MY NOTES: Business Organizations | Constitutional Law I | Copyright Law | Evidence | Wills and Trusts | MN2L HOME

Copyrights September Notes


September 2, 1999


Copyrightable subject matter


Derivative work: A work based on one or more preexisting works


Computer programs


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 16, 1999


Recording copyrights


if you record within one month of transaction, you get benefit of document date as the recording date (if foreign country or executed abroad, is 2 month period)

- if you don't record, you are still entitled to benefit

- notice, constructive notice to the BFP

- anything can be recorded; non-exclusive license does not transfer, but still can be recorded


even the person who acquires title, rights, takes them subject to non-exclusive licensees


ownership of copyright

- person that puts a collection together, owns the copyright to the whole collective work, the individual authors though retain the copyright to their own articles

- so in a law review, the law school owns the copyright to the whole journal but not to each article


Split of authority on whether the wife owns half the copyright in community property states.  In Louisianna the spouse does not own half.  In CA the spouse DOES own half. 


Make sure you know: what a beneficial owner is. 

beneficial owner - person that does not own legal title, but has an economic interest in the project.  involves an owner who parted with legal title to the copyright in exchange for percentage of royalties based on sales of licensed fees.  From House Report.

- since you have a beneficial interest, you can sue.  (if the person you grant the license does bad things with your copyright, and you were not getting your share)


Can think of potential derivitive work as a lien on copyrighted work.


DURATION - new chapter


big change from 1976 act to current act


before 1976 act

- fixed term of 28 years with option to renew for another 28 years

- the 28 years began at date of publication (with notice)


1976 Act

- 50 years after the author died


1998 revision

- 70 years from the death of the author

- this is hard to know when the author uses an anonymous name

- works for hire, anonymous, subtoanonymous - 95 years from the date of publication OR 120 years fromt the date of creation whichever is shorter.

- this increase was for Sunny Bono

- under the Berne Convention, this is pretty much what is standard worldwide; sincethe world is shrinking it is beneficial to have more uniformity

- from a practical standpoint it does not make much difference whether it is 70 years or 90..

- in JOINT WORKS (two or more authors): term is based on the death of the last survivor


anyone that has an interest in the copyright, can record wiht the copyright office whether or not that person has died or not

> if you search and cannot find any indication as to whether the author has died, and you can find that the work was published or you find that the work was created at least 70 years ago, then if you go forward based on that, you are on safe grounds.  Even if it turns out that the author is still alive or died less than 70 years ago, you still can go forward. 


What does publication mean: when one or more copies is distributed to the public without restictions to the disclosure of its content.


If the work was published before 1976, it is easy to calculate when it is going to expire.  Max 75 years from the date of the publication. 


With works that were not published before 76 act took affect (Jan, 1 1978), now unpublished works ARE protected.  The federal copyright protection,

MAKE SURE YOU KNOW: Section 303 - unpublished work before '76 cannot expire prior to 2002. 70 years plus life of author and not less than 2002.

- in order to have incentive for authors to publish unpublished works, if authors publish before Dec 31 2002, their rights extend to 2047 (45 more years)



- Work created 1960

- published 1990

- author dies in 2000

When does the copyright terminate?

- terminates 70 years after he dies so 2070. 



- work created 1930

- published 1990

- died 1981

When does copyright terminate?

- 2051 - until at least 2047, but add 70 years from time he published, so 2051 because it is greater


EXAMPLE (work for hire)

- created 1900

- published 1990

When does copyright terminate?

- 2047



- created 1900

- author died 1950

- not published

When does copyright terminate?

- 2020


EXAMPLE (work for hire)

- created 1900

- never published

When does copyright expire?

- 2020 last day of year


All copyright terms end on Dec 31 on day of year.


Prior to 1976 acts you had rights of renewal

- original was 28 years

- if renewed, the renewal was deemed to be a new set of rights

- if they did not renew they had a right of expectancy

- you could only renew during the ONE year preceeding the 28th aniversary of the term; if you were dead during that year, the person you granted the conveyance to would NOT get the renewal

- if you were alive and had contracted it away, then it would be enforceable

- if you die before it is renewed, then the person who got the license does not get it; the renewal option now goes to the person's heirs; this means that the original licensee does not have a contract with them and they can renegotiate.

- CONGRESS             WANTED the family to get the license when the term was about to expire.  this ensured the family would have the option to renew.




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)


1976 Act

-         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)

  1. as to unpublished works, publication does not matter as to nationality
  2. if it is published, nationality of where it was created is important 17 USC 104

-         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

  1. fair use applies to both – libraries can make archival copies of unpublished works
  2. library of congress requires, whether or not you apply for copyright or not, you are technically obligated to give a free copy to the library of congress (they can make you, or buy it and send you a bill for it, can even become subject to criminal offense if willful)

-         term publication therefore still has significance

-         notice just has to be in a place where it is reasonable perceivable (1909 act was different)

Sound protection

-         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?

  1. direct proof (person that copied it admits it)
  2. proof by circumstantial evidence; have to prove two things:

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.


Copyright Infringment

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



Copyright tort

            Statutory tort

            What is the property: original expression contained in the copyrighted work

            Is it copied by the alleged infringer?

                        How prove?

                        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

1.. quantitatively

2.. qualitatively

            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:

  1. copyright
  2. trade secret