Principles of Copyright Law
Authors:
Schechter, Roger E. / Thomas, John R.
Edition:
1st
Copyright Date:
2010
15 chapters
have results for copyright
Chapter 5. Ownership and Transfer of Copyright Interests 143 results (showing 5 best matches)
- Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyright work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
- 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 The situation was more murky, however, where the work was unpublished and protected only by a common law copyright.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.
- While this straightforward rule resolves the issue of copyright ownership in many cases, certain situations require special consideration. For instance, a work may be created by an employee on the job, raising the question of whether the employer of the creator should be deemed the legal owner of the resulting copyright instead of the creator himself. In other cases, multiple parties might collaborate to create a work, leading to ambiguity over which of them owns the copyright interest. Finally, an original owner of copyright might want to transfer the copyright to someone else, but such transfers may require the observance of certain formalities. These problems, which have required a fair amount of judicial attention, are the subject of the balance of this chapter.
- It is certainly the case that settled practice in the academic world presupposes some kind of a teacher exception. When two professors collaborate on, say, a Concise Hornbook® on the law of copyright, they are the ones who assign copyright in the book to their good friends at West Publishing. West might be rather too startled to learn that it had obtained invalid assignments on all the books it publishes because the true owners of the copyright to the works in question were the universities where the authors were employed. Moreover, most universities have promulgated copyright policies that specify that except in limited cases, individual faculty members hold the copyrights to their academic writings. One could debate whether the existence of such policies proves that the works would ...if no policy had been issued, but the practical effect is that university professors currently have an undisputed claim of copyright ownership to most of their academic writings at most...
- At first blush, this might seem like a technicality or perhaps more accurately a nuisance. If the record company wants to insure that it owns the copyright and the recording is not a work made for hire, merely means that the record company must be sure to secure an assignment of the copyright from the performer as part of the recording contract. There is, however, one huge difference between owning a copyright in a work made for hire and owning it as a result of an assignment. In the latter case, the assignor can terminate the assignment 35 years after the contract is executed and reclaim the copyright.
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Chapter 8. Duration of Copyright Interests and Termination of Transfers 123 results (showing 5 best matches)
- 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. ...all copyright terms run to the end of the...
- 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.
- 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.
- 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.
- That it is necessary to devote an entire chapter in a copyright text to the issue of copyright duration is an extraordinary thing. One might have expected a simple sentence to do the trick—something like “a copyright lasts for ‘x’ years” ought to have been sufficient. After all, this is essentially how the matter is disposed of regarding patents and trademarks. Alas, the story of copyright duration is not so simple. Congress has frequently changed the term of protection, and has adopted an overlay of transitional rules to deal with pre-existing works. Different categories of works are protected for different periods of time. The now obsolete requirement of copyright renewal continues to haunt the law. New provisions providing copyright owners the opportunity to nullify ...transactions also complicate the picture. Calculating copyright duration can be, in other words, a fairly byzantine enterprise. We begin our effort to untangle the mess by turning to the rules under the now-defunct...
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Chapter 4. Publication and Formalities 109 results (showing 5 best matches)
- The 1976 Act slightly modified the components of a proper copyright notice from the rules set out in the 1909 Act. It specified that a proper notice of copyright must consist of three elements: (1) the familiar symbol ©, the word “Copyright,” or the abbreviation “Copr.”; (2) the year of first publication; and (3) the name of the copyright proprietor. The statute does not specify the relative locations of these elements, suggesting that any order creates effective notice. Unlike the 1909 Act, the 1976 Act also does not specify the precise position where notice should be put on particular sorts of works, but rather instructs the Register of Copyrights to issue regulations governing that issue. If the copyright notice contains no name or no date, the work is considered to lack copyright notice.
- 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.
- Under the present copyright statute—the 1976 Act—none of this continues to be true. While the status of a work as either published or unpublished continues to have numerous consequences, publication no longer determines the key question of whether a work is federally protected. Federal statutory copyright now attaches the moment a work is in a tangible medium of expression. Moreover, the current statute explicitly preempts state common law copyright except for works that have not yet been fixed. Just as important, since 1989 publication without formalities no longer puts federal copyright protection at risk, because amendments adopted in that year made the use of a copyright notice optional on published works.
- 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.
- However that rule came with a downside. The statute declares that any “person who innocently [began] an undertaking that infringes the copyright has a complete defense to any action for such infringement if such person proves that he or she was misled by the notice and began the undertaking in good faith under a purported transfer or license from the person named therein….” Thus, if a third party obtained, in good faith, permission to use a single contribution to the collective work from the copyright owner of the collective work, that third party would be immune from suit by the copyright owner of the individual contribution. This would be true even if the copyright owner of the collective work did not have the authority to license the use of the individual contribution. On the other hand, this rule would not apply if, before the third party began his activities, the author of the individual contribution had filed a copyright registration or if there were any other documents on...
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Chapter 3. The Subject Matter of Copyright—Specific Categories of Protectable Works 150 results (showing 5 best matches)
- The copyright interest in a sound recording is distinct from both the ownership of the physical objects in which it is embodied, and from the separate copyright that might exist in any underlying musical work captured in that sound recording. For instance, assume that Smith writes a musical composition called the Copyright Ballad. Thereafter, Acme Recording hires The Jones Band to make a recording of the Copyright Ballad, after obtaining permission to do so from Smith, the composer. Acme ultimately produces compact discs containing The Jones Band version of the song and sells them to the public. Green buys one of these CDs for her collection. Smith owns the copyright in the musical composition called the Copyright Ballad. Acme owns the copyright in a sound recording consisting of The Jones Band’s aural version of that song. ...disc, which is a type of “phonorecord” in copyright parlance. If Green were to start making “bootleg” copies of the CD and selling them to her friends, she...
- Moreover, the scope of protection in a derivative work copyright extends only to the additional materials created by the creator of the derivative work. The derivative work copyright implies no exclusive right in the pre-existing material employed in the work. Nor does the derivative work copyright “affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the pre-existing material.”
- 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.
- The Copyright Act explicitly lists “derivative works” as within the subject matter eligible for copyright protection. A derivative work is defined in the statute as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, 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.” This means that the Copyright Act permits a work that is based in substantial part upon a pre-existing work to obtain independent copyright protection, provided that the derivative work fulfills the requirement of originality. However, for a valid copyright in a derivative work to exist, the derivative work author must either base his work on an underlying work that is in...
- 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.
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Chapter 9. Copyright Infringement 183 results (showing 5 best matches)
- 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.” ...the entire copyright...
- Additional subsections of section 506 deal with the fraudulent use of copyright notices, the fraudulent removal of copyright notices, and false representations made to the Copyright Office in connection with applications for copyright registration. Violation of an author’s moral rights under the Visual Artists Rights Act, codified in section 106A of the copyright statute, will subject the
- Courts have also pointed out that “a copyright holder who [has] misused a copyright [is] not forever barred from bringing a suit for infringement. Instead, the copyright holder ‘is free to bring a suit for infringement once it has purged itself of the misuse.’ … [I]n order for a court to find that there has been a purge of copyright misuse, the copyright holder must show that ‘the improper practice has been abandoned and that the consequences of the misuse of the [copyright] have been dissipated.’ ”
- Abandonment can also be found circumstantially based on the conduct of the copyright owner. For example, one court found copyright to have been abandoned when the copyright owner, a TV station, destroyed its only copy of broadcast videotapes by erasing or taping over them. Other examples of overt acts that have lead to a finding of abandonment include widespread dissemination of copies of the work without a copyright notice during the period when such notice was legally required, and knowing failure of the copyright owner to take action against widespread infringement.
- At first blush, the plaintiffs would seem to have a strong case against the ISP. After the subscriber posts the copyrighted material both of those Internet participants will necessarily have copies of it on the hard drives of their computers at least for temporary periods and often for much longer. Moreover, even if they are not aware of the copyright status of the material in question, copyright infringement does not require knowledge or intent for liability. Thus these entities would appear to be at considerable risk for copyright infringement liability.
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Chapter 10. The Fair Use Defense 111 results (showing 5 best matches)
- A perfectly airtight system of copyright would probably be intolerable. Many individuals need or desire to use copyrighted works in ways that do not seriously threaten the interests of the copyright owner, but that do tend to promote the social goals of advancement and dissemination of knowledge and learning. One readily thinks of the book reviewer who wishes to quote a portion of a volume being reviewed, or the teacher who wishes to distribute copies of a current news story to her students. Others may merely use copyrighted works in an incidental and casual way, such as the TV or movie producer who prepares a program showing a copyrighted poster in the background of a scene or the DVR owner who records a copyrighted broadcast for viewing at a more convenient time. Each of these users might find it impractical to seek permission from the copyright owner because of the expense and nuisance involved. If, as a consequence, such individuals decided to forgo the use of the copyrighted...
- 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.
- Consideration of potential markets is logically part of the market assessment required by the fair use doctrine because the copyright statute assigns to the copyright owner the exclusive right to make derivative works. The fact that a defendant acts more promptly than the plaintiff in exploiting a particular derivative market should not, by itself, deprive that plaintiff of the statutory adaptation right. To put the point more concretely, it would be odd indeed if a defendant could make a movie based on a copyrighted novel without the permission of the copyright owner, and then invoke the fair use defense on the grounds that the movie will not cut into the sales of the novel, but may even boost them! While that may be true, the activities of such a defendant surely interfere with the copyright owner’s rights to profit from derivative works in the form of motion pictures. The inapplicability of fair use to cases such as these is even more apparent when we remember that copyright...
- , the Ninth Circuit seemed to imply that if the owner of copyrighted material puts his work on the Internet, he opens himself up to others viewing and using his images as part of this network of information. One must consider what might have occurred if the court had ruled in favor of Kelly. The wealth of knowledge that is the Internet may have become an unnavigable mess. If search engines could not directly provide copyrighted image results, would they be able to provide links to copyrighted images? How would they describe or identify them? Would search engines be unable to provide copyrighted text results? In addition, one must ask who would be “protected” by the banishment of copyrighted material from search engine databases. In such a world, user “hits” to web sites containing copyrighted material would likely decline significantly, for the sole reason that Internet users would be unable to locate them.
- Though the First Circuit emphasized that there was no blanket “newsworthiness” fair use privilege that would allow newspapers to use copyrighted images whenever the photographs conveyed a story, the court did, in fact, put much weight on this element. While the court showed concern that newspapers could manufacture news stories in order to abuse copyright protection, it simultaneously hung its hat on the “transformative” nature of the new work when framed in a news article. The decisive weight the court gave to newsworthiness on these facts may have been related to timing: if the reproduction of a copyrighted photograph in an article precedes and/or creates the story, then that reproduction may not be fair use. However, if the news coverage of the copyrighted image follows an already-breaking story, then the use is more likely to be fair.
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Chapter 1. Introduction to the Law of Copyright 67 results (showing 5 best matches)
- Under the 1976 Act, copyright may extend to any work of authorship. Among the works of authorship amenable to copyright protection are literary, musical, dramatic, choreographic, graphic, audiovisual, and architectural works, as well as sound recordings. Such works are eligible for copyright protection as soon as they are memorialized in a sufficiently stable form, or, in the words of the copyright law, “fixed in any tangible medium of expression.” No formalities are necessary to secure protection. However, authors who register their works with the Copyright Office, a notice of copyright on copies of their works, are provided certain advantages when enforcing their copyrights.
- Each copyright ordinarily enjoys a term of the life of the author plus 70 years. The copyright proprietor may file a suit in federal court in order to enjoin infringers and obtain monetary remedies. Criminal penalties may also apply to copyright infringers. A copyright, or any of the exclusive rights under a copyright, may be assigned or licensed to others.
- 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 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
- 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. ...subject matter for copyright...
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Chapter 12. Copyright in the International Perspective 53 results (showing 5 best matches)
- 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.
- The international dimension of copyright has never been so important. Movies, music, software, and other works authored by U.S. citizens enjoy popularity around the world. In the era of the Internet, these works may be copied and distributed globally in a matter of moments. Yet, although copyrighted works observe few boundaries, copyright law itself remains strictly territorial. Each nation’s copyright laws extend only as far as its own borders.
- 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.
- For example, suppose that the imaginary country of Xambia provides for a copyright term of the life of the author plus 50 years. In a second fictitious state, Zyria, the term of protection is the life of the author plus 75 years. Assume further that both nations are Berne Convention signatories, and that neither the Xambian nor Zyrian copyright statute speaks to the rule of the shorter term. An author publishes a book in Xambia on June 1, 1970, and dies on March 1, 1980. As a consequence of the rule of the shorter term, copyright in that work will expire in both Xambia and Zyria on January 1, 2031, based upon the Xambian copyright terms. That’s because March 1, 1980, plus 50 years is March 1, 2030, and the end of copyright term is deemed to be January 1st of the following year.
- An example illustrates the Rule of Retroactivity. Suppose that the fictitious state of Albion is a member state of Berne as of 2010, while another such jurisdiction, Bavern, is not. Albion and Bavern have had no formal copyright relations previously, and as a result works from one state were considered part of the public domain in the other. Suppose further, then, that Bavern becomes a signatory to the Berne Convention as January 1, 2011. As of that date, Bavern must recognize copyright in all works of authorship (1) where the country of origin is Albion and (2) that remain under copyright in Albion. For its part, Albion must recognize copyright in all works of authorship (1) where the country of origin is Bavern and (2) that remain under copyright in Bavern. These copyrights must be recognized even though these works were previously considered to lie within the public domain within one state, and could be freely exploited there.
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Chapter 2. The Subject Matter Of Copyright—Basic Requirements 93 results (showing 5 best matches)
- In the Hamlet example, of course, the copied work is in the “public domain.” That is the umbrella phrase that designates all works of authorship not protected by copyright. Our point about originality is even more obvious, however, if the copied work is still protected by copyright. Someone who transcribes a novel by John Grisham or J.K. Rowling certainly should not be able to claim copyright in the transcribed text. That person is not an author in any meaningful sense. Not only do we deny such an individual a new copyright in his transcription but, as your intuition might suggest, we will hold him liable for copyright infringement.
- The current copyright statute also requires that a work be “fixed” in order to receive copyright protection. In other words, the work has to be written down, taped, filmed, or otherwise captured in some way in a physical artifact or object before federal copyright protection can attach. Once an original work is fixed, however, copyright protection attaches immediately. There are no formalities required of an author—no application to an administrative agency, no act of publication, no need to climb to the roof of your home and shout three times “I have a copyright!”—nothing other than the mere fixation and zap, like magic, you have a federal statutory copyright.
- a number of other courts have followed its lead. For instance, the DC Circuit declared that “if someone loads validly copyrighted software onto his or her own computer without the owner’s permission, and then uses the software for the principal purposes for which it was designed, there can be no real doubt that the protected elements of the software have been copied and the copyright infringed.” The Copyright Office also seems to concur. In 2001 it issued a congressionally mandated report on a piece of legislation known as the Digital Milennium Copyright Act or DMCA. In that report, it analyzed this precise question and concluded that “[b]ased on the definitional language in the Copyright Act, RAM reproductions are generally ‘fixed’ and thus constitute ‘copies’ that are within the scope of the copyright owner’s reproduction right.”
- 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:
- Issues of fixation and originality arise both in copyright litigation and at the Copyright Office in connection with an author’s request to register the copyright. Courts will usually afford considerable weight to the determination of the Register of Copyrights on these issues, and the prevailing rule is that the determinations of the Register will be reviewed under an abuse of discretion standard.
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Chapter 6. The Traditional Exclusive Rights of a Copyright Holder 204 results (showing 5 best matches)
- The government grants copyrights so that authors can make money. As we have noted earlier, this arguably provides them with the incentive to devote time and effort to the creative process. The precise mechanism by which copyright does this is to grant certain rights to the holder of a copyright and, most importantly to make those rights exclusive. Since all others are forbidden from using the work in certain ways without permission, the copyright owner can force them to pay for the privilege and thereby reap an economic reward. A full understanding of copyright requires an understanding of the nature and scope of these exclusive rights.
- 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 ...copyright owner’...
- 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.”
- Finally, the relevant school or other transmitting body must institute policies regarding copyright, such as informing students that materials used in the course may be protected by copyright and by giving students materials that “promote compliance with” the copyright laws. Presumably this does not obligate the school to undertake the role of general copyright educator, but rather only requires them to explain proper usage of materials that their instructors may display or perform. In this regard section 110(2) also requires the school to apply technological measures to prevent retention or further unauthorized dissemination of the privileged performance, and to avoid interfering with anti-retention or anti-dissemination technology that the copyright owner may have included in the work. The purpose of this requirement is to prevent the version used in connection with the class in question to substitute for a permanent copy of the work which the student might otherwise purchase.
- Section 110(4) also includes a special “veto” provision available to copyright proprietors. If an admission will be charged for the public performance, § 110(4) allows the copyright proprietor to serve a notice of objection. If the copyright owner provides timely notice in the proper format, then he may assert all rights applicable under the Copyright Act without regard to § 110(4). This “veto” insures that copyright proprietors are not required to provide fund-raising support towards causes they find objectionable by “donating” rights to use their works against their wishes. Curiously, however, section 110(4) does not require the non-profit performer to actually give notice of intent to perform the work, so in many cases, the copyright owner will not know of the performance in time to exercise the “veto” rights.
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Chapter 11. State Remedies Analogous to Copyright and Federal Preemption 72 results (showing 5 best matches)
- The second prong of the federal preemption analysis, the “subject matter requirement,” determines whether the state law protects a work of authorship within the subject matter of copyright as provided in sections 102 and 103. Thus, to be preempted the state law must relate to an original work of authorship fixed in a tangible medium of expression. The subject matter of copyright also includes those things that Congress specifically itemized as by § 102(b), such as ideas, methods of operation, and discoveries. The subject matter “of copyright” in other words, is not things “that are protected by copyright” but rather “all the things addressed in the copyright statute.” Thus because ideas are indeed addressed in the copyright statute (by the provision that commands that they be left free for all to use) they are part of the subject matter of copyright. That means that a hypothetical state law that purported to simply forbid the copying of an generally known idea in the public domain...
- holds that state laws that intrude on the domain of copyright are preempted even if the particular expression is neither copyrighted nor copyrightable. Such a result is essential in order to preserve the extent of the public domain established by copyright law. Therefore, states may not create rights in material that was published more than 75 years ago, even though that material is not subject to federal copyright. Also, states may not create copyright-like protections in materials that are not original enough for federal protection, such as a telephone book with listings in alphabetical order. itself makes clear that “[a] player’s right of publicity in his name or likeness would not be preempted if a company, without the consent of the player, used the player’s name to advertise its product.” Therefore, the bottom line is that Toney’s claim under the Illinois right of publicity statute is not preempted by federal copyright law.
- The real difficulty in this pair of cases is that an intangible asset outside the scope of copyright—a “persona”—became incorporated within a copyright work (either the tape of the baseball game or the photograph of Ms. Toney). This sets up a conflict between state law, which grants control over persona to the depicted individual and federal copyright law, which allows the copyright owner to exploit his copyrighted work. Viewed strictly as a matter of preemption under section 301 of the copyright act, we might try to mechanically deal with the cases by saying that because persona is outside the scope of copyright, none of these claims should be preempted. That would, however, be quite odd. It would mean, for instance, that the producer of a movie would not be free to exhibit the motion picture after having spent months and millions to film it because to do so might violate the rights of publicity of the various actors in the film! The answer to this conundrum lies in a second type...
- 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.
- Note, however, that the actual outcomes in many of these cases have been rendered moot by the subsequent passage of the 1976 Copyright Act and the numerous amendments to that act which have expanded the scope of copyright protection. For instance many of the intangibles at the core of those cases are now protected by copyright, such as architecture and live broadcasts that are simultaneously being recorded. Even un-fixed musical performances are now protected under federal law by an anti-bootlegging statute, and are also the subject of a recent international agreement. This suggests that the results in these cases from the middle decades of the twentieth century may reflect judicial efforts to use the misappropriation doctrine to fill gaps in a still primitive copyright regime, where moral and equitable considerations seemed to require some form of remedy for the plaintiffs.
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- 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.
- [i]n granting copyright owners a right to prevent circumvention of technological controls on “access,” Congress may in effect have extended copyright to cover “use” of works of authorship…. But in theory, copyright does not reach “use”; it prohibits unauthorized reproduction, adaptation, distribution, and public performance or display … Not all uses correspond to these acts. But because access is a prerequisite to “use,” by controlling the former, the copyright owner may well end up preventing or conditioning the latter…. “Access” probably will become the most important right pertaining to digitally expressed works, and its recognition, whether by the detour of prohibitions on circumvention of access controls, or by express addition to the list of exclusive rights under copyright may be inevitable….
- 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 some cases, copyright holders seem to assert violations of section 1202 as an “add-on claim” in a traditional suit for copyright infringement. In these cases, a plaintiff alleges that the defendant’s work is a non-literal copy of its copyrighted material, but the defendant argues that it either produced the material independently, or there is insufficient resemblance to make his work infringing of the plaintiff’s. Of course such defendants do not normally include plaintiff’s copyright notices or other identifying materials on copies of their own works! Thus the plaintiff adds a claim for violation of section 1202 to the underlying copyright claim. Of course, if the defendant is not guilty of infringement, than it did not delete CMI , and the section 1202 claim fails with the underlying copyright infringement claim. On the other hand, if defendant is guilty of infringement, plaintiff will usually have adequate remedies regardless of the section 1202 claim.
- 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.
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- 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.
