Intellectual Property Law - Copyright Law PDF

Summary

These notes cover copyright law, discussing cases like Feist v. Rural and the concept of originality. It explains the difference between copyrightable expression and uncopyrightable facts, along with the idea/expression dichotomy. The text also explores different cases and examples related to copyright infringement.

Full Transcript

UNIT ONE: COPYRIGHT LAW L1: INTRODUCTION Readings: pp. 531-536 (Feist v. Rural) - This case requires us to clarify the extent of copyright protection available to telephone directory white pages - Rural Telephone Service Company - a phone service in Kansas has to issue an updated telepho...

UNIT ONE: COPYRIGHT LAW L1: INTRODUCTION Readings: pp. 531-536 (Feist v. Rural) - This case requires us to clarify the extent of copyright protection available to telephone directory white pages - Rural Telephone Service Company - a phone service in Kansas has to issue an updated telephone directory every year - they distribute this directory for free but make money by selling yellow page ads - Feist Publications is a publishing company that specializes in area-wide directories - they have 46k white page listings compared to Rurals 7k. It also distributes for free and makes money off ads that they compete with Rural over - Because Rural is a telephone company, they get subscriber info easily and since Feist is not, they had to reach out to all 11 telephone companies in Kansas and offered to pay for the right to use its white page listings. All said yes but Rural. To avoid having a gap in info, Feist had to hire people to investigate the 5k listings remainings and along the way copied 4 fake listings Rural inserted to detect copyrighting. They sued. - Two well-established propositions interact here: facts are not copyrightable, and compilations of facts generally are. - “The most fundamental axiom of copyright law is that “no author may copyright his ideas or the facts he narrates” - Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place - yet copyright law seems to contemplate that compilations that consist exclusively of facts are potentially within its scope - To solve this we need to understand why facts are not copyrightable. Original means the work is independently created and possesses at least some minimal degree of creativity. Originality is a constitutional requirement - “The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author.” - Facts do not owe their origin to an act of authorship. The first person who finds and reports a fact did not create the fact but merely discovered its existence. Factual compilations on the other hand are different because the author has to choose which facts to include, what order to place them, and how to arrange it all. This requires enough creativity that would suffice protection. But without copyright protection, an author can take the facts and rearrange them as they please - To establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original - as per Harper & Row 471 US - First element not at issue here - Feist agrees Rural’s directory is subject to a valid copyright - Second element at issue - did Feist copy anything original to Rural? The raw data (names, phones, addresses) doesn’t satisfy the originality requirement - they are uncopyrightable facts. As for the selection, coordination and arrangement of Rural’s white pages… they did not satisfy the minimum constitutional standards for copyright protection. They are entirely typical white pages, devoid of even the slightest trace of creativity. Selecting to publish names and phone numbers is also not original because it is required to do so by the Kansas Corporation Commission. And the coordination/arrangement of facts are in alphabetical order - there is nothing creative about this. - To conclude - Feist won this case because the names, towns and phone numbers copied by Feist were not original to Rural thus not protectable by their copyright - WHAT’S THE POINT OF HAVING COPYRIGHT THEN? IT SERVED THEM NOTHING Discussed: - Google inc v Delaware Corporations, Youtube - islamophobic movie with a young girl that was paid 500$ to film for 3 days and they edited her parts to say something like “your prophet was a rapist” - Re Edwards R. Reines - Chief Judge Rader said some stuff discussed by judges in weekly secret social outing to a lawyer that presented before him and the lawyer forwarded it to his clients and the judge stepped down two days later - Pharrell Williams v. Bridgeport Music - Robin Thicke’s song and Sam Smith’s “stay with me” song that sounds like another song - Patenting a Peanut Butter & Jelly Sandwich - Texas patenting so much - ReDigi Commencement of Copyright - Copyright is a rule against copying. It's a property right that stops acts of copying. - Its movies, televisions shows - works of authorship. And copyright is a property right in works of authorship, and they are intangible. Copyright goes to what is stored in the book, not the physical book. - It's copying in a rich sense because one of the two defining rules of copyright law is a rule that says independent creation is not infringed - so if you didn’t copy, I don't care how similar it is, it's fine. - To show you infringed my copyright I have to show you copied from me - but this is not true for patent law. If you’re not copying me but you make the same thing as me and I have a patent.. - The second/other big idea is expression dichotomy. It protects creative expression but it doesn’t protect the underlying ideas. Ex. I write a book about someone, my copyright stops someone from taking my phrases and sentence structures - Copyright monopoly - independent creation and expression dichotomy - Expression vs idea? What is protected and what is not? - Star Trek got heavily funded after Star Wars.. - Steven Spielberg never opened his mail so he was never assumed of stealing someone’s idea for a movie - We have copyright law because there is a work of authorship that comes from its author, and there’s a relationship here that should be honoured and protected by law - The law really focuses on economics and strategy - Do we really need copyright? Authors can make money without having to control their books of authorship - ex. Madonna who gave the music away for free and people would pay to attend her concerts. Or Star Wars - he made more money on the action figures so you can make your money in different other gained ways, so sometimes we can let go of the copyright. What about a small band that can sell music online and make money better than having concerts? L2: FACTS AND INCENTIVES THE CONSTITUTION OF THE UNITED STATES OF AMERICA Article 1, Section 8, Clause 8: The Congress shall have the 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 - The original conception was that I will give you limited period of time rights for what you bring to the table - We solicited things we value - the government sometimes gives grants. But we didn’t trust the government to create a list of all the things we wanted to see - what to endorse and at what price tags - so the Constitution says no. Instead, you can reap what you sow. The government will just give you the rights, but they don’t pick winners - the MARKET does. - This was a huge genius step - and can be compared to the UK who did things differently. Instead, they would say what they wanted, which was at the time GPS’ for ships, and they would pay lots for people who invented it - but then would tell the public how they invented it so they can invent even more - An incentive based system says just a limited time, just enough - no more. - We have the Copyright Act of 1976 - beautifully written - still use to until today with some edits because it works perfectly Section 102, Subject Matter of Copyright in General: (a) Copyright protection subsits, in accordance with this title, in original works of authorship fixed in any tangible medium of expression (what’s stored in the physical pages of a book; the images and sounds recorded on film), 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. Works of authorship include the following categories (1) Literary works (2) Musical works, including any accompanying words (3) Dramatic works, including any accompanying music (4) Pantomines and choreographic works (5) Pictorial, graphic and sculptural works (6) Motion pictures and other audiovisual works (7) Sound recordings; and (8) Architectural works - You don’t get your right to subsist until your intangible is associated with something tangible, when the book is just in your head, its not protected. When it's written on your laptop, fine. While we protect the intangible, it has to be in a tangible form which is what it will become eventually and once you’ve developed your intangible into tangible, then it will be protected (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. - When there's tension, expression loses. Copyright will never lock up ideas (ot procedure, process, system etc) - Congress refuses to get in the way of free flow of ideas, just protecting expression Section 102 - Definitions - A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by ord 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. A work consisting of sounds, images, or both that are being transmitted, is ‘fized’ for purposes of this title if a fixation of the work is being made simultaneously with its transmission. Section 106: Exclusive rights in copyrighted works: Subject to sections 107 through 122, the 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; - THINK PHOTOCOPYING THE BOOK, STRIPPING THE CD, MASS-PRODUCING THE CD ETC (2) to prepare derivative works based upon the copyrighted work; SEQUELS, PREQUELS, LUNCHBOXES, TSHIRTS (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; DISTRIBUTION RIGHTS (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 picture 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 transmission. - IGNORE, awkward attempt - something about radio stations Summary - CONSTITUTION, 102A, 102B - IDEA/EXPRESSION, 106 - BUNCH OF RIGHTS Idea/Expression - Baker v Selden - You can’t photocopy his table but you can draw his own - Morrissey v. Procter & Gamble - Is this Baker v Selden again? - We learned independent creation is an absolute defence - now what? - Let’s say I copyrighted a book and told my favourite author about my idea and told her to write it on her own… no checkmate - The court’s concern seems to be that this would lock down the use of sweepstakes; we have one and only one. Is this true? Then do we really want copyright law to monopolize anything? It doesn’t lock it up - I can always write my own expression. Somebody might write a bunch of versions and exhaust all possible future uses, but this isn’t true. I will go to someone and tell them the idea and get them to write their own expression, this doesn’t infringe any copyright and it doesn’t lock the idea up. - Is this an issue of practicality? What if a big company sues every small company…? Dismissed - Ideas can only be expressed in a limited number of ways - we will see similarity in the wild, and we will think of copying.. But when we see similarity, we can begin to introduce painful legal processes… we like having a legal system where similarity allows us to begin serious painful legal processes, because extreme similarity is copyrightable. That’s his checkmate point - when you have a work that can only be expressed in a certain number of ways, you will, even if you do everything right, see massive similarity in the wild… of course because there’s only a few ways to express it. People will express it in similar ways. We don;t want litigation as it will be a drag on the smaller party and on the courts, and so we take a category of things that can be expressed in limited amount of ways and cut it out of the copyright system, even though it might be valuable or not.. Even one of those.. We have a drag on independent creation. Of course it’ll look similar. So Morrissey says there may be a couple expressive ways, but we won’t protect those too because its a practical matter. If we protect expressions like this, we drag down ideas. We will inevitably see similarity. - For some things there can only be a limited number of plausible responses, and in those instances, the complex system would have trouble - so today we have the merger doctrine. Some expression is so tied to the idea that it mergers with the idea, and becomes undetectable. - Feist v. Rural - You’d go to the phone company and say hi I just moved here I need a phone number so they’d get your name and where you live and give you a number and sync it to their directory. They would drop off annually updated copies on your doorstep. - There was competition because they made money off of ads. - Why did the SC not protect those who didn’t put in the hard work? Feist actually put in hard work to put all the info together and Rural just went ahead and copied it - sweat of the brow. Why are we not sympathetic to the hard work they put in? Well copying facts can be too similar to the merger doctrine - This was a tough case at the supreme court because there were two potential copyright issues to consider… - There needs to be more creativity than just alphabetical order.. I compiled the info and they clearly copied it, sweat of the brow you shouldn’t care if its creative enough or not you should care that they ACTUALLY copied it all. But then would we be protecting sweat or creativity? - Modern Examples Readings: pp. 571-574 (Baker v. Selden) - Charles Selden obtained a copyright in 1859 for a book titled “Selden’s Condensed Ledger, or Book-keeping Simplified,” which explained a system of bookkeeping. Additional copyrights for related works were obtained in 1860 and 1861. - The complainant (Selden’s successor) filed a suit against Baker, alleging copyright infringement. Baker denied that Selden was the original author or designer of the books. Baker also argued that the matter alleged to be infringed was not a lawful subject of copyright. - The court examined whether the copyright on Selden’s book granted exclusive rights to the bookkeeping system itself. - The book contained an introductory essay and forms or blanks illustrating the bookkeeping system. While Selden’s system used a specific arrangement of columns and headings, Baker used a different arrangement. - Legal Distinctions: - The court highlighted a distinction between a book as a literary work and the art or method it describes. - A book explaining a method (like bookkeeping) can be copyrighted, but the method itself cannot be exclusively owned unless patented. - Copyright protects the expression of ideas (e.g., the book), but not the ideas or methods themselves. - Copyright protects the specific way an author expresses an idea but does not grant exclusive rights to the idea or system described. - The court used examples like treatises on medicine or manufacturing to illustrate that the copyright of a book does not extend to the exclusive right to practice the methods described in the book. - Selden could have secured exclusive rights to the system through a patent, not through copyright. - Final Decision: The court ruled that blank account books are not subject to copyright. Selden’s copyright on his book did not give him exclusive rights to the bookkeeping system or the specific arrangement of account books described. The Circuit Court’s decree was reversed, and the complainant’s bill was dismissed. pp. 590-592 (Morrissey v. Procter & Gamble) - Morrissey, the plaintiff, held a copyright for a set of rules related to a sales promotional contest (a sweepstakes) that involved participants using their social security numbers. Morrissey alleged that Procter & Gamble Company (the defendant) copied “Rule 1” of his contest rules almost exactly. - Defendant’s Defense: - Procter & Gamble argued that “Rule 1” was not copyrightable material and that they did not have access to Morrissey’s rule when creating their version. - Court’s Analysis: - The district court sided with the defendant, ruling that the substance of the contest (the rules for participation) was not copyrightable. - The court cited precedents that established that methods or systems (like contest rules) cannot be copyrighted, only the expression of those ideas can be. - While Morrissey argued that copyright should apply to the specific wording (expression) of the rules, the court noted that when the subject matter is very simple and narrow, allowing copyright could unfairly limit the public’s ability to use the underlying ideas. - Conclusion: - The court determined that the simplicity and straightforward nature of the contest rules meant that copyright protection could not be extended to Morrissey’s expression of the rules. - The ruling was affirmed in favor of Procter & Gamble, stating that even if they had copied the rule exactly, Morrissey could not claim infringement because the subject matter itself was not copyrightable. L3: THE IDEA: EXPRESSION DICHOTOMY REWATCH FIRST 15 MINUTES OF CLASS Readings: pp. 578-590 (Lotus, including Notes) - LOTUS DEVELOPMENT CORP v. BORLAND INTERNATIONAL - US Court of Appeals for the 1st Circuit - BACKGROUND: - Main question: whether a computer menu command hierarchy is copyrightable subject matter - Why: because Lotus’ copyright in their Lotus 1-2-3 computer spreadsheet program was infringed by Borland when they copied their program into their Quattro and Quattro pro computer spreadsheet programs - The Lotus 1-2-3 is for performing accounting functions on your computer - it has 469 commands arranged through more than 50 menus and submenus. It also allows for macros - making up keyboard shortcuts - Borland released its first Quattro programs with a “virtually identical copy of the entire 1-2-3 menu tree”, by copying the words and structure of the menu but not Lotus’ underlying computer code - they did this so people can easily switch to Borland’s program without having to learn new commands or new macros - 3 years later, Lotus filed this action, after a district court held that Lotus’ 1-2-3 menu structure and its terms were protected expressions under Lotus’ copyrights. The court granted Lotus’ motion because the menu command hierarchy was copyrightable expression since there’s millions of ways you can create one. - Right after the district court’s summary judgment, Borland removed the Lotus Emulation interface, resulting in Borland’s users no longer being able to communicate with its programs, other than with the “Key Reader”. In Phase II trial decisions, the court found this Key Reader to have a virtually identical copy of the Lotus menu tree structure - which constitute part of the protectable expression found in Lotus. They argued that they lawfully copied the unprotectable menus of Lotus, and that this menu is not copyrightable because its a system. - DEFENCES: - A. Copyright Infringement Generally - Borland admits to factually copying the Lotus menu command hierarchy, as they concede that Lotus has a valid copyright in Lotus 1-2-3, making this appeal a little different - B. Matter of First Impression- Borland argues: “The facts of Baker v. Selden, and even the arguments advanced by the parties in that case, are identical to those in this case. The only difference is that the ‘user interface’ of Selden’s system was implemented by pen and paper rather than by computer.”... Those grids, however, are not at issue in this appeal for, unlike Selden, Lotus does not claim to have a monopoly over its accounting system. - D. The Lotus Menu Command Hierarchy: A “Method of Operation” Last Class - Copyright Statute - Baker v Selden - Morrissey v Procter & Gamble - Feist v. Rural (in part) - Selection, coordination and arrangements - My choices to the extent its expressive - they can be copyrighted - Can you get a copyright organizing by height? Have we found another loophole? What if its based off of smartness? Possibly because this is off of opinion - but does this trick stop the other side from copying? Stop them from using it into their phonebook? No because someone can creatively arrange it in a different way - This is law to protect compilations, if they’re original and does not imply any exclusive right in the preexisting material - SECTION 103!!! So you can get a copyright on compilations but if it does not affect protection of existing material. - Why did they not win the case based on fake listings? It was completely creative, fictitious listings. Why wasn’t that the lawsuit? They weren’t real facts, hence it was creative, but they held them out to be true so the court would treat them as real because we presented them as real. Or maybe they give you copyright only on the fake stuff - so we could ask for damages; because you took my fake names you made all this money and took all this money from me - avoided cost theory (having to go door to door and collect all the info). We can’t ask for an injunction because it would only take out the few names LOTUS v BORLAND - Lotus 1-2-3 and Quattro Pro - nowadays Excel and Google Spreadsheets (note: they still use the same menus today - open close save save as etc) - Macros - keyboard shortcut - you teach the computer once how to do a series of commands and then you save it for when you press control and wtvr else - so Lotus had all this. Lots of people made macros and got used to it. The code that you write that causes the computer to produce a reaction, this code is copyrightable. This isn’t very expressive and we can fight about that - but here let’s say there’s a lot of expression inside the code and lots of their artistic style is embedded in the choice and development of code. - Lotus says we want to own the menu hierarchy - our word choice maybe, our arrangement and how we laid everything out, and we’d like to own this entirely - we don’t your program to understand our macros - One of Borland’s arguments is - is this really an industry standard? This would hinder development and advancement.. But we never talk about advancing society with other cases - we not here? Lotus argued that the labels can say other things - copy and clone, close and quit… these buttons are not expressive but the labels are - Merger doctrine - when there are limited ways to close down the material it cannot be copyrightable - the district court would argue there are other ways to capture the words or draw pictures but this is not what the appellate court concluded in the end - The Merger Doctrine. The Morrissey case applies what has come to be known as the “merger” doctrine: when there is only one or but a few ways of expressing an idea, then courts will find that the idea behind the work merges with its expression and the work is not copyrightable. - The object of one is explanation and the object of the other is use - - Lotus chose words that stuck in memory - they have still till now - With Quattro Pro they tried to do something else - same menus and plus our own menus but you can use something called emulation, which switches over to using either Lotus’ words or our words. So they could be identical from the get go, identical if you ask, or able to interpret your macros. Let’s dig into the 3 distinctions, we’ve spread out methods and made some adjustments. WE’RE TRYING TO MAKE SPACE - If you want to move and you don’t want to reprogram all your macros - you don’t have to , and you don’t have to feel locked in. - New customers - you will make macros in our new software so you won’t need Lotus and if you do then we’ll give you Lotus’ menu so you can get used to it - Lotus shouldn’t be disfavoured because they made such an amazing product that no one can replicate - Quattro should make a better product, at some point someone will switch over and make new macros. The lock in is how I make money from my good inventions. Come compete but you have to be that much better to gain market share. Court uses example of the QWERTY keyboard - there are other keyboards that came to play but they didn’t stick around because they got used to it. Facebook and X have lock in benefits and no one has officially made anything better or else people will break lock in and move. - We’ve watered down innovation - we still use the same menu systems - In the end Quattro Pro lost to Excel who took over the market - so be careful what you wish for QUESTION: how is it a method of operation if its just operations for their program? Example: CCC Information Systems v. Maclean Hunter Second Circuit 1994 - Used car books - how do they compare to white pages directory? There is a bit more expression that goes into them.. Does this give us what we need? As long as I get the selection coordination of the readings? If I’m setting up Kelly Bluebook, what do I need to do? They have to protect their valuations and how they’re coming to ther numbers - which requires a degree of creativity. Am I comfortable though being labeled as creative? We want to be based in fact, we want to get the valuation right. We can get the dealerships to back us, we create lock in and there’s some reliability - but then you might lose trust if you see kelly and the dealerships are in business together so we can easily go to another website and try to find a higher valuation - Let's say they try to argue creativity. Two problems: marketing, and when they announce their valuation, it becomes the truth, especially due to insurance companies - they will look up the value of your car on kelly. They’d like to say they are facts but once the blueblook becomes so important in the market, their values become correct and once they’re in the book they become facts - “We find that the selection and arrangement of data in the red book displayed amply sufficient originality to pass the low threshold requirement to earn copyright protection. This originality was expressed, for example, in Maclean’s division of the national used car market into several regions, with independent predicted valuations for each region depending on the conditions there found…” - “Secondly, the valuations copied by CCC from the Red Book are not ideas of the first, building-block category described in Kregos, but are rather in the category of approximative statements of opinion by the Red book editors. To the extent that protection of the Red Book would impair free circulation of any ideas, these are ideas of the weaker category, infused with opinion; the valuations explain nothing, and describe no method, process or procedure. Maclean Hunter makes no attempt, for example, to monopolize the basis of its economic forecasting or the factors that it weighs; the Red Book’s entries are no more than the predictions of Red Book editors of used car values ofor six weeks on a rough regional basis…” - The court sees this creativity - how and where to input certain details into the math, using factors that drive up and down the price - But valuation is still subjective - that’s why its a valuation and not the firm price.. Can this help them? - kinda because they want their prices to seem firm and not subjective but fully accurate - FIGURE OUT WHY YOUR CLIENTS UPSET - THAT’S YOUR WINNING ARGUMENT. If you don’t understand why they’re upset you can’t possibly win the case. They are the best source of the legal arguments L4: AUTHORS AND OWNERS Readings: pp. 623-629 (CCNV v. Reid) ; pp.635-646 (Childress, including Notes) TODAY - idea/expression - authorship/ownership - WFH - Joint authors - Duration - Termination Authorship / Ownership - Copyright rights are originally assigned to the relevant author or authors - Copyright rights can then be moved by contract to different owners - Just because you’re the author does not mean you are the owner - you could write a book and then Penguin books can publish it and become the owner SECTION 201 - If we are authors of an independent work we can both use it and we are authors of the joint work and we share whatever value we get from it. If i want to give out exclusive right as an author then all authors have to agree - WFH - the employer is the author and copyright goes to the employer - unless the parties read otherwise in a contract. Law’s saying its originally on the employer unless clearly stated in a contract - Author can move things to owners - TRANSFER OF OWNERSHIP - Just because I’m the author doesn’t mean I can’t cut deals and transfer this ownership - Authors get all the rights originally and then they can transfer a slice of that - ex. The right to make tshirts or the right to make a movie of my book BUT NOT SEQUELS. Our contract would have to be VERY CLEAR on how far you can use these rights - ex can you make tshirts based on the movies? Depends on our contract. Subdivide rights by contract and move them. SECTION 202 - - The book is a tangible object. The work of authorship is stored in the book and it is an intangible, fixed in a tangible medium. Copyright is by the intangible not tangible. - I can own copyright but this doesn’t mean they own the physical book - they sold these physical - Ownership of copy is different from physical embodiment - Very first fixed ownership - what if this is in legal possession of someone else - does this give them rights? - Does the band have any authorship ownership or control from the releasing of their first album by the producer - since he has the only fixed copy. Having possession of this copy of ownership does not give him the right to produce it own it distribute it etc SECTION 204 - - TRANSFER IS NOT VALID UNLESS SIGNED. WRITE IT DOWN AND SIGN IT. Evidence and clarity. - NONEXCLUSIVE does not have to be in writing - “Transfer of copyright ownership is an aissignemnt, mortgage, exclusive license, or 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”… SECTION 101 DEFINITIONS. These do not have to be in writing But who cares? - Matters if it is hard to transfer ownership from certain authors to other entities - In these situations, authorship is an important default. - When the law says you’re the author - if they won’t move the rights afterwards, the copyrights have to be able to go to the right person Also matters for… - Duration - Termination - When I choose the author, that’s how I choose copyright duration (how long copyright lasts) and termination - an idea in CR right that says when an author moves rights to another owner, after a certainperiod of time, the author can renege on the deal. You can terminate the transfer. I am the author and i go to DC comics and I sign a contract moving all the rights to DC, so they have all the rights to these movies, then after they build up all my movies, I can terminate these rights and all these legit certified bulletproof contracts. - Why would DC/marvel or whoever sign if there’s a sunset clause on their rights? - WFH - they don’t have these termination rights SECTION 302 - DURATION OF COPYRIGHT: WORKS CREATED ON OR AFTER JANUARY 1, 1978 - - The life of the AUTHOR. Plus 70 years. We need to know who the author is. IF THERE ARE TWO AUTHORS then its the last surviving author plus 70 years - Anonymous works/WFH - we don’t know when they died or if it belongs to a company where they’re still alive… 95 years. SECTION 203 - TERMINATION OF TRANSFERS and licenses granted by the author Authorship/Ownership Summary - Defines first owner - Determines duration - Creates termination rights Who can be an author? - WHO CAN GET COPYRIGHT DETAILS BY DEFAULT? - Someone who originates expression? - Could be a work made for hire - a work prepared by an employee within the scope of his or her employment. THE EMPLOYER GETS THE RIGHTS. There’s no termination rights. The measuring of duration not based on heartbeat. - Work prepared by employees during their 40 hours of work, get health benefits, taxes, and their job is to create expressive materials. They get paid regardless if they generate creative content or not. - Another way to create WFH - a work specially ordered or commissioned, for use as a ….. Long list - Someone with just ideas? - Someone who provides financing? - Someone who simply takes a photo? - An employer can be an author if satisfies the definition of “work made for hire” - TWO PRONGS: employee in scope of employment and written agreemtn WORK FOR HIRE - - WFH - a work prepared by an employee within the scope of his or her employment. THE EMPLOYER GETS THE RIGHTS. There’s no termination rights. The measuring of duration not based on heartbeat. - 1. Work prepared by employees during their 40 hours of work, get health benefits, taxes, and their job is to create expressive materials. They get paid regardless if they generate creative content or not. - 2. Another way to create WFH - a work specially ordered or commissioned, for use as a ….. Long list. HAVE A WRITTEN DOCUMENT. CCNV v REID - WHO OWNS IT AND WHO HAS PHYSICAL POSSESSION OF IT? Ownership and authorship are different - They fought over the physical embodiment of a copyrighted work - just because he’s the author doesn’t mean he’s the owner - How does litigating the copyright lawyers solve the problem? - In the Copyright Act, it states sculptural works stays with the author - Prong two of s101 doesn’t matter because it requires an expressly written contract - so sculpture not fitting the nine categories of specifically ordered or commissioned works doesn’t matter Who else can be an author? - WFH - yes as seen in CCNV v REID - But also … someone who helps to create a joint work as that phrase is defined in the statute, subject to judicial gloss CHILDRESS v TAYLOR 1991 - Two people fighting over if theyre both authors. One brought in lots of research and the other did the pen to paper expression. We have an expressive work protected by copyright in the end - so its not Feist. It is protectable. Question is - is there one author or two? - Court says there’s one author - the one that did the work. - Second author merely brought the instrumentalities to get the work done. Why are we rolling eyes to this contribution? Facts and details are nothing to copyright - but once we have something to copyright and 2 individuals collaborated, the other doesn’t count? - Both authors have to bring in copyrightable contributions. Bringing facts is not copyrightable. - Congress says that a “joint work” from s101 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. Congress didn’t say both need to bring copyrightable contributions. The court said this and they’re making up the law. Some fast talking lawyer convinced the court that they needed to further constrain the law. They were worried that if they didn’t add guardrails there would be too many people entering to claim authorship. - Author is who gets the rights BY DEFAULT. Taylor says it's her because she contributed as well. - Because it was WFH, what she contributed to the play should not have needed to be expressive L5: SECTION 106 RIGHTS Authorship/Ownership - Copyright rights are originally assigned to the relevant authors - Copyright rights can then be moved to owners - Who can be au author? Having made joint work, or making creative expression fixed into a medium - Why should we care? - Who can be an author - 201a, 201b, 206 -1,2,3,5 - 201a - work made for hire - 101 - definition section - two prongs - employee in scope of employment and WFH Readings: pp. 666-675 (Arnstein, including Notes) ARNSTEIN v. PORTER, US COURT OF APPEAL FOR SECOND CIRCUIT 1946 - P claimed D infringed his copyright on various songs of his - Plaintiff offered no direct proof that D saw or heard these songs - P claimed a copy of the song had been stolen from his room - and that D must have had to do with it. D testified that he had no connection to the theft and has never heard P’s songs - Principal question: if the lower court properly deprived P of a trial of his copyright infringement action - Both issues - copying and improper appropriation - is an issue of fact - CHILDRESS V TAYLOR - EACH AUTHOR MUST BRING INDEPENDENTLY COPYRIGHTABLE EXPRESSION. THE INTENT HAS TO BE FOR LEGAL OUTCOME, not just intent to merge. How can rights move? - In any subdivisions - Exclusive and non-exclusive - If moving, do it in writing - 201(d) - TRANSFER OWNERSHIP IN WRITING - Exclusive better be in writing, non-exclusive does not need to be - S202 - moving physical embodiment vs work of authorship Why should we care? - Defines the first owner (default) - Determines duration - Can create termination rights Our Flow - CCNV v. reid - WFH - Childress v taylor - JOINT WORK - Courts fear is opening a can of worms - Aalmuhammaed v lee - Google v Garcia - Duration - Termination - Section 106 Aalmuhammed v. Lee - His favorite case on joint work - about the movie Malcom X - A joint work must include all authors to make an independently copyrightable contribution - they acknowledge Childress v Taylor - P passes the childress test by claiming he wrote several specific passages of dialogue that appeared in Malcolm X, on top of all the non-copyrightable contribution which involved going to Egypt and teaching the actions how to pray properly as Muslims and speak in arabic to those needed - “But there is another element of “joint work”. A joint work includes two or more authors - he establishes he contributed substantially to the film, but not that he was one of its authors. Authorship is not the same thing as making a valuable and copyrightable contribution. We recognize that a contributor of an expression may be deemed to be the author of that expression for purposes of determining whether it is independently copyrightable. The issue we deal with is a different and larger one: is the contributor and author of the joint work within the meaning of s101.” - The court now has to defend this because they are making up law - “Its easy to apply the word author to a novel. Its also easy to apply the word to two people who work - You might be an author - but if you want to be an author in this context, in joint work, its a higher bar than just putting an idea into a fixed medium. - Auteur theory - “So many people might qualify as an author if the question were limited to whether thet made a substantial creative contribution that that test would not distinguish one from another” - “A creative contribution does not suffice authorship of a movie” - Second and seventh circuit rejected congress - and we continue to add more things to authorship Joint work - Are we going to require more than what the statute says? - Does this definition of authorship only apply when the question is about joint work, or always? - When are we going to pull out this trick and say authorship is more than just fixed expression? - A novel is easy when its just you and a pen and paper at a desk - elsewhere we need to raise the bar - What would Aalmuhammed have owned had he won this case? He would’ve been joint author so he would’ve had joint power of the movie - same level of rights as Spike Lee (sequels prequels lunch boxes premier interviews) - What does Aalmuhammed now own, and what can he do with it? Can he claim authorship in the scenes he created and then mess up Lee’s ability to monetize off the movie? Can he try to hold hostage the movie scenes he created and get them to rewrite the scenes? Or could he claim to be a writer - instead to try and cash in in some way? His threat is taking out the movie, but his hope is to get paid - but they’ll only do this if his threat is good - It can’t be work made for hire and there is no contract so this cancels out s201 - Non-exclusive license to use the work? You watched the dialogue, you coached Densel Washington as he filmed it.. Nonexclusive transfers do not have to be in writing, so you have an implied license that you can use too - Case ends by saying he was not an author of the joint work Google v. Garcia - Garcia spent 3.5 days for $500 filming a movie that was used against her - her scene was reworded to say something offensive about Islam and she was receiving death threats for her scene - She went to Youtube and their lawyers said we honour take down requests for owners and copyrighters - She doesn’t want to claim she’s an author - so she needs to go around this - Implied license? - They’re going to start pushing on what she did - no creative expression, she was told what to say and how to act. Even if this were stand alone, it's not enough to claim 102a line. So she shouldn’t be recognized - Work made for hire? She’s not an employee and there is no contract - even if there was a contract breach it won’t force Google’s hand to bring it down immediately, instead she may win after 3 years against Mark Youssef for putting words in her mouth - Why didn’t youtube just take it down? Free speech sure but how could it possibly have made them any money? - Can she claim copyright for her five second acting performance in Innocence of Muslims? The answer is no. not to say she cannot seek an injunction.. - Garcia disclaims joint authorship of the film. She doesn’t want to be an author - In Aalmuhammed, we concluded that defining a work based upon some minimal level of creativity or originality…. - So many would qualify as an author if the question were…. - Garcia’s theory of copyright law would result in the legal morass we warned against in Aalmuhammed - Contracts and WFH doctrine govern much of the big-budget Hollywood performance and production world. - Low-budget films rarely use licenses and if they do the contracts are not a panacea - Most movies should include WFH and licenses and copyrights but those that don’t will create a mess to clear - “We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress…” Authorship/Ownership Summary - Defines first owner - Determines duration - Creates termination rights Duration - In the past, duration was calculated based on fixed terms, measured from first publication. - There were many formalities about publication and notice - You get this in exchange for releasing work to the public - If i’m going to do a system where you get rights upon publication, we need to define what it means to publish and exactly when it takes place (moment of publication) - You had to publish with notice in order to get rights - publish vs publish with notice - publishing without notice results in loss of rights. People were accidently messing up and publishing without the rights they wanted. There was a mess because of the formalities. This hurt a lot of small authors and foreign authors who made mistakes on formalities and they lost rights. - Martin Luther King gave copies of his speech ahead of time to news reporters and he didnt put the little C and the date and his name and there were cases of whether he lost the rights to his speech since news reporters would then publish this work - Modern law (s.302a) says - copyright subsits from its creation and is provided until death + 70 years. - No meaningful incentive to create is supported by the promise of a legal right long in the future.. Hard to justify life +70. - This can be justified only by an argument about present-day sterwardship. This is the argument made by those who own the Disney copyrights. They’re assets to be owned and cared for - so the Disney family who owns Mickeys copyrights will make sure to protect them from overuse and misuse - Shakespeare on the other hand is just fine - And, if that is the goal, there should be some way to free orphan works - We can think of creative ways to free up copyrighted work from people who don’t care - think of all we can do with this freed up work Termination - Termination protects starving artists - Lots of work that turned out to be huge work was originally sold for peanuts - like Superman in the comments and the movies etc - DC offered them 200k each for the rest of their lives… when they died their kids triggered termination and threatened to terminate superman. DC says okay but we keep his arch-nemisis and same with her wife and he wasn’t able to leap tall buildings or fly - so you can take the non-flying guy back and you can have it back. And the cape stays with us as well. You can terminate what you brought to the tabel but you will walk away with such a fractional thing. And if you get outside the US, we will shut you down since this termination thing is just a US rule. - Maybe this just sets up a re-negotiation of rights that brings over some money to the family instead of the family taking superman and creating their own movie - Ironically the show Smallville was the most valuable source of revenue from Superman which was very close to the character the dad made before all the new elements… - You cannot waive termination - it is NOT WAIVABLE. All rights now and forever, here and everywhere, can be terminated after 35 years. It's something proactive - does not happen automatically and has to be sought out a few years before. - Mark Toberoff - the lawyer that went to all the families and let them know about termination clause and told them to go after their ideas - Almost no works last for over 35 years. What will stop happening is Marvel will stop taking ideas from outside and just WFH. Section 106 - List of rights that you get - s106(1) - right to reproduce - (2) - prepare derivatives, works based on the original works - so like prequels sequels action figures lunch boxes - (3) - distribute the work - transactions, moving it around through sale or other transfer of ownership - (4) - right to perform it - if I write a play for etc - (5) the right to display the work - think of a painting - (6) applies to things like Spotify and Pandora and apple music - misleading, can ignore for the most part Section 106 is.. - Layered - Imagine TSwift walks into Walmart and sees her unofficial CD is being sold in Walmart. T is happy copyright law has 106(1), that they didn’t have the right to reproduce, and 106(3) the right to distribute. They are distributing work that is hers that they don’t have permission to distribute. Walmart may never know who mass produced the CD who got into the shelves at walmart.. But TSwift will take this up with Walmart for violating 106(3), and can get an injunction to stop distributing. - So there can be multiple 106 violations - Distinguishes types of users - Think of a written-down version of a play - dialogue, stage direction.. I can buy this in book form and take it home and read it. If we want to do community theatre, we could buy the book and remake the play… but with a performance right. The law separately announces a right to perform, so the community theatre group has to pay more because there is a difference between enjoying things at home and doing enjoying things publicly. - S106 tries to distinguish different types of users and different types of enjoyment. - Same with sheet music - you can play it at home but to play it in a music hall you need to clear it - Has built-in limitations - For example - publicly. The right to perform is the right to perform PUBLICLY. - This is where the problem of.. When have we shifted from small scale private to large scale public - Does not cover everything - There’s a stadium in local community where there are apartment buildings right beside and there are entrepreneurs who bought these rooftops and built bars/restos there and they are selling tickets to the rooftops to watch the games - No right to watch? They weren’t distributing or performing or copying but just watching.. But they were misappropriating, even if there is no copyright claim L6: SECTION 106 RIGHTS Reading: None. Read for next class. SECTION 106 RECAP - KNOW SECTION 106 1-6 BY THEIR NAMES!!!! - 106 is layered (think walmart), it distinguishes between the types of users (think of theatre performances vs at home and how theyre treated differently), has built in limitations, and (think of Chicago stadium) - 1 - reproduce PHYSICAL COPIES - 2 - prepare derivative works - 3 - distribute - 4 - perform work - 5 - display the work - 6 - pandora/spotify/apple music… DETAILS OF SECTION 106 REPRODUCTION - We have to find ways to dismiss cases quickly, because there will be a lot of false accusations of copying. - Arnstein - plaintiff alleged that D plagiarized from unpublished works - D had to do with the burglaries, “i dont know how but i just know he did have to do with it” - We take the whole thing from your - Plaintiff sues everyone - otherwise every big successful project becomes a target - Never let things go to jury - settle outside of court Reproduction - 3 things - Access - did they have access to your work? If you didn’t access you didn’t copy, no access no story. There needs to be a plausible story - This is why some directors do not open their mail, he has people to open them so that he can always argue he never had access to any ideas people mailed to him. Then there is a person that can testify if need be - he only reads things he is asked to read in his mail. - Access is the best way to stop these cases - but the internet makes this harder, how do you prove you never did a google search? - Probative similarity - it signals copyright - similarities that point towards copying. Doesn’t have to be the copying of protective stuff but something like the facts you repeated… access and prob similarity give rise to if there is something worth investigating - Are the similarities enough to make me think that something bad happened here? - Substantial similarity - how similar is the expression and is it more than diminimus. Couple touchpoints to signal if you are really an infringer. What’s expressive here? What was really taken? This gives us structure to get out of things quickly. What if someone’s claiming copyright just to sabotage one’s work? Derivative Works - 106(2) - The right to prepare derivative works based upon the copyrighted work - Think of Star wars - Challenge is why do we need it if we have 106(1)? They seem to overlap each other. - This came up with Harry Potter - they knew there would be a lot of infringement. Their rule was that they are not going after you if its by fans for fans, for fun. They wanted to teach this phrase to their entire team so no one was a jerk and shut down anything. The legal team was fantastic and they all answered questions syncronously. This was good business because they were small scale problems that kept fans talking about it for 10 years straight while the movies came out. - Warner Bros. Entertainment, Inc. and JK Rowling v. RDR Books} - They had only one litigation in the entirety of HP - a guy made an encyclopedia of everything HP. It was great until he went to sign a book deal - we don’t want you to compete with you. By fans for fans for PROFIT… DIFFERENT STORY. Everything in the encyclopedia was copyright - so they sued under 106.1 and 106.2. They settled outside of court but the judge said they would win on one and not the other - we will never know which one. Derivative work - 3 things to distinguish 106.2 from 106.1 - Its not necessarily fixed - thats not it - 106.1 talks about reproducing in copies or phonorecords - which are physical things, because section 101 says copies are material objects that can store expression - but in s.106.2 it doesn’t talk about in copies, there does not need to be a physical manifestation of the bad act. - 106.1 clearly says in copies and 106.2 they say nothing about copies. - It might not be in a tangible medium but if i can prove that it happened and it really hurt me to reason me getting a remedy - BUT THEY DO READ 106.2 AS IF IT SAYS COPIES - so move onto the next - And cases without overlap - thats not it - You wrote the book, i wrote the answer-key to the book - But then 9th circuit says this is wrong too - “the statutory language defining a derivative work is hopelessly overbroad,..” - how you know the judge is about to change the law - a derivative work must exist in a concrete or permanent form and must substantially incorporate protected material from preexisting work - In this case donkey kong - it goes from mario having 3 lives to unlimited lives and it ruins the fun of it. The cheat code does not include anything from the original game, they created a new code and thats all. - It includes cut-and-paste cases - if we won this case then 106.2 does what 106.1 doesn’t but they didn’t win - A lady made paintings. A small business would take things postcards and mount them onto wood and it took off for some reason. Why would she be mad about this? Someone is buying postcards from her and they’re not reproducing her work. Is it direct competition? Can she complain if they already bought the postcards? Can’t she also do this? She wants to know who’s going to buy the postcard for what reason - they’re two markets - she wants to charge differently depending on the client and the market, just like the people who buy the playbook to perform it in a theatre for money and those who just perform it at home - Her only shot to get the law to draw the distinction for her is to call it a derivative work - the only reason she asked for help is the economic reason, where they are competing with her, or she has to stop selling the postcard option. But she wants to stay in both markets - Judge Easterbrooke went after Lee’s lawyers - saying then every painting in a museum in a frame would be violations of 106.2 - How do we try to save Lee if we’re trying to prove derivative work? Derivative vs transformative - fair use? You took their thing and you did so much with it. Or do we need to look into the definition of derivative work and go deep into what it means to be “adab - Look at what the market place is telling us- that this change opens a new market. Thats not the same for spilling coffee on it, signing it or stamping it or whatever happens in Japan. What they did transformed the marketplace - value of frame vs value of the painting - In conclusion 106.1 and 106.2 basically do the same thing - 106.2 is a full subset of 106.1 - apply both of them whenever you’re suing for copyright infringement ROCKY III - Someone pitched a script for rocky iii after rocky i and ii - They didn’t have permission to write the script - it was a derivative work that wasn’t authorized - If i make a script about the work from the movie.. I don’t have much to do with the script, but do i maintain rights with the parts that are my expression? What is left might be close to what the owner actually wanted to do, the remainder is close to what they want to do - The law on this wasn’t perfectly clear, they referenced s103.a - You can cross out parts but the remaining will limit the original authors from doing what they want - Judge said - If you make an unauthorized derivative work i almost want to give you no rights to it because you may limit the original author’s expression for the derivative - 106.3 - - We all agree the act of distributing is a 106.3 violation, but what if I merely offer it? I can buy cds and burn it to my laptop and upload it so you may download the mp3s and there is no proof that anyone downloads them. 106.3 is a distribution not offer. Is the offer enough? Because you can’t catch the distribution, but they are saying it must be distributed - Exception under 109a - the right to distribute is limited in instances where you have a legal embodiment of it; when you legally buy a copy of the book you’re allowed to distribute it by reselling it. This is the first sale doctrine; when the author makes the first sale of the embodiment, they exhaust their rights in this embodiment. This is why Lee couldn’t claim derivative because of the first sale doctrine in 109a. - We created a markt of used books records etc First Sale Doctrine - Its an exception to 106.3 ONLY. do not dare invoke it with any other violations under 106 - ReDigi case - - this doesn’t make sense they said, when you buy books you resell them as used but when you buy mp3 and ebooks you’re stuck and ReDigi wanted to be that. We will take the music and copy it into our database and when someone buys it we will transfer it and destroy it we promise. And they were implicating 106.1 because they were moving a digital file from your device to someone elses. Does the first sale doctrine protect ReDigi? It doesn’t but they litigate it for years and say the court got it wrong and the copyright law profs even submit an amicus brief - They edited the law in the brief to cut out “notwithstanding the provision of section 106(3)” - It was probably originally about waste - The reason we have a first sale doctrine was originally about physical waste. Printing books on dead trees and without easy ways to move it around. - Libraries kind of fix this problem - Bruce Willis lobbied congress to add a first sale doctrine that would apply to ebooks and mp3s because he wants to be able to pass it on to his kids. I don’t want a legal rule to make it difficult to move it around - It constrains price discrimination - Economic point - it does limit price discrimination, which is that I want to sell the same thing to different people for different prices, which could be good. But the first sale makes price discrimination hard. For example the law dictionary that they would sell to students for 50 and law firms for 1000 Is this a problem? - Textbooks can compensate - they know you’re going to resell it a few times so they make the prices very high and they keep putting out new editions to kill the reused market, not because the law changes so much - Magazines might do this anyway - its expensive for them to ship and distribute and they know the issues go out of importance quickly once the news becomes old news so they know you will share that one magazine with a few people L7: FAIR USE/ PARODY & SATIRE Reading: pp. 812-822 (Campbell) ; pp. 822-845 (Warhol) SECTION 106 CONTINUATIONS - Reproduction - how will we talk about cases in a way that gets rid of them quickly - If there is some access we begin to look into probative and substantial similarity - Know the 3 moving parts and then you’ll make the right moves in a case - Might trade off to some degree in the mid ranges - i have decent levels of evidence and look at the probative similarities - this will make us feel better about a case that has modest levels of evidence - You have 3 weapons to think about - think about how to talk about them, they’re all relevant bits of information - this is all 106.1 - 106.2 - redundant to 106.1; whatever I can accuse you of 106.1 I can also accuse you of for/in 106.2 - copying that isn’t fixed/isn’t reproduced - 3 kind of cases that don’t fit well under 106.1 because there’s no reproduction or physicals, but courts have not been friendly on all 3. To make an allegation under 106.2 it has to be fixed and there must be overlapping expression, but maybe cindy lee could’ve been saved. How do you argue with judges - 106.3 - right to distribute - exception to 106.3 is - First sale doctrine - allowed to help stop waste - Where we stopped Is it a problem? - Textbooks can compensate - Magazines might do this way Redbox - Movie rental competitor to blockbuster - Looks like a candy vending machine - got rid of stores and the kids, also do better with overall transaction - When you go to rent/return, you spend money at target to get the meaningful upsell. - They had a much better economic plan and value - The same day you offer to sell them in best buy for 25$ we want to rent them for $1. We also will very frequently flood our stock onto eBay to get rid of them to renew our stock. Movies said we don’t want this; we don’t want people to think of movies as a cheap thing, it’ll crush pricing. So movie studios fought with redbox and redbox came back with huge cheques to each studio - but one studio refused - DISNEY. - THIS IS WHY DISNEY’S THE BEST - Prof thought disney would love this because disney movies are movies you want to watch everyday, so disney would love this because you’d give him a little taste of the movie to get the kids hooked and they’d then go and buy it for full price - Redbox would do - they would get young people to buy the movies at retail, have the young people resell it for them to Redbox and invoke the first sale doctrine, and put it in the candy machines against Disney’s wishes. Disney asked target to limit the movies to 1-2 per customer but Target was a big shareholder in Redbox so they didn’t want to limit them - Interesting to see first sale used for a commercial endeavour - was not designed to be used by corporate players but it doesn’t say that; interesting how Redbox used the first sale doctrine - Redbox is still making good money renting in the middle of America, no locations in LA 109A - Some people really cheer the first sale doctrine… - First sale not as awesome as it looks - might rather not resell the book, rather just pay less and get less and I will not resell it. It takes away certain packages that otherwise would be offered in the market - Think of buying/leasing a car - you’d rather pay less and get less but first sale takes that away from us - Interesting to watch how law works; maybe first sale is giving us stuff we don’t really want; we would rather have the option… think termination clause 106.4 - Will spend less time on 106.4 & 106.5 - Right to perform the work publicly - Inside s101 - definition section - congress explains a little more what its like to be public. Me with enough different people around me is public; me at home with family therefore is not. Separate screens small numbers at different times - copyright law needs to think about what is public, which is why they tried to write a better 101. Is it just a number of people in one environment? American Broadcasting Companies, Inc v. Aereo, Inc U.S. Supreme Court 134 S. Ct. 2498 - A cool case was an entity that wanted to compete with blockbuster - they did everything but also had a room with a sofa. You would go watch it then give it back to them, all within a few hours. Who would care about this? People who don’t own sofas or tvs? Why would studios be mad about this? Movie theatre chains! - Not going to study this case but essentially courts handled this easily - If it looks like a duck sounds like a duck we’ll call it a duck - if it looks like cable sounds like cable then it must be cable. This is doing a direct competition to cable 106.5 - There’s a 109C - friend to 109A - 109C says - notwithstanding the provisions of s106.5, the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled without authority of the copyright owner to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located - Etc in a museum - easier for people to appreciate art - 109c - of course i can display copyrighted art 107 - FAIR USE - ONLY WHEN YOU’RE LOSING/ IN TROUBLE!!! - Important limitation on 106 - 107 says you might see an example of unauthorized copying and protected expression, AND THATS OKAY - Young lawyers argue 107 but you do not need to get to 107 unless you have the problem of UNAUTHORIZED COPYING AND PROTECTED EXPRESSION - You do your client no service by talking about fair use - this is a public policy consideration. This is by design a public policy escape. Judges say i will not let copyright law stop that - whatever it may be - Do not go to fair use UNLESS YOU ARE LOSING - If on exam questions everything you say is fair use, you probably won’t do well - some questions will also say to omit 107. It only shows up when we’re in trouble. - 107 starts with “NOTWITHSTANDING THE PROVISIONS OF SECTIONS 106 AND 106A” then says fair use of a copyrighted work - Hint from congress that we’re trying to defend the type of communications that the first amendment protects - give each other feedback on cultural things. Prof sees this as a First amendment values list - While fair use is a lot of factors, congress mentioned a category that must be taken very seriously - Just because you’re in that list doesn’t mean you’re fair use - The preamble does some work - congress then keeps going and gives us four factors to be considered. Judges elaborate on each factor, they use it as a framework for their decisions. This is how you win fair use cases - the word include allows you to argue whatever reason your client copyrighted the material. Don’t fit your best argument into a factor - its a public policy to allow judges to not enforce the law on the facts - where they sympathize with the infringer. Whatever your first move is, I want that first… then go into the factors - Don’t start with factor 1 and follow 2 3 4, start with your BEST MOVE. - The factors include: - 1 - purpose and character of the use (including whether it's of commercial or nonprofift educational natures) - The courts fell in love with the word transformative for factor 1 - is the work transformative case - because derivative work is transformative. When I take a book and make a movie out of it, I very much transform it but its still not fair use. - 2 - the nature of the copyrighted work - factual work vs entertainment vs time-sensitive - 3 - how much of the original did you take it? Taking a lot is more of a threat to the original work - maybe taking parts is fine if not the most important part. Book reviews will take parts of the book to review it but if they take the ending then at some part they cross the fair use line if they expose the most important elements before people read it - 4 - this factor and factor 1 get the most attention - the effect of the use upon the potential market for or value of the copyrighted work - this is the best story the defendant has, argue there is totally new meaning and reaches a totally new audience. Look to how we are distinct from the original. Factor 4 is where copyright owner argues that it hurts them economically and copyright is an incentive system - I might not release if I don’t have economic protection. Factor 4 where i make the bigger arguments for the copywriter and factor 1 where i make bigger arguments for the infringer. Nature of the work might impact how we think of the rest of the factors CAMPBELL V ACUFF-ROSE MUSIC - Why was Roy Orbison upset? Because of money, because he said no? NO! Because he tied in the vulgarity of the 2 live crew song into the Pretty Woman song. This would damage economic value of the original song - They took my expression without my permission, mixed it into a bunch of vulgar stuff, and that’s what caused harm. People love this song and associate it with good memories, and now these guys ruin it. - 2 live crew argue it was a parody and they changed some words to have a different effect. They took parts of musical patterns - If I do something funny with your work I can claim parody? The court took their word on this when they claimed parody… - Have we opened the doors completely? Do we open the doors to fair use with parody and allow the judge to decide based on public policy? - Gone with the wind book - Alice Randall makes the wind done gone book. How do you defend her? Argue transformative as there is some sort of comment on society. Factor 1 isn’t just about parody, its about being a transformative work. She took characters you knew in a setting you knew to get you to the message I wanted to reach. I took her expression without her permission, not because I wanted to poke at her work but to release what everything missed/an important perspective of the book that was missed. She wasn’t trying to make fun of gone with the wind but use it to get everyone to understand her higher message and get people to think about more important ideas. Her lawyers though argued that it was parody. But the other side could argue that because of this, we can’t do a sequel to gone with the wind; this competes with derivative work and this is economic harm to us. But Alice can argue that it’s not taking away from their ability to create sequels, to which opposition would argue they’re getting in the space and how often will people want to read about stories in this setting, especially if it takes off and captures the public’s attention , so it would be hard to get people to focus on our setting. Alice can then say the social utility is high and her expression is the majority of the book, she’s just using a few characters to make her point, to which opposition would say you lost under factor 4 as its unlicensed derivative work and you still need to stop it. How do we win?! Margaret isn’t arguing that she’s doing economic harm or is trying to comment on the work (parody), they’re different markets, L8: FAIR USE/MARKET STRUCTURE Reading: pp. 848-858 (Texaco, including Notes) Handout: Sega v Accolade - BUT WE DIDN’T GET HERE SO THESE READINGS WILL BE FOR LEC 9 Fair use - Don’t need to use if it not in trouble - 107 - trying to use this exception for first amendment stuff, news reporting, comment, scholarship - Its not a get out of jail free card - Your best story is the reason you chose your client. If you have a really good story as to why it should or should not be fair then USE IT. case is different from - Don’t start with factor one if you don’t want to. Start with why you should win. Court should start cheering for your client from the beginning. - Factor 1 is where accused offender should be cheering for him. What did he achieve and why is the work transformative? And if its not transformative, why should i not obey the rules that everyone else has to obey? Why should i be able to take Taylor swift’s album? - I kow my work is being characterized as the co - Factor 4 - copyright holder says i hear everything they heard about factor 1 but we created the copyright act intentionally for people like me and they are trampling on it. Don’t undermine my copyright system Review - Pretty woman - The wind done gone - Family guy case - Dr. seuss Dwarf standing on the shoulder of a giant - line from Neuton. This is how progress works - the dwarf can see further than a giant - Use stuff from prior generation; use it as framing for yay s.107 - Problem with this story is it asks the wrong question - is it a situation of dwarf sitting on the giant? Not the question we’re asking; s.107 is asking if the dwarf ask permission…. Should the dwarf pay? - When we reject fair use, its not that we don;t like it but that theres a way to do this - its called LICENSING. You also then negotiate for control because they are creating a movie about YOUR BOOK so you get the right to partake in how its being portrayed - Shouldn’t have had to ask or shouldn’t have had to pay? - We see added value in movies from books but we still think the movie people should pay - Think of book reviews. Can i tell a story about why book reviewers shouldn’t have to ask? If book reviewers had to ask before publishing a review, the market would tank as they would have relations with the books they’re reviewing - it won’t be honest. It we want to believe in the book reviewers they have to have some independence. Publishers would also probably agree with this - publishers love book reviewers because it entices people to read my books so in general if asked as a policy matter, we as publishers agree that within reason they can take our materials to create the reviews. If i want to win a case on fair use then i want a story like that and if they don;t have a case like this then I hope the copyright owner wins DR. SEUSS - A clever guy was paying attention to the OJ Simpson case - Someone said I'm going to comment on this awful case in the form of a dr. seuss book - they followed the rhyming scheme and pretended - They didn’t ask the estate of dr seuss for permission and wanted to defend for fair use - Its a social comentary similar to wind done gone - it feels like this wouldn’t have been able to do this in this expressive way if it weren’t for fair use. And dr seuss’ estate would probably say no, and i'm worried the courts would say that is his right.. And they’re not even commenting on us so we have every right to have nothing to do with it. Why pick on dr seuss? We had nothing to do with it unlike family guy hitting on disney - THEY DON’T WANT TO CRITICIZE DR SEUSS - “Its necessary to use their rhyming scheme” - no its not, they can create poems in other ways - This helps them get a lot of attention - its clever and thats why they did it - It hurts dr seuss but he’ll be fine so you can allow some extra fair use - my work can help important causes, you made plenty of money so im less worried about factor 4 and more worried about factor 1 - making important commentary. It this became the law, does this harm the system? Factor 4 is where we ask if this decision would significantly erode the incentive copyright system and the answer is NO, dr.seuss made billions of money so it worked. Dr. seuss is ICONIC and i’ll; stay iconic. Its part of being super successful - The more transformative it is the less the other factors might matter? But the PRince case stops this argument - They were trying to maximize their reach/audience? They were just a tool and theyre taking it too personally - its almost like a civil disobedience situation because they did shoot themselves in the foot, they are obviously guilty, but it might be worth it for a greater purpose. - Its also just a part of being this successful. Nothing of consequence changes. - We’re not competing in the same market either. This is not mere copying, its for a difference context and different message - Balance of benefit to society on the damage to the copyright owner - Where do we draw the line then on super successful? Something is big enough? Line drawing is hard on my argument YH but we don’t need to decide this - MAIN ISSUE: WHY DID YOU PICK ON DR SEUSS - main issue. But what if he used multiple books then? Would that have made it any better? Then they didnt just pick on Dr. Seuss - Think of wind done gone… “they planted the seed of their own destruction” - Did the fact that he was making social commentary on a judicial decision impact the final ruling? Leslie Nelson vs Naked Gun Ad - She was trying to make series of powerful women and promoting fanily moms and healthy pregnancy - Naked gun movies are also parody of movies so this is very up their alley - It wasn’t about vanity fair but for parody and making fun - i get why he won even though i feel bad for her and the photographer - Don’t most of these issues shoot theirselves in the foot but its worth it because it reaches their audience and they deal with the consequences afterwards? Family Guy v Disney - Is their a copyright infringement? Wish upon a star - They said we want to make people think about wish upon a star without actually using any of their notes. Put these two songs on top of each other and they’re so different even though they designed the song in the way to sound disney-ey - Fight about disney’s antisemitism - people googled stuff after the show to try to figure stuff out - Wish upon a star is a familiar phrase so its fair use - in public domain - Does it bother you that they are making fun of disney and walt disney rather than the creative work being produced by them? This one was personal, we’re taking a shot at walt disney who’s dead. Theyre not trying to say anything bad about the movie or the song but about the guy. - Episode was not aired - pulled last minute. Only available later when selling box set. They waited until litigation was over. Interesting since in the end Fox did win the case Obama Photo - Transformative? Beatable, such a small contribution to the original art. Didn’t think it would get anyone excited on their side and we had tremendous factor 4 evidence because Andy was supposed to be a part of a gallery in NY and Pricne just opened a gallery across the street with the same looking paintings and so his NY show was cancelled. It was a big deal for him - Prof lost - their opinion said its transformative and the rest of the analysis is noise - whether its transformative, once we decide it is and not judging quality (obv for a different audience with a different message), but this is crossing of a line. He caused harm to a small artist. - Transformative part so important it trumps everything else - Barack Obama picture - head tilted with american flag in background - Shepard Fary takes this photo and edits it into photo on the right and adds the word HOPE which Obama then uses for his presidential candidacy. Should Shepard have paid the photographer to use his photo? - Professor defended the associated press and sued Shepard Fary. - Some arguments for Associated Press: - This is exactly what copyright law intends to protect. It is transformative but it wouldnt hurt to ask. That is exactly why Shepard chose this photo - its special and worth it and thats why Garcia wants to control its use. Associated press is in the business of selling photos - newspapers pay us. If you want to use our photos the answer is yes - this is how we make money. - If they start taking the photos then we just won’t submit them. The factor 4 harm is real. Most of our photos we make nothing on - we make endless photos everyday, some make it to newspapers but most to archives and we survive off the unicorn photos that blow up - These is expression in capturing the photo with the exact lighting and details going on, waiting for certain emotions and angles and such - Arguments for Fary - it is transformative, its making a political commentary, selling a dream of hope. Lean into factor 1. Acknowledge how to take the photo and make it better/more. Manny said it wasn’t ran in the newspapers - its not a news photo. Garcia’s photo went into the archives of associated press and the one on the right might be more advocacy but mine also wasn’t just a news photo. They should expect to lose control because the associated press - He could’ve mentioned how his wife was in labour and how he forgot to ask to license it. He chose to fight and lie and then it becomes a case where he’s about to take him away from his kid - not the case any of us wanted to litigate and put in jail, so they cut a deal. Ethics and pressure of real life. - If his lawyers withdrew, how did they win the settlement? Andy Warhol v Goldsmith SC of US 2023 - Changed how we advise on professional photography - increased the risk to photographers by limiting the first factor transformative argument - There’s more than just factor 1 to think about - Its artistic but understand the economic issues, we’re not thinking of factor 4 - What if my use changes over time? Well it could be fair use in one and not the other because they have different factor 4 arguments.. My client is opposed to this use because it causes major factor 4 harm. Had they done it with other work it mightve been fine but - The focus on the first factor pushed the judges into being art critics because you can either license the original photo and put it on vanity or take this warhall print and put it on vanity and there isn’t much of a difference.. - It is transformative and the reality is factor 4 outweighs it L9: FAIR USE WE’RE BEHIND SO READ THESE INSTEAD: Reading: pp. 848-858 (Texaco, including Notes) Handout: Sega v Accolade Fair Use - Texaco - Sega - oracle/Google - Authors/Google - perfect10/Google - Sony Texaco - VERY IMPORTANT CASE FOR FACTOR 4 - Fair use? - If they lose this case, then they’ll come to us to pay for us, and the accused copyist said thats circular and unfair. We’re fighting about who should win this case so that can’t be your argument, the argument should be who should win the case. - On the copyright side, what do you say to the charge that their argument is circular? You shouldn’t point to the economic licensing.. But could you? Its a factor test not an element test, embrace the circularity and say itll come up everywhere. This is the whole point of factor 4, to discuss economic loss, there is real money there and if they say its so important, don’t you want to support the creation of these journals? Factor 4 is where we explain that if this is fair use, some value won’t go to the copyright system - Other side - You can’t argue you’re losing harm if you’re rightfully losing the right to make the money. If you declare fair use you’re eliminating a market and a stream of income. We’re trying to get into the flow of economics - we’re not trying to limit people reading the journals, that’s the whole point of publishing them, for economic purposes. We all agree its amazing material but the only difference is they don’t want to pay for it. The factor 4 harm here is the revenue we would make if it was fair use - Think about copying music back in elementary school - illegally downloading it. If you think about these copy shops, you remember you engaged in some small scale copying - every library has copying machines and you could go to the library and print for use for school. So these coffee shops would say we’re just doing what’s always been done. It was a point about scale, that changes the outcome of the cases. When I move to scale, the factor 4 harm looks much more significant. And the coffee shops are not only more efficient at doing the bad act but at paying for it. They lose some money at the coffee machines but the magnitude of the harm is smaller - when its UCLA bookstore or kinkos, then scale is different and there's more magnitude of harm. The scale changes the entire trajectory of the harm Sega - The way you got the pieces you needed is you copy everything - thus reverse engineering - They bought the game and cracked into it using computers so they can copy the entire code then asked what's the same across all the games? The code that starts the same. They copied everything from a few games to look for things in common across the games to see how to make it compatible with the consoles - They engaged with the unaurthorized copying of our complete games to use that to sell your games but the act of your copying caused me harm since you didn’t come to me and ask me on how to make games so you entered my market - Might be out of reach for those expensive consoles - so this market structure was a wonderful way enter the market but the only way it works is if you buy the games from me.. If instead i give the game console at a loss and you buy games from other people then i don’t make my money back so i lose regardless - Sega could also control the number of games being sold so that there's a control on how much they are being sold for. Restrict supply for a moment to increase demand - Fair use because of 102b - you can’t take something that is supposed to be free - In no case will we allow copyright to get in the way of facts ideas etc. they took 102b material, - Fair use allows us to blow through and see what’s going on really - this is a case about taking 102b material, hiding under copyrighted material, and then claiming copyright. Theyre using 102b to tie up copyright material thus reverse engineering is permissible - This is a factor 4 problem - but they don’t say there’s a factor 4 claim here but that's not true of course they are competing in the same market - Prof understands why Sega would like to control the downstream market and why its great for all of us - control quality, timing, console prices so we can afford it. They will still have competition with sony and nintendo and microsoft so its not a monopoly. Their story is very sympathetic if told well - theyre happy to compete and theres already enormous competition to innovate. The reason we want to control downstream games is because of how the market turns out (smth like that - 48min) - Court missed an entire factor 4 story but still makes sense why its fair use - because the infringment was in support of something copyright was not meant to suppress - What do you tell Sega to do now to try and defend? Go after them on any infringement in the products? Create friction in their codes so that this could never happen again? Fair use - IP law is all about shaping markets and shaping competition - Texaco they were willing to protect factor 4 and their economic loss - and Sega they realized the factor 4 economic loss but they let it go because of the 102b stuff Oracle /Google - Oracle created the computer program language which has clearing code which is a shortcut used to access the imitation code. Google took the clearing code and copied half of it so Oracle sued google for copyright and DC said the code is not copyrightable because its 102b - but then Oracle appealed so Circuit court said it was copyrightable and Google infringed it by taking it to do the same and Google took it to the SC and they said theyre using it in a completely different context. - Is this just Sega again? Someone tried to take code as fair use. In sega you had to unwrap it to find what they wanted to take but with Oracle all the java stuff is out there.. This is 102b stuff if you bring us in a fair use package we’ll say fine but.. What distinguishes them is whether its being used for the same purpose or a completely different purpose. - Why aren’t the folks at Java upset about this? Because they wanted them to buy the whole 166 but google just wanted 30smth and so Google just took what they needed. - Why is it the folks at java wanted an all or nothing licensing deal? Because using all 166 packages was to ensure compatibility with oracle - we have so many different computers so we’ll make a language that works on all of it and google was going to fork this and they can read this code and change it so when you come to Google we’ll use some of it and make some of our own, and the team at Java said thats not our thing, make up your own operating system, if you want to use ours we’re write once use everywhere. You don’t like our product - make your own operating system , you’re GOOGLE… - Google said its about lock in for people who have used Java for long time. So many programmers used Java so theyre accustomed to it. So google couldve made their own system but you have to get people to join/switch over to the new system. They wanted to take without paying and burn the house down as they left. And of course they won, it was deemed fair use… - Maybe lock in is a fair benefit to being very successful.. Just like the Lotus case. If you’re a lot better people will move, if you’re a little bit better people won’t move. Its not that hard if there’s a reason to learn a new language, and Google could’ve entered the market but they wanted to do it with the benefit with Java because Google would become dominant to be used for Android - Took from Java to then bring them down… - Is keeping lock in good because it encourages innovation or is removing it good because it encourages innovation? Authors Guild v Google - What they call Google Scholar now - They went to the biggest libraries in the country and cut deals with them and scanned every single book in the library. Scanned cover the back and everything in between. They didn’t have permission from the copyright holders even though the libraries said yes and they offered to you a product, a searchable tool.. But their act involved copying absolutely everything for the books. - Prof litigated against Google - For you they gave you google books and for them they made google translate, because book authors have done that work over the year, they translate their works into 15 languages so they copied every single book in every single version. - So copyright holders said circular factor 4… make them pay. They wouldn’t have even needed to scan it if they cut deals because Penguin books have digital copies of everything - Copyright holders said this is an enormous risk to us. What happens if this gets leaked on the internet? Don’t we at least get a say in how our material is stored and protected? Copyright holders said if you’re going to use it for google translate at least pay us for that.. - They tried to argue that they competed but really people just take snippets for papers and such. They had a good factor 4 argument because of circularity - we need new markets for publishing bc publishing is struggling. Google could have cut deals from publishers and gotten what they wanted right away - instead Google created a scanning technology to scan MILLIONS OF BOOKS and then go into libraries and scan these.. - The PR here was also interesting. Google went out to the public and pushed hard on their public policy aspect of the fight. His pitch was they’re building the library of Alexandria, we’re building access to unlimited flow of info. But that’s BS because they’re just giving you snippets.. But they also to their credit dragged their litigation out to the death of it, 10 years… and by this time, Google is loved. Everyone is used to it. - Underlying theory: Google wins every case. Perfect 10 v Google - Website and magazine where you’d buy the right to login and you’d have access to

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