THE DEFINITIVE GUIDE TO COPYRIGHT LAW
COPYRIGHT
ART. I, SEC. 8, CLS. 8
• Constitutional source of federal copyright authority:“The Congress shall have Power . . . [t]o 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.”
• The goal of copyright: Providing a reward for authors’ creative activity in order to motivate that activity and to allow the public access to the products of their genius after the limited period of exclusive control has expired. (Eldred v. Ashcroft)
• Intellectual Property Law; Copyright (expression); Patent (technology, system or process); Trademark (symbolic information)
• NOTE: The fact that a copyrightable character or design has fallen into the public domain SHOULD NOT preclude protection under the trademark laws so long as it is shown to have acquired independent trademark significance, identifying in some way the source or sponsorship of the goods. (Frederick Warne & Co.)
REGISTRATION
• Not required for copyright BUT for U.S. origin works it is prerequisite to action for infringement, and entitles plaintiff to damages and attorney’s fees (Federal courts have exclusive jurisdiction)
PREEMPTION § 301
• The copyright act PREEMPTS all state law IF IT BOTH;
1) grants rights equivalent to the rights granted by § 106 ofthe copyright act,
• The Equivalent Rights test: when a state law violation is built upon an act incorporating elements beyond mere reproduction, i.e. some extra element NOT in § 106 of the copyright act WHICH IS DIFFEREMT from a copyright infringement claim, the rights involved are NOT equivalent & preemption DOES NOT occur (Taco Bell).
• For ex; Contract (the use of the work + the. promise to pay (i.e. the extra element) see ProCD or Taco Bell), conversion (see Ehat), invasion of privacy, defamation, false representation, defamation, & misappropriation (see National Basketball Association)
& 2) extends to works that are covered by the subject matter (scope) of copyright.
• FOR EX: The IRPA protects rights of a person nature, i.e. a persona, & thus IS NOT preempted b/c the copyright act DOES NOT cover persona (L’Oreal).
• Players’ right of publicity in their performance PREEMEPTED, b/c it is within the scope or subject matter of the copyright act (Orioles).
ORIGINALITY + FIXATION = COPYRIGHT PROTECTION
• § 102(a); Copyright protection is available for 1) “original works of authorship” 2) “fixed in a tangible medium of expression”.
• § 102(b), on the other hand, denies protection to works otherwise satisfying the Act’s requirements if the copyright is claimed for any “idea, procedure, process, system (see Bakker v. Seldon), method of operation, concept, principle, or discovery”.
ORIGINALITY
• What is originality? Originality = Independent creation by the author + a minimal degree (de minimis) of creativity § 102(a)
• The minimum creativity standard is a low standard (See Alfred Bell engravings of old masters, see Magic Marketing envelopes not enough)
• NOTE: that while the minimum creativity standard is a low standard “sweat of the brow” alone will not satisfy it.
• Intent/effort play no role in copyright. EX: Jackson Pollock. Copyright law only rewards the product NOT the producer.
• At least one court has said there is a higher standard of originality for derivative works (see L.Battlin), under this standard you need some substantial variation, not a merely a trivial variation
FIXATION
• Fixation is met if a work has been fixed in a tangible medium of expression meaning it is embodied and that, that embodiment “is sufficiently permanent or stable” to permit the work “to be perceived (with the aid of machine is ok), reproduced, or otherwise communicated for a period of more than transitory duration”. [Special rule for live broadcasts]
UNCOPYRIGHTABLE STUFF
BLANK FORM RULE
• Blank forms; such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information.” § 202.1(c) (see Bibbero Systems)
• An exception to this is the unique expression rule; you can get a copyright on a work which consists of text integrated with blank forms, if the art [that a book] teaches cannot be used without employing the methods and diagrams used to illustrate the book (For ex; language explanatory of Beardsley’s bonds and affidavits = integration, making the whole copyrightable. See Continental Casualty).
FACTS & COMPILATIONS
• 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. § 101
• Facts are never original, a factual compilation is eligible for copyright only if it has an original selection or arrangement of facts (stuff like alphabetical listings, classification headings, the structure of headings), but the copyright is limited to the particular selection or arrangement, and does not extend to the facts themselves. (Feist) see § 103
• EXs; star pagination did not amount to an original arrangement see Matthew bender & co, facts + predictions based on professional judgment and expertise are an original arrangement see Maclean Hunter, arrangement of aerialphotos to make a mapan original arrangement see Rockford Map. Manufacturer’s serial numbers for parts lacked sufficient originality to be copyrighted b/c parts were numbered without creativity. (see SouthCo).
GOVERNMENT WORKS § 105
• Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest or otherwise. § 105
• Judicial opinions can’t be copyrighted because they’re the property of the people (Banks v. Manchester)
• NOTE: Materials adopted as law do not invalidate a defendant’s copyright (Practice Mgmt) HOWEVER if materials have been adopted as law, when X copies only “the law” he does not infringe the organization’s copyrights in its model building codes(see Veeck).
WORKS SUBJECT TO COPYRIGHT § 102
• 1) literary work; 2) musical works including any accompanying words; 3) dramatic works, including any accompanying music; 4) pantomimes and choreographic works; 5) pictorial, graphic, and sculptural works; 6) motion pictures and other audiovisual work; 7) sound recordings; and 8) architectural work.
STATE GOVERNMENT WORKS
• By specifying a limitation on ownership solely against the federal government, implies that states and their subdivisions are NOT excluded from protection under the Act. Works of state governments are therefore left available for copyright protection by the state. (County of Suffolk)
• A state work may be deemed in the public domain if: 1) the entity or individual who created the work had no economic incentive to create and 2) the public needs notice of this particular work to have notice of the law. (County of Suffolk)
ARCHITECTURAL WORK
• Blueprints of structures are themselves copyrightable but until recently constructing a building that duplicated the plans did not necessarily violate the architect’s copyright (1990 amendment).
• It is not infringement to photograph a copyrighted building that is ordinarily visible from a public place § 120(a)
• The owners of a building embodying an architectural work may, without the consent of the author or copyright owner of the architectural work, make alterations or destroy the building. 120(b)
• The House Report’s functionality criterion; if the design elements are not functionally required, the work is protectable without regard to physical or conceptual separability.
CHARACTERS
• The Delineation Test; the less developed the characters, the less likely they can be copyrighted; (Nichols)
• The Story Being Told Test; if the character really constitutes the story being told the more likely he/she is copyrightable, but if the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by the copyright. (the Sam Spade case)
• The Heroes at Work Test; if a character is substantially similar in terms of theme, plot, mood and characters of a famous hero character, it is infringing. (MGM v. American Honda)
COMPUTERS
• A computer program, whether in object code or source code, is a “literary work” and is protected from unauthorized copying, whether from its object or source code version and thus a computer program in object code embedded in a ROM chip is an appropriate subject of copyright (Apple Computer)
• Command codes were not protected by copyright because they were arbitrary numbers that did not contain expression that was original (Mitel Inc.)
• Menu command hierarchy
e said to fall within the medium described in the license.
• Grantor has the burden of limiting the grant, “at least when the new medium is not completely unknown at the time of contracting”
• “The words of Disney’s license are more reasonably read to include than to exclude a motion picture distributed in video format. Thus, we conclude that the burden fell on Stravinsky . . . to insert such language of limitation in the license, rather than on Disney to add language that reiterated what the license already stated.” Boosey & Hawkes v. Disney
FUTURE / ANTI-FUTURE TECHNOLOGIES CLAUSES
• “Future technologies” clause: “This license grants the right to exhibit, distribute, exploit, market, and perform the work by any means or methods now or hereafter known.”
• Anti-“future technologies” clause: “This license grants the right to exhibit, distribute, exploit, market, and perform the work only as a motion picture, shown in a movie theater, and does not authorize the use of the work by any other means or method, or medium.”
TERMINATION OF A TRANSFER OF RIGHTS
• § 203 allows an author to recapture rights exclusive or not, 35 years after they were transferred so long as the transfer was made after 1977.
• NOTE: The right of termination cannot be taken away from the author by any means, however § 203 does not apply a work made for hire.
• In order to effect a termination sometime during the 5 year period after the 35 years are up, the author must serve notice upon the grantee no less than two years and no more than ten years before the date within the five year period chosen by the author for termination.
• Who get what; basically a surviving spouse is entitled to half of the ownership and an equal role in the termination right; children or their descendants are entitled to half of the ownership and an equal role in termination right; children or their descendants are entitled to share the remaining half, per stripes. If there are no children the spouse gets it all and vice versa. In order to terminate a total of 51% or more must agree on the termination, this is true as well of joint authors.
DURATION OF OWNERSHIP
• (a) Copyright in a work created after January 1st 1978, is [authors life + 70 years] except as provided in b & c.
• (b) In the case of joint works the duration of copyright is life of the last surviving author + 70 years.
• (c) The copyright in a work made for hire (or anonymous work) is 95 years from publication, OR 120 years from creation, whichever comes first. (note once again works for hire cannot be terminated)
UNPUB. WORKS § 303
MADE BEFORE 1978
• Works created BEFORE 1978 BUT NOT published & NOT in the public domain: EXPIRE on Dec. 31, 2002 & IF published by 2002 you get 45 additional years from 2002, i.e. until 2047.
• For works created AFTER 1978 see § 302(a) [authors life + 70 years]
• A renewal term creates an entirely new right, one that reverts automatically to the author and his family, unencumbered by assignment and licenses granted during the initial term. This suggests that a license to prepare a derivative work would terminate at the end of the initial term, as would the right to exploit the derivative work prepared under that license.
• § 304 (b); any copyright in its renewal term in 1992 shall have a term of 95 years from the date it was secured
• § 305: copyright runs through the end of the calendar year.
• Who owns the renewal term? The author if still living, the widow or children of the author if the author is not living, the author’s executors