Copyright Law

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Copyright Law
2012-04-26 15:46:57
Copyright law copyright infringement

Copyright Law flashcards
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  1. Mary Tudor's Royal Charter Effect
    Gave monopoly on printing to members of the guild (only members could publish anything)
  2. Statute of Anne
    • Created concept of public domain
    • Created author's protection (21 years w/ renewal)
    • New works based on old works had to add something new; simple reprinting was not enough for ©
    • Limited publisher's right to control distribution
  3. Millar v. Taylor––Perpetual ©
    Common law ©; said authors had ability who could publish their works into perpetuity
  4. Donaldson v. Beckett; advisory opinion that made it to US while main opinion did not
    Saind common law © gave rights to publishers; publisher controlled the right of who sold his works
  5. Protection offered by the Articles of Confederation
    • Had to register in all 13 colonies;
    • BUT, all 13 colonies immediately passed © statutes
  6. Berne Convention's effect upon 1976 © Act
    Increased term to life + 50 years (in conformity w/ Berne) [now life + 70]
  7. Common law © in US
    Doesn't exist. © is statutory, now.
  8. © in law of the land
    Can't be had; must readily be available to the populous
  9. Framework of a © claim
    • 1. ©-ability
    • 2. Ownership
    • 3. Ifringement
    • 4. Defenses/limitations/exemptions
    • 5. Remedies

  10. §102(a)
    Lays out © generally
  11. §102(b)
    Says what © doesn't cover
  12. §106
    • [subject to §107–122]
    • Gives © owner's exclusive rights
  13. §107-§122
  14. Right to first publication
    • Didn't exist until 1976 (was a natural right)
    • Author has a right to be the first one to publish his work
  15. Elements of injunctive relief
    • 1. Substantial likelihood of success
    • 2. Irreparble harm if injunction is not granted [harm against movant is greater than harm against non-movant]
    • 3. Not other adequate remedy
    • 4. Public interest will be served

  16. International treatment of ©
    Foreign © cannot be granted less rights than a non-foreign ©. © holder of the treaty country has the same rights as the country's own citizens
  17. Minimum substantive standards of international © recognition
    • Treaties set minumum stds below which a country cannot go (except as to its own citizens)
    • NB: If you give citizens of your country something better than min. stds, foreigners get the same protection
    • E.g., Berne Convention: Life + 50; member countries can give citizens less than 50 years, but not international authors
  18. Threshhold of creativity needed for ©
    • Very low
    • E.g., "Breakout" was ©-able by Atari because of the multicolors and the unnatural behavior of the ball w/ regard to physics
    • E.g., billing codes for dental items are protectable
  19. Brevity and ©
    • Generally, the shorter, the less ©-able
    • But see: Picasso's line drawings; Foxworthy jokes
  20. Nondiscrimination principle
    • It's not up to the courts to decide if something is art or of social val. (except in the most obvious of circumstances)
    • Takeaway: Courts don't determine the worth of works
  21. Depictions of items in nature
    Can't © the deptiction, but you can prevent copying the depiction
  22. Photos as works of authorship
    ©-able. Photographer chooses lighting, setting, pose, expression, etc.
  23. Flower garden as work of authorship
    • Not ©-able. Flowers/nature is not fixed; they are constantly changing
    • NB: A photo of a flower is protectable; the garden itself is not
  24. §101, fixing for more than a transitory duration an live TV
    Sounds and images that are being transmitted and simultaneously recorded are ©-able
  25. "Thin" ©
    • When depicting certain objects/scenes, there are sometimes bound to be simlarities; this only affords "thin" protection that protects against virtual identical copying
    • E.g., Skyy Bottle Case: Vodke buttle must be in the picture, must be lighted, etc.
  26. Mendler v. Winterland––boat photo shirt
    • A license can only go so far; if you're licensed to make an illustration bsed on a photo, you cross the line when the illustration because more photographic in nature
    • E.g., boat was flipped and discolored (and a mast was completed), but it still highly resembled the photo in positioning, etc.
  27. Copying copies of nature
    • Copying nature is okay, but not copying the already-created depiction of nature
    • E.g., Beanie Baby pig: copied it's wrong number of toes, etc.; could have copied real pigs, but once it copies Ty's stylized pig, it crossed the line
  28. Duplicating an original (e.g., photograph very similar to a photo that'd already been taken)
    • Not okay because there is no orginality upon which you can protect the derivative
    • E.g., Seligman: Took a photo of a girl and sold © to the pic, took a simiar photo 2 years later. Not okay. Though there were differences, the similarities outweighed
  29. Pragmatic changes and ©-ability
    • Changes dictated by the media in which you're working are not ©-able
    • "To support a ©, there must be at least some substantial variation, not merely a trivial variation such as migh toccur in the translation to a different medium."
  30. Meticulous reproductions
    • Reproducing something w/ great exactitutde may result in ©-ability, despite being an exact copy
    • E.g., God's hand case: Copied Rodin's God's Hand sculpture; BUT SEE Alfred Bell held that a meticulous mezzotint of a master's painting was not ©-able
  31. Durham v. Tomy: Disney reproductions of reproductions
    The toys themselves reflect no indep. creation, no distinguishable variation from preexisting works, nothing recognizable in the author's own contribution that sets Tomy's figures apart from he prototypical Mickey, Donald, and Pluto that were authored by Disney.
  32. Electrinic reproductions of works
    • Digital copies of items are slavish copies; nothing new, no infusion of creativity
    • E.g., Bridgeman: Corel couldn't © tranparencies they created from famous photos
    • E.g., Meshwerks: Mesh wireframe of Toyatas were slavish reproductions; copies of already existing itm (that weren't made to benefit society). They were made to look exactly like real work, 3D objects viewable on a computer screen
  33. Idea/expression continuum
    Expression is protectible, idea behind the expression is not
  34. Expression and no other alternatives
    • Where there is no alternative to a particular expression (E.g., Meshwerks 3D model), it isn't protectable. But when there is variety, protection is afforded.
    • E.g., barbie-face case: there are many ways to express a pert, upturned nose; bow lips; wide set eyes; etc.
    • E.g., Ears on a teddy bear can't be ©'d cause all bears have ears
  35. §202
    • Unprotectable materials
    • Not an exhaustive list
    • E.g., Chuck Blore had an original advertising style; even though copy was extremely different, the style was protectable
  36. Facts and compilations
    Just because facts are ©-able, the compilation thereof may be.
  37. Facts and ©-ability
    • Not ©-able generally
    • (unless in an orginally compiled compilation)
  38. Merger doctrine
    • Where it's not possible to differentiate between ©-able material and non-©-able material, you can't get ©
    • NB: The more marrow the idea, the more ltd. the amt. of expression there will be
  39. §103
    • Covers compilations
    • NB: Only extends to the creativity in which you ordred the materials
    • E.g., a "Day Runner" only has a thin © protection; only ©'d in regard to arrangements and selection of elements in the organizer
  40. Std. of originality in compilations
    • "Sweat of the brow" doesn't cut it; there must be a spark of originality
    • E.g., making a phone book alphabetical is not original; no creativity in its compilation
  41. Feist
    Sweat of the brow ≠ © protection
  42. Effect that being statutorily compelled to do something has upon ©ability of that thing
    • Cuts against it
    • E.g., Feist's competitor was legally required to make a phonebook for the area of service
  43. Kregos: Baseball analysis case
    9 states, arranged w/in 3 cats, may be protectable; it can't be said so as a matter of law, though.
  44. Mechanistic Compilation of data
    Doing something in a mechanistic fashion is not creative; E.g., Matthew Bender I, Westlaw pagination case: decision where to place cases in a book is not creative (e.g., Tex. case next to Ala. case shows no rhyme or reason to compilation)
  45. Creativity in fact compilation
    If facts are compiled creatively, they can be ©'d
  46. Virtual identicality vs. substantial similarity in compilations
    • Substantial similarity is the key; virtual identicality is not needed
    • E.g., BUCs case: 4500 listings were identical to BUC's, 50 weren't; this is substantially similar
  47. Items that appear as facts, but are not
    • Items that look factual, but were made from analyses and judgment, are protectable
    • E.g., Redbook car prices: car prices in a guide are the author's guess and evaluation. Original and protectable.
  48. Factual fxnal works
    If functionality drives a choice, it's not ©-able
  49. Speculative facts
    • Even if a fact is speculative, but is put forth as a fact, it's not protectable
    • E.g., Dillinger case
  50. Computer programs and external driving factors
    • When an external factor drives a decision, it's not protectable
    • E.g., Lexmark: there are many ways to achieve a goal of locking out non-Lexmark ink cartriges, but efficiency dictates taht only one can be used
  51. Computer programs and look and feel
    A command hierarch is not protectabel because it was simply a way to get a fxn done (split decision)
  52. Analyzing computer programs
    • 1. Abstraction: What is the abstract idea of the program? What does it do?
    • 2. Filtration: Take away all things included out of necessity and scenes a faire
    • 3. Comparison: Observe the differences between the "golden nuggets" that are left
  53. Merger
    The idea and expression are inseparable and unprotectable
  54. Gov't codes
    To protect a code (e.g., building code) would be to protect the idea behind the code––can't © it
  55. Merger: ©-ability and infringement models
    • 1. ©-ability model: If you have merger, the work can't be protected
    • 2. Infringement model: A work may still be protective against a different type of infringement; P wouldn't lose all protectability
  56. Scenes a faire
    • Archetypes are not protectable; no monopoly on themes
    • Literally: Scenes that are indispensable, or at least std., in a work
  57. Utilitarian works
    • Just because something is patentable doesn't mean it's not ©-able
    • E.g., lamp case
    • See also, e.e., Animal-nose masks (a specific sculpture of a nose is protectable, but the idea of making a mask out of a nose is not)
  58. Physical and conceptual separability
    • Are aesthetics apart from finality?
    • E.g., a belt-buckle's design is separable from what it does
    • E.g., a ribbon bike rack's undulations were chose for their fxnality
  59. Architectural works and ©ability
    • Protectable to the extent the work is original
    • NB: Does not include scenes a fair (e.g., elevators being near stairs)
    • E.g., copying blueprints is infringement, but using a building as inspiration is not
  60. Protection of Literary Characters
    It's possible to infringe characters when they have been developed to a point that you can percceive the creativity that went into making the character
  61. Protection of only portions of literary characters
    • If a portion of a character's works are public domain and a portion remain ©'d, you can only copy the part in the public domain. Any developments in the ©'d character's story are off limits
    • E.g., Amos 'n' Andy case
  62. Protection of graphically represented characters
    • Characters that are represented in a strictly graphical way get more protection thatstrictly literal characters
    • E.g., Sam Spade v. Mickey
    • NB: this isn't follow as much these days (e.g., James Bond)
  63. §106
    Outlays rights granted in ©
  64. Copying: Cartoon Net v. CSC holdings: RS-DVR case
    • Not copying because the provider does nothin but buffer (which isn't an infringing use); the user is the one who directs the copying and transmission
    • NB: This could be contributory infringement, though
  65. Ephemeral recording exception
    • A recording made for a ltd purpose can be used by a broadcaster w/o negotiating a license (very ltd; confined to a local service area; e.g., small TV station)
    • NB: National distributor would not get this protection
  66. §115
    Mechanical (compulsory) license
  67. Mechanical (compulsory) license
    • Can copy work when:
    • 1. Inform artist w/in 30 days before usage;
    • 2. Comply w/ strict accounting requirements
  68. Compulsory license and phonorecords/AV works
    • Compulsory license onyl works on phonorecords, not AV works
    • E.g., Karaoke doesn't get compulsory license because the lyrics on screen make it AV
  69. §118
    • Broadcast entities compulsory licenses
    • Very limited
  70. Audio Home Recording Act
    Provide consumers w/ flexibility for already-purchased music (e.g., transfer music from record to cassette)
  71. Audio Home Recording Act: SCMS
    AHRA prevents the selling of audio recording devisces that don't ahve proteciton on them
  72. Audio Home Recording Act: What is an audio recording device?
    Reproduces directly, or from a transmission, a digital music recording

    • Digital music recording: doesn't include a material obj. in which on or more computer programs are fixed (e.g., HDD)
    • e.g., device that can receive broadcast signals and make copies from the broadcast
  73. §108
    • Library copying exemption
    • Broad exemption for making copies for a particular purpose
    • E.g., replacements of books that have fallen into disrepair
  74. §117
    • Computer programs exemption
    • Program owner (and licensee) can make needed copies in the operation of a program
    • E.g., copy of the program in the HDD, RAM, etc.
    • NB: Copies made in the normal course of diagnosing problems is okay, too
  75. §112
    • Ephemeral copies exemption
    • Copies that exist for a limited time for a ltd. purpose
    • E.g., copies of works a broadcaster needs to run its business (and must be destroyed w/in 6 mos)
    • E.g., copies needed to fax to someone
  76. §121
    • Reproduction for the benefit of certain disabled persons
    • E.g., casebooks in braille
  77. Derivative, generally
    Basing a work upon another pre-existing work, or any other form in which a work may be recast
  78. Elements of being a derivative
    • 1. Recast;
    • 2. Transformed

    • E.g., tiles case: not derivative. mounting to a tile is essentially changing the frame
    • E.g., nintendo game genie case: needed Nintendo to play and didn't actually recast or adapt a game
    • E.g., Duke Nukem custom levels: Derivative. Used essential elements of the game in a DVD sold for a profit
  79. First sale doctrine and derivatives
    • After an artist sells his work, a person can do what they like with that copy
    • E.g., precisou moments fabric being used in pillow cases and comforters
  80. Factors to determine if something is a license
    • 1. Labeled a license
    • 2. Does user have to return or destroy a copy?
    • 3. Does the license impose notable use restrictions?
  81. Library sotftware license/record rental exception to licenses
    Public libraries are allowed to rent computer software and records
  82. First sale and goods sold elsewhere and resold in U.S.
    • §109 applies to goods sold elsewhere and resold in US
    • NB: This only applies to "round trip sales": sold from US to a foreign co then sold back to a US co. Does not apply when a US co. licenses a foreign co to make their protucts which are made abroad and then sold to the US
    • E.g., Omega Watches: watch face made in Mex. according to license and then resold to US co. Infringement.
  83. "Public place"
    • Perform work in a place open to the public (audience not required; place, not people, is what matters)
    • Perform in a place where substantial numebr of people, outside of family, are gathered (substantial number? Legis. history = 20–30 people)
  84. Transmission
    Transmitting performance from one ocation to another is public
  85. Transmission and public performance
    • If there isn't simultaneous perceptibility, there is not a public performance by transmission
    • McBee and Bruno's: bar was closed on Sunday, even if transmission was intercepted, was not a public performance
  86. Communication of transmission of a performance exemption
    • Over the air broadcasts that contain performance or displays of a work, played on a single piece of equipment commonly found in homes ≠ infringement.
    • E.g., claire's boutique
  87. §110(5)
    Communication of transmission of a performance exemption
  88. Communication of transmission of a performance exemption: EXCEPTION
    • 1. Fee is charged to listen to music; or
    • 2. Transmission is futher transmitted to public
  89. Communication of transmission of a performance exemption: FACTORS
    • 1. Single receiving apparatus is used;
    • 2. Appartus is of a kind commonly used in private homes;
    • 3. Transmission is provided free of charge; and
    • 4. Transmission is not "further transmitted" to public
    • NB: This doesn't apply to CDs and MP3s because they aren't publicly rec'd broadcasts
  90. Allowance of public performances in establishments: ELEMENTS
    • 1. establishment (not bar or restaurant) has <2000 sq. ft. of space; OR if >2000 sq ft. and:
    • - performance is audio, not transmitted on more than 6 speakres (no more than 4 in one room or outdoor space); OR
    • - performance is AV and not transmitted by more than 4 AV devices w/ ≤55" screen (≤4 speakers in room)
    • 2. A restaurant or bar ≤3750 sq ft.; OR if >3750 and:
    • - same as above
  91. Method of establishment to play music or show TV w/o fear of litication
    Contract w/ an org that is certified by ASCAP (e.g., Muzak) where the license fee is incorporated into K
  92. §110(1)
    Education public performance exception
  93. Education public performance exception: ELEMENTS
    • 1. Face-to-face teaching activities
    • 2. nonprofit educ. institution
    • 3. in a classroom or similar place
    • Unless,
    • - for AV works, the copy wasn't lawfully made; and
    • - the person responsible knew or had reason to believe was not lawfully made
  94. §110(2)
    Second Education public performance exception
  95. Second Education public performance exception: ELEMENTS
    • 1. performance or display is made by, at the direction of, or undr the supervision of an instructor as an integral part of a class offered as a egular part of the instruction activities
    • 2. display is directly related and of material assitance to teaching
  96. §110(4)
    Church/nonprofit public performance exception
  97. Church/nonprofit public performance exception: ELEMENTS
    • 1. made in the course of services (for churches)
    • 2. no admission
    • 3. if charge is levied, the entire proceeds go to a charitable purpose
    • NB: If © owner objects to work being performed, the org. no longer has the right to perform work
  98. §110(6)
    Fair public performance exemption
  99. Fair public performance exemption
    Ag or horticultural exemption; only extends to organizers, not the band performing
  100. §110(7)
    Record store public performance exception
  101. Record store public performance exception
    • Allowed when the purpose is to promote the sale of the music
    • Can't be transmitted beyond establishment (or charge to get in)
  102. §110(8),(9)
    Visual handicap public performance exemption
  103. Visual handicap public performance exemption
    Allows changes to performances or displays for th aid of those w/ visual handicap
  104. §110(10)
    Fraternal org public performance exemption
  105. Fraternal org public performance exemption
    • Nonprofit veteran's org. (when open to public) or fraternal org. (where public is not allowed) are exempt when proceeds are for charitable purpose
    • NB: Frats are not included (unless strictly for a charitable purpose)
  106. §111
    Hotel/motel public performance exception
  107. Hotel/motel public performance exception
    hotel can use signal booster for better reception (secondary transmission exception)
  108. Bifurcation of sound recording rights
    • Music and recording are separate rights
    • e.g., blarin music in car is not infringement to performer (but could be to song writer)
  109. Public display right
    Very limited right; subject to §109(c)
  110. Public display exception
    • Allows display of certain graphical works in art museums, etc.
    • BUT, is ltd. to one display of that work (e..g, can't display a work on two diff. terminals at once)
  111. Google/Perfect 10 Case: Public display
    • Google doesn't host images, only points to where they can be found.
    • Not infringement.
  112. Droit moral, generally
    Moral rights of creators of works (never explicitly recognized in US; §106A is closest we have)
  113. §106A
    Droit moral for US (VARA)
  114. §106A elements
    • Authors of visual art may:
    • 1. clain authorship of a work;
    • 2. prevent others from using his name on works he didn't create;
    • 3. prevent intentional distortion that would prejudice his reputation;
    • 4. prevent usage of his name on distorted version of art; and
    • 5. prevent destructino of a work of a recognized stature
  115. Droit moral example: church painting
    Pre-VARA: No cause of axn for taking down fresco. Also, no way to recover w/o causing structural damage
  116. Droit moral example: Monty Python
    Post-VARA: Edited version of a work compromises the artistic integrity of a work
  117. Droit moral example: VARA and Indianapolis statue
    Willful destruction of publicly recognized work is a basis for a cause of axn (and enhanced damages)
  118. Droit moral example: Site specific works of art
    • Owner of a work can relocate work
    • Site is not the art work, the works are the art work; therefore, the relocation of pieces fit w/in public presentation exception fo VARA
    • See Chicago Park Dist.: Living orgs are not fixed, can be moved
    • See Mass. Museum Case: Unfinished art is protected by VARA
  119. DMCA, generally
    Operates outside the realm of © ("quasi-©")
  120. §1201
  121. DMCA, Anticircumvention
    Can't unauthorizedly circumvent protection of a ©'d work to get to the ©'d work
  122. DMCA, exemption for nonprofits and educational institutions
    Libraries can 'hack' if the reason is strictly for the purpose of seeing if they want further legit. use of that work (only as long as hacking is needed to make the determination)
  123. DMCA, law enforcement exception
    Law enforcement can hack DBs to look for bad materials
  124. DMCA, reverse engineering exemption
    Protection measures can be broken down for interoperability purposes
  125. DMCA, encryption research exemption
    Exemption for encryption research
  126. §1202
    • Mgmt of © info
    • Can't delete or misstate © info; can't remove indications of © ownership
    • NB: Doesn't just apply to electronic copies of things; applies to works that are digitized
    • Takeaway: §1201 violation is not needed for there to be a §1202 violation
  127. §1203
    • Civil remedies
    • E.g., §1203(c): statutory damages
  128. §1204
    • Criminal offenses under the DMCA
    • Willful violation of §1201/02 for the purposes of pecuniary gain
  129. §1201(a)(1), (2) contrasted w/ §1201(b)
    • §1201(a)(1): no person shall circumvent
    • §1201(a)(2): no person shall provide or traffic in tech that is primarily designed to circumvent (prevents access)
    • §1201(b): Permits access but iprevents copying
  130. Free speech and DMCA
    • 1st amend doesn't provide absolute rights if there is a compelling state interst in protecting the tech measures designed ot prevent access to ©'d works.
    • NB: The prevention of decryption "free speech" is focused at the function of the speech, not the actual speech
  131. Medallic Art Co.: coin represenation case
    Authorship matters: co. can't take P's designs, end their relationship, then have 3d party produce the designs the P made
  132. Gov't works and © ownership
    • So long as employee's works don't pertain directly to gov't (nor done on ov't time), work can be ©'d
    • (§105 only applies to the Fed., state gov'ts can © their works)
    • NB: Fed can require that grant-winners give fed. their ©
  133. Transfer of ©
    • Two ways to use ©
    • 1. License
    • 2. Transfer (which is a subset of license)
  134. Technicalities of transfers
    • Must be the subj. of an instrument, note, or memo;
    • That is a signed writing
    • (like Stat. of Frauds)
  135. §204
    Transfer writing requirement

    • NB: Writing must be specific that deals with the rights the owner wants to convey (can't just be a "legend" on a signed check)
    • NB: General licenses can be conveyed orally
  136. §203
    • Termination right alienability
    • Termination right is inalienable; owner always has the right to terminate a transfer
  137. Termination term
    • Termination can occur:
    • 1. in 5 year period beginning at the end of 35 years from date of execution of grant; OR
    • 2. if grant includes right of publication: 5 years beginning 35 years from the date of publication OR at the end of 40 years from the date of the execution of the grant, whichever is earlier
  138. Termination
    Allows © owner to recapture those rights he assigned to another so that he can renegotiate and make more money (heirs have rights, too)
  139. §304(c)
    Widow/orphan provision
  140. Widow/orphan provision
    When author dies after transferring a © to another entity, the right to terminate passes to widow/children. Even if he wills the © to someone else (because he had no interest at the time of death; his interest doesn't kick in until the 35/40 year period)
  141. License writing requirement
    None. Can be oral.
  142. Implied licenses
    • Implied license granted when the licensee:
    • 1. requests creation of the work;
    • 2. the licensor makes and delivers the requested work to the licensee; and
    • 3. the licensor intends that the licensee copies and distributes his work throughout the licensee's system
    • NB: Implied license is broad, non-exclusive, and allows the right to modify the software.
  143. Granting © in multiple authors
    • Authors must intend the work be combined into inseparable or interdependent parts of a unitary whole
    • Each contributor's contribution must be independently ©-able
    • NB: Can be created by agreement, too (even if one contributes non-©-able materials)
  144. Rights of multiple authors
    • Each has the same rights
    • E.g., one joint author licenses a work to anyone who will have it; causes problems
  145. Test for mutual intent for co-authorship
    • 1. objective manifestation (e.g., K or witnessed convo)
    • 2. superintending work by amt. of control (how much control did putative author have?)
    • 3. Did audience appeal of the work apply to both putative authors? (e.g., music and lyrics)
  146. Collections, generally
    Some works are collection of other authors' works. Poses a challenge as to who gets ©
  147. §201(c)
  148. Producer of collection rights
    • 1. privilege of reproduction and distributing the contribution as part of that collection;
    • 2. any revision thereof (e.g., extra editions of a newspaper)
    • 3. a later collective work (e.g. book of greatest TIME stories)
    • NB: Collection must include all the stories as a whole, as opposed to electronic DBs (digitization is not included in the license)
  149. Collections in relation to derivatives
    §201(c) only deals w/ work as submitted, has nothing to do w/ preparation of derivatives
  150. Works made for hire, generally
    When someone creates something for an employer, as an employee, the © to the thing is owned by employer
  151. Factors for determining if a work is an employee
    • 1. How did he get paid? Regularly?
    • 2. Taxes withheld?
    • 3. Author provide his own workspace and materials?
    • 4. What control did employer hold over work?
  152. §408
    Notice and registration
  153. Notice and registration
    • Required to get into court
    • Done ≤90 days from creation allows the greatest range of remedies
  154. "Deposit" requirement of registration
    Must provide library of Cong. w/ a copy (builds a great national library)
  155. After-the-fact creations and registration
    Not allowed (Beavis and Butthead)
  156. Later, unregisterd versions of previously-registered software
    Registration can apply to unregistered versions of a program if there are enough similarities to the original, registered work
  157. Duration of ©
    Life + 70 years (95 years from creation if institutional or unknown author)
  158. "Limited" duration requiremen
    So long as not perpetual, © term can be very long
  159. Copying analysis
    • Was there copying?
    • 1. Yes. Unlawful appropriation?
    • - Yes. Infringement
    • - No. Fair use or other defense
    • 2. No. Was there access?
    • - Yes. Is there substantial similarity? (look for extrinsic (PCPMSS) and intrinsic (ordinary listener/observer) evidence)
    • - No. Inverse ratio test (more access = less proof and vise versa)
  160. Analysis of infringement
    • If similarities extend to:
    • 1. Ideas/concept: no infringement
    • 2. PCPMSS: getting closer to © infringement
  161. Total Concept and Feel test
    • **Version of substantial similarities used when works are of two different media**
    • 1. Extrinsic analysis: look at external similarities (theme, plot, etc.)
    • 2. Intrinsic analysis: Ordinary observer test
  162. De minimis infringement
    • Three approaches
    • 1. D copied enough to infringe, but it's so trivial the law won't prosecute
    • 2. Copying has occurred to such a small extent that it doesn't reach © infringement threshhold
    • 3. Amt. and substatiality is so minimal that it affects and influences a fair use defense
    • E.g., BET case: Background usage of artwork was de minimis
  163. Rule of thumb for sampling
    Get a license. Even if used portion is small, it could be so recognizable to = infringement
  164. Extrinsic/intrinsic analysis
    • 1. Was there access? Yes? then...
    • 2. Is there substantial similarities between the works? Yes? Then...
    • 3. Extrinsic/intrinsic analysis
    • - Extrinsic: look at the actual score, video, etc.: test for similarities in ideas
    • - Intrinsic: ordinary observer test
  165. Extrinsic/intrinsic test and MSJs
    Nearly impossible to get. By its own term, ex/in analysis requires "ordinary observer test"; jurors are best ordinary observers
  166. Combination of unprotectable elements and protectablilty
    • Some combos of unprotectable elements can lead to protectable work
    • E.g., title/hook phrase; shifted cadence; instruments; etc.
  167. Ordinary observer test
    • Could member of the intended audience find similarities?
    • NB: Differs from ex/in test in which you look at any ordinary observer, not just the intended audience
    • E.g., work is intended for a 5 year old; instruct jury to look at work from mindset of a 5 year old
    • E.g., choral directors: bring in choral directors to analyze works
  168. Computer program test
    • 1. Abstraction: Eliminate abstract components
    • 2. Filtration: Eliminate elements that are dictated by fxn.
    • 3. Dissection: compare the "golden nugget" that is left
  169. The effect of opportunity to access
    Mere opportunity for access is not significant access. Similarities would have to be substantial.
  170. Unconscious access
    Even if a composer isn't setting out to copy a work, he can still be liable for infringement if he had access (e.g., mass media) and his work is substantially similar
  171. Striking similarity and access
    • Some circuits: Gibb: Even if similarities are striking, there must be some proof of access (even Gibb has moved away from this analysis)
    • Other circuits: Striking similarities give a de facto inference of access
  172. Fair use, generally
    • Most invoked defense to infringement
    • Judicially created (later codified) was for ©'d works to be used for limited purposes, w/o licensing
  173. §107
    Fair use
  174. Fair use factors
    • 1. Purpose and character
    • 2. Nature
    • 3. Amt. and substantiality
    • 4. Effect upon potential market
  175. Purpose and character of use
    • More likely fair when:
    • 1. noncommercial
    • 2. criticism or comment; teaching and scholarship; research...
    • 3. News/public interest; and/or
    • 4. Transformative (including parody)
  176. Nature of work
    • More likely fair when:
    • 1. Informational
    • 2. Published
    • 3. Not commercial
  177. Amount of work
    Amt. of work used is not as important as the relative proportion used ("heart" of the work test)
  178. Effect of use on potential market
    • **Most important factor**
    • If challenged use becomes widespread, it would aversely afect the market.
    • NB: There doesn't have to be a current market, only potential (e.g., Salinger may not want his memoirs published now, but he might later)
  179. Substantial non-infringing use
    • Even if something can be used for an infringing use, if it has a substantial non-infringing use, it may be okay
    • E.g., Sony Betamax case
  180. "Heart of work"
    Even if a copied amount is very small, if it takes the heart of a work, it could preclude fair use
  181. Productive use theory
    • 1. Did D add value to the work? A new perspective, insight, etc. that was not in the original?
    • 2. Did it become a "transformative use"? Does it supplant the original work?
  182. News and news reporting and fair use
    News reporting is often protected under fair use, but news co.s can still infringe if they take the "heart" of a work; courts must look at all factors in context
  183. Commercial use precludes fair use?
    • Originally, Sony set up that commercial usage set up a rebuttable presumption of unfair use
    • 2LC changed this (Cochran said ct. accused other of misreading Sony rather than just saying they got it wrong)
    • NB: If comercial and non-trans: prolly not fair; commercial and trans: weighs towards fair
    • Takeaway: The parody usage is unlikely to supplant a market and won't have that much of an effect on a work's marketability
  184. Collectors books and fair sue
    • E.g., Ty case
    • 1. Adult version: small photos, factual info on secondary market [likely fair; thumbnails are not substitutes]
    • 2. Child version: glossy, large photos, silly descriptions [likely a derivative work]
  185. Transformation/reproduction and fair use
    • E.g., Grateful Dead case
    • Even if posters were copies 100%, they were being used for a different purpose and the posters were much smaller than the originals; couldn't supplant the market
  186. Depictions of ©'d works
    • E.g., Gaylord Korean war statue case
    • "Jest because nature decided to snow doesn't take away Gaylord's protection."
  187. Screenshots and fair use
    • E.g., Bleem emulator case
    • There is little market for screenshots and comparative advertising is a good thing; further, a screenshot is 1/30 of a second of a game; not substantial
  188. Circular reasoning with effect on market and fair use
    P can't say, "If D had licensed, I would hvae made money; they didn't license, so I was financially harmed." They must show a potential market exists and that it was affected by the D's conduct
  189. Parody
    Humorous representation of a work; often for th epurpose of social commentary (one of the reasons for fair use)
  190. Satire
    D uses P's work to make fun of a 3d party
  191. Parody and "heart" of work
    Parodies generally must use the heart of a work to evoke memories of the work; otherwise, it wouldn't be seen as a parody
  192. Parody effect upon market
    Generally slight. Parodies don't usually supplant market (e.g., someone wanting Orbison's "Pretty Woman" wouldn't be satisfied w/ 2LC's version)
  193. Parody and transformative use
    • Usually adds something to a previous work; results in transformation
    • BUT SEE e.g., Naked Gun Demi moore case: Just because something is different doesn't mean it's necessarily transformative; it must send a different message or comment (which the poster in question did)
  194. Parody and nature of work
    Parody usu. comments on a creative work (no one parodies an encyclopedia); not an important factor in parody analysis
  195. Parody and amount and substantiality
    Parodist msut take enough of the original so that the viewer can recognize the target of the pardy; but he needn't stop there; no "bare minimum usage"
  196. Parody, amount and substantility, and visual works
    Visual parodies genearlly need to use a greater portion of a work to conjure up the original (e.g., Barbie photo case)
  197. Fair use and reverse engineering
    Reverse engineering is okay so long as ©'d code does not end up in the final product; intermediate usage is okay
  198. Software ©
    Softwar lies further away from protectability than other literary works because it has so much un©able stuff w/in
  199. Fair use and "try before you buy"
    • Generally not okay (unless allowed). Not okay to download songs/software. It's infringement.
    • NB: Not only individuals are accountable for things like this; universities and large corps are liable, too, under contributory infringement
  200. Wall Data LASD case
    Even if use is prevented beyond what license allows, intalling same software on more computers han license allows is not okay
  201. Fair use and DMCA
    Website owners must use fair use in a determination of whether material should be taken down
  202. Fair use and commercial research
    Not allowed. Must license w/ an organization that allows copying of ©'d journals, etc.
  203. Fair use beyond the 4 major factors
    • Many factors may be used; list isn't exclusive
    • E.g., first amendment criticism of exam; didn't have to reproduce entire questions of unpublished test
    • E.g., stationary case; TM case also included a © claim: ct. leaned heavily to fair use because it simplified issues and there's not a market for Lucent stationary
  204. Adoption by gov't effect on ©
    © is not always completely taken away by gov't adopting it
  205. SMJ test
    • TB Harms test:
    • Suit "arises under" © Act if:
    • 1. Complaint is for a remedy expressly granted by the Act (e.g., infringement of the suit); or
    • 2. The complaint asserts a claim requiring construction of the © act
    • Very basic, misses nuances so © claims have to be very carefully crafted (e.g., make sure its not presented as a contract claim; i.e., "video" means something different than it did 20 years ago, thus making a K claim [doesn't arise under]).
  206. Foreign infringement
    • Can only sue if someone infringement actually happened in U.S.
    • E.g., video was publicly performed in Canada, but was publicly displayed in US (public display is what you sue on)
    • E.g., video was reproduced unauthorizedly in US, but transmitted in UK, Sue for reproduction right, not transmission
  207. Foreign contacts and choice of law
    • 1. Who owns the work published? Use law of origin country
    • 2. How was it infringed in US? Use law of US
    • E.g., Russia vests © for news articles in authors, not papers, so a paper couldn't sue, even though a US newspaper unauthorizedly published stories from the Russian paper in its own paper
  208. S.I. and the US
    The fed has waivd SI, but states have not; Cong. is working to abolish this, but hasnt yet
  209. Preemption, generally
    • Where cong. has stepped in and said there can be protection of something, states are not free to come in and carve out extra niches for protection (e.g., trade dress laws)
    • E.g., Sears lamp case: Patents are for novel things, if you can't get a patent, can't use stat elaw to protect unpatentable item
    • E.g., vessel hull case: vessel hulls weren't protected by ©, if cong. wanted to protect them, they could have (cong. has since protected them)
  210. §301
  211. Preemption provision
    • If any state act conflicts w/ rights assured to © owners, the © Act preempts
    • Takeaway: © owner has specific rights and state cannot supersede those rights; where a state statute grants a right that is equiv to a right in the © act, the © act controls
  212. Three types of preemption
    • 1. Express: Specific statement expressly preempts state law
    • 2. Field: Fed law so thoroughly occupies a field that its reasonable to infer cong. left no room to supplement fed. law
    • 3. Conflict preemption: A state enacts legis. that robs P of a fed. right
  213. "Hot news" misappropriation
    • Protects works that aren't ©-able when taken by another entity when:
    • 1. P generates or gathers at a cost;
    • 2. info is time-sesitive;
    • 3. D's use of info constitutes free riding on P's effors;
    • 4. D is in direct competition w/ a product or scv offered by P; and
    • 5. ability to free-ride on P reduces incentive to produce material
  214. Preemption and the right of publicity
    • Split
    • E.g., Orioles case: taping and broadcasting baseball game doesn't represent breach of righ tof publicity; MLB has © in the broadcase and players have bad Ks [heavily criticized[]
    • E.g., Ames bootleg CD compliation using names and likenesses; person have protection in their rights of publicity
    • E.g., Wendt animatronict Cheers case: actors have a right to their publicity, even if the work being depicted is protected under © law
  215. Right of publicity and protecting works into ∞
    © superseded right ot publicity of original creators of a work, otherwise they could protect a work indefinitely
  216. K-ing away your fair use
    It's possible to lose fair use defense by agreement through K
  217. Types of websites
    • 1. Info only (doesn't give rise to personal jx.)
    • 2. Intermediate
    • 3. Clearly does bus. in the state (gives rise to personal jx.)
  218. Injunctive relief requirements
    • 1. Substantial likelihood of success
    • 2. No adequate Remedy at law
    • 3. Will server public interest
    • 4. Irreparable harm (money won'y be enough to make claimant whole)
    • SIRI
  219. Injunctive relief substantiation requirements
    • Injunctions, though borne of equity, should not be given lightly.
    • P must provide factual basis of irreparable harm; can't just assume de facto harm
    • E.g., Balsam: no injunction for infringed blueprints because it would make many old, poor people homeless
    • E.g., Eve of Milady: Partial injunction. Wouldn't take dresses that were already delivered, even if not picked up. Non ordered were takeable. Ordered but paid for might be takeable.
    • E.g., Devil's Film: Federal marshals have better things to do than pick up porn
  220. §504(b)
    Actual damages
  221. Actual damages
    Can recover damage that you actually incurred
  222. Calculation of actual damages
    • Most be done in a careful way; give ct. something to hang it's hat on
    • E.g., Schlitz: Don't ask for entire malt liquor sales profit from 10-note usage of a song; make reasonable compensation scheme
  223. §504(c)
    Statutory damages
  224. Statutory damages
    • Can request any time before final jgmt.
    • Allows "little persons" to recover damages.
    • $750-$30,000 per work infringed (e.g., use one song several times, only get one damage reward)