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October Notes Copyrights


October 5, 1999


Hard to know whether this is a derivative work.


Should argue both derivative work and reproduction.


17 USC 101: derivative work is based upon preexisting work such as a:

-         translation

-         musical arrangement

-         dramatization

-         fictionalization

-         motion picture expression

-         sound recording

-         art reproduction

-         abridgement

-         condensation

-         or any other form in which work may be recast, transformed or adapted


17 USC 106: The owner of copyright has the exclusive rights to do or authorize any of the following:

  1. to reproduce the copyright work in copies or phonorecords
  2. to prepare derivative works


Difference are immaterial.  Question is whether the infringing work reproduces ANY of the protected elements of the first work.


Will have to pay damages for the time you put someone out of business while the court proceedings are going on.  Plaintiff has to put up a bond if he wins a preliminary injunction.  That money will be held by the court in case plaintiff looses the preliminary injunction.  If plaintiff can’t post the bond then he will be in big trouble. 


It is possible for an author to infringe his own work.  This happens if he had given away or sold all the copyrights to someone else and then recreated the same thing later.


Phonorecords: examples: cd, tape

-         there is a distinction between copies and phonorecords: a copy is generally something you can see with your eyes, while a phonorecords is something you hear (a work for the ear)

-         frequently encompasses two areas of copyright protection: the composition itself AND the sound recording.  This is why you see the circle with a P and a circle with C on phonorecords


Musical compositions are subject to compulsory licensing; limited to the person that wants to use the musical composition to make a recording for private use; does not extend to the sound; does not extend to the person who wants to use the recording for public use (jukebox, sound tapes in restaurants); limited just to private use

-         can get an automatic license by just requesting it; people can make tapes, sing it, etc…only for private entertainment


first try to negotiate the royalty.  If cannot negotiate, then the library of congress will arbitrate the matter.  In 1976 Act this was established.  The statutes have been amended so that you first negotiate and if not then there is an arbitration panel which will set what the rates will be. 


Audio home recording act (1992) – expressly exempts home audio taping as being an infringement.  When digital came out you can get a recording that is just as good as the original.  With analogue the quality deteriorates.  This act put restrictions on digital recorders.  Any manufacture of digital recorders has to pay a fee.  Also people who sell digital media (tapes, cd) has to put in money.  That money is then distributed to the performers and producers. 

-         digital recording equipment has to has mechanism on it called a serial copy management system which prevents recording from a prior copy (can only record from an original, and not from a copy)


1998 Millennium Copyright Act – aimed at recording audio/visual.  Under this act, certain material must include copy control technology.  This works in conjunction with the transmitted signal.  The signal is coded in a certain way.  The recorded in the home works in connection with the signal to recognize that it cannot record the signal.  This is limited to certain types of transmitted signals: live event transmission.  Also have pay per view – cannot record pay per view shows.  Subscription channels. 




October 7, 1999


Can infringe on a bundle of rights without having put it into a tangible medium.


A derivative work is a work based upon preexisting works such as: translation, musical arrangement, etc.


Review of Duke Nukem case.

-         the infringement relief action came up in a compulsory counter claim.  When someone files a declaratory relief action, you are forced to file a compulsory counterclaim.  If you don’t file it, you lose it.  You can avoid this by writing a letter pointing out that your client has a copyright.  Might be able to avoid litigation.  Just bringing it to their attention (don’t say “you are infringing”); don’t want to bring a charge of infringement.


A derivative work can be copyrightable and at the same time an infringement of the original work.



A writing that is a description of a painting is copyrightable.  Is it a derivative work?  Based upon preexisting work, based on transition.  Different type of expression. 


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October 14, 1999


United States federal statutes do not focus on moral rights; they focus on economic rights; When USA was contemplating joining the Berne convention, there was some debate about whether we had enough to meet the Berne convention.


Moral rights - aimed at protecting the personality of the author.


1990 - Visual Artists Rights Act

-         relates to works of visual arts

-         visual arts - very limited; painting drawing, prints or sculptures that exist in a single copy, or in a limited edition of 200 or less that are signed and consecutively numbered by the author

-         does NOT include a work for hire; this is aimed at protecting integrity and reputation of the author of the fine art

-         this would not include the Monte Python situation because motion pictures are expressly excluded as being a visual art

under this act the author also has the right if someone else is claiming authorship, there is a separate cause of action; have the right to prevent anyone from intentionally distorting, mutilating, modifying the work without their permission, or works done with gross negligence


Prior to the enactment of the visual artists rights act several states enacted state statutes.  Mostly limited to works of fine arts; right to the author to prevent alteration or destruction of the work.  IN CA they defined precisely what a fine art is: similar to federal statute - painting, sculpture, drawing, original work in glass, does not include works for hire.

-         granted for the life of the artist plus 50

-         these rights, under the CA statute can be waived by the author


The right to distribute works (this is the third straw of copyright rights) to the public; can be done by lease, sale, or any other transfer of ownership (rental, lease, lending); 17 USC 109 though talks about first sale.

-         once the particular copy is distributed lawfully, the owner of the particular copy is entitled to transfer it on without any liability


Digital distribution/internet

-         distributing is when you transfer the content of the document from one location to another; copies occur when you put it into the memory; copies are made when they can be recovered either directly or with the aid of a machine. 

-         Interesting topic is whether the ISP is also an infringer since they are the one allowing access to the material; courts have mainly said that the ISP is merely passive and not liable


First sale doctrine - gray market is a big issue


Phonorecords cannot be lent, leased, or rented.  The reason for that was you would rent them, and make a copy of the record.  That would preclude the authors from getting their royalties from the user, if the person went out and bought one.  Limited to phonorecords only. 


In 1990, the Act was further amended to include computer software.  Does NOT include videos.  In CA there is also a resale royalty statute - is limited to fine arts.  If the seller resides in CA and the sale is in CA, then they must pay 5% of the sales price to the original author.  This right is non-waivable, SOL of 3 years, resales that exceed $1,000.  Lasts for life of the author for 20 years.


Importation - another straw in the bundle of rights; importation into the USA of copyrighted works without the permission of the copyright owner is a violation.  What happens when you make a product in the USA, copyrighted, sell it outside of the USA, and then the person outside of the USA tries to resell it back into the USA? 

-         this is the subject of a case

-         this is called gray market goods

Other question is: Person with a copyright in the USA, a person in another country makes copies (authorized) and then tries to sell back into the USA.  Main difference with this question is that the goods are made outside of the USA; and the other question is the goods were made in the USA.


Public performances

-         performing when you recite works

-         also are performing the work when you play it on your radio

-         radio station is performing work when they transmit the work (also are distributing it)

-         TV station is also performing work

-         A CATV network is also performing (picking up a signal and transmitting it further)

-         Issues whether retransmission of TV signals by microwave transmitters was illegal performances; the USSC held they were not to be infringers because they were on the receiver side; was not a retransmission.

-         This has all now been changed with legislation.


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October 19, 1999


17 USC 101:

ASCAP - business of policing the copyright violators; travel around and go to the bars and places and see who is violating the copyrights


Right of public display - limited to certain works

-         if the pictures are being shown in sequential order, cannot sue under this


Right to display is limited to the owner of the copy; if you merely lease something and make a public display of it, then you are violating the copyright owners right of display

-         the owner has the right to display in the immediate area, but not outside of that area; cannot video the object and then transmit it to another room; must be in the same room


webcasting of music is a public performance; now the person that is providing the webcasting has to pay a royalty.


Transmitting a radio station over the internet is rebroadcasting - they have to pay separately for the retransmission licensing. 


Secondary transmission - cable tv

-         what is classified as local they do not need further license

-         what is distant broadcast they do not need a license

-         general rule is that local is for those broadcasts which are within the general area of the broadcaster (if a TV station that could be picked up by a regular TV antenna, the cable company is not liable for retransmitting)

-         covers both cable and wireless (such as satellites)

-         are subject to compulsory licensing (if it is going to be broadcast the cable company must be given a license by the copyright owners and they can then negotiate the fee)


If they can’t negotiate what the fee shall be (CATV), the CATV producer must make semiannual payments with a listing of how many broadcasts and how many subscribers.  Figure out the royalty payment from there


Juke boxes under the 1909 act they were exempt.  The exemption was eliminated in 1976.  Made compulsory licensing for jukeboxes.  A panel in a copyright office set what the fees would be.  Then the panel was abolished.  Let the people negotiate their own fees.  NOW they have excluded jukeboxes from compulsory licensing.  The jukeboxes negotiate with BMI and ASCAP for licenses.  Now the fees are $275 per year for the first box in the establishment, $55 a year for the next 9, and then $48 for every one more than ten jukeboxes. 


Public broadcasting is also subject to compulsory licensing - limited though. 

-         have to grant licenses

-         BMI and ASCAP also negotiate these licenses

-         ASCAP pays around $2 million a year; so does BMI


The key thing for final is to know general concepts. 


What was congress looking at here:  KNOW THIS

1.. Want to make sure that the creators of copyright get economic return

2.. at the same time want to make sure the public gets as much access to the information as possible reasonable

3.. with public broadcasters is that there must be some controls


legislation that provides copyright owners with fair economic returns, does not unrealistically restrain public from getting access, and complies with FCC regulations


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October 21, 1999



-         equitable doctrine

-         must be pled as an affirmative defense


4 factors that must be taken into consideration:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit  educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in

     relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.


This statute does not preclude you from taking into consideration other factors besides these four.


As an equitable doctrine you can look to all the surrounding circumstances.




October 26, 1999


Review of fair use and the four required elements

-         applies to unpublished works (Ford case)


Most info in case briefs




October 28, 1999


§ 108 - not limited to non-profit libraries; copying by libraries

-         existence of libraries is consistent with the constitutional purpose

-         limited to subject matter: books, sound recordings, TV news programs

-         relates to the reproduction and distribution

-         must be for non-profit purposes

Two conditions - patron must pay money into machine, AND there must be a notice by machine that says that you might be in violation of the copyright act


Copying for education: elements:

Spontaneous, do not do it more than 9 times during a course, each copy must contain a copyright notice

-         NOT ON FINAL


Sports bars pick what they want - they sign up for whatever games they want to show; this is similar -


Technology constantly providing new ways to gain material and publish it:

-         photocopy machine

-         computers

-         CDR