Copyright

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Copyright- Is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time. Generally, it is "the right to copy", but also gives the copyright holder the right to be credited for the work, to determine who may adapt the work to other forms, who may perform the work, who may financially benefit from it, and other, related rights. Fixation- Requires that the work be recorded in a form that can be perceived directly or by means of a device now known or later developed. Examples- Writing, drawing, sculpting, recording and making notations all count as fixation. Improvisational and/or unrecorded performances of music, dance or drama are likely to be creative but not fixed. Something that is typed on a computer but never saved to a permanent storage medium might also be unfixed (but once the work is saved, it is fixed). Copyrightable Material- A work must possess more than a de minimus degree of creativity. Derivatives- To establish a valid copyright in a derivative work it must be shown 1) That the differences between the derivative work and the underlying work are more than merely trivial and 2) That the copyright in the derivative work will not interfere with the owner of the underlying work’s rights to create or license subsequent derivative works. MalJack Productions. Content- Expression of ideas, not the ideas themselves (words and short phrases such as names, titles, and slogans, or the mere listing of ingredients or contents are not protected by copyright). Letters, lectures, speeches, manuals, catalogues and corporate documents as well as other traditional prose material such as novels, articles and scripts are protected by copyright. Mere themes and bare plots are not protected by copyright. Copyright protects not only towards, sentences, and paragraphs of a literary work, but also the dialogue, incidents, dramatic devices, sequences of events and the development of the interplay of characters. Insurance- Errors and Omissions Insurance protects the policy holder from claims for defamation, invasion of privacy, trademark and copyright infringement. Public Domain- Incidents, characters or settings which at one time may have been protectable expression, but are now as a practical matter indispensable, or at least standard, in the treatment of a given topic or genre, are no longer protected by copyright.

Titles- A) Unfair Competition- Titles are not copyrightable without showing a secondary meaning. Jurassic Park might not be copyrightable, but may be protected under the laws of unfair competition. Unfair Competition is mislabeling or misdesignating a product or service in such a way as to cause confusion to consumers as to the origin of its manufacture but first, it must be associated with the second meaning and be released. However titles of a series of books, periodicals, newspaper or television programs may be protected without a showing of secondary meaning if inherently distinctive; B) Obtain Title Report; C) Consider MPAA Registration (first party to register it there can use it, but only applies to all who are part of MPAA). Defense- Obtain release or change name of identifiable products, locations, characters and names. For Film Clips get permission from copyright owner, guild and unions, every person in clip, musician and rights to underlying musical composition.

Exception- Government works (Hubble photo) or functional works (gun mount). Obscenity- 3 Part test from Miller v. California, 1) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interest; 2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Characters- 2 Tests; 1) Story being told test- As a practical matter, a graphically depicted character is much more likely than a literary character to be fleshed out in sufficient detail so as to warrant copyright protection. It depends on how distinct the character is characterized. Copyright protection may be afforded to characters visually depicted in a television series or in a movie; 2) Character Delineation Test- (Less stringent) Does the character have various character traits that are specific or have they changed over time? Can different actors play the character (as testament to the uniqueness of the character)? James Bond Commercial.

Employee Copyright Material- History- Prior to 1978 the party at whose instance and expense a work was created was presumed to be its legal author for copyright purposes. But later the presumption could be overcome with evidence of a contrary agreement between the parties. It didn’t matter if it was an employee or independent contactor. Factors- 1) The hiring party’s right to control the manner and means of creation; 2) the skill required; 3) the provision of employee benefits; 4) the tax treatment of the hired party; and 5) whether the hiring party had the right to assign additional projects to the hired party. Employment Scope- If it was an employee, was it within the scope of the employment? Factors- 1) job description, 2) traditionally created by a person that job, 3) on the clock, 4) on employer’s premises, 5) using the employer’s equipment, 6) with the aid of the employer or employer’s staff, 7) or using info available to the employee as part of the employee’s employment. Restatement has other factors: a) it is of the kind he is employed to perform; b) it occurs substantially within the authorized time and space limits and c) it is actuated, at least in part, by a purpose to serve the master.

Copyright Act of 1976- Formed the basic copyright law regime which the US follows today. It provided a single copyright term: the life of the author, plus fifty years (seventy-five years from fixation in the case of corporate authors). It eliminated many of the required formalities and applied copyright at the moment the work was "fixed" in a tangible medium of expression. Post Law- Since then, the main revisions to the 1976 Act have been the Audio Home Recording Act of 1992, adding new laws pertaining to digital audio recordings; the Sonny Bono Copyright Term Extension Act of 1998, extending the term of copyright for an additional twenty years (see Duration); and the Digital Millennium Copyright Act of 1998, imposing new rules on high-tech works.

Duration- Individual, life +70 years. Collaboration, life of last survivor +70 years. For works for hire, 95 years after publication or 120 years after creation whichever is earlier. The term of copyright is automatically renewed.

Computer Program- Copying it into the RAM has been found to constitute an infringing reproduction. A website’s linking to another website containing a copyrighted work has been held not to be a reproduction of that work.

Idea vs. expression- Copyright does not protect ideas, whether they are fact, opinion or fantasy. It only protects the expression of those ideas. Compilations of facts, such as encyclopedias, dictionaries and even telephone directories, can receive copyright protection. But the facts themselves cannot be copyrighted—only the expression of those facts can be copyrighted. This means that many database providers cannot rely on copyright to protect their data from being republished: they must rely on licenses and other elements of contract law. In other cases, the law of unfair competition can prevent one business from using another's compilations of information in an unfair way. How do you Protect Ideas?- A writer can make a binding oral contract by making it the subject of a contract. It is also advisable to put a copyright notice on your work before you publish it. Hire an entertainment attorney, a studio executive will think twice before ripping off a client of a powerful agency. A writer may restrict, in writing, the extent to which a company may shop material to third parties.

1. Infringement- To find infringement of the right to copy, a court must find a. Copying i. A) Direct evidence- 1. Some authors (especially authors of factual compilations such as phone books) plant minor errors in their works so there will be obvious evidence of any copying. In other cases, there may be evidence of the infringer's admission to copying. ii. B) Circumstantial evidence- 1. Access- a. Access can be proven by evidence that the D had actually read or heard P’s work, or had a reasonable opportunity to view or hear the P’s work. The reasonable opportunity to view or hear the P’s work may be established by showing a particular chain of events by which the alleged infringer might have gained access through an intermediary; 2. Similarity- a. The accused work has sufficient similarities to the original, a court can conclude that illegal copying took place. What really matters is not the detailed dissection of the two works but instead the total concept and feel, theme, characters, plot, sequence, pace and setting Walker, Texas Ranger. b. A court may grant summary judgment for a D if the similarity between the works concerns only non-copyrightable elements, or if no reasonable jury upon prop instruction would find that the two works are substantially similar Arab Heart Case. c. The similarities can’t be derived from ideas or small similarities that can be found in very dissimilar works. d. Factors- 1) Plot; 2) Mood (serious versus humorous); 3) Characterizations (of characters) 4) Pace (2 months quickly or long 2 years); 5) Setting; 6) Sequence of events; 7) Other claims of similarity. b. Improper appropriation- i. While copying is a fairly straightforward analysis, improper appropriation is often more difficult. ii. Actual Copying- When a work is copied word for word (or bit for bit), the copying can generally be considered to be improper appropriation. iii. Piecemeal Copying- The more difficult case is when only part of a work is copied—for example, when characters or plot devices from a literary work, or a chord progression or melody from a musical composition are copied to create a derivative work. 1. The key to improper appropriation is substantiality of the copying. Copying an insubstantial part of a work is not likely to constitute infringement. Whether copying is substantial is still a difficult question. 2. Judge Learned Hand concluded that "the proper approach" in answering the question must be "more like that of a spectator, who would rely upon the complex of his impressions of each character." This is known as the subjective test for improper appropriation. Some other courts, particularly in the Ninth Circuit, apply an objective test that compares each copyrightable element of the two works to determine to what extent the accused work copies the original. 2. Criminal infringement a. 17 U.S.C. § 506(a) provides that an infringer faces criminal liability in two situations: b. When their infringement is "for purposes of commercial advantage or private financial gain. c. “When they distribute "1 or more copies or phonorecords of 1 or more copyrighted works" with a total value of greater than $1,000 within any 180-day period. a. Defense- Fair use- The Copyright Act provides (17 U.S.C. § 107) that a finding of fair use depends on: a. Purpose and Character of Use—e.g., whether it is for profit or for educational purposes. Commercial use is a factor against fair use, but it is not dispositive 2Live Crew. i. Purpose- To see whether the new work merely supersedes the objects of the original creation. If it was productive then it is more fair use likeable. ii. Productive- Creating a new work that was not there before. b. Nature of Work- This factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied. Parodies don’t use this factor. Nature of the original work. Published and Factual- If yes, then more fair use. c. Quantity and Value of the Materials used- This factor calls for thought not only about the quantity of the materials used, but about their quality and importance too. Here the attention turns to the persuasiveness of the justification for the particular copying done. i. Parody- Once enough has been taken out of the material to assure identification, how much more is reasonable will depend on the extent of the parody’s overriding purpose and character to the original or the likelihood that the parody may serve as a market substitute for the original. d. The effect of the use upon the potential market for or value of the copyrighted work- Courts consider not only the extent of market harm caused by the actions of the infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the D would result in a substantially adverse impact on the potential market. The court needs to distinguish between biting criticism that merely suppresses demand and copyright infringement which usurps it. b. Other factors. a. 1)Parody- If the commentary has no critical bearing on the substance or style of the original composition, which is used merely to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another’s work diminishes accordingly. b. 2)Copying for personal use, such as the "time shifting" permitted by Sony, the "space shifting" permitted by Diamond and photocopying of books for research purposes. But if such copying is used to escape licensing provisions (as may be the case with software or technical journals), it may not be considered fair use Cambell.

Other Crimes Associated with Copyright Law- Contributory infringement is when one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a 'contributory' infringer. Elements: 1) Knowledge and 2) Participation. Vicarious infringement is a separate but related doctrine applied to those who have the power to halt infringing conduct, and derive a financial benefit from the infringing conduct. This is more closely related to agency. A person can be liable for vicarious infringement simply because of their relation with the infringer. The Digital Millennium Copyright Act of 1998 created a "safe harbor" for ISPs and server operators, protecting them from contributory infringement as long as they (1) have a policy of terminating users who are repeat copyright infringers, (2) adopt standard copyright protection measures, and (3) register an agent with the Copyright Office to receive infringement claims from copyright owners.

Registration- Copyright registration has never been a requirement for protection, but it has always been helpful to authors. The most important aspect of registration, which applies under all three copyright regimes, is that registration is a prerequisite to suing for infringement. Note that registration can occur after the infringement itself, but it must be made before any suit is filed.

Airplay- Radio can get away with playing songs on the air without purchasing the rights because the radio can’t make money from them. Whereas movies, internet radio, and others can.

Cover Songs- §115 (compulsory way of obtaining the license) provides that once a song has been published in the first place then another group can cover it so long as they get a compulsory mechanical license under the copyright act. People can cover the song, but they can’t distort the lyrics Pretty Woman (EMI). Adaptation (changing the lyrics) still needs the express approval of the owner of the copyright.

New Media (LOOK ON TEST) 1) Means of producing media have become cheap and available. 2) Democratization means of distribution (e.g., youtube). North Dakota “It’s now because of the internet and powerful personal computers that people everywhere can create media and distribute it and be successful at it. You are creating entertaining content that a lot of people are appreciating and consuming and that is very meaningful from an overall entertainment standpoint. GFDL- Open source licensing that you are required to license your work to everyone using it and cannot sell it. A way for a community of people to license things to themselves, economically efficient to provide benefits to society. Example- Wikipedia.

Sampling- The practice of sampling portions of pre-existing recordings and compositions into new songs is common. Musicians sample pre-existing works either digitally, by lifting part of a song from a pre-existing master recording and feeding it through a digital sampler, or by hiring musicians who re-play or re-sing portions of the preexisting composition. Newton. 2 Licenses Required- 1) The Recording and 2) The Musical Composition. Under the Copyright Act- Sound recordings and their underlying musical compositions are separate works with their own distinct copyrights. The rights of a copyright in a sound recording do not extend to the song itself, and vice versa. If only One License- A dissection is necessary to see what parts are licensed and what parts may infringe. For it to be infringement it must be a part of the composition that is unique, Newton. De Minimus Defense- To establish that the infringement of a copyright is de minimis, and therefore not actionable, the alleged infringer must demonstrate that the copying of the protected material is so trivial as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying Newton.

Joint Work - A 'joint work' is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. For a work to be a 'joint work' there must be (1) a copyrightable work, (2) two or more 'authors. Can author different parts (directing v. music). Author Factors: A) Whether the purported author controls the work and is the inventive or master mind who creates, or gives effect to the idea; B) Objective manifestations of intent by the putative authors to be co-authors; and C) Whether the audience appeal of the work turns on both contributions and the share of each in its success cannot be appraised. (3) Intentions of the Author’s contributions to be merged into inseparable or interdependent parts of a unitary whole. Was it marked as a promotional tool for the group? Smashing Pumpkins.

Termination of Copyright- Any transfer of copyright executed by the author on or after 1978 may be terminated. In the case of a grant executed by two or more authors of a join work, termination of the grant must be effected by a majority of the authors who executed the grant. This termination must be done after 35 years of the initial grant. Under 1909 act the author could only transfer rights for the first 29 years. Authors can be contractually bound to renew that copyright with the publisher. But what if you die? There is no privy of contract with the heirs, then you are SOL.

Derivative Exception- The 1976 act permits someone who prepares a derivative work before termination to continue to use the derivative work during the extended renewal term under the terms of the grant Fred Alhert. If a post-termination exploitation of the derivative work cannot be undertaken within the terms of the pre-termination grant, then it has to be authorized. Purpose- To protect the rights of persons who have invested in creating the derivative work as well as to protect the rights o persons who have invested in creating the derivative work as well as to protect public access to derivative works. Look at the Contract- When someone terminates a copyright interest in a song, the right to authorize new uses of the Song reverted to the heirs, because that right is not within the terms of the grant preserved by the Derivative Works Exception.

Contents

Background

  • protects expression of ideas, not the ideas themselves
  • mechanical transformations aren’t enough to create a derivative work
  • words and short phrases such as names, titles, and slogans, or the mere listing of ingredients or contents are not protected by copyright
  • Scene a Faire Doctrine – incidents, characters and settings which at one time were copyrightable but are now indispensable, or at least standard, in the treatment of a topic or genre are no longer protected
  • mere themes and bare plots are not copyrightable


  • modeled after the Statute of Anne – England 1710
  • Copyright Act of 1909
    • term was 28 years
    • renewable for another 28
  • Copyright Act of 1976
    • basic regime we follow today

Requirements

  1. Creativity – original works of authorship
  • Literary, Musical, Dramatic, Choreographic, Pictorial/Graphic/Sculptural, Audiovisual, Sound Recordings, Architectural Work (if not purely functional)
  • Government works cannot be copyrighted
  • if an article can’t be separated from its functional component, it is a useful article and cannot be copyrighted
  1. Fixation – in a tangible form of expression

Notice is NO longer required (©)

  • but this is still encouraged and will help prevent an innocent infringement defense

Publication does NOT affect validity*this determines when deposit is required and the length of the copyright Registration

  • not required but helpful
  • required before there is a suit (can be after the infringement)

Deposit

  • person who registers must send two copies to the Library of Congress


Rights

  • copy, make derivative works, distribute, publicly perform, publicly display

Ownership

  • Created by:
    • Single Person = That Person
    • As Part of a Collective Work = can be copyrighted independently and the independent authors still have copyright to their contribution
    • Employee within Scope of Employment and Work for Hire = Employer
      • Elements: 17 USC Section 101 (definitions)
        1. Employee
        • SUPCO’s Reid Factors:
          • the hiring parties right to control the manner and means of creation
          • the skill required
          • the provision of employee benefits
          • the tax treatment of the hired party
          • whether the hiring party had the right to assign additional projects to the hired party
        1. Work was Created in the Scope of Employment
        • Factors:
          • whether the creation of the work is within the employee’s job description
          • whether the work is the type traditionally created by a person in the employee’s position
          • whether it was created during official hours
          • on the employer’s premises
          • using the employer’s equipment
          • with the aid of the employer’s support personnel
          • using information available to the employee as part of the employee’s employment
          • whether the work was related to the employer’s projects
      • if outside the scope, the employee is an independent contractor and if the work wasn’t specially authorized or commissioned, the individual owns the copyright
        1. OR in order to find commission – there must be a written agreement specifying the work is for hire (a split of authority on whether the work must be signed)
        2. AND the work must be from a specified category
        • audio visual works
        • motion picture
        • translation
        • supplementary work
        • compilation
        • test
        • answer material for a test
        • atlas
    • More than One Author = Joint Ownership

Each must:

  1. contribute independently
  2. intend their contributions be merged

often governed by contract this means they are tenants in common (not joint tenants where if the other person dies, you get the whole thing)

Morrill v. Smashing Pumpkins

(US District court for the Central District of CA 2001) District Judge Moreno

  • the band, The Marked, is staying with Morrill
  • he does a music video and is supposed to keep the tape but it disappears
  • he later approached Corbin at a concert and asked if he wanted to do something with the video – Corbin declined and he dropped it
  • The Smashing Pumpkins released a video which contained short clips from the tape
  • Morrill sued for copyright infringement

Ct. finds Smashing Pumpkins are the co-owners of the tape and grants their summary judgment 9th Circuit Test for Determining Joint Authorship:

  1. A copyrightable work
  2. Two or more authors

Criteria for Determining whether an Author

  • Whether the proposed author controls the work and is the “inventive or master mind who creates or gives the idea effect”
  • Whether the putative coauthors make objective manifestations of their shared intent to be coauthors
  • Whether the audience appeal of the work turns on both contributions and the share of each in its success cannot be appraised
  1. The authors must intend their contributions be merged into inseparable or interdependent parts of a unitary whole


Ct. looks at the author factors:

  • finds both had creative control over the work
  • the words and actions suggest an intent to be co-authors

Duration

Date of Creation: Created before 1978 but unpublished Date Copyright Attaches: January 1, 1978 Duration of Copyright: Life of the author + 70 years

Date of Creation: Published between 1923 and 1963 Date Copyright Attaches: Date of Publication Duration of Copyright: 28 years with option to renew for 67 more;if not public domain

Date of Creation: Published between 1964 and 1977 Date Copyright Attaches:Date of Publication Duration of Copyright: 95 years

Date of Creation: Created 1978 or later Date of Copyright: Date of Fixation Duration of Copyright: Individuals – life + 70 Corporate or Anonymous - Duration is 95 years from publication or 120 years from creation(whichever is less)

Generally things 1923 and prior are in the public domain and everything else is copyrighted unless someone failed to renew it

Division and Transfer

  • can be divided and transferred
  • transfer can be terminated
  • What is a transfer?
    • assignment
      • this has to be signed
      • it can be terminated
        • Stewart v. Abend (SUPCO 1990) – said termination rights cannot be signed away
      • Fred Fisher Music – said you can be bound by contract to renew the copyright and assign it to the publisher
        • but if you die, there is no privy of contract, and the heirs could start fresh with better terms
    • exclusive license – a license doesn’t have to be in writing and can even be implied

Fred Alhert Music v. Warner/Chappell Music

(2d. Cir. 1998) Termination of transfers…

  • both parties are claiming the right to license the use of a derivative work – the Joe Cocker recording of “Bye-Bye Blackbird” for the movie “Sleepless in Seattle”
  • Warner’s predessors (Remick) got an assignment
  • Warner granted a non-exclusive mechanical license to A & M so Cocker could make the recording – it covered only that recording
  • the statutory heirs terminated the grant to Remick so Warner’s rights reverted to the heirs
  • Dixon’s heirs transferred their rights to Ahlert
  • TriStar sought permission to use the song in “Sleepless in Seattle”
  • Ahlert issued the mechanical license to Sony
  • Warner wrote a letter to Fox saying that they retained rights and Fox cancelled the license to Sony
  • royalties have gone to Warner
  • Warner is claiming the right to royalties as a derivative work
  • Ahlert was granted summary judgment

Ct. looks at the Derivative Works Exception:

  • a derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after termination of other derivative works based upon the copyrighted work covered by the terminated grant
  • the parties don’t dispute that Cocker’s recording is a derivative work
  • they dispute whether it was made under the terms of the grant
    • the terms of the grant is the entire set of documents that created and defined each licensee’s right to prepare and distribute the derivative work

Cocker’s version of the song is a derivative work – the question is whether using that song on the movie soundtrack is within the terms of the grant

  • as the DC found, Warner only granted a narrow license to use the song on Cocker’s record and nothing else – it authorizes no other releases much less inclusion on the soundtrack
  • the right to license the derivative in the movie was with the heirs

Offenses

Infringement

Copying

  • Similarity alone isn’t enough
  • Ways to Prove:

Direct evidence Circumstantial evidence

  1. Access (either evidence the defendant actually read or heard the work or had reasonable opportunity to do so )
  2. Sufficient Similarities to the Original

Improper Appropriation of the Copyrighted Work

  • KEY = Substantiality of the copying
    • some courts use a subjective test and others an objective


  • Must prove ownership of a valid copyright
    • Must prove that the copying of constituent elements of the work are original.
      • It can be proven directly or indirectly
      • Indirect prove
        • Defendant had access to the work
          • Actual access to the work or a reasonable opportunity to view or hear the work, but bare possibility is not enough.
        • Defendant's work is substantially similar to plaintiff's work
  • Must distill the material in the Plaintiff's work which is not protected by copyright, such as ideas, facts or non-original material, from the material in Plaintiff's work which is protected
  • The copying must be substantial and material, either quantitatively or qualitative, to constitute infringement
    • The defendant took the heart of the work
  • A de minimis use is not copyright infringement

Infringement of the Right to Distribute

Contributory and Vicarious Infringement

  • if you have knowledge of the infringing activity and you induce, cause or materially contribute

Defenses

Fair Use

Factors: (from Section 107 of the 1976 Copyright Act)

  1. Purpose and character of the use (for profit or education?)
  2. Nature of the copyrighted work
  3. Amount and substantiality of the portion used in relations to the copyrighted work as a whole
  4. The effect of the use upon potential market for or value of the copyrighted work
Campbell v. Acuff-Rose Music, Inc.=

(SUPCO 1994) Justice Souter

  • FACTS: 2 Live Crew paroded the Roy Orbison song "Oh, Pretty Woman." They were unable to gain permission from Orbison, but published the song anyway, giving credit to the authors and publishers.
  • Orbison and Dees wrote “Pretty Woman” and assigned the rights to Acuff
  • 2 Live Crew asked for a mechanical license
  • Acuff refused but 2 Live Crew did a parody anyway
  • 2 Live Crew asserted the Fair Use Defense
  • DC granted 2 Live Crew summary judgment and the court of appeals reversed finding the commercial nature of the song made it presumptively unfair
  • ISSUE: was this fair use?
  • HOLDING: Maybe, the court looked at each of the factors to determine.

SUPCO looks at the four factors – reverses and remands Purpose/Character of Use

  • this is a parody
  • found this to be a commercial use

Nature of the Copyrighted Work

  • Orbison’s material falls within the core of what copyright protects

Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole

  • 2 copied the opening base rift and the words of the first line but then it departed
  • SUPCO said you have to take some of the song to do a parody and if they had taken any less, you wouldn’t recognize the song

Effect of the Use Upon the Potential Market For or Value of the Copyrighted Work

  • the parties didn’t provide any information on this, so summary judgment was inappropriate


There are separate interests in a recording – the written composition and the actual sound recording.

American Geo Physical Union v. Texaco

journal articles are copied for the library of a corporation NOT Fair Use

Saga Enterprises v. Mapia

copying video games to a bullet board system for privacy NOT Fair Use

Munster Comm. v. Turner Broadcast Systems

taking footage and putting it into a documentary Yes Fair Use

Lan v. Starks

copying trailer to show 3D capabilities Not Fair Use

Sandeval v. New Line Cinema

fleeting use of photos in the movie Seven Yes Fair Use

Dr. Suess Enterprises v. Bantam Books

reworking the anapestic tetrameter to talk about OJ Simpson murder Not Fair Use - the court said that with parody you have to be mocking the thing you are using – here you are parodying the OJ trial

License

Motola v. EMI America Recordings

(US District Court, District of CA 1984) District Judge Rymer

  • Stray Cats received a license for the song “Jeanie, Jeanie, Jeanie” through the Harry Fox agency
  • the plaintiff sued for copyright infringement
  • defendant made significant changes to the lyrics

Ct. found that the changes – with references to loud parties, free booze and sex was a perversion of the lyrics

  • the rights in a compulsory license:
    • recording
    • distribution
    • a limited right to arrange or adapt the song to adapt the song to suit the performer’s style or interpretation
  • BUT the rights cannot be so extensive to allow the song to be “perverted, distorted or travestied”
  • you also cannot change the basic melody of the song or alter its fundamental character

Generally, the author has the exclusive right to the copyrightable work Except:

  1. Radio Play
  • there are two copyrights with a record:
    • Sound Recording
      • owner has no exclusive right
      • can be played on radio without infringing
      • this is the record company
    • Musical Composition
      • you have to get a license to play this on the radio
      • generally this is through a blanket performing rights society – ASCAP or BMI
  1. Section 115 of the Copyright Act (17 USC 115(a)(2)
  • once a song has been released, anyone can cover it
  • this compels the composer to give them a license
  • this is a long and complicated process
  • Mechanical License - SO the industry created a private way to do this – they are voluntary and skip all the government bureaucracy
    • Harry Fox Agency – biggest firm to do this


Spectrum with Music

  • very faithful or small rearrangments = compulsory license
  • change it quite a bit = infringement
  • go way far = parody

Copyright Misuse

prohibits use of copyrights for anti-competitive purposes


Statute of Limitations

3 years in criminal cases


de minimus use isn’t recoverable

Copyright in the Music Context

“Circle P”=

  • copyright in the sound recorded (p=phonorecord)
  • Mozart is public domain – but a copy of a symphony playing Mozart is circle P
    • AM/FM can play all they want and will never owe money under this – there is no exclusive right to AM/FM performance
    • record companies make money by selling more records after they are played on the radio
    • There is a compulsory licensing scheme for webcasters, there is an exclusive right

“Circle C”

  • © copyright in the musical composition (publishers on behalf of the writers or composers)

Performance right

  • For musical compositions, there is a performance right for AM/FM/Satellite/webcast radio – they must get a license to play the song, even if they are just playing it and not making copies
  • License comes from performance right society – BMI/ASCAP/SESAC
    • Stations will get a blanket license for a fee, set by how many listeners they have, how big the station is – paid per month, no matter how often the tune is played
      • There is a regulatory system on the rates between the societies
      • Station must send a report of frequency to the society to track frequency of play
    • The more plays a song gets at a station – the more of the cut they get from the flat rate paid to the society
    • Mechanical License – issued to recording companies
      • 17 USC §115 - compulsory

Reproduction right

Violations:

  • taking a legal copy of sheet music and playing a song for paying ticket holders
  • if you run off copies of the sheet music, you could be violating the reproduction right
    • recording and selling copies

Synchronization License – a license to use a sound recording and a composition in an audio visual (motion picture or television show)

Sampling

this can infringe on both the sound recording and the musical recording

  • if the sample is small enough, it won’t infringe
  • if you sample even the tiniest bit of a sound recording = you lose
Newton v. Diamond

(US District Court for the Central District of CA 2002) District Judge Manella

  • a jazz flutist owned the copyright to the musical composition of a song
  • the record company granted the Beastie Boys a license to sample the sound recording
  • flutist sued the Beastie Boys
  • Newton said it was not just the notes that were taken, but the way he performed them

Ct finds that three notes and a background note was taken and that is too little to constitute infringement the three note sequence is not original as a matter of law

  • Court finds that the technique of playing was not recorded in the musical composition – they are protected in the sound recording which was licensed to Beastie Boys

Copyright requires:

Original Work Expressed in a Tangible Medium

  • this might be why he looses – because the court looks at the sheet music

Ct. said even if the three- note combination was copyrightable – the sampling de minimus the copying of the protected matter is so trivial “as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying” (EJ says the court is really saying this isn’t a defense but a way of denying substantial similarity)

Synchronization License

  • License to use a sound recording and a composition in a visual work (such as a tv show)


Duration

  • so complex that you can’t figure it out in your head – use a chart, it is a patchwork of laws
  • www.publicdomainsherpa.com


Transfers

  • must be in writing, signed
  • An assignment of the whole copyright
  • Or an exclusive license


Non-exclusive licenses

  • do not need to be in writing or even spoken, they may be implied


Assign

  • If you are an individual author and you assign your copyright to a publishing house, there are provisions for you to terminate that grant in the future
  • Works made for hire, by a corporation, there is no right to terminate (by the employee or employer)
  • But if the employee assigns the copyright, there is a right
  • Work for Hire (17 USC § 801?) (it’s better to have a work for hire than an assignment – you cannot terminate work for hire, the hirer is the author in terms of copyright)
    • either
      • Employer/employee relationship, or
      • Written agreement and it must be from a specific category (includes audio/visual work)
      • Or both


Under 1909 for term of 28 years, renewable for 28 yrs, failure to renew results in public domain – if you die before 28 years, your heirs cannot be contractually bound to assign the copyright to the publisher


Pre 1978 works – windows exist to terminate rights


Post 1977 transfer


Joint Author

  • Whether the purported author controls the work and is “the inventive or master mind” who “creates, or gives effect to the idea”
  • Whether the “putative coauthors make objective manifestations of shared intent to be coauthors”
  • Whether “the audience appeal of the work turns on both contributions and the share of each in its success cannot be appraised”


Joint Work

  • 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.”
  • A copyrightable work
  • Two or more authors
  • The authors must intend their contributions be merged into inseparable or interdependent parts of a unitary whole


Joint authors are like tenants in common – not joint tenants

  • You are in jail (i.e., the joint) and you murder your cellmate in his sleep – you get the cell to yourself – your cellmate cannot give his half of the cell to anyone else

Copyright Cases

Subject Matter, Ownership, Acquisition, Rights & Infringement

Maljack Productions, Inc. v. UAV Corp.

(C.D. Cal. 1997) Derivative Work Copyright…

FACTS: (consolidated action) plaintiff sues defendants for infringement of plaintiff’s rights in screenplays for movie “McClintock!” and filed action against Register of copyrights for refusing to copyright screenplays

  • Plaintiffs are Maljack and Batjac together
  • Defendants are UAV and Goodtimes
  • Batjac produced McClintock! and registered the motion picture for copyright but not the screenplay or any versions of the screenplay
  • Batjac failed to renew McClintock! and it fell into the public domain
  • Batjac took the movie McClintock! and panned and scanned it into a television format (which takes some creative choice because some things will be cut out)
  • Batjac copyrighted the panned and scanned version in 1993
  • Batjac transferred exclusive homevideo rights to Maljack in 1993 for a term of years
  • Batjac registered the 1993 version with the Copyright Office as a Derivative Work
  • UAV started putting out a version of McClintock that was photographically identical and largely aurally identical to B and M’s version – BUT UAV replaced the original soundtrack with new music


HOLDING: Register properly refused to register screenplays and that defendant infringed copyright; Plaintiffs own a valid copyright for their revised version of the film

REASONING: Plaintiff’s changes are sufficient to be protected by copyright: new editing method, sound alterations; Defendant is liable for infringing upon plaintiff's copyright

Ct said to establish infringement, the plaintiff must show:

Ownership of a Valid Copyright

  • the burden of invalidity lies in the person making the invalidity claim
  • the work must possess more than the de minimus degree of creativity – this applies to derivative works – the burden is low for derivative works
    • the pan and scan version had the requisite degree of originality to satisfy this
    • the changes to the soundtrack are also copyrightable

Copying of Original Elements of the Work

  • this wasn’t contested (though they did change the music)
  • Performer may sue one who fixes, transmits or distributes the sounds or images of a live musical performance, without the consent of the performer
  • To establish a valid copyright in a derivative work it must be shown:
    • That the differences between the derivative work and the underlying work are more than merely trivial, and
    • That the copyright in the derivative work will not interfere with the owner of the underlying work’s rights to create or license subsequent derivative works

Lone Wolf McQuade Associates v. CBS, Inc.

District Judge Koeltl

FACTS: plaintiff brought suit against defendant, alleging that “Walker, Texas Ranger” violated his rights in a 1983 movie under Lanham Act, unfair competition and misappropriation law

  • Orion gave Lone Wolf all right, title, and interest in and to all copyrights in the film BUT not interest in and to television series rights, so called television special rights, remake or sequel rights, or any other ancillary rights and/or allied rights
  • CBS broadcast a Walker movie
  • Lone Wolf is suing alleging that the Walker character infringes
  • Orion intervened but in a settlement Orion gave a retroactive license
  • the defendants are moving for summary judgment on two ground:
    • the characters are not substantially similar
    • Orion granted a retroactive license to use Lone Wolf in connection with Walker
    • defendants are conceding copying and the validity of the Lone Wolf copyright

DISCUSSION: General themes (scenes a faire) and basic stock elements common in action adventure heroes; Court must determine whether the total concept and feel of the characters and the plots substantially similar instead of looking at small details of each (Some dissimilarities will not automatically relieve infringer of liability)

Ct. says for the plaintiff’s to prevail the have to show:

  1. Plaintiffs work was actually copied by the defendant
  1. The copying is illegal because there is a substantial similarity between the protectable material in the plaintiff’s work and defendant’s work
  • to decide whether there are substantial similarities in the characters, the court looks at the overall concept and feel of the two characters and the total concept, feel, theme, characters, plot, sequence, pace and setting of the two works
  • looking at this, the Court finds a reasonable jury could find substantial similarities
  • this is a triable issue

Ct says the copyright claims for free, pay and cable television are dismissed because of the retroactive license

MGM, Inc. v. American Honda Motor Co., Inc.

(CD Cal. 1995) District Judge Kenyon

FACTS: Plaintiffs claim that defendant violated their copyrights in James Bond films with its car commercials

  • Honda had a commercial for the Honda del Sol which promoted the car’s detachable roof and looked like a James Bond movie
  • MGM alleged the Honda violated copyrights to 16 James Bond films
  • Plaintiff’s demanded the commercial be pulled
  • Honda changed the voice to American not British and made the music less like the Bond theme
  • the commercial aired during the Super Bowl

DISCUSSION: Plaintiffs can likely satisfy ownership test and James Bond is copyrightable character under the “story being told test” or the “character delineation” test; Plaintiffs will likely succeed on their claim that James Bond is a copyrightable character under either test

Court grants the plaintiff’s motion for preliminary injunction Claim for infringement includes:

Ownership of Copyright in a Particular Work

Copying of a substantial Legally Protectable Portion of Such Work

  • to establish a prima facie case, you need only show copying of a protectable portion of the work

Ownership:

  • Plaintiffs own copyrights to the film
  • Plaintiffs are not asserting violation of the copyright of the James Bond character but of the character as expressed and delineated in the films
    • and the person who owns the films also owns the expression of any significant characters portrayed therein

The James Bond Character is Copyrightable

  • 9th Circuit Test - Sam Spade, in a book wasn’t a copyrightable character because he wasn’t the “story being told”
  • 2nd Circuit Test - Air Pirates said that Disney comic book characters were protectable because they are distinguishable from literary characters (either because they are more the story being told or because graphic characters are more likely fleshed out in more sufficient detail than literary characters) = character delineation
    • there is agreement among the courts that graphic characters are more easily copyrightable BUT the character has to be sufficiently fleshed out and not just a stock character
  • Court said James Bond qualifies under either


Notes

  • Graphic characters are more easily copyrightable than a literary character
  • Character is only protectible as part of larger work
  • Copyright protection extended to the part of character which aids in identifying the character
  • Copying computer program into RAM memory of a computer is infringing reproduction
  • Website linking to another website containing copyrighted work is not a reproduction of that work

Music

Motola v. EMI America Records

FACTS: Plaintiff, owner and co-author of Eddie Cochran song entitled “Jeannie, Jeannie, Jeannie,” claims that rock band The Stray Cats have infringed on copyright by recording and selling a version of the song with vulgar lyrics

DISCUSSION: Court concludes that defendants have perverted and distorted original composition, though they had permission to use the song in exchange for royalties, the changes to the song’s lyrics were not authorized by the license

  • Licensees have permission to use songs and rearrange them for particular performer’s styles, but may not “pervert, distort or travesty” the original song and statute requires that the basic melody and fundamental character of the song be kept intact
    • Consent of owner required prior to making this type of change


Bright Tunes Music Corp. v. Harrisongs Music, Ltd.

(SDNY 1976) District Judge Owen

FACTS: plaintiffs claim that defendant plagiarized the tune of a popular song; the tune of the original song contains a unique pattern and new song has nearly identical note sequence

  • Bright Tunes owns the copyright for “He’s so Fine” which was recorded in 1962 and which uses a short musical phrase (3 notes) followed by another short musical phrase (5 notes)
  • Harrison wrote “My Sweet Lord” was recorded in 1970 and has an identical harmony and uses the same motifs
  • Harrison was aware of “He’s so Fine”


DISCUSSION: Though from defendant’s testimony, it does not appear that the songwriting intentionally infringed upon the copyright, the two songs are virtually identical except for in one part where an extra note was inserted; there is no question that defendant had access to the song, which was very popular at release, staying #1 for several weeks in both the US and the UK; Using the song is still copyright infringement even though the copying was likely a product of defendant’s subconscious memory Ct finds Harrison infringed, not deliberately,

General public license (GPU)

  • Software-sharing that requires users who modify software to share it with others on the same basis that it was shared with them
  • Subsequent users who refuse to share may be compelled to share their modifications under copyright law
  • “Copyleft”
  • E.g., Wikipedia

Infringement (cont'd) & Fair Use

Beal v. Paramount

FACTS: Plaintiff wrote book entitled The Arab Heart, alleges that defendant’s movie, Coming to America, infringed her copyright

DISCUSSION: Two elements required: Ownership of valid copyright & Copying of constituent elements that are original

  • 11th Circuit uses two-part test for indirect proof of copying:
    • Defendant had access to plaintiff’s work
    • Plaintiff must show that defendant’s work is substantially similar to plaintiff’s protected expression

Notes on Access

  • Access may be proven by evidence that defendant had actually read or heard plaintiff’s work or had reasonable opportunity to view or hear the work
  • Bare possibility of access is insufficient to prove access
  • Reasonable opportunity may be shown by chain of events which could have provided access through intermediary
  • Submission to demo tape does not establish access by company’s recording artist
  • Copying must be substantial and material and can be found where large portion of work was not taken, but “heart of work” was taken
  • De minimis use is not an infringement

Campbell v. Acuff-Rose

  • Four factors to be considered for fair use:
    • Purpose/character of use
    • Nature of original work
    • Amount and substantiality of the portion used in relation to copyrighted work as a whole
    • Effect of use upon potential market for or value of copyrighted work


Copyright Part IV

Newton v. Diamond

FACTS: plaintiff flutist sues recording group Beastie Boys for their use of sample in a song

DISCUSSION: Plaintiff seems to ignore the differences between the sound recording (to which he has no rights) and the composition (which he has rights to); Plaintiff’s technique is not notated in the musical composition and is not protectable as a matter of law because it is not original; lyrics are also not original (“clap your hand”); Defendant's use is de minimis (average listener would not recognize the misappropriation)

  • Short note sequences can be protected where:
    • Accompanying lyrics
    • At heart of composition
    • Repetitive (and/or)
    • Based on analysis of both recording and written composition
  • De minimis is not a defense but rather goes to negate an element of copyright infringement
  • Sampling without record company’s permission is nearly per se infringement of phonorecording copyright (but not quite per se, except in some jurisdictions, where there are bright line rules)

Morill v. Smashing Pumpkins

FACTS: Morill made a video of the Marked (now the Smashing Pumpkins) before they became famous. Morill then wanted to release the video after the band became famous. They said no, and Morill let it drop until they used clips of the video for another Smashing Pumpkins video. Now Morill claims that he is the sole owner of the copyright of the video.

DISCUSSION:

  • Requirements of “joint work”:
    • Copyrightable
    • Two or more authors
      • Author is not merely contributor
        • Author controls the work and is the inventive or master mind who gives effect to the idea
        • Shared intent to be co-authors
        • Audience appeal turns on contributions of both
  • Co-owner has right to grant licenses for the use of the work
  • Tenants in common vs. Joint tenants
    • Tenants in common: co-owners absorb shares of deceased members
    • Joint tenants: owners continue to own rights after death and rights are passed on to assignees/heirs

Fred Ahlert Music Corp. v. Warner/Chappell Music, Inc.

FACTS: Dixon and Henderson wrote "Bye Bye Blackbird" and sold the rights to Remick (who later became Warner). After the passing of the 1976 Act, the Dixon heirs revoked the license and sold it to Ahlert for Sleepless in Seattle.

DISCUSSION: Derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination (does not extend to derivative works prepared after termination)

  • Prior to the termination, Warner had licensed a small part to AMN, so they get to keep the money from that license. If they had given all of the rights in the song to AMN, then they would get to keep it after the termination.
  • If you cut a deal with someone while you own the license, you get to keep the money from that - even after the license is revoked; you just can't grant new licenses.
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