Copyrights September Notes
September 2, 1999
Copyrightable subject matter
Derivative work: A work based on one or more preexisting works
Computer program: Set of statements or instructions that bring about a certain result
Operating systems are copyrightable subject matter - Franklin v. Apple
Was there a copyright infringement by copying object code, since it was only registered in source code?
- does not mean there is not registered subject matter
- the material was copyrightable; does not matter what format the copyright protection is given to, it is the work that is given the protection
pictorial graphic work §101.2
useful article - article having an intrinsic utilitarian function, that is not there merely to portray the appearance
prior to 1954 the cases seemed to infer that if you had an article that had utilitarian function that automatically precluded copyrightable subject matter.
A work of art may be copyrightable even though it is used as a useful article.
What is a useful article?
September 21, 1999
- key to remember is to recognize that there is a distinction based upon the date when the work was published as it relates to January 1, 1978
- then you will know when to check the statutes
- under 1909 Act and applied to works that were published prior to Jan 1 1978, if published and copyrighted prior to Jan 1, 1978, then the work is subject to renewals (this is the 1909 Act); went for 28 years, then could renew for another period (this created a new estate) – initially 28 years
- Congress made exceptions, extension of renewal period; then when 1976 Act came into play, since works created thereafter, the Congress said that people who still had copyrights under previous Act will be increased up to 75 years. This left 47 (75 minus 28) years as the renewal period; applicable to copyright works prior to Jan 1, 1978
- Had to file for the renewal within one year of the termination of the 28th year (between 27th and 28) to register for renewal which would then create the new estate
- In 1992, Congress changed law again and said that renewals would be automatic for those works that were existing before 1978; one exception is that if you don’t ___
- In 1998, with Sunny Bono amendment, then they tacked on another 28 years for the duration of copyrights; the people under the 1909 act then also got another 20 years; total of 95 years now on the renewals (which is now 67 year renewal period)
- affects ALL transfers – licenses, assignments non-exclusive and exclusive; applies to any agreement executed after January 1, 1978
- applies to any works except for works for hire and dispositions by will
Who can exercise rights?
- if single author, just haver to have the author
- if 2 or more authors need to have a majority to participate in the termination of an agreement
- if the author is dead when the right of termination comes up, then the surviving spouse has the right to terminate if there are no children or grandchildren; if no spouse, then the children surviving, or the children of the deceased child can perform the termination (by stirpes)
- example: if you had 3 children, and one died, and the one that died, each child would have a third of a vote, and each grandchild would have a ninth of vote
Under 1976 Act the right of termination cannot be contracted away
- once license is terminated the original copyright holder gets all his rights back
- if the agreement is not terminated, then the agreement keeps operating as agreed
- the particular derivative work you terminated can continue on (§ 203 b1)
- 1978 Act applies to published and unpublished works
the persons that had the power to terminate the original licenses has power to grant new licenses
must be more than 50% ownership agreeing to what you are going to grant
this termination stuff only affects contracts entered into after Jan 1 1978
who is the widower? The spouse as the date of the death of the author or the owner of the copyright. Does not matter if spouse remarries. She is still the one under the statute.
Offspring of author include real, legitimate or not, and legally adopted children
§ 203 – relates to termination of renewal rights after Jan 1 1978; renewal period is 67 years
- joined the Berne convention in Feb. 1989 – enjoy your copyright rights without a bunch of formalities
- before the convention the USA said you had to meet a bunch of formalities
- before joining the Berne convention you had to put notice of the copyright on the copyrighted material; had to be in the form Copyright NAME YEAR (year of publication)
- prior to 1976 there were also restriction on where the notice was placed
- musical work – had to be on title page and first page of music
- had to define publication; in 1909 act the did not define publication
NEED TO KNOW: the fact that giving the speech and performing it did NOT constitute publication. It was handing out the copies, publishing it without copyright notice was the reason there was not notice. From MLK speech case. Page 389.
September 23, 1999
Under 1909 act formalities were required and related to published works only
Need to decide what constitutes a publication
- to the public
- by sale or other transfer of ownership or by …
if the Oscar case had come up under the 1909 act, where would you have to try it? State law because there was no federal common law; statute under 1909 act only related to unpublished works. Under 1976 act, since copyright covers published and unpublished works, it can be tried in federal courts.
The Oscar was first created in 1929. When does the copyright run out?
- 70 years from the death of the author
- this is under the 1976 act because it covers published and unpublished; works that were not published before Jan. 1 1978, the 1976 act specifically applies
- the author is unknown
- if you don’t know the author the max is 150 years. So the Oscar copyright runs out in 2049. The minimum would have been Dec 31, 2002.
- Created in 1929, if anonymous or work for hire, life is 95 if published, or 120 days from date of creation, whichever is shorter
Creation – 1929 – author unknown
- as of Jan 1, 1978 – unpublished, therefore it is covered by the 1976 act
Terms – 95 years from publication or 120 years from creation, whichever is shorter
- 1929 + 120 = 2049 is when the copyright expires
If unpublished – minimum life is Dec. 31, 2002
If published between Jan 1, 1978 and Dec 31, 2002, add 45 more years
- then minimum life would be Dec 31, 2047
If we had known the author it would have been his life plus 70 years.
Publication still is significant (even though not mentioned in 1976)
- because if first published in USA, before you can sue you must register the copyright
- if not created in the USA, you don’t have to register it
- term publication therefore still has significance
- notice just has to be in a place where it is reasonable perceivable (1909 act was different)
- symbol is a circle with a p in it
If it is a work that includes government work, in that case, you put the notice on it and further state what portion that is covered by the Copyright Act. (if done by government it is not copyrightable).
- a collective work put the notice on the cover page; this copyrights the collective work (because of the originality or arrangement of the materials); the individual articles can also have their own copyright. Even if individual articles don’t have copyright notice, they are still protected. Best though to put the copyright protection on individual works.
If you don’t put copyright notice on it you don’t loose rights, just loose some potential remedies. Just give the infringer’s the opportunity to claim innocent infringement.
With proper notice, AND register prior to the infringement, you are entitled to attorney fees and statutory damages.
- If you put the proper notice on and register within three months of publication you are entitled to attorney fees and statutory damages even if the registration turns out to be invalid.
- If you register within 5 years of publication, then your registration is presumed valid. (not attorney fees or statutory damages, unless registration preceded infringement)
- You register at Library of Congress, $30
Exclusive rights KNOW THIS: 17 USC 106:
Sec. 106. Exclusive rights in copyrighted works
Subject to sections 107 through 120, The owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
How do you prove someone copied?
a) alleged infringer had access
b) substantial similarities between original and the alleged infringer work
i. it is the intended audience that will judge if there are similarities or not; first you need to know what the product is therefore
ii. this is where you get into the issues of expert witnesses and lay witnesses;
iii. this issue of whether the two pieces are in fact similar is for the lay people of the intended audience
Copying itself, is not illegal. The illicit copying is what is illegal. You can copy anything that is not protected by the copyright. A lot of works will have publicly available information. The actionable features is that you have to have copying of the copyrightable features.
Copying what? Substantial copy of copyrighted expression
How prove of Admitssion or b. access to what?
Substantial similarity test, denial of access
Must show two things for copyright violation: 1. person had access to original; 2. substantial similarity between original and the copy
What standard to prove access?
- standard is: preponderance of the evidence (civil standard)
do not get inference of access when the work is not widely disseminated
§102 – designation of copyrightable subject matter
§102(a)(5) – provides protection for sculptures; stuffed animals are considered sculptures
de minimus doctrine – see Ringgold v. Black Entertainment TV
September 30, 1999
What is the property: original expression contained in the copyrighted work
Is it copied by the alleged infringer?
1.. defendant admits it; OR
2.. defendant had access AND substantial similarities between the original expression and accused work
Then look to the amount of copying
Degree of proof is preponderance of the evidence
1.. it is the fact finder (jury or judge) that will determine this
2.. never have expert witness determining ultimate question
If a client comes to you and says he just hired a person from the competition to make the same computer program. How would you advise the client?
1.. have the new employee just describe the program generally and then have a different team of developers do the actually writing of the program (called setting up a “clean room”)
1.. get the program (like from a computer store)
2.. hire a software team to deprogram it (they figure out what functions are being performed, what procedures are being formed; take out the non-copyrightable elements; procedures and functions are not copyrightable)
3.. then the software developers conveys it to an intermediary (often an attorney)
4.. the intermediary then conveys it over to a programmer which had NO access to the original program
5.. then this new programmer can take the functions and write a new program
6.. have everyone sign a declaration describing what exactly was done
7.. and then if the end product comes out identical to the original it does not matter – the people that ended up writing it did not have access to the original work
Reverse engineering is NOT a violation of trade secret laws.
What to do if you have accidentally copied stuff:
1.. fire the guy that copied the code
2.. admit the infringement
3.. then the only issue left will be damages
Main thing to remember is to never, NEVER let the final programmers have access to the original program.
Source and object code can be protected two ways: