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Entertainment Law
South Texas College of Law Houston
Downey, Daniel

Entertainment law
South Texas College of Law — Fall 2015 — Downey
Copyright infringement
1. Statutory provisions
1.    The purpose of Copyright (CR) is to protect the creative ideas behind the copyrighted work in order to stimulate creation and publication and promote the progress of science and useful arts.
2.    Scope of Copyright. Original work of authorship in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, wither directly or with the aid of a machine or device.
a.    Copyrightable. (tangibles)
                                         i.    Literary Works.
                                        ii.    Musical Works, including accompanying words.
                                      iii.    Dramatic Works, including any accompanying music.
                                       iv.    Pantomimes and Choreographic Works.
                                        v.    Pictorial, Graphic, and Sculptural Works.
                                       vi.    Motion Pictures and Other Audiovisual Works.
                                     vii.    Sound Recordings
                                   viii.    Architectural Works.
                                       ix.    NOTE: This includes compilation and derivative works.
b.    Not-Copyrightable. In no case does copyright protection of an original work extend to any of the following: (intangibles)
                                         i.    Ideas.
                                        ii.    Procedures.
                                      iii.    Processes.
                                       iv.    Systems.
                                        v.    Methods of Operation.
                                       vi.    Concepts.
                                     vii.    Principles.
                                   viii.    Discoveries.
                                       ix.    NOTE: This includes title of songs, scenes a faire, sounds not fixed in a tangible medium, etc.
3.    Exclusive Rights.
a.    copy/produce (reproduction)
b.    prepare derivatives
c.     distribute to public for sale/lease
d.    distribute for literary, dramatization, motion pictures, or for choreography, the right to perform publicly
e.    right to display publicly
f.     right to make a sound recording
g.    NOTE: Think of a bundle of sticks; can be separated.
4.    Standing. (§501)
a.    Legal/Beneficial Owner
                                         i.    Allowed to bring suit for infringement that occurred during their period of ownership, even after their ownership has ended.
b.    Copyright Owner
c.     Heirs/Spouse/Next Friend of Deceased Copyright Owner
d.    Assignee
                                         i.    Right to bring suit must be expressed in the assignment.
                                        ii.    Assignee is allowed to bring suit for infringement that occurred during their period of assignment, even after their assignment has ended.
5.    Duration of Copyright.
a.    Duration.
                                         i.    Before Jan. 01, 1978 à 28 years from the date of original copyright. (§304)
                                        ii.    On/After Jan. 01, 1978 à Life of the author + 70 years after death. (§302)
b.    Renewal.
                                         i.    Before Jan. 01, 1978 à 47 years from expiration of original term.
                                        ii.    On/After Jan. 01, 1978 à 70 years after death of author.
                                      iii.    If the author is not living when the original copyright term expires, then the author’s widow/heirs shall be entitled to the copyright renewals.
                                       iv.    Anonymous Works/Work-for-Hire (§302(c)): Copyright will endure for the earlier of:
1.    95 years from the year of first publication; or
2.    120 years from its creation.
                                        v.    Presumption of Death (§302(e)): If no person obtains a report indicating that the author is still living or had died less than 70 years prior to the expiration:
1.     The author is presumed dead for at least 70 years from the earlier of:
a.     95 years from the year of first publication; or
b.    120 years from its creation.
c.     Termination Rights.
                                         i.    The exclusive or non-exclusive grant or transfer or license of the renewal copyright or any right under it, executed before Jan. 01, 1978, is subject to termination under the following conditions:
1.    Where the author is dead, his or her termination interest is owned, and may be exercised by his widow/children/grandchildren;
2.    Termination of the grant may be effected at any time during a period of 5 years beginning from the later of:
a.    the end of 56 years from the date copyright was originally secured; or
b.    January 01, 1978.
d.    Reversion Rights.
                                         i.    Upon termination, the rights possessed by anyone other than the author, reverts back to the author’s heirs, including the rights to license uses of the song and receive royalties.
2. Proof of copyright infringement
Primary liability
1.    Basic Elements of Copyright Infringement.
a.    Plaintiff had ownership of the copyright; and
b.    Defendant copied protected elements of plaintiff’s work; and
c.     There was substantial similarity between the works.
2.    Ownership of Copyright.

nd expert testimony are appropriate.
2.    Look at the similarities of unprotected elements such as title hook phrasing, shifting cadence, instrumental figures, verse/chorus relationship, melody, harmony, rhythm, pitch, tempo, phrasing, chord progression, lyrics, etc.
                                                                                        ii.    So long as plaintiff can demonstrate through expert testimony that addresses some or all of the elements and supports that the similarities are substantial to the protected elements, the extrinsic test is satisfied.
4.    Striking Similarity is used to preclude the possibility of independent creation.
a.    If evidence of access is absent, the similarities must be so striking, as to preclude the possibility that the Plaintiff and Defendant independently arrived at the same results.
b.    Proof must be more than a conclusory affidavit of an expert.
c.     Factors for Consideration:
                                                                                         i.    Uniqueness of the sections which are asserted to be similar;
                                                                                        ii.    Complaining work takes an unexpected departure from normal metric structure or includes an error that defendant’s work includes;
                                                                                      iii.    If similar sections are particularly intricate;
                                                                                       iv.    Some dissimilarities may be suspect. (Just to give the appearance of being different.)
b.    Subconscious Copying.
                                         i.    This is not a defense.
                                        ii.    So long as Plaintiff can prove that Defendant copied enough of the protected elements, Defendant is liable even if the copying is done subconsciously.
                                      iii.    NOTE: Mere lapse of time between the moment of access and the creation of the alleged copied work does not preclude a finding of copying.
1.    E.g. Bolton case where he copied an Isley Bro. song thinking it was a Marvin Gaye song, it’s still copying!