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Copyright
University of Cincinnati School of Law
Armstrong, Timothy K.

Armstrong_Copyright_Law.doc
Writings
 
17 USC § 102(a)
Protects original works of authorship fixed in any tangible medium of expression, now known or later developed, form which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
(b)- exceptions
Does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described.
 
 
Elements of copyrightability:
 
Authorship
-Who is the author of a work?
-creative mastermind is the author.
            -who authored creative content of work.
 
Fixation
–          principle of media neutrality
–          tangible medium of expression
 
Originality
–          some level of creativity
 
Expression
–          ideas not covered, only expression
 
 
Derivative Works/ Compilations.
–          get copyright as to there original expression
–          mostly protected against copying.
–          No protection for miniscule variations
 
 
Formalities:
Notice- © symbol and authors name, date
Registration- with Copyright office
Deposit- send copy to copyright office
 
Before 1978, copyright protection attached at moment of publication.
-Courts construed this broadly, any public distribution could constitute publication.
            -However, distributing it to a limited group would not be publication.
                        – Estate of MLK v. CBS- giving speech not publication.
 
After 1978
-copyright attaches to work as soon as it is fixed.
-authors given 5 years to correct defects in formalities.
 
Since 1989
-copyright attaches as soon as it is fixed.
-notice requirement no longer mandatory
            -necessary to bring suit for infringement.
            -necessary for statutory damages for infringement
 
 
Duration
 
1909- Copyrights lasted 28 years, and allowed renewal of copyright for an additional 28 years.
 
1976- Unitary term of life of author + 50 years.
 
§302- applies to after 1978
§304-applies for to copyrights before 1978
§303- applies to works created, but not published before 1978
 
§302(a)- currently, life + 70
§302(b) – joint works, life of last surviving author + 70
§302(c) – anonymous/pseudonymous works, works made for hire is earlier of:
            -dare of publication
 
§304
If in first term on 1/1/78 (between 1/1/1950 and 12/31/1977)
            First term is 28 years
            Second term is 67 years
Total duration is 95 years
 
If in second term on 1/1/78 (before 12/31/1949)
1922 or earlier- Second term is 47 years (total 75)
1923 or later- Second term is 67 years (total 95)
 
Public Domain is frozen until 2018.
 
§303- things created but not published in 1978
Same duration as 302, life + 70
Exception- copyright will last until 12/31/2002, regardless
If published before 12/31/2002 it will be in copyright until 2047.
Example A Long Fatal Love Chase, by Louisa May Alcott
 
Published before 2002- still in copyright until 2047
 
§305- Only date one needs to consider- and that is the year, all copyrights end on 12/31
 
Eldred v. Ashcroft- Congress can create copyrights of any limited duration.
 
Golan v. Gonzalez- unconstitutional to remove works from public domain.
 
Renewal Rights
 
Historical problem now, since there is

ontracted away.
When can you terminate?
-assignment lasts 35 years
-then a five year window opens during which an author can recapture rights.
            -first terminations under 203 will happen in 2013
 
-Exception for assignments made before publication and including the right of first publication
-then termination window happens at the earlier of: 35 years after publication or 40 years after assignment.
 
How to terminate?
-Serve notice on assignee
            -must be signed by people with required majority of termination rights.
            -state date of termination
-must serve notice within an 8 year window no less than 2 years, no more than 10 years, before the date of termination.
                        -so earliest notices are being filed now.
                        -if termination will happen, there must be notice before the end of 38 years
            -Must record notice in the Copyright Office on or before the effective date.
 
What is the effect of termination?
-rights that were assigned now revert to author or others who had termination rights.
 
-if there is no termination, assignee keeps the rights to the end of the copyright term.
 
-derivative works following termination: can continue to use work prepared under initial grant, but not create additional works.
 
Pre-1978 Assignment §304