder maintains control over derivative markets even if they choose not to enter those markets. Even though Seinfeld producers had not developed trivia books, allowing unauthorized derivative works would violate the creators' exclusive rights. The court emphasized that copyright law respects the creator’s economic and artistic decision not to saturate the market with derivative works Pickett v. Prince-- involved a dispute over a guitar modeled after Prince's copyrighted symbol. The court held that while Pickett's guitar might contain original elements, his unauthorized use of Prince's symbol barred him from copyright protection Anderson v. Stallone-- Anderson’s screenplay for Rocky IV, based on Stallone’s Rocky series, was an unauthorized derivative work, and thus could not be protected. MORAL RIGHTS: Moral Rights: Protect an author’s personal connection to their work, focusing on reputation and integrity rather than financial gain. § 106A grants these rights mainly to visual art, and they include: - Right of Attribution: Ensures the artist is properly credited for their work. - Right of Integrity: Allows the artist to object to alterations or destructions of their work that harm their honor or reputation. Berne Convention: Grants authors the right to claim authorship and to object to derogatory modifications or actions against their work. - Other than Visual Artists Rights Act (VARA), US does not provide for moral rights by statute o Still allowed to be in Berne Convention because US says they are still compliant because authors can vindicate those rights through other existing laws 17 USCA 106A: This provision grants authors of visual art the rights to claim authorship of their works, prevent false attribution, and object to any intentional distortion, mutilation, or destruction of their works, particularly when such actions harm their honor or reputation. 17 USC 113(d): This section limits the moral rights under VARA for works of visual art incorporated into buildings, allowing their removal or destruction if the artist consents in writing or fails to act after receiving proper notice from the building owner. Case Law: Terry Gilliam v. American Broadcasting Co. Inc. (2d cir. 1976): Yes Infringement | Moral Rights/Lanham Act Holding: Monty Python’s Flying Circus was heavily edited by ABC for U.S. airing without the group's approval, violating their contract. Edits exceeded the scope of the license and infringed Monty Python’s rights to control their work and false representation under the Lanham Act if they create confusion about the origin of the work.  - One who obtains permission to use a copyrighted script in the production of a derivative work, however, may not exceed the specific purpose for which permission was granted: The license required consultation with Monty Python for edits. ABC violated this condition. - the condition for the creation of the work is that changes must be approved. The fact that changes were made without approval is an infringement of their copyright. - MP also raises a Lanham Act claim: o US law does not have an express integrity right by statute. We use other things like Lanham Act 43(a) misrepresentation (being misrepresented as MP’s approved work). Court says MP has a valid cause of action under Lanham. Dastar v. 20th Century Fox (SCOTUS 2003): No Infringement | Moral Rights and Works in the Public Domain Holding: Dastar copied and repackaged a public domain television series without crediting the original, but the Court ruled that the Lanham Act doesn’t require attribution for public domain works. Dastar was not liable under the Lanham Act. - SCOTUS says this seems like they are trying to get a second bite of the apple by trying to secure perpetual copyright – if 20th’s theory was right, 20th could essentially police this public domain material. - VARA’s role in this analysis: congress limited moral rights to visual works, and if they wanted moral rights to apply to more things they would have done that. Castillo v. G&M Realty LP (2nd cir. 2020): Infringement | Moral Rights according to VARA Holding: Wolkoff violated VARA by destroying the artwork at 5Pointz. VARA protects works of "recognized stature" from destruction, and the court found that 45 of the pieces met this standard. - The court determined that the works achieved recognized stature based on expert testimony, media recognition, and the curatorial process overseen by Cohen. Even though some works were temporary, the court ruled that temporary art can still achieve recognized stature under VARA, citing examples of temporary works gaining acclaim, such as "The Gates" by Christo and Jeanne-Claude Note Cases: Massachusetts Museum of Contemporary Art Foundation, Inc. v. Büchel: An artist sued a museum for altering his unfinished installation without his consent and showing it to the public. While the artist couldn’t claim damages for the museum’s actions, the court allowed him to go to trial on the issue of whether the museum violated the integrity of his work under VARA. Remedies for attribution violations under VARA are limited to injunctions, not damages. Kelley v. Chicago Park District: For a work to be protected under VARA, it must meet copyright standards such as fixation and originality. VARA supplements copyright law rather than existing as a standalone right for artists. Kerson v. Vermont Law School: The artist sued after the law school planned to cover up his murals with panels due to offensive content. The court ruled that hiding the murals was not the same as modifying or destroying them, so it didn’t violate VARA. This decision was upheld on appeal. RIGHTS OF PUBLIC PERFORMANCE AND PUBLIC DISPLAY: § 106(4) of the Copyright Act: grants an exclusive right “to perform the copyrighted work publicly” to copyright owners of “literary, musical, dramatic and choreographic works, pantomimes, and motion pictures and other audiovisual works.” § 106(5) of the Copyright Act: grants an exclusive right “to display the copyrighted work publicly” to copyright owners of “literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.” § 101 defines both “perform” and “display”: - To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process - To “display” is showing a copy directly or via technology § 101 defines “publicly”: (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, regardless of whether they view it simultaneously. Two categories of places can satisfy the definition of “to perform a work publicly.” - The first category is self-evident; it is “a place open to the public.” (know it when you see it) - The second category, commonly referred to as a semi-public place, is determined by the size and composition of the audience (contextual) **First sale doctrine DOES NOT give you right to breach rights other than distribution. First sale does not preclude finding of breach of exclusive right to public performance. Case Law: Columbia Pictures Ind. V. Redd Horne Inc. (3rd cir. 1984): Yes Infringement | Public Holding: Maxwell’s operations to be a public performance and ruled it infringed Columbia’s copyrights. Maxwell’s private video booths were found to be a public performance because the service as a whole was open to the public. Customers paid fees akin to admission, making the operation more like a public theater than private viewing. - Maxwell’s never disposed of the tapes in its showcasing operations, nor did the tapes ever leave the store. At all times, Maxwell’s maintained physical dominion and control over the tapes. Its employees actually played the cassettes on its machines. The charges or fees received for viewing the cassettes at Maxwell’s facilities are analytically indistinguishable from admission fees paid by patrons to gain admission to any public theater. - In their showcasing operation, the appellants do not sell, rent, or otherwise dispose of the video cassette. Maxwell’s “showcasing” operation is a public performance, which constitutes a copyright infringement.... Cartoon Network LP v. CSC Holdings Inc. (2nd cir. 2008): No Infringement | Not public/ reproduced Holding: Did not infringe the public performance right because transmissions were individual, private, and not to the public. Did not violate the reproduction right because the temporary copies in the buffering process were too transitory. - The transmit clause requires examining the audience capable of receiving a given transmission: If a transmission is made to multiple people from a single copy, it is “to the public.” Here, each RS-DVR transmission was sent to a single subscriber from a unique recording created by that subscriber. - The 1:1 model (one copy for one user) meant that the transmission was not “to the public” but private to the individual subscriber. - Reproduction Right and Transitory Copies: The buffering process created transient reproductions lasting only 1.2 seconds. The court ruled these were too temporary to violate the reproduction right. Perfect 10 inc. v. Amazon.com, inc. (9th cir. 2007): No Infringement Holding: Google’s use of thumbnail images constituted fair use, and its in-line linking to full-size images did not violate Perfect 10’s reproduction, display, or distribution rights because no actual copying or direct display occurred. - In-Line Linking: No reproduction or copying occurs. Google simply provides HTML instructions to retrieve and display images from third-party sites (like "looking through a hole in paper"). In-line linking does not directly display images - Thumbnails: Thumbnails are reproductions but were held to be fair use due to their transformative purpose (Google didn’t just duplicate the images for the same use; it transformed them into smaller, low-resolution versions to facilitate information retrieval and enhance the functionality of its search engine). No distribution bc/ Google did not store or deliver the full-size images. “server test” ** Courts in the Southern District of New York reject the server test. In Goldman v. Breitbart News and Nicklen v. Sinclair Broad. Grp., the courts found that embedding a copyrighted image into a display constitutes public display, regardless of where the image is hosted. These courts argue that the Copyright Act should not rely on the technicality of where content is stored but rather on how it is displayed and perceived by users. FAIR USE: Fair use originated as a doctrine to balance the rights of copyright owners and the public, ensuring socially valuable uses could occur without stifling creativity or innovation. - “Categorical” fair uses: criticism, comment, news reporting, teaching, scholarship, research o If something is educational but for-profit, like a company printing course packs, maybe not fair use. News reporting taking verbatim copies of other news reporting is also probably not fair use. 17 U.S.C. § 107-- four non-exclusive factors to determine whether a use qualifies as fair: for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research 1. Purpose and Character of the Use o Key Question: Is the use transformative, adding new expression, meaning, or purpose, or is it simply superseding the original? § Transformative Use: A transformative use alters the original work in a meaningful way (e.g., parody, commentary, research tools like search engines). The more transformative, the more likely it is fair use. § Commercial vs. Noncommercial: Commercial use weighs against fair use but is not dispositive. Noncommercial use (e.g., educational or private enjoyment) leans toward fair use. 2. Nature of the Copyrighted Work o Key Question: How creative or factual is the original work, and is it published or unpublished? § Factual Works: Works with factual or informational content are less protected, favoring fair use. § Creative Works: Highly creative works (e.g., novels, music, art) are more protected, weighing against fair use. § Published vs. Unpublished: Unpublished works weigh against fair use because the copyright owner has the right to control the first public dissemination. 3. Amount and Substantiality of the Portion Used o Key Question: How much of the original work was used, and was it the "heart" or essence of the work? § Quantitative Analysis: How much was copied in proportion to the whole work? Using less generally favors fair use. (sometimes you need the whole thing for transformative use) § Qualitative Analysis: Taking the most important or memorable part of the work (even if a small portion) can weigh against fair use. 4. Effect on the Market for the Original o Key Question: Does the use harm the market for the original work or its licensing opportunities? § Market Substitution: If the new use serves as a substitute for the original work or its licensing, this weighs heavily against fair use. § Transformative Impact: A highly transformative use is less likely to harm the market because it serves a different purpose. § Evidentiary Burden: The copyright holder must show evidence of actual or potential market harm. **Warhol kind of ended easy transformative analysis Case Law: Harper & Row v. The Nation (SCOTUS 1985): NOT Fair Use Holding: The Nation published unauthorized excerpts from Gerald Ford's unpublished memoir, scooping Time Magazine's exclusive deal which is not fair use. Although news reporting is a fair use category, the use was non- transformative, unpublished, and took the "heart of the work." This harmed the potential market by voiding Time’s licensing fee. - ***Unpublished work weighs against a finding of fair use (less likely to be fair use than published materials))à the author should get to decide where the author wants to publish the work - Four Factors: NOT Fair Use o Purpose and character of use: news reporting is ordinarily favored but The nation is not a non-profit, therefore it is commercial. Key question is whether user stands to profit from publication of the material (question for commerciality) § Bad faith weighs against fair use – they didn’t steal it themselves but knew it was stolen o Nature of copyrighted work: This work is factual, so this weighs toward fair use; HOWEVER, unpublished nature weighs against fair use o Amount and substantiality of portion used: Quantity doesn’t matter here (13%) because the “heart of the work” was taken (This factor is not dispositive)  o Effect on the actual/potential market: court says this is most important. The Nation’s scoop caused direct harm to the market for the manuscript by causing Time to cancel its exclusive excerpt deal, resulting in financial loss. Sony v. Universal City Studios (SCOTUS 1984): Yes Fair Use | socially valuable use Holding: Sony’s Betamax allowed consumers to record TV shows. Universal alleged contributory infringement but it is Fair use. Time-shifting for private, noncommercial viewing was non-harmful and potentially beneficial to TV networks. Commerciality is less critical for private uses. - Four Facts: Yes Fair Use o Purpose and character of use: timeshifting is a private, noncommercial use. Those are just individual people engaging in the private. No one is selling recordings of these shows, its for personal enjoyment. o Nature of copyrighted work: these are more protectable by copyright, most of these works are expressive. Weighs against fair use a little. o Substantiality: all of the works are at issue (the entire show is being recording). However, the whole point is for them to watch the whole show. This factor is not v helpful here. o Effect on actual/potential market: if use is for noncommercial, meaningful likelihood of harm must be demonstrated by preponderance of evidence. TV networks could show loss of ad revenue due to private streaming, but they need to supply that evidence to successfully claim that. The court considers possibility of evidence but also lack of evidence. Evidentiary burden falls on plaintiff and they did not prove market harm. Campbell v. Acuff Rose Music Inc. (SCOTUS 1994): Fair Use | Intro to Transformativeness Holding: 2 Live Crew’s parody of "Oh, Pretty Woman" used substantial portions of the original but its Fair use. Parody is transformative, commenting on the original. Commerciality alone does not disqualify fair use, and the market harm claimed was not cognizable under copyright law. - Four Factors: Fair Use o Purpose/character of the use: court introduces transformativeness. A parody is transformative because it is commenting on the original authors work. Court tried to distinguish between parody and satire. Satire can stand on its own two feet and comments on society rather than the original work itself § Commerciality: court abandons presumption that commercial use is presumptively unfair o Nature of work: not particularly helpful in use of parody o Amount and substantiality: court says parodies require use of enough of the original to conjure up the original so we know it’s a parody. There is a world where a parody can take too much, so no bright line rule that all parodies are fair use. o Effect on actual/potential market: if the use is transformative, market harm may not be so readily concluded because the use is not a substitute for the original. This doesn’t mean there won’t be harm, but that harm is not the kind which the fourth factor is meant to address. Any harm emerging from successful parody is not cognizable under copyright act. **Sliding scale of transformativeness: the more transformative, the less important market harm, substantiality, commerciality, etc. Transformativeness being introduced despite not being in the text because its about understanding how the purpose and character can be fair when the statute is silent on such guiding criteria Bill Graham Archives v. Dorling Kindersley Ltd. (2nd cir. 2006): Fair Use | Historical Research as Transformative Holding: A Grateful Dead biography used concert posters as historical artifacts without permission but its Fair use. The posters were reduced in size, used in a transformative manner for historical context, and didn’t harm the posters’ licensing market. In a fair-use analysis, a work is transformative if it adds something new, with a further purpose or different character, altering the original work with new expression, meaning, or message. - Four Factors: Fair Use—All factors favor fair use o Purpose and character: Most important – Transformative § DK used the images for a different purpose (as historical artifacts in a biography) than the original purpose (promoting concerts). § Although the book is commercial, the use of the images was incidental and not exploitative, focusing on their biographical value rather than profit. o Nature of the copyrighted work: The images are creative works, which are strongly protected by copyright, but DK used them in a transformative way to enhance historical context, not their creative elements. This factor has limited weight because the focus was on historical value.  o Amount and substantiality of portion used: The images were reproduced in full but were significantly reduced in size and quality (such copying does not necessarily weigh against fair use because copying the entirety of a work is sometimes necessary to make a fair use of the image). The use was necessary to serve the transformative purpose of recognition as historical artifacts. o Effect on the market: DK’s use did not harm BGA’s primary market for selling posters or create market substitution. A potential licensing market does not count as harm if the use is fair, and past licensing fees do not prove market impact. Monge v. Maya Magazines (9th cir. 2012): NOT Fair Use | News Reporting and Transformativeness Holding: Maya Magazines published private wedding photos of Latin American celebrities without permission which is not fair use. The photos were non-transformative, used commercially, unpublished, and harmed the market for first publication rights. - Four Factors: NOT Fair Use o Purpose and Character of Use: News reporting is not automatically fair use. Maya cannot rely solely on this to justify its actions. No transformative use occurred since Maya’s publication did not alter or comment on the photos but simply presented them as-is. Maya’s use was for profit, which is presumptively unfair exploitation of the copyright. o Nature of the Copyrighted Work: The wedding photos, while not highly artistic, are creative works. The unpublished status gives the authors the right to control first publication, which Maya violated. o Amount and Substantiality of Use: Maya published all wedding photos and most wedding night photos without significant cropping or alteration. The publication included the “heart” of the copyrighted photos and far more than necessary to report the story. o Effect on Actual/Potential Market: The couple’s lack of intent to publish the photos does not negate the existence of a potential market, which Maya’s use undermined. Cambridge Univ. Press v. Carl v. Patton (11th cir. 2014): Holding: Georgia State University provided digital excerpts of academic books for free to students under a fair-use policy. Mixed results on remand. Educational use favored fair use, but licensing availability for some works weighed against it. Transformative use wasn’t determinative in educational contexts. - Four Factors: remanded to district court, 41/48 claims determined to be fair use o Purpose and Character of Use: Not Transformative, the use involved digitizing and distributing works, not altering or commenting on them. Noncommercial, educational use favors fair use but is not dispositive. The works were provided for free, which weighs in favor of fair use. o Nature of the Copyrighted Work: The works were taken verbatim, which weighs against fair use. Their scholarly nature alone does not justify fair use. o Amount and Substantiality of Use: The court deferred this issue, noting it depends on whether the amount taken was appropriate for the educational purpose. TBD ON REMAND o Effect on Actual/Potential Market: the big issue here is that some but not all of the works at issue have a workable licensing market. § If a licensing option exists, failure to use it weighs against fair use. § If no licensing is available, educational purpose outweighs market harm. Perfect 10 v. Amazon: Fair Use | Search Engines and Transformativeness Holding: Google used thumbnail images from Perfect 10 in its image search results which is Fair use. Thumbnails were transformative, serving a new, functional purpose (searchability), and did not harm the market for full-sized images. - Four Factors: Fair Use o Purpose and Character of Use: Even if it is an exact copy, it can still be transformative if it is being used for a different purpose. A thumbnail provides an informative function because it provides more info about the image. Purpose of thumbnail: to enable the search functionality of google, not to provide a marketplace for images. (noncommercial) o Nature of the Copyrighted Work: weighs in favor of Perfect 10 because photos are creative, but impact of factor 2 is limited by first factor weighing toward fair use. Already published, so not entitled to unprotected work protection o Amount and Substantiality of Use: using whole image, but need to use whole image for transformative purpose (see DK). Also smaller image is of lower quality  o Effect on Actual/Potential Market: small, low rez images are not a market substitute for the full-rez photo. However, court says this favors neither party **Key takeaway: what makes this transformative is that the functionality of the search engine technology as opposed to the aesthetic value of the images themselves Authors Guild v. Google Inc. (2nd cir. 2015): Fair Use Holding: Google digitized books, allowing snippet views and search functionality and its Fair use. The use was highly transformative, enabling public access to information without substituting for the original books. - Four Factors: Fair Use o Purpose and Character of Use: Google’s purpose is to make significant information about books available, allowing users to identify whether books contain specific terms, which favors Google. Similar to Perfect 10, this search functionality is transformative because it provides information about the underlying work rather than reproducing the work itself. Even though the tool generates revenue, transformative uses can still have markets without excluding them from fair use. o Nature of the Copyrighted Work: While much of the information is factual, this does not make it free to copy; however, this factor is neutral and less significant compared to the work’s transformative purpose. o Amount and Substantiality of Use: Google only uses what is necessary for the search function. Snippet function: google put in safeguards to prevent users from accessing too much of the work through the snippet function. This means the snippet function cannot be used instead of buying the book. o Effect on Actual/Potential Market: It is rare for a user’s needs to be fully satisfied by the snippet tool instead of the original work Andy Warhol Foundation v. Goldsmith (SCOTUS 2023): NOT Fair Use | ERODES TRANSFORMATIVNESS Holding: Andy Warhol’s Orange Prince illustration based on Lynn Goldsmith’s photograph was used in a magazine without Goldsmith’s permission which is not fair use. The use wasn’t transformative enough in purpose, serving the same commercial function as the original photo. The "purpose and character" of a use must be sufficiently distinct from the original work to qualify as transformative under the first fair use factor. - The first factor looks at how and why the work was used and whether it adds something significantly new or transformative. It’s not just about whether the work looks different; it’s about the purpose for which it’s used. Orange Prince is used for the same purpose as Goldsmith’s: accompany an article about Prince. - Transformation Requires More than Aesthetic Change: Warhol flattened, colored, and stylized the photo, but this didn’t change its purpose. Both works were used as illustrations to depict Prince in a magazine article, making them substitutable in the market. o The Court emphasized the “market substitution problem.” If a derivative work can replace the original for the same purpose, it’s less likely to be transformative. - The fact that Orange Prince was licensed for profit weighed heavily against fair use. Transformative uses can still involve profit, but here, there was no sufficient transformation to justify this commercial use. - Overly broad definitions of "transformative use" could erode the copyright holder’s exclusive rights to create derivative works. Transformative uses must have a sufficiently distinct purpose or character from the original work to fall outside the scope of derivative work rights. - The Court didn’t evaluate whether the Prince Series was transformative overall. Instead, it focused on whether the specific use of Orange Prince by Condé Nast was transformative. SECONDARY LIABILITY: Secondary liability applies when someone indirectly contributes to or benefits from someone else's copyright infringement. They didn't commit the infringement themselves, but their actions enabled or encouraged it. Think of it like someone providing tools or a space for infringement. Types of Copyright Liability: - Direct Liability: Relates to those who commit the infringing act directly. - Secondary Liability: Applies to parties who are not directly infringing but are connected to or benefiting from the infringement by aiding, controlling, or encouraging it. Two Types of Secondary Liability— (you only need one to succeed in court) 1. Vicarious Liability: Control and financial benefit (no knowledge required). o Test: § (1) The defendant has the right and ability to control or supervise the infringing activity. § (2) The defendant has a direct financial interest in the infringement. 2. Contributory Infringement: Knowledge and material contribution. o Test: § (1) The defendant has knowledge of the infringing activity. § (2) The defendant induces, causes, or materially contributes to the infringement. o Napster Test: for online platforms or internet-based systems accused of secondary liability ONLY § Contributory infringement exists if a computer system operator has specific knowledge of infringing material and fails to remove it **Key Factor: How close are you to the infringing act? - Direct involvement: Providing tools, space, or infrastructure (swap meet, Google linking images) → Secondary liability likely. - Indirect involvement: Offering a general service (payment processing, internet access) → Too far removed for liability. Case Law: Fonovisa v. Cherry Auction (9th cir. 1996): vicarious and contributory liability Holding: Guilty of vicarious and contributory liability. Despite being aware of infringement after a raid uncovered 38,000 counterfeit recordings, Cherry Auction continued hosting the swap meet without addressing the issue. - Vicarious Liability o (1) Cherry Auction controlled the event (managed vendors, admissions, and promotions). o (2) Cherry Auction had direct financial interest through vendor fees/other revenues from swap meet. - Contributory Liability o (1) Cherry Auction had knowledge of infringement after the raid and notification by authorities o (2) Cherry Auction materially contributed by providing facilities (e.g., tents, spaces) Perfect 10 v. Amazon (9th cir.): Liable Holding: Liable. Contributory infringement exists if a computer system operator has specific knowledge of infringing material and fails to remove it but found Google not liable for vicarious infringement due to its lack of control over third-party websites - Contributory Infringement: Napster Test: A system operator must have specific knowledge of infringement and fail to act to remove or disable access to the infringing material. o remanded to determine whether Google had specific knowledge of the infringing images -- While Google could theoretically block infringing sites, the scale of the internet made this impractical without advanced tools or human oversight - Vicarious Infringement: o Google did not meet the control prong because it lacked contractual or practical ability to control third- party websites hosting the infringing material § websites could continue infringing activity even after being removed from AdSense. o did not address the financial benefit prong because the control prong was not satisfied. Perfect 10 v. Visa Int’l Service Assoc. (9th cir. 2007): Not liable Holding: Visa and other payment processors were not liable for contributory or vicarious copyright infringement because their actions were too far removed from the infringement, and they lacked the right or ability to control third-party websites. - Contributory Infringement: o The court did not address Visa’s knowledge because Perfect 10 failed to show material contribution. Payment processing was deemed too attenuated from the infringing activity, - Vicarious Infringement:  o the right and ability to supervise is not met here, they cannot control third-party platforms. Rejects AdSense argument in last case, these parties are not in contract with parties. Visa does not have right to control. Online Service Provider “OSP” Safe Harbor § 512 of the Copyright Act provides rules that limit the secondary liability of online service providers, particularly by defining “safe harbor” provisions to shield compliant providers from liability under specific conditions. - Four Categories of Activities Covered by Safe Harbor: o Transitory Digital Network Communications: Protects OSPs that act as intermediaries transmitting data from one point to another without modifying the content. o System Caching: Temporary storage of data to improve the efficiency of data delivery. o Storing information on its system at users direction (512(c))- Most relevant for JNV. § Protects platforms like YouTube or Facebook where users upload content. o Providing Information Location Tools: Applies to search engines like Google, which direct users to content hosted elsewhere. Conditions to Qualify for Safe Harbor: 1. OSP Engagement: The provider must engage in system caching, storing information at users’ discretion, or another covered activity. 2. Basic Technical Security Protections 3. Notice and Takedown Regime: OSPs must remove or disable access to infringing material upon receiving a valid notice of infringement. Notice and Takedown § 512(f) - What It Does: It stops people from abusing the DMCA takedown system by punishing false claims. - When It Applies: If someone knowingly lies in a takedown notice (claiming something is infringing when it isn’t) or in a counternotice (claiming something isn’t infringing when it is). - What Happens if They Lie?: They can be sued for damages, like legal fees or harm caused by the false claim. Case Law: Lenz v. Universal Music Corp. (9th cir. 2016): (Don’t need for exam) Holding: Copyright holders must consider fair use before sending a takedown notice. Good faith belief - The court did not require a rigorous fair use analysis but emphasized the need for at least consideration. Liability for Device Manufacturers/ Technology: Sony Safe Harbor: If a device is capable of substantial noninfringing uses, the manufa