Entertainment Law Outline
I. COPYRIGHTS
A. Copyright Act: 17 U.S.C. §101
101. Definitions
Except as otherwise provided in this title, as used in this title, the following terms and their variant forms mean the following:
An “anonymous work” is a work on the copies or phonorecords of which no natural person is identified as author.
An “architectural work” is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.
“Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.
The “Berne Convention” is the Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto. A work is a “Berne Convention work” if–
(1) in the case of an unpublished work, one or more of the authors is a national of a nation adhering to the Berne Convention, or in the case of a published work, one or more of the authors is a national of a nation adhering to the Berne Convention on the date of first publication;
(2) the work was first published in a nation adhering to the Berne Convention, or was simultaneously first published in a nation adhering to the Berne Convention and in a foreign nation that does not adhere to the Berne Convention;
(3) in the case of an audiovisual work–
(A) if one or more of the authors is a legal entity, that author has its headquarters in a nation adhering to the Berne Convention; or
(B) if one or more of the authors is an individual, that author is domiciled, or has his or her habitual residence in, a nation adhering to the
Berne Convention;
(4) in the case of a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, the building or structure is located in a nation adhering to the Berne Convention; or
(5) in the case of an architectural work embodied in a building, such building is erected in a country adhering to the Berne Convention.
For purposes of paragraph (1), an author who is domiciled in or has his or her habitual residence in, a nation adhering to the Berne Convention is considered to be a national of that nation. For purposes of paragraph (2), a work is considered to have been simultaneously published in two or more nations if its dates of publication are within 30 days of one another.
The “best edition” of a work is the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes.
A person’s “children” are that person’s immediate offspring, whether legitimate or not, and any children legally adopted by that person.
A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.
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. The term “compilation” includes collective works.
“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.
“Copyright owner”, with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.
The “country of origin” of a Berne Convention work, for purposes of section 411, is the United States if–
(1) in the case of a published work, the work is first published–
(A) in the United States;
(B) simultaneously in the United States and another nation or nations adhering to the Berne Convention, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States;
(C) simultaneously in the United States and a foreign nation that does not
adhere to the Berne Convention; or
(D) in a foreign nation that does not adhere to the Berne Convention, and all of the authors of the work are nationals, domiciliaries, or habitual residents of, or in the case of an audiovisual work legal entities with headquarters in, the United States;
(2) in the case of an unpublished work, all the authors of the work are nationals, domiciliaries, or habitual residents of the United States, or, in the case of an unpublished audiovisual work, all the authors are legal entities with headquarters in the United States; or
(3) in the case of a pictorial, graphic, or sculptural work incorporated in a building or structure, the building or structure is located in the United States.
For the purposes of section 411, the “country of origin” of any other Berne Convention work is not the United States.
A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
A “device”, “machine”, or “process” is one now known or later developed.
A “digital transmission” is a transmission in whole or in part in a digital or other non-analog format.
To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.
The term “financial gain” includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.
A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
The terms “including” and “such as” are illustrative and not limitative.
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.
“Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.
“Motion pictures” are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.
To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.
“Phonorecords” are material objects in which sounds, othe
ase, electronic information service, electronic publication, or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.
A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties.
A “work made for hire” is–
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting
in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.
B. Selle v. Gibb
Facts: Composer brought action alleging musical © infringement.
Law:
v In establishing claim of © infringement of musical composition, must prove:
a. ownership of © in the complaining work,
b. originality of the work,
c. copying of the work by D, and
d. a substantial degree of similarity between the 2 works.
v Proof of copying is crucial because no matter how similar 2 works are, if the D didn’t copy the accused work, there is no infringement.
v D’s opportunity to view the copyrighted work must exist by reasonable possibility, not a bare possibility.
v © infringement can rely upon circumstantial evidence to prove copying.
v Proof of access is the most important component of circumstantial evidence that may be used to prove copying to support © infringement claim.
v may be able to introduce direct evidence of access when the work was sent directly to the D, whether a musician or publishing company, or a close associate of the D.
v may be able to establish a reasonable possibility of access when the complaining work has been widely disseminated to the public.
v An inference of access may still be established circumstantially by proof of similarity which is so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded.
v Jury cannot draw an inference of access based upon speculation and conjecture alone; must always present sufficient evidence to support reasonable possibility of access.
