Copyright Law
Authors:
Ginsburg, Jane C. / Gorman, Robert A.
Edition:
1st
Copyright Date:
2012
19 chapters
have results for copyright
Chapter 3. Ownership of Copyright 35 results (showing 5 best matches)
- The provisions of the Copyright Act that deal with the ownership of copyright are for the most part straightforward. They declare that the author of a work is the initial copyright owner; that joint authors are co-owners of copyright; that the employer in the case of a work made for hire is considered the author and is presumed to be the copyright owner; that copyright ownership of a contribution to a collective work is different from the copyright ownership of the collective work itself; that copyright ownership is distinct from ownership of the physical object in which the copyrighted work is embodied (a distinction discussed and that copyright may be transferred in whole or in part. The relationship between federal copyright rules regarding transfers of rights and state contract law makes these issues somewhat more complex, particularly regarding the interpretation of the scope of the grant. Even more complex are the provisions regarding authors’ rights to terminate transfers of
- In the interest of maintaining intelligible records relating to copyright ownership, the Copyright Office not only initial (and renewal) claims of copyright but also “any transfer of copyright ownership or other document pertaining to a copyright,” under section 205(a) of the Copyright Act. Recordation of a transfer of copyright in a registered work will provide constructive notice of the facts stated in the recorded document; and, much like a recording system for real estate, copyright recordation will protect the transferee of the copyright against subsequent conflicting transfers even to good-faith purchasers.
- Under prior law, courts developed an important distinction between an “assignment” of copyright, which carried the entire copyright to a person who then was known as the “proprietor” or owner of copyright, and a “license,” which carried to another less than the entire copyright, for example, only the right to dramatize a novel or to publicly perform a musical composition. Copyright was generally said to be “indivisible,” in the sense that only one person at any given time could validly claim to “own” it. The concept of indivisibility and the distinction between an assignment and a license were important under the 1909 Act, because only the name of the “proprietor” could properly be placed in the copyright notice (the insertion of the wrong name could thrust the work into the public domain), and only the “proprietor” could bring an action for copyright infringement.
- Under section 201(a) of the Copyright Act, copyright ownership of a work vests initially in the author. Who is an “author” under the Copyright Act? The statute does not define the term. The Supreme Court has stated, “As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” ...it appears to elide the difference between a “work” and the “tangible medium” in which it is embodied; one person can be an author of a literary or musical work, without writing it down himself, by dictating to another who, or to a machine which, “fixes” the words or notes. The former is the “author;” the act of fixation no more converts the amanuensis into an “author” than it elevates the machine to that status. The copyright law elects between two competing concepts of authorship: one based on conception, the other based on execution. The dominant view today prefers the intellectual...
- Section 201(c) makes clear that copyright in an individual contribution vests initially in the author of that contribution and is distinct from copyright in the collective work as a whole. Absent an express written transfer from that author, the owner of copyright in the collective work (e.g., the magazine) does not own the copyright in the individual contribution, but is presumed to have acquired “only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.” The publisher cannot, therefore, revise the contribution itself or publish it in an altogether different magazine.
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Chapter 1. History and Background 48 results (showing 5 best matches)
- A principal feature of the 1909 Act was the preservation of state copyright protection (known as common-law copyright) for unpublished works; once a work was published by dissemination to the public, however, either federal copyright formalities were satisfied or the work fell into the public domain. If the familiar copyright notice was placed on all copies of a published work, federal copyright protection attached, exclusively enforced in federal courts (provided the copyright owner registered the work in the Copyright Office prior to commencing suit). Such federal copyright lasted for 28 years and was subject to renewal upon timely registration for an additional 28 years. The most significant exclusive rights accorded to the copyright owner under the 1909 Act were those of printing or otherwise copying, of making adaptations or versions, of selling, and of publicly performing (for musical compositions, publicly performing for profit).
- 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 copyrighted 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.
- Further examination of the copyright clause yields themes that recur throughout copyright law, and inform this book. Copyright may also call into play other parts of the constitution as well, notably the supremacy clause and the First Amendment, and we will consider those issues in due course. For now, however, we highlight the framework questions that emerge from the copyright clause. Does the opening phrase “to promote the progress of science” state a general aspiration for a copyright system, or does it constrain Congress’ power by authorizing only laws which result in the advancement of learning? How would a court judge what kinds of legislative measures are consistent with that objective? Must Congress’s measures provide incentives to create new works? To disseminate works, new or old? If the aim to progress does not generally cabin the content of copyright laws, is that goal relevant to the determination whether any particular author, work or category of work may enjoy a
- In the handful of major copyright revisions through the 1976 Act (and in the more frequent amendments since), Congress has gradually increased the kinds of works that are eligible for copyright and the kinds of exclusive rights afforded to the copyright owner. Congress has also progressively extended the period of copyright protection and reduced the significance of compliance with statutory formalities. It should be noted that Copyright protection is not limited to works of “high culture,” and that its coverage embraces such mundane works as business directories and such technologically oriented works as computer programs.
- After a major effort in the Copyright Office and the Congress to restudy and revise the law, an effort lasting more than 15 years, U.S. copyright law was drastically overhauled in the Copyright Act of 1976, which in most pertinent respects took effect on January 1, 1978. That statute abolished common-law copyright and made federal copyright exclusive from the moment a work is “created,” that is, “fixed in a tangible medium of expression,” whether in published or unpublished form. Works then in the first term or the renewal term of copyright under the 1909 Act had their term of protection potentially extended to 75 years. Works created on or after January 1, 1978, or first published thereafter, were to be protected for 50 years after the death of the author, and corporate works were to be protected for 75 years after publication. If a work was published after January 1, 1978, it was still required to bear a copyright notice, but failure to use the notice would be subject to cure and...
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Chapter 4. Duration and Renewal and Authors’ Reversion Rights 89 results (showing 5 best matches)
- Automatic renewal reduces the likelihood that the copyright in a derivative work will expire before the copyright in the underlying work. This scenario most often transpired when the rightholder renewed the pre–1976 copyright in an underlying work, such as a novel or a play, but the copyright holder of a derivative work, such as a motion picture, failed to renew the copyright in the derivative work. As a result, the motion picture would have fallen into the public domain, but the holder of the copyright in the underlying literary work could nonetheless bar third parties’ exploitation of the film because “a derivative copyright protects only the new material contained in the derivative work, not the matter derived from the underlying work.” Thus, expiration of the derivative work’s copyright could not diminish the force of the copyright in the underlying work;
- The Copyright Clause of the Constitution empowers Congress to grant exclusive rights to authors “for limited times.” The first United States Copyright Act, enacted in 1790, was patterned on the Statute of Anne of 1710 and gave authors a 14–year period of protection running from the date of first publication, and a right to renew the copyright for 14 more years if the author was alive at the end of the first term. The renewal format, with two rather short terms of protection, was a feature of U.S. copyright law through 1977. The 1909 Copyright Act granted an initial term of protection for 28 years starting from first publication, and a renewal term of another 28 years upon timely registration by the author or by certain designated statutory successors. Under the 1909 Act, an author of an unpublished work could invoke state common-law copyright protection indefinitely until the work was “published” (a term of art to be discussed in the next chapter); for most unpublished works, the...
- With the 1976 Copyright Act, effective January 1, 1978, both the starting point and ending point of federal copyright protection were changed. As already noted, copyright attaches as soon as a work is “created,” i.e., as soon as it is “fixed” in a tangible medium of expression. This is true even for works that were created before the effective date of that Act, whether those preexisting works were at the time published or unpublished. State common-law copyright for “fixed” works was from that date displaced by federal copyright.
- Under section 24 of the 1909 Copyright Act, the author or a person claiming copyright (for example, by way of an assignment) was entitled to a 28–year initial term of copyright protection. Although such protection was available for most unpublished works, the typical work protected by the statute was a work that had been “published,” i.e., distributed in copies to the public, with proper notice of copyright. Copyright protection continued for 28 years from the date of publication, and could be prolonged for another 28–year term upon timely application by the person designated in the statute:
- Works in their first term of copyright in 1978
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Chapter 5. Copyright Formalities 71 results (showing 5 best matches)
- It has been a widespread misconception that copyright attaches to a work only when registration of the copyright is secured with the Copyright Office. Registration was not, under the 1909 Act (and is not today), a prerequisite of a valid copyright. All that was necessary to secure copyright in a published work under the 1909 Act was that a proper notice be placed on all publicly distributed copies. At that point, federal protection attached and the copyright owner could validly enter into transactions involving the copyright, such as assignments and licenses. Registration was, however, a prerequisite for the commencement of an action for copyright infringement, and registration for an initial copyright term was a prerequisite for a valid renewal application.
- Copyright formalities have performed (or are thought to have performed) a variety of functions in U.S. copyright history. Formalities that condition the existence or enforcement of copyright on supplying information about works of authorship should enable effective title searching, thus furthering the economic interests both of copyright owners and of potential exploiters. Copyright-constitutive formalities, principally notice of copyright, but also at various times deposit of copies, registration and renewal, erect a barrier to the existence of protection, concomitantly casting into the public domain published works that fail to comply. These formalities thus (at least in theory) have divided works of perceived economic significance worth the effort of compliance from the mass of other creations, leaving the latter free for others to exploit. When failure to comply with formalities results in forfeiture of the copyright, this extreme sanction arguably protects exploiters who, in...
- The other two elements of formalities that have been a fixture of our copyright law since the beginning of the twentieth century are deposit and registration. In the interest of maintaining a full collection in the Library of Congress, section 407 of the 1976 Copyright Act—unaffected by the 1988 Berne Implementation Act—requires the copyright owner to deposit with the Copyright Office, within three months after publication of a work, two copies or phonorecords of the “best edition” (subject to some exemptions). If no deposit is made, the Register of Copyrights may make a written demand for such deposit, and continued failure of the copyright owner to comply may result in a fine. Failure to make the required deposit will not, however, invalidate the copyright. There is, in any event, no requirement to deposit copies of unpublished works.
- But when is a work “registered”? Section 410(d) sets as the effective date of registration the date on which the application was “received in the Copyright Office.” Does this date also suffice for the § 411(a) prerequisite? Courts have divided over what the Ninth Circuit has called an “application approach,” whereby a copyright is registered when the Copyright Office receives the copyright holder’s application. Other circuits used a “registration approach,” under which a copyright is registered only at the time the Copyright Office acts on the application.
- Any person entitled thereto by this title may secure copyright for his work by publication thereof with the notice of copyright required by this title; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor.
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Chapter 2. The Subject Matter of Copyright 121 results (showing 5 best matches)
- Copyright extends to all varieties of literary, artistic and musical works. To be eligible for copyright protection, however, such works must satisfy additional criteria, which find their source in the constitutional copyright clause. Not only does this provision ensure that federal copyright may not be of perpetual duration, but it also mandates that the congressional grant of copyright be to “authors” for their “writings.”
- Copyright protects against the unauthorized copying of an author’s “expression,” i.e., the particular pattern of words, lines and colors, or musical notes, and not against the copying of an underlying idea. This is a principal way in which copyright “promotes the progress of science and useful arts,” as contemplated by the Constitution, and is also a principal way in which the scope of copyright protection differs from that of patent protection. Although securing a copyright is easy—all that need be done is to “fix” an independently created work embodying a “modicum” of creativity—and although copyright lasts much longer than a patent, the scope of copyright protection is much “thinner” because it is limited to the expression. Although copyright protects against more than literal copying, and also bars paraphrase, abridgment and other “derivative works,” it does not afford an exclusive right to ideas, methods, facts and the like, no matter how startling the discovery or arduous the...
- Because copyright protection turns upon original creation, copyright in a compilation or derivative work attaches—as noted just above—only to those original contributions made by the compiler or by the creator of the derivative work. Section 103(b) of the Copyright Act provides:
- The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
- it was widely assumed that protection for the design of useful articles had to be secured through the design-patent law—which requires that the design be “novel” and “nonobvious”—and that copyright protection was not available. In , the Court held that copyright protection could be extended to sculptural figures that were used as bases for lamps. The Court stated that, so long as the statues embodied originality, copyright was not displaced by virtue of the potential availability of design-patent protection or by the fact that the design was embodied in a useful article that was mass-produced and merchandised commercially. Since the decision, the Copyright Office has registered many ornamentally shaped useful articles. Section 113(a) of the Copyright Act now provides that the copyright in a PGS work “includes the right to reproduce the work in or on any kind of article, whether useful or otherwise.”
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Bibliographic Note 7 results (showing 5 best matches)
- The Copyright Office website contains a wealth of information about the substance and administration of the Copyright Act (http://www.copyright.gov). One can find there not only the text of the Act, but also pending copyright bills, the rules and regulations promulgated by the Copyright Office, news of the activities of the Office, its very useful reports and studies, speeches and statements by the Register of Copyrights, the various application forms, informational circulars, and access to registration records.
- The purpose of this manual is to serve as an introduction to, and a starting point for research about, the law of copyright. It cannot feasibly be minutely detailed in its text or heavily annotated in its footnotes. Fortunately, there are a number of longer works of high quality that can be recommended to serve those latter purposes. For nearly fifty years, the masterful multi-volume treatise, constantly cited by the courts, has been that of the late Professor Melville Nimmer: Melville & David Nimmer,
- There are two research services that provide current updates on copyright developments and decisions. These are published by Commerce Clearing House and by the Bureau of National Affairs (
- Throughout this manual, the provisions of the copyright statute now in effect—the 1976 Copyright Act, most of the provisions of which went into effect on January 1, 1978—are referred to by their section numbers within title 17 of the U.S. Code.
- The law journal articles written about copyright have vastly proliferated over the past decades, and are published in general law reviews as well as in an increasing number of specialty journals devoted to intellectual property or to allied fields (such as computer law and entertainment law).
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Chapter 9. Enforcement of Copyright 90 results (showing 5 best matches)
- Jurisdiction to hear actions “arising under any Act of Congress relating to … copyrights” is given exclusively to federal courts pursuant to 28 U.S.C. § 1338(a). The typical infringement action therefore cannot be brought in a state court. In what appears to be an unprecedented holding, the Indiana Supreme Court held that in a contract action brought by a publisher against an author, in which the author files a counterclaim for copyright infringement, a state court may hear and decide the copyright counterclaim. The 2011 “Leahy–Smith America Invents Act” has now “legislatively overruled” such results by amending section 1338(a) to provide: “No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights.” ...copyright infringement by means of a counterclaim will lead to the case’s removal to a federal court. On the other hand, this amendment would not seem to reach those situations in...
- Section 1202 of the DMCA is designed to encourage the copyright owner to embed important copyright-related information in digital copies and phonorecords, including the names of the author and copyright owner and the terms and conditions for use of the work. This is known as copyright management information (CMI). Section 1202 prohibits knowingly providing false CMI with the intent to facilitate or conceal copyright infringement, as well as furthering the removal or alteration of CMI with reasonable grounds for knowing this will facilitate or conceal an infringement.
- How effectively § 1202 achieves the desired reliability and accuracy of information relevant to proper identification of works and to electronic (or other) transactions in rights under copyright is debatable. Section 1202 may fall short in at least one respect. Linking the violation of the copyright management information provisions to copyright infringement does not effectively achieve the objective of ensuring the accuracy and reliability of a key component of copyright management information—proper identification of the author (as opposed to the copyright holder). Apart from the § 106A right of attribution with respect to works of visual art (see
- The 1976 Act defines “infringer of the copyright” and accords rights to institute infringement actions. Section 501(a) provides that “Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122, or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright.” Section 501(a), particularly when read in conjunction with section 201(d)(2), makes clear what had been a source of confusion under the prior law. Under section 201(d)(2), any of the exclusive rights in section 106 may be transferred and owned separately, and the “owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.” Copyright ownership is thus said to be “divisible” under the 1976 Copyright Act.
- Courts have recently rejected claims by non-copyright owners to whom the copyright owners have assigned a purported right to bring an infringement action. In one instance, the author, a screenwriter, was not a copyright owner because her script was a work for hire. The Ninth Circuit, Righthaven obtained assignments of copyright from online news sources and initiated infringement actions against third parties whose websites copied the assignor’s articles in whole or in part. A user of Democratic Underground’s website posted a comment on the site that incorporated extracts from a Las Vegas Review–Journal article. Righthaven then obtained an assignment of the copyright from the Review–Journal and sued Democratic Underground for copyright infringement. The court ruled that Righthaven lacked standing, because Righthaven had acquired nothing more than a right to sue. The assignor Las Vegas Review–Journal’s retention in fact of full control over the copyright in its article meant that...
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Chapter 6. Exclusive Rights of the Copyright Owner 134 results (showing 5 best matches)
- Perhaps the most significant provisions of the Copyright Act are found in section 106, which sets forth the exclusive rights of the copyright owner. Anyone who violates any of those rights is (by virtue of section 501) “an infringer of the copyright.” Section 106 gives the owner of copyright
- Section 106(3) of the Copyright Act gives the copyright owner the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” Thus, if owns the copyright in a novel, and are copyright infringers— will be liable, under the general rule of copyright that recognizes even “innocent” infringement, regardless whether he sells the books in the belief was their lawful author. While the distribution right often seems an adjunct to the reproduction right—for example the first U.S. copyright statute of 1790 provided for the (the reproduction abroad may violate the copyright law of the country of manufacture), and copies unlawfully made in the U.S. and sold by a third party, where the copyright owner seeks relief only against the distributor (“C” above).
- The first U.S. Copyright Act, enacted in 1790, forbade unauthorized printing of copyrighted works. Today, the equivalent right, afforded by section 106(1) of the 1976 Act, is the right “to reproduce the copyrighted work in copies or phonorecords.”
- Relatedly, even if the defendant has recognizably copied from the plaintiff’s copyrighted work, there is no infringement if he or she has copied only elements that are themselves unprotected by copyright. Thus, anyone is free to copy facts, concepts, methods, and systems described in the plaintiff’s work, and to express them in his or her own words, for such facts, concepts, methods, and systems fall outside the protection of copyright by virtue of section 102(b) of the Copyright Act. The same is true when the defendant copies such unprotectible elements as commonplace phrases, or language that is in the public domain. As the Supreme Court observed in a case involving copyright protection for fact-based directories, copyright may protect the original pattern in which the facts are organized but the facts themselves are in the public domain and free for all to use. The Court stated:
- If protectible expression has been substantially copied, it is not a defense that the copying was done unknowingly; like trespass in the law of real property, even unintended encroaching upon another’s copyright is unlawful. This principle takes two forms. First, if a work actually written by copyright owner is the author and copyright owner, ’s copyright, no matter how honestly was the true copyright owner. to protect its rights, either through a copyright search, insurance, or contractual indemnity arrangements with
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Chapter 8. Secondary Liability: General Principles and in Digital Communications 42 results (showing 5 best matches)
- When the right and ability to supervise coalesce with an obvious and direct financial interest in the exploitation of copyrighted materials—even in the absence of actual knowledge that the copyright monopoly is being impaired—the purposes of copyright law may be best effectuated by the imposition of liability upon the beneficiary of that exploitation.
- case and others like it exonerated ISPs from direct liability when they acted as “mere conduits” for Internet communications, the prospect of even indirect liability for contributory infringement spurred service providers to lobby Congress for exemptions from copyright liability and remedies. In 1998 Congress passed the Digital Millennium Copyright Act (DMCA), which added section 512 to the Copyright Act. This section exempts online service and access providers from liability for damages for copyright infringement, and significantly reduces the scope of injunctive relief, if the providers meet the Act’s cumulative tests establishing the independence of the providers from the infringing content they transmit, host or link to. Failure to comply with § 512 does not of itself subject the service provider to liability for copyright infringement; section 512 offers a safe harbor, but a nonqualifying provider must still be proved to have infringed, and may still invoke traditional
- The [digital file] swappers, who are ignorant or more commonly disdainful of copyright and in any event discount the likelihood of being sued or prosecuted for copyright infringement, are the direct infringers. But firms that facilitate their infringement, even if they are not themselves infringers because they are not making copies of the music that is shared, may be liable to the copyright owners as contributory infringers. Recognizing the impracticability or futility of a copyright owner’s suing a multitude of individual infringers (‘chasing individual consumers is time consuming and is a teaspoon solution to an ocean problem,’), the law allows a copyright holder to sue a contributor to the infringement instead, in effect as an aider and abettor. 334 F.3d 643, 645 (7th Cir. 2003) (citation omitted).
- With the evolution of digital communications, the means of reproducing and disseminating copyrighted works increasingly leave the control of copyright owners and traditional commercial distribution intermediaries. Websites and peer-to-peer (“P2P”) and other technologies allow members of the public to copy and publicly communicate works of authorship. This does not mean that dissemination intermediaries have vanished from the copyright landscape, but rather that we have new kinds of intermediaries who do not themselves distribute copyrighted content but give their customers the means to copy and make works available to the public. The principal economic actor in this scenario is not likely to be the member of the public but rather the infringement-enabling entrepreneur. Accordingly, copyright owners will endeavor to establish the liability of the entrepreneurs, particularly when it would be costly and complicated to proceed against a host of direct infringers, as is the situation...
- Issues of secondary copyright infringement are also raised when the defendant is one step more removed from the direct infringement than in the cases just discussed—in which the defendants consciously designed and distributed software that was used, and was largely meant to be used, to make illicit copies and phonorecords. What, if any, liability is there, on the part of Internet service providers (ISPs) that allow home computer users to connect to the Internet and to post and exchange all manner of potentially copyright-protected materials? These ISPs provide an appealing target for copyright infringement lawsuits, when the alternative would often be cumbersome suits against individuals. ISPs accordingly have, thanks to the 1998 “Digital Millennium Copyright Act” (DMCA), largely succeeded in insulating themselves from most copyright liability. We will first consider the principal pre-DMCA judicial decision on ISP liability, which in fact inspired the legislation that we will then...
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Chapter 10. State Law and Its Preemption 34 results (showing 5 best matches)
- Throughout the history of copyright law in the United States, the laws of the several states—under a variety of legal theories—have afforded protection against the unauthorized copying or other use of the intellectual creations of others. Most significantly, until 1978, state law generally forbade the unauthorized first printing or public distribution of an unpublished work. This was known as common-law copyright, typically afforded by judicial development but sometimes by state statute. Since the amendment of the Copyright Act, effective January 1, 1978, which extended federal protection to all works from the moment they are “fixed in a tangible medium of expression,” federal copyright has automatically attached even to unpublished works. Under the terms of section 301 of the Act, “no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.” Because state common-law copyright afforded relief against conduct—copying or...
- Some courts are more willing than others to effect an “accommodation” of the federal and state laws, and thus to deny that the state law is preempted. One example derives from the community-property laws in eight states, which raise the question whether the initial copyright ownership given by the Copyright Act to the “author” of a work must be shared in some way with that author’s spouse. Despite arguments that such a forced sharing would dilute and conflict with federal policy, which is designed to ensure financial rewards that foster creativity, it has been held that state law resulting in co-ownership of the copyright is not preempted; the non-author spouse will share equally in the proceeds from copyrighted works created during the marriage (and even from post-divorce derivative works), although the author-spouse alone will have the right to “manage” the copyright through licensing and transfers.
- [W]hen an article is unprotected by a patent or a copyright, state law may not forbid others to copy that article. To forbid copying would interfere with the federal policy, found in Art. I, § 8, cl. 8, of the Constitution and in the implementing federal statutes, of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain.
- This does not necessarily mean that the contract should be deemed preempted, for its enforcement may not necessarily contravene copyright policies. In , for example, the shrinkwrap license enabled the information provider to price discriminate, offering the white-pages information to consumers for a lower price, provided they did not resell the information, and offering resellable information to professionals at a higher price. The price-discrimination thus made the information more affordable to general consumers. Disqualifying the contract would not have advanced the general copyright goal to promote the progress of knowledge, if the result would have been to put the content out of reach of the general consumer. But this beneficent characterization may not apply to all mass-market online agreements that give the provider greater rights than those available under the copyright law (or that contract out of a variety of limitations on copyright protection). But courts have yet to...
- An Analog Solution in a Digital World: Providing Federal Copyright Protection for Pre–1972 Sound Recordings
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Index 191 results (showing 5 best matches)
Chapter 7. Fair Use and Other Exemptions from the Exclusive Rights of the Copyright Owner 74 results (showing 5 best matches)
- magazine; the defendant broke its story about the Ford pardon of Richard Nixon and quoted verbatim some 300 words from the unpublished manuscript. The Court traced the development of the fair use doctrine and noted its nearly nonexistent application to unpublished works under prior copyright law. It rejected the defendant’s claim that First Amendment concerns warranted contracting the scope of copyright; Justice O’Connor stressed that “In our haste to disseminate news, it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” The Court concluded, instead, that First Amendment interests are already protected under copyright doctrines such as fair use and the idea-expression dichotomy. The Court also rejected the contention that works of public figures are entitled to lesser copyright protection...
- As to the second factor, a court must determine whether the copyrighted work falls close “to the core of intended copyright protection” because it is creative (rather than essentially factual): the exemplar “Oh, Pretty Woman” was said to do so. But that factor will count for little in the context of parody because parodies generally skewer more works of fiction and entertainment than of fact.
- additional considerations into their analysis. For example, courts have inquired into the “amount and substantiality of the portion used” not only “in relation to the copyrighted work as a whole,” but in relation to the defendant’s work as well. The Supreme Court, in pointed out that the 300 words copied from President Ford’s 450–page book constituted 13% of the infringing article. Courts have tended to be more lenient when the unauthorized use was “incidental,” that is, when the copyright-protected work was captured as part of a larger permissible reproduction or performance, such as a song partially heard in television news footage of a festival event. doctrine more generally in copyright—in a case in which a poster of a copyrighted artwork was incorporated in the set of a television program and fleetingly shown. of plaintiff’s “Silver Slugger” pinball machine that depicted copyrighted designs on its front and sides. Distinguishing the poster case, the court emphasized that the
- The four factors set forth in section 107 have been applied not only in cases in which the defendant creates a new derivative work but also when it seeks to employ new technologies that permit the efficient duplication and dissemination of the copyrighted work. The fair use defense is then embedded within an assertion that the rights of the copyright owner should be counterbalanced by the public interest in increasingly inexpensive access and resulting intellectual enrichment that the new technologies can afford. More broadly, the defendants in these cases urge that copyright should not impede the development of new technologies and their attendant business models. Key cases have involved videotaping of copyrighted television programs, photocopying of literary materials useful in research and education, and Internet reproduction and transmission of all manner of copyrightable works (particularly musical sound recordings).
- Confronted with the question whether peer-to-peer file-sharing of copyrighted music recordings is a fair use, however, the Ninth Circuit held that it is not. In the Napster website made available free software that could be utilized for the purpose of searching for and copying recordings located on other computer hard-drives, and for the purpose of making accessible to others recordings stored on one’s own computer. The contributory liability of Napster depended upon whether the file-sharing computer users were infringing or were engaged in fair uses. (We will discuss contributory liability in the next chapter.) Unlike the videotaping of copyrighted free broadcast television programs for temporary “time-shifting” purposes, earlier found by the Supreme Court to be a fair use, ...first factor in section 107, the court found the reproduction and distribution of copyrighted music recordings not to be in any way “transformative”; moreover, the computer user was engaged in a “...
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Preface 3 results
- In the years since the authors began studying and teaching copyright law, the field has emerged from what may have seemed the Elysian territory of a few artistically-inclined jurists. Copyright now, as portrayed in popular media and much of academia, unfolds on a ubiquitous battleground arraying the aging business models of “hegemonic” “content industries” against freedom of speech and the progress of technology. While this sort of caricature attests to copyright’s dramatic evolution from romantic backwater to public preoccupation, it neglects a signal feature of this area of the law: Copyright inspires idealism among both those who seek to foster creativity and those who promote public access to the fruits of that creativity—indeed, the same actors often endeavor to achieve both those aspirations. Moreover, though bellicose polemics too often prevail over informed analysis, copyright abounds in intellectual fascination, and one aim of this manual is to enrich the public debate by...
- Copyright: Cases and Materials
- The authors are tremendously grateful to John L. Schwab, Columbia Law School class of 2012, for expert research assistance and excellent editorial suggestions. We also express great appreciation to Prof. R. Anthony Reese, our “new” co-author on the copyright casebook, whose deep knowledge and moderating perspective have illuminated our discussions of all aspects of the field, from basic principles to the latest technological challenges.
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Table of Contents 34 results (showing 5 best matches)
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- Publication Date: April 27th, 2012
- ISBN: 9781599412511
- Subject: Intellectual Property
- Series: Concepts and Insights
- Type: Hornbook Treatises
- Description: This title provides a clear and thorough exploration of the doctrinal and policy issues in American copyright law. In a style accessible to both students and practitioners, it covers every major topic in basic copyright courses: history, formalities, exclusive rights, fair use, civil and criminal enforcement, and federal preemption of state law. The authors also address major new issues that have emerged, including the rules of the Digital Millennium Copyright Act regarding circumvention of technological protections of copyrighted materials, and the principles of secondary liability, both in their basic form and as developed through application of the DMCA to Internet service providers. In addition, attention is given to the important points at which U.S. copyright law intersects with international intellectual property treaties.
