COPYRIGHT OUTLINE
Chapter 1 – The Boundaries of Copyright
Section 1 – A First Look at Copyright
Constitution gives Congress the power to protect CR
Art. I, Sec. 8 – “The Congress shall have Power…to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
1. Clause read as to rest on the Economic Incentive justification for CR à CR protection is given as an incentive to induce people to produce creative works
Sec. 102 – Subject Matter of Copyright; In General
(a) Copyright protection subsists…in original works of authorship fixed in any tangible medium of expression…
Sec. 106 – Exclusive Rights in Copyrighted Works
Subject to sections 107 – 122, 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.
Why does the law give CR protection?
1. Incentive Argument
a. Dominant reasoning behind US CR law
b. CR protection provides economic incentive for people to produce creative works and the public benefits from the creation of CRable works
1. Utilitarian rationale – scope of protection should be limited to the extent that people will still be motivated to create CRable works and the public can still benefit from them
2. Property Rationale
a. European view of CR
b. Natural Law view of CR – the work belongs to its creator, thus someone should not be able to benefit from the use of the work w/o the creator’s permission
1. More expansive view of CR law and protection
Why is there a special CR statute which protects and gives incentive to produce CRable works but not a similar statute for other items of production?
1. Most businesses produce TANGIBLE property à protected by general rules of law
2. INTANGIBLE property à Need special protection
a. Why?
1. Intangible things can be taken w/o anything physical being taken; they can be taken in ways that do not trigger the ordinary tort or criminal laws that protect tangible property
What is the downside of giving CR protection?
1. Restricts access to the CRed work à Limits other people’s enjoyment of the work
2. Restricts people from using the work or parts of the work to create something new
BIG THEME – CR law is a balance of the incentive rationale against the restriction of the public’s ability to enjoy or make use of the work
Sony v. Universal
1. US SC
2. Facts – Sony sells VCR’s; Universal argues contributory infringement b/c the VCR can be used to copy Universal’s TV shows
a. TV shows are CRable under 102
b. Universal argues that selling VCR’s is contributory infringement b/c it violates Universal’s exclusive right to reproduce its CRed works under 106(1)
3. Sony only liable if the VCR can only be used for an infringing purpose
a. Issue – does the VCR have a substantial non-infringing purpose?
4. Universal argues that allowing people to cop
of State CR law
2. Federal CR law has essentially preempted State CR law
Section 202 – Ownership of CR as distinct from Ownership of Material Object
1. CR is separate from the physical work; can transfer one w/o the other
Section 204(a) – Execution of Transfers of CR Ownership
CR Statute of Frauds
1. In order to be an assignee of CR, you must have a piece of paper signed by the CR owner evidencing the CR transfer
a. Under this standard the Pushman case would have come out the other way b/c the Defendant did not have a piece of paper which proved that Plaintiff Artist had transferred the CR when he sold the painting
b. Pushman presumption no longer applies
Section 302 – Duration of CR: Works Created on or After 1/1/1978
(a) CR created on or after 1/1/78 subsists from its “creation”
Section 101 defines “created”
1. Work is created when it is 1st fixed in a tangible form
a. Write is down on a piece of paper; Save it on a hard drive; Recording of a musical work
2. Published/Unpublished distinction does not matter anymore
3. Thus, State CR protection no longer to applicable UNLESS the work has not been “fixed” in any form
a. Examples of “unfixed” works à Conversations, ideas off the top of your head, live musical performances
Federal CR law only protects works that have been “fixed” in a tangible medium
However, Congress has protected live music (unfixed work) with other statutes – constitutionally justified as a use of Congress’ power under the Commerce Clause
