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Copyright Law Outline - Copyright 1999 John M. Thompson

Written for Professor Schatzel’s Copyright Class - Santa Clara University School of Law



I.. Concept of Copyright

      A.. Historical Perspective

      B.. General Principles

      C.. Overview of Copyright Law


II.. Copyrightable Subject Matter

      A.. In General

1.. § 102 - subject matter of copyright - copyright protection subsists in original works of authorship fixed in any tangible medium of expression; works of authorship include the following categories:

      a.. literary works

      b.. musical works, including any accompanying words

      c.. dramatic works, including any accompanying music

      d.. pantomimes and choreographic works

      e.. pictorial, graphic and sculptural works

      f.. motion pictures and other audiovisual works

      g.. sound recordings

      h.. architectural works

2.. original works of authorship

a.. Feist Publications v. Rural Telephone - facts are not original works of authorship and therefore not copyrightable

b.. Magic Marketing v. Mailing Services of Pittsburgh - Instructions and wording that tells of contents of envelope is not copyrightable

c.. Sebastian Int’l v. Consumer Contacts - Copyright Act of 1976 provides protection against importation of goods outside authorized channels of distribution (copyrightability of shampoo labels)

3.. Fixation in tangible form

      a.. may be known now or later developed

      b.. essential elements: original work and tangible object

      c.. courts have held that storage of works on a web page constitute a

reproduction residing on the server that hosts the webpage

B.. Idea/Expression - in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery

1.. Baker v. Seldon - Forms are not copyrightable. Just because you write about how to do something does not mean that you copyright the something you are teaching; a system is not copyrightable

2.. Morrissey v. Proctor & Gamble Co. - The rules of a sweepstakes are not copyrightable unless there is a degree of originality.

3.. Lotus Development Corp. v. Borland International - a computer menu command hierarchy is a method of operation and therefore uncopyrightable

4.. American Dental Ass’n v. Delta Dental Plans - An original numbering system is copyrightable but the form is not.  This is different than Baker because developing the numbering system involved a degree of creativity

5.. Bibbero Systems v. Colwell Systems - Billing forms known as "superbills" which doctors used to obtain reimbursement from patients' insurers were uncopyrightable blank forms; forms were merely used for convenience

6.. Continental Casualty Co. v. Beardsley - Forms are not copyrightable. The copyright on the forms may protect against the exact rendition of the precise wording employed by the copyright owner (known as a thin copyright)

C.. Facts and Compilations - a compilation is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship

1.. Feist Publications, Inc. v. Rural Telephone Service - facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted

2.. Rockford Map Publishers v. Directory Service - the copyright laws protect the work, not the amount of effort expended; compilations of maps were found to be copyrightable even thought it did not take much time to create the compilation

            3..  Factual Narratives

a.. Nash v. CBS - when materials are presented as facts, they are not copyrightable; the author's copyright on nonfiction books was not infringed by television program which, although it used author's analysis of history regarding shooting of famous criminal, used none of his expression

b.. Wainwright Securities v. Wall Street Transcript Corp. - News events themselves are not copyrightable, but the way you express them is copyrightable.

            4.. Compilations

a.. Roth Greeting Cards v. United Card Co. - simple drawings on greeting cards are copyrightable

b.. Atari Games Corp. v. Oman -  Denial of copyright registration for video game was unreasonable in light of modest degree of creativity standard applicable in making determination

c.. Matthew Bender v. West Publishing - Copyright protection is unavailable for both derivative works and compilations alike unless, when analyzed as a whole, they display sufficient originality so as to amount to an original work of authorship, and the originality required for copyright protection is essentially the same; publisher's factual enhancements to judicial opinions were not sufficiently creative or original to warrant copyright protection

d.. page breaks do not result from any originality and therefore their location may be lawfully copied

e.. CCC Information Services v. Maclean Hunter Market Reports - The selection and arrangement of data in the Red Book displayed amply sufficient originality to pass the low threshold requirement to earn copyright protection.

                  e.. Bellsouth Advertising & Publishing Corp. v. Donnelley Information

Publishing - the competitor copied no original element of selection, coordination, or arrangement by copying name, address, telephone number, business type, and unit of advertisement for each listing in

publisher's directory.

f.. Mason v. Montgomery Data, Inc. -  The plaintiff's maps possess sufficient creativity in both the selection, coordination, and arrangement of the facts that they depict and are therefore copyrightable

      D.. Derivative Works

1.. L. Batlin & Son v. Snyder - To support a copyright there must be at least some substantial variation.

2.. originality in derivative works - derivative work must manifest more creativity than the original work

E.. Computer Programs - computer programs should remain within the subject of copyright; computer programs are a form of writing

            1.. Apple Computer, Inc. v. Franklin Computer Group -

Computer program, whether in object code or source code, is "literary work" within meaning of Copyright Act of 1976 and is protected from unauthorized copying, whether from its object or source code version.

F.. Pictorial, Graphic, and Sculptural Works - include two dimensional and three dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts diagrams, models, and technical drawings, including architectural plans; also includes work of artistic craftsmanship insofar as their form is concerned; useful articles must also have some unique design in order to be copyrightable

-- useful article: an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information

            1.. Masquerade Novelty Inc. v. Unique Industries - what is a useful article?

Things that are utilitarian, useful purposes only, do NOT have copyright protection. Here, masks were copyrightable as their main purpose was not utilitarian.

2.. Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co. - A mannequin provides the creative form and expression of the ultimate animal display. The mannequins are a form of artistic expression and are therefore copyrightable.

3.. Kieselstein-Cord v. Accessories by Pearl, Inc. - belt buckles here displayed enough creativity to be copyrightable even though they have a utilitarian function

4.. Carol Barnhart Inc. v. Economy Cover Corp. - human mannequins are not copyrightable, even though they have some distinct design features, because their principle purpose is utilitarian

5.. copyrightability of type face - the committee does not regard the design of typeface, to be a copyrightable pictorial, graphic, or sculptural work

G.. Architectural Works - copyright protection for a work of architecture would be subject to the usual limitations for pictorial, graphic or sculptural work - it would extend only to features that can be identified separately from and are capable of existing independently of the utilitarian aspects of the article

1.. protection for architectural works did not exist in the USA before 1990; this was amended to the 1976 act; also necessary because it was a prerequisite to joining the Berne Convention

2.. architectural work - is the design of a building embodied in any tangible medium of expression, including a building, architectural plans, or drawings

a.. copyright does not include the right to prevent the making, distributing, pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place

b.. alteration and destruction of buildings - owners of a building embodying an architectural work may, without the consent of the author or copyright owner, make or authorize alterations or destruction

            3.. determination if copyright applies - two step process

a.. examine architectural work to determine whether there are original design elements present

                  b.. examine whether the design elements are functionally required

i.. if the design elements are NOT functionally required, the work is protectible without regard to physical or conceptual separability

H.. Characters

1.. Anderson v. Stallone - the Rocky characters were so highly developed and central to the first three movies, that they constituted the story being told and are copyrightable

            2.. Walt Disney Productions v. Air Pirates - cartoon characters are copyrightable.

            3.. Detective Comic, Inc. v. Bruns Publishing, Inc - In order to be copyrightable

infringement you have to copy some copyrightable features. Here some of the actions of the character were copied. The acts constitute original and creative and therefore the acts are copyrightable subject matter.

4.. King Features Syndicates v. Fleischer - A comic strip character is copyrightable and cannot be reproduced in three dimension without violating the copyright.

      I.. Government Works and other Public Policy Issues

            1.. rule - any work by the USA government is not copyrightable

            2.. US Government - a work prepared by an officer or employee of the United

States Government as a part of that person’s official duties

a.. unresolved whether the definition extends to works prepared under government contract or grant

3..  Mitchell Bros. Film Group v. Cinema Adult Theater - there is no explicit or implicit bar to the copyrighting of obscene materials

4.. Devil Films Inc. v. Nectar Video - The films were obscene, so that the interstate transportation was a crime, making the films subject to forfeiture.

III.. Ownership

      A.. Initial Ownership

            1.. Authorship status

a.. Andrien v. Southern Ocean County Chamber of Commerce - the printer does not get the copyright rights; the copyrights lie with the creator

            2..Authorship as an economic concept: Works made for hire

                  a.. definitions

i.. work made for hire - work prepared by an employee within the scope of his employment; OR a work specially ordered or commissioned, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire

b.. owners of copyright (works made for hire) - the employer is considered the author

                  c.. employee-created works

i.. Community for Creative non-Violence v. Reid - Copyright is seperate from the physical design. Copyright is part of a bundle of rights.  This was not a work for hire. Therefore the sculptor owns the copyright to the original design. The copyright is separate from the sculpture itself

ii.. Aymes v. Bonelli - factors that are significant in determining whether is a work for hire or not:

                              a).. the hiring party’s right to control the manner and means of creation

                              b).. the skill required

                              c).. the provision of employee benefits

                              d).. the tax treatment of the hired party

                              e).. whether the hiring party has the right to assign additional projects

to the hired party

iii.. Carter v. Helmsley-Spear, Inc. - This was a work for hire since he was an employee and copyrights were transferred to the employer.  The employer was allowed to make alterations to the sculpture.

iv.. Within the scope of employment - the employer has the burden to show that:

                              a).. the work was of the type which the individual was hired to perform

                              b).. his creation of the work occurred substantially within the

authorized time and space limits of the job

c).. the work was actuated at least in part by a purpose to serve the interests of the putative employer

v.. 1976 Act and the Teacher Exception - work for hire was defined for the first time in the 1976 Act; widely believed that the 1976 Act abolished the teacher exception (CHECK ???)

                  d.. specially ordered or commissioned works

i.. 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

ii.. Thomson v. Larson - To be a joint work, BOTH authors must have the intent to be joint authors when they work on the article in question.  The playwright did not intend for the dramaturg to be a co-author.

                  e.. authorship as an intellectual concept: Joint Works

B.. Transfer of Copyright Ownership

1.. divisibility and formal requirements

a.. transfer of copyright ownership - an assignment, or any other conveyance of a copyright or any of the exclusive rights comprised in a copyright whether or not it is limited in time or place of effect, but not including a nonexclusive license

b.. ownership may be transferred in whole or in part by any means or operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession

c.. a transfer of ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note, is in writing and signed by the owners of the rights conveyed or such owners duly authorized agent

d.. Effects Associates v. Cohen - A nonexclusive license is not a "transfer of copyright ownership" and thus need not be made in writing. A nonexclusive license may be granted orally or implied from conduct.

2.. scope of grant

a.. Cohen v. Paramount Pictures Corp. - A license conferring right to exhibit film "by means of television" did not include right to distribute videocassettes of the film for home viewing.

b.. Boosey & Hawkes Music Publishers, LTD. v. Walt Disney Co. - the exploitations of the Stravinsky composition seem clearly beyond the scope of the original agreement

c.. ownership of copyright

i.. contributions to collective works - in the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contributions as part of that particular collective work

                  d.. transfer by operation of law - through intestacy; community property;

                  e.. Fantasy Inc. v. Fogerty - Fogerty was the beneficial owner; therefore he

cannot infringe himself on the work, because that is infringement on the legal owner. Therefore, Fogarty was infringing on derivative work of person that owned legal title.


IV.. Duration and Renewal

      A.. Duration and Renewal

1.. policy debate - evil affects of a monopoly; a long or short monopoly; the primary purpose is to protect the author - seems that the longer the monopoly the better for the author

                  a.. Sonny Bono Copyright Term Extension Act

i.. Congress extended the term of copyright from 50 to 70 years following the death of the author;

ii.. in the case of anonymous works, and works made for hire, the copyright term has increased from 75 years to 95 years from publication

iii.. Congress also added 20 years to subsisting copyrights (a copyright originally secured under the 1909 Copyright Act, and extended 75 years from publication under the 1976 Act, will now endure for 95 years from publication)

b.. a reason for the extension is that the author does not always benefit, but want at least his family to benefit from the copyright

            2.. copyright duration under the 1976 Act, as amended in 1998

                  a.. works created or unpublished after 1976

                        i.. duration: works created on or after January 1, 1978

a).. copyright in a work created on or after January 1, 1978 subsists form its creation, and endures for a term consisting of the life of the author and 70 years after the author’s death

b).. in the case of joint works - the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author’s death

c).. anonymous, pseudoanonymous, or works made for hire - the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first

                        ii.. duration: works created but not published or copyrighted before

January 1, 1978

a).. created before 1978, but not published - the term of the copyright shall not expire before December 31, 2002

b).. created before 1978 but not published - if the work is published before December 31, 2002, the term shall not expire before December 31, 2047

                  b.. 1976 Act treatment of works first published under the 1909 act

                        i.. automatic renewal of pre-1978 works now in their first term

a).. copyright is automatically renewed upon death

                        ii.. works in the public domain prior to January 1, 1978

a).. Congress intended to leave works that were in the public domain, in the public domain

b).. however, there is the question of reclaiming copyrights; the US term of 28 years was very short; not clear whether Congress has the power to reanimate dead copyrights; note that the Sonny Bono Act does not restore copyright o any work already in the public domain as of the act’s enactment in 1998

                        iii.. the transition from 1909 to 1976 Act and its amendments

                              a).. see chart in book: page 359

      B.. Renewals and Derivative Works

1.. Stewart v. Abend - Original author can contract away his expectancy, but he cannot contract away his heirs expectancy.

2.. Russell v. Price - What was protectible in the original work, that further existed in the derivative work is what would stop the later author from using that work.

      C.. Termination of Transfers

            1.. who can terminate a grant

a.. joint works - majority action by those who signed the grant would be required to terminate it

2.. when can a grant be terminated - as a general rule, a grant may be terminated during the 5 years following the expiration of a period of 35 years from the execution of the grant

a.. exception - if the grant covers the right of publication of the work, the period begins at the end of 35 years from the date of publication of the work under the grant or at the end of 40 years from the date of execution of the grant, whichever term ends earlier

            3.. termination timeline

                  a.. work published before 1978 - reversion of renewal term rights

i.. for works published before 1964: renewal term reversion of rights vested automatically in the author; if the author did not grant renewal rights in the author’s surviving spouse or children if the author granted renewal term rights but dies before the renewal term vested

ii.. for works published between 1964 and 1977: if the author did not grant the renewal term, or if the author died before the renewal term vested, then renewal term rights will revert if the renewal is effected during the 28th year of copyright

                        iii.. reversion of extended renewal term rights

a).. five year period beginning at the end of 56 years from publication (with a minimum of two years, and a maximum of 10 years, advance notice)

b).. five year period beginning at the end of 75 years from publication (with a minimum of two years, and a maximum of 10 years, advance notice), if the author or heirs did not terminate at the end of 56 years

c.. grant of exclusive or non exclusive rights made after 1977 (regardless of the work’s date of publication

i.. five year period beginning 35 years from execution of the grant (or, if a grant of publication rights, 35 years from publication or 40 years from execution, whichever is earlier), with a minimum of two years, and a maximum of 10 years, advance notice


V.. Formalities

      A.. Publication and Notice Before the 1976 Act

1.. limited publication - disclosure or communication of a work to another person does not always amount to publication under the copyright act; restricted communication was generally held not to be a publication

2.. notice requirement - a published work must have had a copyright notice in a specified location

3.. Estate of Martin Luther King, Jr. v. CBS, Inc. - the public delivery of the speech along with the advance text to the press and the printing of the speech in the newsletter, constituted a general publication of the speech so as to place it in the public domain because the notice given was invalid

4.. Academy of Motion Picture Arts & Sciences v. Creative House Promotions, Inc. - the display and presentation of Oscar statuettes at the annual award ceremonies was such a limited publication that did not divest the Oscar of its common law protection

      B.. 1976 Act Solutions as to Publication and Notice

1.. publication - distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending; a public performance or display of a work does not itself constitute publication

2..notice requirement (1978 to March 1989) - Congress decided to retain the notice requirement but to make less draconian the consequences of an error or omission; requirements:

      a.. © or the work Copyright

      b.. year of first publication of the work

      c.. name of the owner of copyright in the work

-- Hasbro Bradley, Inc. v. Sparkle Toys, Inc. - toys were marketed in Japan and USA but there were no copyright notice placed on the toys in Japan - this was held not to comply with the notice requirement

3.. optional notice under the Berne-implementation act - for works first published on or after March 1, 1989 notice “may” be placed on the work; made it optional

C.. Deposit and Registration - permissive registration; incentives for registration are quite strong

1.. deposit for Library of Congress - deposit shall be made within three months after publication in the USA; is to consist of two complete copies of the best edition

2.. registration

      a.. procedure

i.. may be made by not only the owner of copyright but also the owner of copyright but also the owner of any exclusive right thereunder rather than by the owner of the exclusive right of publication

      ii.. it applies to unpublished as well as published works

      iii.. it includes works published abroad

      iv.. it may be made at any time during the subsistence of copyright

      b.. register’s authority and effect of registration

i.. registration remains a prerequisite for an infringement action when the copyrighted work is first published in the USA, or when the work, if unpublished, is by a USA author

ii.. incentives for timely registration

a).. early registration will ensure prima facie proof of validity of the copyright

b).. for works of USA origin, registration is a prerequisite to an infringement action

c).. statutory damages and attorney’s fees may be awarded only if registration is made prior to the commencement of the infringement

D.. Formalities under 1909 Act and under 1976 Act before and after the Berne Convention implementation act - see chart page 412


VI.. Exclusive Rights Under Copyright (VERY LONG CHAPTER)

A.. the owner of copyright has the exclusive rights to do and authorize any of the following:

            1.. reproduce the copyrighted work in copies or phonorecords

            2.. prepare derivative works based upon the copyrighted work

            3.. distribute copies or phonorecords

            4.. to perform the copyrighted work publicly

            5.. to display the copyrighted work publicly

            6.. to perform the copyrighted work publicly by means of a digital audio


      A.. Right to reproduce the work in copies and phonorecords under § 106(1)

            1.. infringement takes place when any one of the rights is violated

            2.. the right to reproduce the copyrighted work in copies or phonorecords means

the right to produce a material object in which the work is duplicated or simulated in a form from which it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device

3.. the right to make copies

a.. copies - material object in which a work is fixed by any method now known or later developed, and form which the work can be perceived, reproduced, or otherwise directly communicated, either directly or with the aid of the machine or device

            4.. proving infringement

a.. Arnstein v. Porter - Similarities between works need to be made by the intended audience; the determination of substantial similarity is to be made from the perspective of the audience that was intended by the author to constitute the commercial market

proof of copying

b.. Bright Tunes Music Corp. v. Harrisongs Music, Ltd .-  inasmuch as My Sweet Lord is the same song as He's So Fine with different words, and composer of My Sweet Lord had access to He's So Fine, copyright was infringed even though subconsciously accomplished.

c.. Ty, Inc. v. GMA Accessories Inc. - A similarity may be striking without being suspicious. Must show that defendant had access.

Infringing copying

d.. Laureyssens v. Idea Group, Inc. - elements for copyright infringement:

i.. must be copying (based on access and similarity)

ii.. find unlawful appropriation the; court found similarities that are probative of copying and which at least raise a question of actual copying.

e.. Ringgold v. Black Entertainment TV - When the work is visual, it must be considered what the setting is of the copyrighted work in order to determine if a violation exists.  No copyright infringement where copyrighted works appeared briefly in the background of a TV show

f.. Peter Pan Fabrics, Inc. v. Martin Weiner Corp. - The ordinary observer must determine substantial similarity in this case because the intended audience of the fabric was ordinary people. Not expert witness because this fact is to be decided by ordinary person (which would ultimately be a jury). There can be no copyright in the ideas disclosed but only in their expression.

g.. Herbert Resenthal Jewelry Corp. v. Kalpakian - When the idea and the expression cannot be separated there can be no copyright. Bumblebee pendant case

h.. Educational Testing Services v. Katzman -  The test is whether the accused work is so similar to the plaintiffs’ so that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff's protectible expression by taking material of substance and value.  Some of the SAT questions were so similar that they had to have been copied.

i.. Nichols v. Universal Pictures Corp - The copyright cannot be limited literally to the text. Otherwise a plagiarist would escape by immaterial variations. Themes are not copyrightable, original work.

j.. Sheldon v. Metro-Goldwyn Pictures Corp. - To determine if there has been copying, we need to see if a substantial portion of the work has been copied.  Adding information does not get you around the tort of copying. Just want to see if a substantial portion of the original expression was copied. Just avoiding copying the dialogue is immaterial.

5.. Approaches to substantial similarities - lack of uniformity prevails; courts differ over the subject matter to which the substantial similarity test is applied

                  a.. two views:

i.. one view: the fact finder judges substantial similarity with respect to the whole of the copies portions of the plaintiff’s work, including portions that viewed in isolation might not be eligible for copyright

ii.. other view: the fact finder first removes from consideration the uncopyrightable elements of the copied material (facts and ideas)

b.. Computer Associates International v. Altai, Inc. - It is now well settled that the literal elements of computer programs their source and object codes, are the subject of copyright protection.

c.. Steinberg v. Columbia Pictures Industries - The taking of small part of protected work can violate copyright. The copying need not be of every detail so long as the copy is similar to the copyrighted work.

d.. Kisch v. Ammirato & Puris, Inc. - Can create copyright expression in the overall feel of a work.  The court applied the "look and feel" test and found that both pictures had the same look and feel.

            6.. authors reproducing works in which they no longer own the copyright

a.. when exercise of artistic talent is used to make a copy of a prior work, it is likely that the courts will find infringement

b.. when an artist uses the same source material that he has already used in creating a painting, to create a different painting depicting the same subject matter, the courts are unlikely to create a different painting

            7.. the right to make phonorecords

a.. phonorecords - material objects in which sounds, are fixed by any method now known or later developed, and from which sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device; lay terms, phonorecords is a copy of a sound recording; often embodies two copyrighted works:

                        i.. musical composition or literary work which creates a

                        ii.. sound recording

                  b.. musical compositions: compulsory license GET MORE ON THIS

                  c.. Harry Fox license - a large number of copyright owners have authorized

this agency to issue licenses on their own behalf for recording their musical compositions onto phonorecords

d.. Private Copying of Sound Recordings

      i.. Audio Home Recording Act

a).. expressly prohibits infringement actions for home audiotaping, whether digital or analog

b).. imposes royalty charges upon sales of audiotape recorders and recording media to be paid by manufacturers and importers

c).. obliges manufacturers and importers to include in all consumer digital audio recording devices a serial copy management

B.. The right to prepare distributive works under § 106(2) - to be an infringement the derivative work must be based upon the copyrighted work; the infringing work must incorporate a portion of the copyrighted work in some form

            1.. the scope of the derivative works right

a.. Horgan v. Macmillan, Inc. - The test is whether the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.

b.. Micro Star, Inc. v. Formgen, Inc - A derivative work must assume a concrete or permanent form.

c.. Lee v. A.R.T. Co. - If the framing process does not create a derivative work, then mounting art on a tile, which serves as a flush frame, does not create a derivative work.

d.. Futuredontics, Inc. v. Applied Anagramics, Inc. - framing a website is sufficient to constitute copyright infringement.  It is substantial transformation. The framing constituted an unauthorized derivative work.

            2.. moral rights

a.. Gilliam v. American Broadcasting - One who obtains permissions to use a copyrighted script in the production of a derivative work may not exceed the specific purpose for which permission was granted. Test is whether there was substantial alterations so as to infringe upon the integrity of the original work.

b.. federal law protection of moral rights - the author enjoys both moral and economic rights “by the sole fact of creating the work”

i.. visual artists rights act of 1990 - the author shall have the right to claim authorship and prevent the use of his name as the author of any work of visual art which he did not create

c.. state protection of moral rights - before the adoption of the VARA several states adopted laws protecting rights of integrity and of attribution in works of fine art

d.. Wojnarowicz v. American Family Ass'n - Unfaithful reproductions activate the protection of the statute if publicly displayed so as to damage the reputation of the author of the original.

      C.. The right to distribute under § 106(3)

1.. purpose and application of the distribution right - if the reproduction right is violated, then the sale (distribution) of the infringing copies is infringing as well

a.. public distribution through digital technologies - there has been a transmission of the text when transferred by e-mail; the prototypical distribution under the Copyright Act involves one person parting with ownership or possession so that another might acquire it

b.. Fawcett Publications, Inc. v. Elliot Publishing Co. - Copyright act grants to the copyright owner the exclusive right "to print, reprint, copy, and vend the copyrighted work."  The exclusive right to vend is limited. It is confined to the first sale of any one copy and exerts no restriction on the future sale of that copy. There must be substantial alteration to be an infringement. Here there was no such substantial alteration.

c.. Quality King Distributors, Inc. v. L'Anza Research International, Inc. - First sale doctrine, under which owner of particular copy is entitled, without authority of copyright owner, to sell or otherwise dispose of possession of that copy, is applicable to imported copies.

D.. Rights of public performance and display under § 106(4), (5) - those who listen to the broadcast through the use of radio receivers do not perform the composition; the owner of copyright has the exclusive right to perform the copyrighted work publicly; to perform the copyrighted work publicly by means of a digital audio transmission

1.. perform - to recite, render, play, dance, act it by the means of any device or process, or to show its images in any sequence or to make the sounds accompanying audible

2.. Columbia Pictures, Inc. v. Aveco, Inc. - "Performances" of copyrighted materials took place when customers of video cassette rental business operated video cassette players in rooms rented by business to members of general public.

3.. Ocasek v. Hegglund - ASCAP may not act with the authority of the copyright owners to enforce their rights. Must have exclusive rights in order to be a party in a lawsuit.

4.. right of public display

i.. display - to show a copy of the work either directly or by means of a film, slide, television image, or any other device


VII.. Fair Use

      A.. Background

1.. Section 107 of the 1976 Copyright Act - fair use is not an infringement of copyright; take into account 4 factors:

      a.. the purpose and character of the use

      b.. nature of the copyrighted work

      c.. amount and substantiality of the portion used in relation to the copyrighted

work as a whole

d.. the effect of the use upon the potential market

      B.. The Application of the Fair Use Doctrine to the Creation of new works

1.. Campbell v. Acuff-Rose Music, Inc. - even if the parody is for commercial use, it does not automatically deprive it from a fair use defense; the more transformative the work, the less will be the significance of other factors

2.. Walt Disney Productions v. Air Pirates - two most significant factors in parody cases are whether the parody “fills the demand for the original” and how substantial is the copying; Cannot completely copy something in a parody. Just enough so that the viewer knows what is being parodying.

3.. Harper & Row Publishers, Inc. v. Nation Enterprises -  The facts that words the author has chosen to clothe his narrative may of themselves be newsworthy is not an independent justification for unauthorized copying of the author's expression prior to publication.

4.. Craft v. Kobler - Cannot copy another person's work simply to give your own work more credibility.

5.. Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc. - a copyright owner owns the right to expand into potential markets. Just because he does not, does not mean other people can take advantage of those potential markets

6.. Sega enterprise, Ltd. v. Accolade, Inc. - When a program is decompiled for a legitimate reason and has no other means of access to the unprotected elements, such dissasembly is as a matter of law a fair use of the copyrighted work.

C.. The application of the fair use doctrine to new technologies of copying and dissemination

1.. Sony Corp. of America v. Universal City Studios, Inc. - The sale of copying equipment does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. It merely be capable of non-infringing uses.

2.. Princeton University Press v. Michigan Document Services, Inc. - Licensing fees must be paid by copyshops that put together "coursepacks" for students; four factors cut against fair use.

3.. American Geophysical Union v. Texaco, Inc. - Copying of articles for personal libraries, for use during employment, does not fall under fair use; factors cut against fair use

4.. copying by non-profit libraries - copying must be done without any purpose of commercial advantage; library copy must contain copyright notice that appeared on the original work; warning must be placed by copy machines that works are copyrighted

5.. Storm Impact, Inc. v. Software of the Month Club - repackaging of shareware software and selling it to a software of the month club is most likely copyright infringement and not fair use


VIII..  Enforcement of Copyright - § 502 - infringement of copyright

A.. injunctions - a court may grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright

      B.. damages - liable for actual damages and any additional profits; statutory damages

1.. Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc. - actual damages are the extent to which the market value of a copyrighted work has been injured or destroyed by an infringement; in establishing the infringer’s profits, plaintiff only has to prove defendant’s sales; reasonable and just apportionment of profits is required

2.. Cream Records, Inc. v. Jos. Schlitz Brewing Co. - in cases where plaintiffs fail to prove their damages exactly, courts often have to make their best guess

3.. statutory damages - at any time before final judgment the copyright owner may elect for an award of statutory damages instead of actual damages and profit

      a.. with respect to each work a minimum of $500 and not more than $20,000

      b.. if infringement was willful the court may increase the award to $100,000

4.. Feltner v. Columbia Pictures Television, Inc. - although the Copyright Act does not grant a statutory right to a jury trial, the Seventh Amendment to the Constitution affords such a right

      C.. costs and attorney’s fees

1.. Fogerty v. Fantasy, Inc. - attorney’s fees are available; defense does not have to show the law suit show the suit was brought in bad faith

      D.. statute of limitations

      E.. Criminal liability

      F.. Individual, vicarious, and contributory liability

      G.. Technological protection measures

      H.. Overenforcement: copyright misuse


IX.. Federal Preemption of State Law

      A.. State laws restricting copying

      B.. Supreme Court Preemption Decisions in Intellectual Property Cases

      C.. Copyright preemption under section 301 of the 1976 Act


X.. International Dimensions of Copyright

      A.. Introduction

      B.. Early history of US international copyright relations

      C.. International Conventions and agreements

      D.. US Based Copyright actions with an international dimension