Chapter 12. Copyright in the International Perspective 74 results (showing 5 best matches)
- As we have seen, U.S. courts potentially may resolve claims of foreign copyright infringement based upon foreign copyright law, although litigants have asked them to do so infrequently. Domestic application of foreign copyright law is not limited to this context, however. U.S. courts may possibly be called upon to adjudicate issues arising under foreign copyright law within a domestic infringement suit. The reason is that under established choice of law principles, the law of another nation may bear a more significant relationship to an issue in the case—in particular, ownership of copyright—than that of the United States. The leading decision of the Second Circuit in is representative, offering a detailed analysis of the application of choice of law principles to copyright.
- resolved the choice of law issue, it wrestled with the binding principle of national treatment. Under that concept, foreign authors are to be accorded the same intellectual property protection given to U.S. authors. Yet a choice of law analysis that results in the application of foreign law may lead to a different result than would U.S. copyright principles. The Second Circuit was content to reach a rather debatable understanding of national treatment that only embraced the issue of infringement. The holding in has nonetheless proven significant, and the number of reported copyright decisions applying foreign law to questions of copyright ownership has grown in its wake.
- The Berne Convention was not fashioned as a model copyright code. Berne is instead based upon the principle of “national treatment.” National treatment requires that Berne signatory states accord to foreign works eligible under Berne the same protection granted to their own nationals. It is essentially a simple principle of non-discrimination. In addition, it specifies minimum standards of protection that Berne signatories agree to offer domestically. As these standards provide the floor, not the ceiling of required copyright protection, member states may choose to provide more robust copyright laws than mandated by Berne and, historically, many have done so.
- Foreign authors may obtain protection under U.S. copyright law through a number of avenues. If a work of authorship has not yet been published, then U.S. law is quite clear. Under § 104(a), all unpublished works are subject to U.S. copyright protection “without regard to the nationality or domicile of the author.” So long as an unpublished foreign work has not yet fallen into the public domain—for example, through the expiration of the statutory term of copyright—it enjoys copyright just as other works do.
- Although no true global copyright system exists, the copyright regimes of the United States and its trading partners are linked through a handful of international agreements. These agreements do not create a universal copyright law, in that they do not provide for a single source of rights effective worldwide. Yet they allow authors to claim a national copyright almost anywhere in the world. This Chapter discusses the most significant of the agreements that, together, comprise the international copyright system.
- Open Chapter
Chapter 9. Copyright Infringement 266 results (showing 5 best matches)
- Parties seeking equitable relief, such as injunctions, have long been subject to a defense known as “unclean hands.” Under this principle, a court will not come to the aid of a plaintiff who has himself committed wrongful acts to the prejudice of the defendant. This general principle is the source of the more specific defense known as “copyright misuse.” Generally stated, if an alleged infringer can show that the plaintiff-copyright-owner committed some form of misconduct either in obtaining or enforcing the copyright, the court can make a finding of copyright misuse and deny all relief to the copyright owner. Despite the doctrine’s roots in the law of equity, a finding of misuse will result in denial not just of injunctive relief, but of monetary relief as well.
- Copyright plaintiffs may seek two types of injunctions—preliminary and permanent. In determining whether an injunction should be granted, courts in copyright cases are guided by the same principles that generally govern the grant of equitable remedies and injunctive relief in other branches of the law.
- does not provide the governing rule of law when an accused infringer “actively induces” copyright infringement. Stated differently, if a defendant intends users to employ a device in order to infringe copyright and tacitly exhorts them to do so, then the defendant is liable for infringement as a matter of fundamental tort principles—even if that device is capable of substantial non-infringing uses. Viewed in this manner, offered principles for assessing liability when there was no evidence that the defendant’s purpose was to promote copyright infringement. When the defendant did harbor such an intent, however,
- Once one is familiar with the types of works protected by copyright, and the various rights granted copyright owners by the statute, the concept of infringement seems simple enough. Because all of the statutory rights are “exclusive,” infringement occurs when anyone other than the copyright owner engages in any of the itemized rights without the copyright owner’s permission. Thus it is infringement to copy, adapt, distribute, perform, or display a protected work, or to violate rights of attribution or integrity in a work of visual art, unless the acts in question are expressly exempted from infringement liability by a specific provision in the statute. This principle is codified in section 501(a) of the current copyright act: “Anyone who violates any of the exclusive rights of the copyright owner as provided by section 106 or of the author as provided in section 106A(a), … is an infringer of the copyright or the rights of the author, as the case may be.” ...need not be the owner of...
- In a well-known passage, the Second Circuit attempted to clarify the issue, observing that “an action ‘arises under’ the Copyright Act if and only if the complaint is for a remedy expressly granted by the Act, … or asserts a claim requiring construction of the Act … or at the very least and perhaps more doubtfully, presents a case where a distinctive policy of the Act requires that federal principles control the disposition of the claim. The general interest that copyrights, like all other forms of property, should be enjoyed by their true owner is not enough to meet this last test.” The Ninth Circuit, quoting bits of language from a number of different courts, has said that courts should focus on “the ‘primary and controlling purpose’ of the suit, the ‘principle issue,’ the ‘fundamental controversy,’ and the ‘gist’ or ‘essence’ of the plaintiff’s claim,” to determine if it arises under the copyright statute.
- Open Chapter
Chapter 2. The Subject Matter Of Copyright—Basic Requirements 129 results (showing 5 best matches)
- This is sometimes referred to as the principle of aesthetic or artistic non-discrimination. Pulp fiction is just as entitled to copyright as serious literature; amateur videos get the same protection as deeply moving feature films; and comic books get the same statutory exclusivity as magnificent oil paintings. The copyright laws are not a license for judges to act as art critics.
- Second, there already exists a legal regime to reward innovation in the development of principles and procedures—namely patent law. Unlike the easily satisfied criteria necessary for copyright protection, patent law has fairly rigorous prerequisites. The would-be patentee must show that his or her invention is both “novel” and “nonobvious”. If copyright protection extended to ideas, concepts, and the like, it would provide an alternative to patent law that would undermine the many significant policy objectives of that distinct intellectual property regime. Why would an inventor of a new process obtain a patent if merely writing up the process conferred a copyright that included the right of prevent others from using that process?
- The fixation doctrine can be put the other way around—there is no federal copyright protection for unfixed creative works such as an extemporaneous speech, a brand new poem that the poet recites from memory but has never written down, or a jazz improvisation performed spontaneously at a night club. These “unfixed” works might, however, be eligible for protection under state law, either under the misappropriation doctrine, or some other principle, and in the case of music, may also be protected by a federal anti-bootlegging law that we will come to shortly. This means that under the present copyright statute the moment of fixation of a work is the dividing line between potential common law protection under state law and federal statutory protection.
- Copyright in a work does not protect the underlying ideas expressed in that work. This simple concept is a fundamental tenet of copyright law. It is embodied in the very structure of section 102 of the current copyright act. While the first subsection of that provision affirmatively sets out the prerequisites for protection—fixation and originality—section 102(b) negatively provides that:
- This anti-bootlegging statute is lodged in 17 U.S.C. § 1101, near the Copyright Act but not formally a part of it. This choice of codification suggests the distinctions between this right and the traditional copyright law. Some have argued that the extent of these differences makes the anti-bootlegging law constitutionally suspect. The Intellectual Property Clause of the Constitution grants Congress the power only to protect “writings,” a term which connotes some sort of embodiment in a material form. The Constitution also calls for protection to endure only for “limited times.” In violation of these principles, the anti-bootlegging statute protected unfixed musical performances for an unlimited time. Nonetheless, the few courts that have considered the question have upheld the statute in the face of constitutional challenge, relying upon the Commerce Clause rather than the Intellectual Property Clause.
- Open Chapter
Chapter 8. Duration of Copyright Interests and Termination of Transfers 187 results (showing 5 best matches)
- that copyright legislation requires First Amendment scrutiny when it alters “the traditional contours of copyright protection.” It characterized the idea that works in the public domain should remain there as a “bedrock principle” of copyright law noting that “until [the URAA] every statutory scheme preserved the same sequence. A work progressed from (1) creation; (2) to copyright; (3) to the public domain. Under [the URAA] the copyright sequence no longer necessarily ends with the public domain: indeed, it may begin there. Thus, by copyrighting works in the public domain, the URAA has altered the ordinary copyright sequence.” It also noted that Congressional practice for most of U.S. history had been to avoid removing works from the public domain. Consequently, it concluded that section 104A altered a “traditional contour” of copyright.
- On that date, all covered works leap from the public domain back into the shelter of copyright protection. The restored copyright subsists for the duration of the statutory term as if the work had never entered the public domain. Ownership of the restored copyright vests initially in the author or other proprietor as determined by the law of the source country of the work. Copyrights in restored works provide their proprietors with the same rights as other sorts of copyrights.
- Turning to the First Amendment claims, the Court found no conflict between the CTEA and principles of free speech. It noted that the copyright statute actually promotes expression, which is consistent with First Amendment values. Moreover, it observed that various features of the copyright scheme—notably the idea-expression distinction and the fair use doctrine—constituted “built-in First Amendment accommodations” which prevented any transgression of that amendment despite the length of the copyright term. It concluded that “when, as in this case, Congress had not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”
- Works created after January 1, 1978, are not governed by the two-term approach of the 1909 statute. Instead, the current statute provides for a single unitary term of duration of copyright. As originally enacted, the 1976 Act specified that a copyright protection began as soon as the work was fixed in a tangible medium of expression, and would then last for the life of the author plus 50 years after the authors’s death. In 1998, Congress enacted the Sonny Bono Copyright Term Extension Act (which we will hereafter sometime refer to as the CTEA and sometimes as the Bono Act). The Bono Act lengthened the term of works still under copyright in 1998 by 20 years and extended the term of copyright by the same amount for newly created works. Consequently, the present term of copyright is now the life of the author plus 70 years. In the case of jointly authored works, the copyright lasts for 70 years after the death of the last surviving author. Under § 305, all copyright terms run to the end
- Under the 1909 Act it was quite easy to determine if a work was still protected by copyright—you simply checked the copyright notice and did a little math. (If you couldn’t find a copyright notice, the work was in the public domain.) Under the current law, things are not so easy. First, copyright notice is now optional. More important, under the current scheme you cannot determine the copyright status of work unless you know whether the author of a given work is still living, or if not, when exactly he or she died.
- Open Chapter
Chapter 5. Ownership and Transfer of Copyright Interests 227 results (showing 5 best matches)
- The “divisibility” approach of the current statute represents a shift from the rule that purportedly prevailed under the 1909 statute. Under the 1909 Act, a copyright was said to be an indivisible interest. That did not preclude licensing under the old law, but it lead to complexity. For instance, if a party obtained a license to publish a previously unpublished work in a limited format—such as in a periodical—and did so with a copyright notice in its own name, the copyright notice would be defective. That is because the author was still considered the owner of the single and indivisible copyright, and it was the copyright owner’s name that had to appear in the notice. The result was that the work would be injected into the public domain because of a defective notice! In addition, licensees also lacked standing to sue for infringement, since a licensee did not “own” the copyright—there could only be one owner and that was the licensor. ..., so that the “indivisibility” standard of...law
- Under the Copyright Act of 1909, there was some ambiguity about copyright ownership in situations where the creator of a one-of-a-kind work of authorship, such as a painting, sculpture, manuscript, or master tape recording sold or otherwise disposed of the sole copy of the work. Where the work was protected by a federal statutory copyright, section 27 of that now-defunct statute specifically declared that the sale, conveyance, or gift of the material object “shall not of itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object.” The situation was more murky, however, where the work was unpublished and protected only by a common law copyright. At least some cases held that in that situation a sale also constituted a transfer of the underlying copyright interest, unless the seller specifically reserved his rights.
- Other items on the list, however, do not seem to share these attributes. For instance instructional texts and atlases are also named, and it is quite plausible that two people might write, oh, perhaps a book about the basics of copyright law, on their own initiative just for the hell of it. There might even be a market for such a book. On the other hand, if those same two brilliant scholars were solicited by a major law book publisher to write the book at its behest, it does not seem terribly odd to place the copyright in the hands of the publisher rather than the authors. While the search for thematic coherence among the “named nine” types of works is not a wholly pointless enterprise, it is thus probably more efficient, and certainly more candid to note that the list is something of a hodgepodge and reflects the results of the ebb and flow of lobbying at the time the statute was drafted, more than fidelity to any grand principle.
- For over 100 years, U.S. copyright law has treated the copyright in works prepared by employees not as the property of the individual creator but rather as that of the creator’s employer. The principle—known as the work-made-for-hire doctrine—can be traced back to Justice Holmes’ 1903 opinion in and, with substantial changes, carried it forward into the 1976 statute as well. The current law provides:
- The relevant provision is section 28 of the 1909 Act, which reads “copyright secured under this title or previous copyright laws of the United States may be assigned, granted, or mortgaged by an instrument in writing signed by the proprietor of the copyright, or may be bequeathed by will.”
- Open Chapter
Chapter 6. The Traditional Exclusive Rights of a Copyright Holder 349 results (showing 5 best matches)
- Overview of Basic Principles of Copyright Law
- Even though the owner of copyright in a work has the exclusive right to distribute copies or phonorecords of that work, the law has long recognized an important exception to the right. Usually called the “first sale doctrine,” this limitation provides that once the copyright owner has parted with ownership of a particular copy of the work, he or she could not restrict further distribution of that particular copy. The Supreme Court held as much over a century ago in and the principle has been codified in the present copyright statute as section 109. That section provides generally that:
- The fundamental privilege provided by the copyright laws is the exclusive right to reproduce a copyrighted work in copies or phonorecords. Indeed, this is the right that gives the field of law its very name—the exclusive right to make copies is the heart of copyright. To refresh your memory, section 101 of the Copyright Act defines the term “phonorecords” as “material objects in which sounds, other than those accompanying a motion picture or audiovisual work, are fixed by any method now known or later developed….” “Copies” are defined as “material objects, other than phonorecords, in which a work is fixed by any method now known or later developed….” These definitions clarify that in order to violate the reproduction right, an infringer must tangibly reproduce the protected work in a material object. As one commentator concisely put it, “the right of reproduction is really the right to produce new fixations of the copyrighted work.”
- This idea that artists have a right to have their artistic vision presented to the public free from distortions is considered one of the author’s “moral rights”—a loose and only partially accurate translation of the French phrase . American law has not traditionally provided strong protection of moral rights. The only express provisions dealing with the subject in the copyright statute are those added by the Visual Artists Rights Act, which we will take up in the next chapter. Nonetheless, the adaptation right does achieve some of the same purposes. If a film maker does not want his black-and-white movie colorized, so long as he holds the copyright he can prevent anyone else from doing that by invoking his adaptation right—since the colorized version would be a derivative work, only the copyright owner can prepare it or authorize another to do so. Similarly, if a poet does not want his poetry recast as a work of prose, the adaptation right will provide protection. Of course, like...
- The five traditional rights of a copyright owner are all found in section 106 of the statute, which explicitly declares that the various itemized rights are “exclusive” to the copyright owner. In other words, only the copyright owner may engage in conduct that constitutes an exercise of any one of these rights or authorize others to do so. It follows, therefore, that it is infringement for anyone else to engage in the listed acts without the permission of the owner. This might lead you to believe that once you have understood the rights conferred by the statute, there is not much more to the topic of infringement. Alas, you would be mistaken. Most infringement cases involve non-literal duplications of copyrighted works and it is rare that a copyright owner can produce eyewitnesses to acts of infringement. As a result, an enormous body of case law has grown up on the topic of infringement—most of which concerns the type of evidence that must be offered to prove it ...the subject of...of
- Open Chapter
Chapter 1. Introduction to the Law of Copyright 96 results (showing 5 best matches)
- Copyright today is an exclusively federal, statutory subject. The governing law is the Copyright Act of 1976, effective for works created on or after January 1, 1978. Works created before this date may be governed in part by the predecessor statute—the Copyright Act of 1909 —in part by the common law of the various states, and in part by selected provisions of the 1976 law.
- Ironically, although copyright law concerns abstract works of authorship, it does insist that the work of authorship be embodied in tangible form at least once. This principle is intended to ensure that abstract ideas remain free from intellectual property rights. Intellectual property rights are instead allowed for the embodiment of that idea in a particular work of authorship. Put differently, intellectual property laws concern downstream products, not upstream ideas.
- Among the principal features of the U.S. copyright regime under the 1909 Act were: (1) state common law copyright of perpetual duration for unpublished works; (2) commencement of federal copyright protection at the time of publication, rather than at the time of registration as had previously been the case; (3) first and renewal terms of 28 years each, allowing a maximum possible copyright term of 56 years; and (4) formalities that were necessary to preserve copyright protection, including the placement of notice on all copies of published works and registration at the Copyright Office.
- Copyright has been subject to increasingly vitriolic criticism during this era of the Internet. Some commentators assert that strenuous enforcement of copyright can result in the elimination of parody and satire, the curtailment of free speech, and the suppression of creativity. Copyright law can indeed still voices, darken stages, and shut down presses; and as more individuals gain access to means for creating and disseminating sophisticated creative materials, the grasp of the copyright law seems to strengthen. Observers further note that Congress has recently augmented the scope of copyright in terms of such factors as the works subject to protection, the term of protection, and the scope of exclusive rights, leading to perceived imbalances between the rights and responsibilities of content providers and consumers. Still others suggest that however noble the theoretical justifications for intellectual property, copyright law has in practice been corrupted by publishers, record...
- This constitutional provision reveals a number of interesting features about the U.S. copyright law. First, the clause refers to “Authors” and their “Writings.” While Congress might protect persons other than Authors or material other than constitutional Writings under other provisions of the Constitution, such as the Commerce Clause, the subject matter of copyright appears to be limited to the writings of authors. Indeed, the copyright law of 1909 defined the subject matter of copyright as “all the writings of an author.” The full implications of this constitutional limitation are best considered in the context of the present statutory language, and are taken up in the sections that follow. It is useful to note however, that from an early point, Congress and the courts have interpreted “writings” to include much material other than words written or printed on a page. Even the earliest copyright statutes provided protection for maps and prints. ...have found materials of this sort to...
- Open Chapter
Chapter 10. The Fair Use Defense 209 results (showing 5 best matches)
- Although the shortcomings of the U.S. fair use privilege with respect to the TRIPS Agreement have led to considerable scholarly commentary, they have not yet resulted in a challenge before the WTO. Should such a challenge occur, the United States—for many years a proponent of heightened levels of copyright enforcement around the world—might not find itself in an enviable position. Still, other commentators have asserted that Article 13 of the TRIPS Agreement and the fair use doctrine share common goals and that fair use jurisprudence is more predictable than is commonly supposed. As a result, although fair use qualifies as one of the core principles of U.S. copyright, its status under the emerging international law of copyright is less certain.
- The fair use defense is the copyright doctrine that provides flexibility in the system. The Supreme Court has noted that it is a “guarantee of breathing space at the heart of copyright,” and the Second Circuit has observed that the fair use doctrine prevents “rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” It exempts from liability certain modest uses of copyrighted work when those uses will not undermine the economic interests of the copyright owner. It is unequivocally the most important defense in copyright law, both in terms of how often it is asserted by defendants and in terms of its importance to basic copyright policies.
- The United States is far from the only jurisdiction that establishes certain limitations upon the exclusive rights awarded to copyright proprietors. However, the flexible and open-ended fair use defense has counterparts in only a few other nations. Section 107 of the U.S. Copyright Act should be contrasted with the far more specific user privileges found in the author’s rights statutes in many jurisdictions that follow the civil law tradition. For example, the legislation of many civil law nations establishes detailed, enumerated exceptions with regard to the use of a work for education, news reporting, quotation, research, and private noncommercial purposes. Perhaps more tellingly, even other common-law countries tend to provide for more cabined user privileges than the U.S. fair use doctrine. For example, the “fair dealing” principle followed in Canada and the United Kingdom is widely acknowledged to be a more restrained concept than its U.S. analogue. ...degree of versatility...
- Nonetheless, historically there has been a broad consensus, among both courts and commentators, that enforcement of copyright laws does not conflict with the First Amendment. This is because, as the Supreme Court pointed out in its decision in First Amendment values are already built in to the structure of the copyright act.
- Two aspects of copyright doctrine in particular are usually cited as eliminating any risk of interference with free speech concerns. The first of these is the idea/expression distinction, discussed in some depth earlier in this volume. Since copyright only protects the expression of an author—his or her words, notes, lines, or images—others are free to use the underlying ideas of the work. It is not a violation of the copyright in for us to make a movie about a blonde sorority member who goes to law school, or even a movie about a blonde woman law student who defies expectations and achieves great academic success despite the initial hostility of her classmates. The idea/expression dichotomy guarantees that any imposition on our ability to express ourselves will be relatively minimal, and thus there should be few First Amendment implications from enforcement of the copyright law prohibition against copying protected expression.
- Open Chapter
Chapter 7. Newer and More Specialized Rights of a Copyright Holder 234 results (showing 5 best matches)
- Substantively, the statute grants the owner of a protected mask work the exclusive right to reproduce the work by any means, and the exclusive right to import or distribute a semiconductor chip product in which that mask work is embodied. The Act does not, however, extend protection “to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” The analogies to copyright law are self-evident. Moreover, just as with conventional copyright law, an impermissible reproduction need not involve copying of the entire protected mask work. As one of the very few cases to construe the SCPA put it, “ ‘If the copied portion [of the mask work] is qualitatively important, the finder of fact may properly find substantial similarity under copyright law and under the Semiconductor Chip Protection Act,’ even if other portions of the chip were not copied.”
- We note, as a technical matter, that not all of the provisions we will discuss here are part of the “copyright laws” of the United States, though all are codified in Title 17 of the U.S. Code, which is where the “true” copyright laws are found. This distinction sometimes reflects congressional uncertainty about its authority to legislate regarding certain subject matter under the Patent and Copyright Clause of the Constitution, and sometimes reflects a desire to set up a remedial or durational scheme with different features than those used in traditional copyright situations. In most situations, there is little practical consequence to whether a provision is technically part of “the copyright laws.” Bear in mind, however, that various other federal statutes sometimes refer to the “copyright laws of the United States” and, in such cases, it becomes relevant that some of the material that follows would not be part of any such statutory cross-reference.
- Imagine that Congress had passed the following law instead of the DMCA: “Any copyright owner can make it illegal to make a fair use of a copyrighted work by putting a red dot on their books, records, and films before selling them. It shall be a crime to circumvent the red dot even if, but for the dot, the use would have been fair.” That would be clearly unconstitutional. It gives copyright owners a new intellectual property right to “turn off fair use” in copyrighted works distributed to the mass market. Is the DMCA not the same thing?
- In the United States, copyright law traditionally has had a utilitarian focus. Protection of authors has not been seen as the ultimate purpose of copyright, but rather as a means to achieve the broader social goal of promoting expression. One ramification of this focus is that the U.S. copyright statute provides rights that center upon the economic interest of authors, on the theory that giving authors an economic incentive encourages them to create work that would otherwise not be produced.
- An owner of a protected design is given the exclusive right to make, authorize others to make, or import any useful article (presumably that would be a boat) embodying the design, and to sell or otherwise distribute those useful articles. These rights obviously track the reproduction and distribution rights well known in conventional copyright law. While the rights are “exclusive” it is not an infringement to make, distribute, or import protected items without knowledge that the product embodies a design that copied from one that is protected under the statute. This means that “innocent” infringement will preclude liability. There is also a statutory defense permitting the reproduction of protected designs for purposes of teaching or analysis. This allows competitors to make copies as part of a process of reverse engineering to deduce the hydrodynamic principles that make a design effective.
- Open Chapter
Chapter 11. State Remedies Analogous to Copyright and Federal Preemption 222 results (showing 5 best matches)
- In our federal system, federal law takes precedence over state law. To be more precise, state statutes and common law doctrines are void if they would conflict outright with federal statutes or undermine their basic purposes. The three state remedies discussed in this chapter all nibble around the edges of copyright law and copyright policy and might, in some cases, work at cross-purposes with the federal scheme. For instance, in the idea-submission context, requiring those who receive ideas from outsiders to pay for them might conflict with the general rule of copyright law that there is no protection for ideas. When states forbid the use of data or information generated by others under the rubric of the misappropriation doctrine, there is the potential of conflict with the copyright rule that denies protection to facts and historical data. Protection of a celebrity’s persona under the heading of the right of publicity might deny a copyright owner the right to use material that...
- One can imagine many scenarios in which state law might conflict with the purposes of copyright. Specifically, a state statute might so hamper a copyright owner’s ability to use a copyrighted work as to render the copyright worthless. Alternatively, a state law might so hamper the public’s ability to use material in the public domain, that the federal policies protecting the public domain would be subverted. In both of this situations the state law should be impliedly preempted regardless of whether the express preemption test of section 301 can be met. The two right of publicity cases discussed in the immediately preceding subsection raise the first of these risks. The baseball players and the model who brought state claims in those cases were effectively seeking to prevent the holder of a federal copyright from exploiting the copyrighted work.
- The Copyright Act of 1909 was silent on this question. Moreover, as we have explored in some depth in an earlier chapter, copyright law at that time was essentially a “dual” system with state protection for unpublished works and federal protection arising after publication. Consequently courts had to engage in a fair amount of guesswork about just what Congress intended concerning preemption of state law. With the passage of the Copyright Act of 1976, Congress decided to make its preemptive intent explicit. It did that in § 301 of the new law. That provision calls for the preemption of state law claims that provide rights “equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103….” As restated by the Court of Appeals for the Second Circuit, § 301 preempts a state law claim if:
- test will not reduce the copyright-publicity interface to a simple paint-by-numbers exercise even if it is adopted by other courts. Determining the line between expressive work and work “for purposes of trade” can be tricky. Much advertising is highly creative, and the principle of artistic non-discrimination in copyright law which we encountered very early in this volume may suggest that the federal interest in promoting creative authorship in television commercials or billboards is greater than Nimmer and the Third Circuit have allowed. Discerning the plaintiff’s purpose in allowing his image to be used is also likely to be vexing in at least some cases. Not all contracts are carefully drawn, as any review of a first-year contracts casebook will reveal. Perhaps knowledgeable players in the copyright industries will react to all this by routinely securing waivers of state publicity claims in all contracts to avoid any risk of exposure under state law. If so, the delicate dance in
- Whether payment is required in such a situation is a matter of state law. That of course requires us to note two cautions before getting into details. First, the precise rules concerning who must pay for an idea and what types of ideas are protectable vary from state to state. Second, these rules are subject to possible federal preemption if they conflict with the principles embodied in federal laws such as the copyright act. We will be considering federal preemption in some detail later in this chapter.
- Open Chapter
Chapter 4. Publication and Formalities 150 results (showing 5 best matches)
- Registration was not always optional under American copyright law. Under the earliest copyright statute in the United States, the law required the filing of the title page of a work with the clerk of the U.S. district court in the district where the claimant resided as a formal condition of copyright protection. Without the filing, copyright protection under federal law would be lost. By the time of the 1909 Act, however, registration was to be made with the Copyright Office rather than with the district courts, and was no longer an essential condition of copyright protection. Registration of the claim of ownership was, however, a prerequisite to the filing of any infringement suit.
- In 1976, the authors of the new copyright statute decided to drain publication of much of its importance by moving the dividing line between common law and federal statutory protection backwards, from the moment of publication to the moment of fixation of the work. Under the current statute, once a work is written down or otherwise fixed, federal protection attaches regardless of whether the work is published or not. State common law copyright for This had the effect of eliminating the common-law copyright, at least for any works that were written down, taped, or otherwise embodied in a tangible artifact. As we shall see below, in our discussion of copyright notice, during the first decade after passage of the 1976 Act, publication without notice still could result in loss of copyright protection unless the author took prompt corrective steps. Since 1989, however, the omission of a copyright from copies of a published work has no effect on federal copyright protection at all.
- The difference between auto registration and copyright registration, however, is that copyright registration under the present law is not mandatory. That observation may itself be misleading, though, because there are numerous incentives in the current statute designed to encourage prompt registration of copyright claims, and registration remains a prerequisite to the filing of an infringement suit for many copyright owners.
- Once upon a time, the issue of publication stood at the very heart of copyright law. Under the 1909 Act, with a few exceptions that need not detain us at this point, no work could obtain federal copyright protection until it was published. Moreover, not any publication would do—to trigger federal rights the publication had to conform to the rules spelled out in the statute and embellished by the case law, the most important of which was the inclusion of a copyright notice on every publicly distributed copy of the work. In this system, works were protected under state law via the so-called “common law copyright,” which was perpetual in duration. If an author published the work without observing the specified federal statutory formalities, the common law copyright was lost and no federal statutory protection attached. In other words, such a publication terminated all protection, and injected the work into the public domain. Publication was thus both the ...and federal law, and...
- with proper copyright notice
- Open Chapter
Chapter 3. The Subject Matter of Copyright—Specific Categories of Protectable Works 207 results (showing 5 best matches)
- Notwithstanding these legislative developments, Congress continued to harbor some uncertainties as to the workability of using copyright law to protect software. Consequently, Congress established the National Commission on New Technological Uses of Copyrighted Works, or CONTU, in 1974 to consider the appropriate scope of any copyright protection for software along with a variety of other issues. CONTU submitted its final report in 1978, concluding that copyright law was indeed the appropriate legal mechanism to be used for software protection.
- As is developed elsewhere in this text, sound recordings receive more limited protections under copyright law than do most other types of works. Most notably, the owner of a copyright in a sound recording does not have the right to prevent others from publicly performing the work. This feature of the law is controversial, however, and the law is otherwise in most other nations of the world. There is a not insubstantial chance that Congress will eventually extend a performance right to sound recordings. Another significant limitation upon copyright in sound recordings is that these works are protected only against duplication of the work through mechanical means, such as a tape recorder. No matter how closely one band tracks a protected sound recording by imitating the earlier rendition, an independently fixed second version does not infringe the copyright in the first sound recording.
- Copyright protection for sound recordings is a relatively new feature of the American copyright law. Over time, protection for sound recordings became essential because of the ease with which record pirates could make cheap unauthorized duplicates of legitimate recordings. Pirates, of course, can undersell legitimate producers because they need not incur expenses for recording studios or for payments to performers. As the problems of piracy became more severe, Congress was moved to act in the early 1970s in advance of the general revision that led to the Copyright Act of 1976. Under the legislation adopted at that time, only those sound recordings first fixed on or after February 15, 1972, are protected by copyright. Recordings fixed prior to that date may be protected under state law, but are not covered by federal copyright.
- was to similar effect, refusing to award copyright protection to Gracen’s painting of the character Dorothy, as portrayed by Judy Garland in the movie “The Wizard of Oz.” The Court of Appeals explained that no substantial variation existed between the painting and the movie stills on which it was based—indeed, Gracen had made a concerted effort to depict Dorothy as she appeared in “The Wizard of Oz.” In so holding, Judge Posner explained that the concept of originality in copyright law served to prevent overlapping claims of copyright infringement. If Gracen was allowed to copyright her work, it might be unclear whether subsequent artists who depicted Dorothy had based their efforts on the movie or the painting. Ensuring that a derivative work enjoys copyright only when it is “substantially different from the underlying work” serves to protect future artists from copyright litigation.
- The policy justification for denying protection to utilitarian works flows from the very nature of copyright. Copyright protection attaches automatically. Under the present statute, protection arises as soon as the work is fixed in a tangible medium of expression. Under the 1909 Act the protection generally arose upon publication with notice. There is no requirement of government examination of the “worth” of the creation before copyright protection becomes available. This is exactly opposite of the approach used in patent law, where no government protection is available until a patent examiner has determined if the proposed invention meets the statutory standards. If useful objects could be protected by copyright, technology might be withdrawn from the public domain, hindering the commercial activities of others without affording the public the benefit—such as disclosure—that the patent statute seeks to secure.
- Open Chapter
Index 544 results (showing 5 best matches)
Table of Contents 85 results (showing 5 best matches)
Advisory Board 11 results (showing 5 best matches)
- Professor of Law, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law, Washington & Lee University School of Law
- Open Chapter
Copyright Page 2 results
- Thomson Reuters created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- Open Chapter
- Publication Date: August 17th, 2010
- ISBN: 9780314147509
- Subject: Intellectual Property
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: This product guides the reader through both the traditional topics, such as fair use, and more modern topics, such as the anti-circumvention provisions of the Digital Millennium Copyright Act, without getting bogged down in unnecessary or tedious detail. This title is ideal for end-of-semester review by students in both basic and advanced courses on copyright law, and also will be of use to practitioners and other legal professionals seeking a comprehensive yet manageable introduction to the subject.