Copyright

Passman - pp 197-
205
Basic Concepts of Copyright
 Copyright = “the right to copy”; aka, “a limited duration
monopoly”
 Designed to promote the progress of science and
useful arts by giving creators exclusive rights to their
works for a while.
 Copyright protects the WAY a song (et al) is
expressed, not the idea behind it.
 Copyrightable works have to be original, and of
sufficient material to be a work
 Decided on a case-by-case basis
History
 Romans
 Act of Queen Anne 1710 (began 1623 when patents
received protection) - a right to benefit financially is
articulated, including the right to control. (limited duration)
 US Constitution 1789, Article 1, section 8:
Congress shall 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.
More History
 1790 Act - established at term of 14 years with a 14 year
renewal
 Over the years amendments added protection to prints,
music compositions, dramatic works, photos, fine arts
 1909 Act - extended term to 28/28, protected on
published works
 1976 Act (went into effect 1978) - codified “fair use”,
based term on death of author (70 years after death of
last surviving author) for works created after 1976,
granted exclusive rights when work fixed in tangible form
Issues in Copyright

 Copyrightability
 Exclusive rights and limitations
 Ownership and formalities
 Infringement
 Remedies
Copyrightability

 Fixed in a tangible medium of expression?

 Original? (originality vs. novelty)
Independent origin?
Minimal creativity?
 Among categories of “works of authorship”?
(1) literary works;(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 works;(7) sound recordings; and(8)
architectural works.
Ownership and Formalities
 Initial vesting
– Generally
– Works made for hire
– Joint works
 Transfers
 Duration
 Formalities
– Notice
– Registration
Duration - Works Created on or
after January 1, 1978 (section 302)

 Single Author Works: Life of author plus 70

years
 Joint Works: Life of last surviving author plus
70 years
 Works Made for Hire and Works by
Unidentified Anonymous and Pseudonymous
Authors: 95 years from first publication, or 120
years from creation, whichever expires first
Formalities: Notice & Registration

 Section 408, Copyright Act:

[T]he owner of copyright or any exclusive right
in the work may obtain registration of the
copyright claim by delivering to the
Copyright Office the deposit specified by
this section together with the applications
and fee [currently $45] registration is not a
condition of copyright protection.
http://copyright.gov/
Why Register?

 Certificate is prima facie evidence of

validity
 Prerequisite to infringement action for
infringement of exclusive rights
 Prerequisite to certain remedies
– Attorneys’ fees
– Statutory damages
Architecture of Rights & Limitations

 Exclusive rights created by copyright law

 General and specific limitations on exclusive
rights
 Copyright law seeks to balance the incentive to
create with the need for public access
Copyright’s Exclusive Rights

adaptation distribution

reproduction

Public public
performance display
Exclusive Rights and Limitations
Subject to sections 107 through 122, the owner of copyright
under this title has the exclusive rights to do and to authorize
any of the following:

• to reproduce the copyrighted work in copies or

phonorecords;
• to prepare derivative works based upon the copyrighted
work;
• 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;
• to perform the copyrighted work publicly;
• to display the copyrighted work publicly; and
• to perform sound recordings publicly by digital audio
transmission.
Section 115 - Compulsory License
When phonorecords of a nondramatic musical
work have been distributed to the public in
the United States under the authority of the
copyright owner, any other person may . . .
obtain a compulsory license to make and
distribute phonorecords of the work. A
person may obtain a compulsory license only
if his or her primary purpose in making
phonorecords is to distribute them to the
public for private use.
Compulsory Mechanical Licenses
 Mechanical royalties: payment for devices ‘serving to
mechanically reproduce sound”
 Compulsory Mechanical royalty provision: once a song
has been recorded, a copyright owner must license it
to:
 Anyone who wants to use it and,
 For a specific payment established by the law
 Can only receive license if :
- a non-dramatic musical work
- previously recorded
- public distribution
- phonorecord use
Exclusive Rights of Section 106
Subject to sections 107 through 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) to perform the copyrighted work publicly;
5) to display the copyrighted work publicly; and
6) to perform sound recordings publicly by digital audio transmission.
“Derivative Work” Defined
(§ 101)
A “derivative work” is a work based upon one or more
preexisting works, such as a translation, musical
arrangement, dramatization, fictionalization, motion picture
version, sound recording, art reproduction, abridgement,
condensation, or any other form in which a work may be
recast, transformed or adapted. A work consisting of
editorial revisions, annotations, elaborations, or other
modifications which, as a whole, represent an original work
of authorship, is a “derivative work.”
“Performance” Defined (§ 101)
To “perform” a work means to recite, render, play, dance, or act
it, either directly or by means of any device or process or, in
the case of a motion picture or other audiovisual work, to
show its images in any sequence or to make the sounds
accompanying it audible.
“Public” Performance
(17 U.S.C. §§ 101(1)-101(2))
 Performance Clause (Clause 1)
– To perform in any place open to the public
– To perform in any place where a substantial number of
persons outside of the normal circle of a family and its social
acquaintances is gathered
 Transmission Clause (Clause 2)
– To transmit to a place specified in first clause
– To transmit to the public, by means of any device or process,
whether the members of the public actually receive it
 in the same place or in separate places, or
 at the same time or at different times
Exemptions to Public Performance
Right
 Face-to-face instructional performances § 110(1)
 Instructional transmissions § 110(2)
 Religious performances § 110(3)
 Nonprofit performances § 110(4)
 Aiken exemption § 110(5)
 Performances at agricultural fairs § 110(6)
 Performances to promote retail record sales § 110(7)
 Performances for the handicapped §§ 110(8-9)
 Performances by veterans’ and fraternal organizations
§ 110(10)
 Secondary transmissions § 111
Copyright Law Issues

 Copyrightability
 Ownership and formalities
 Exclusive rights and limitations
 Infringement
 Remedies
Elements of “Copying”:
Modern Approach
 Factual Similarity:
Similarity Proof of copying as a factual
matter
– Direct evidence
– Circumstantial evidence
 Access
 Probative similarities
 Infringing Similarity:
Similarity Proof of copying as a legal
matter
– Nature of “things” copied by defendant
– Quantity and quality of expression copied by defendant
Section 107: Fair Use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified in that section, for purposes of
criticism, comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair
use the factors to be considered shall include --
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such
finding is made upon consideration of all the above factors.
Four Fair-Use Factors of
Section 107

 Purpose and character of use

 Nature of copyrighted work
 Amount and substantiality of copyrighted work
used
 Effect of use on economic value of copyrighted
work
Copyright Law Issues

 Copyrightability
 Ownership and formalities
 Exclusive rights and limitations
 Infringement
 Remedies
Civil Copyright Remedies
 Equitable relief
– Injunctive relief
– Affirmative equitable relief
 Monetary relief
– Actual damages suffered by copyright owner
– Profits of infringer
– Statutory damages
 Miscellaneous
– Costs
– Attorneys’ fees