Entertainment Law
Rubin
Fall 2010
COPYRIGHT
I. Subject Matter of CR:
a. Definition of CR:
i. In order to gain protection, the work must be (1) original — it must be the product of original thinking of the creator, rather than something that has been copied and it must (2) fall within specified classes, which include literary, musical, dramatic, two & three dimensional visual, cartographic, artistic, sculptural and motion picture type works
1. Note: not only is there no protection for ideas, systems and forms, but they are specifically excluded under the act
2. Congress has also provided that computer software programs are “literary” works for purposes of CR
b. Subject Matter of CR:
i. Covered works must be “fixed” in a tangible medium of expression (paper, film, disk, audio or visual tape, canvas, marble or some other medium)
ii. Act eliminated what was known pre-1978 as common law CR, which only covered “published” work
iii. Public domain material is normally no longer protectable, and works that have fallen into the PD, whether because of expiration of time or inadvertent dedication, usually can't be re-protected — anyone can use PD work
iv. CR protection begins at the moment an eligible work is created (as soon as it is reduced to a tangible means of protection) — no longer is publication required.
c. Literary Works — also includes software
i. “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, phono-records, tapes, film, disks, or cards, in which they are embodied”
d. Dramatic Works
i. Two Requirements: works must (1) relate a story and (2) include directions for visual representation for an audience, usually live rather than on film or video disk
ii. It's these two references that distinguish dramatic works from literary works
e. Pictorial, Graphic and Sculptural Works
i. Includes two-dimensional and three-dimensional works of fine, graphic and applied art, photographs, prints and art reproductions, maps, globes, diagrams and models
ii. CR does not protect utilitarian objects, but only their artistic elements and only if those elements may be conceptually separated from the utilitarian aspects
f. Factual Works
i. Generally, facts aren't protectable by CR — they lack originality, and even if never before discovered, the law posits that they existed and waiting to be discovered (not original)
ii. Method of expressing facts may be protectable — “where the selection, coordination and arrangement of facts is original, that sort of originality is protectable”
g. Characters
i. No clear statement in either act (1909 or 1976) whether fully developed characters are protectable by CR, but cases rule that they are generally protectable unless they form only incidental pawns in the story being told
II. Derivative and Collective Works
a. The Nature of Derivative Work:
i. Work based on one or more preexisting works (such as translations, musical arrangements, movie versions, adaptations, editorial revisions, etc…)
ii. Although they are separately CR, the separate CR is only afforded to the new original elements
iii. Normally, derivative works may only be created with the permission of the owner of the CR of the underlying work
b. The Nature of a Collective Work:
i. Work, such as a periodical, anthology, or encyclopedia, in which a number of contributions constituting separate and independent protectable works themselves, are assembled into a collective whole
ii. It can be a compilation of preexisting materials in such a way that the resulting work is original
iii. CR a collective work does not place fresh protection onto an included public domain work
III. Rights Granted
a. Subject to exceptions, the owner of a CR has the exclusive right to:
i. Reproduce the CR work in copies
ii. Prepare derivative works based upon the CR work
iii. Distribute copies of the CR work to the public by sale or other transfer of ownership, or by rental, lease or lending
iv. In the case of literary, musical, dramatic and choreographic works, pantomimes and motion pictures and other audiovisual works, to perform the CR work publicly
v. In the case of the same above groups; the owner of the CR has the right to display the CR work publicly
vi. In the case of sound recordings, to perform the CR work publicly by means of a digital audio transmission
b. The limitations on these rights cover what is known as fair use, reproduction by libraries under certain circumstances, and other special exceptions
IV. Publication
a. Definition:
i. Distribution of copies of a work to the public by sale or other transfer of ownership, or by rental or lending
ii. Offering to distribute copies to a group for purposes of further distribution, performance or display is publication
iii. Public performance does not normally constitute publication
b. Importance:
i. If a CR notice is used, the year date of publication must appear, except where there are artistic elements in a normally utilitarian work, such as greeting cards
ii. Publication date sets the length of protection in cases of anonymous and pseudonymous works, and works made for hire
V. Persons Entitled to CR
a. Authorship:
i. CR inheres in the author, in the absence of some sort of written transfer — in most instances, only a creator of a work is eligible to own the CR in it as of the date of creation
b. Collective Works:
i. CR in each contribution to a collective work rests initially in the author of the contribution, which can be transferred to anyone by a written agreement
c. Works made for Hire:
i. Where the concept applies (complicated to do so), the actual creator of the work is not the owner of the CR
1. Employer or commissioning party is considered the author
2. The term of protect changes
3. The work must be prepared by:
a. By an employee in the scope of employment; or
b. on a special order or commission and the parties must expressly agree in writing that the work will be considered as one made “for hire”
c. If not by an employee, then the work must fall within one of nine categories of works eligible for “work made for hire” status
d. Letters:
i. Generally, CR in the literary contents remains in the writer, even though ownership of the physical letter rests with recipient
ii. There are exceptions, such as where writer intends to dedicate the CR or convey it to the recipient
VI. Statutory Formalities
a. CR Notice: since 1989, notice is no longer required
i. Although no longer necessary, notice is still desirable and appears on published copies
ii. Act provides incentive to use a notice, by stripping an accused infringer of the right to claim innocent infringement
iii. No notice need be used on greeting cards, postcards, stationary, jewelry, dolls, toys and useful articles
iv. For derivative and collective works, the notice may contain only the year of first publication of the derivative or collective work
b. Proper Placement of Notice:
i. Under the 1909 act, in published literary works, it had to be on the title page or the immediately following page
ii. Under the 1976 act, it must be placed in such manner and location on or in the work as to give reasonable notice to viewer
c. Registration: no longer required
i. Again, the act provides incentives to register; generally, statutory damages are only available where infringement occurs after registration
ii. Registration is simple — accomplished by filling out a form and sending it in the CR office with one or two copies of the work, depending on whether it has been published, with $$
VII. Duration and Renewal
a. Duration under the 1909 Act: Works created before January 1, 1978
i. There was a 28 year initial term, and if renewed during the 28th year, a 28 year renewal term, for a total of 56 years from publication date
b. Duration under the 1976 Act: Works created after December 31, 1977
i. CR now exists for the life of the author plus 70 years, without regard to the date of the publication; for joint authors, the measurement is the life of the last survivor
duct) is slight — then it will be hard to tell (unless you know the background facts) whether B copied from A or the film
IV. Harper & Row Publishers v. Nation Enterprises [51]
a. Facts: Ford was publishing an autobiography, which was somehow leaked to Δ; Δ then released it early (which essentially killed the marketability of Π production of it); Δ claims fair use
b. Issue: was it fair use?
c. Overview of Fair Use:
i. Definition privilege in others than the owner of the CR to use the CR material in a reasonable manner without his consent
ii. Factors to Analyze: (1) purpose of the use; (2) nature of CR work; (3) amount used; and (4) effect on the market of the original work
d. Holding/Reasoning: Not Fair use
i. Purpose — Δ profited off the work (not educational, but for a commercial profit)
ii. Nature — definitely “news” the public would want to know.
iii. Amount Used — substantial (which isn't just a quantitative; a small amount, if it is the most important part of the original work, it may still be substantial); here, Δ “quoted the heart of the book” and therefore, it was substantial
iv. Effect on market [most important factor to analyze with regards to fair use] — Δ use effectively killed the market/profit of original work
e. Other Rationale:
i. Court didn't want to extend the fair use exception to create what amounts to a “public figure exception to CR”
ii. Isolated instances of minor infringements, when multiplied many times, become in the aggregate a major infringement on CR that must be prevented
f. Moral issue the Court doesn't touch:
i. Here, Δ essentially got the original copy through theft; often times the courts will realize this immoral action and try and find a way to punish the actor, without saying “you were bad”
ii. Not always the case — During the Vietnam War, the pentagon papers were published and the Supreme Court essentially said that the first amendment trumps the reasons for secrecy
1. Essentially held that the public had a right to know
V. Apple Computer v. Franklin Computer Corporation [65]
a. Facts: Π holds CR on fourteen computer programs (operating system programs, which generally manage the internal functions of the computer or facilitate use of application programs); programs are usually written in source code; Δ copied some of Π operating system programs; Δ argues that such programs are not capable of CR protection
b. Issue: are Π programs copyrightable?
c. Holding/Rule: Yes; to be CR subject matter it must be (1) an original work of authorship and (2) must be fixed in a tangible medium of expression “from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device”
d. Rationale:
i. Historically, computer programs have been CR as literary works, since they “embody an author's original creation”
1. Δ argue that under Baker v. Selden, (1) the use of a system itself does not infringe a CR; (2) CR doesn't extend to purely utilitarian works; and (3) CR laws may not be used to obtain and hold a monopoly over an idea
a. However, Π doesn't seek to CR the method which instructs the computer to perform its operating functions, but only the instructions themselves (the method would be protected, if at all, under Patent Law)
b. No reason to afford less CR protection to operating system instructions, than to the instructions in an application program
ii. Overall, if other programs can be written or created which perform the same function as Π operating system program, then that program is an expression of the idea and hence CR
