Copyright Law in a Nutshell
Author:
LaFrance, Mary
Edition:
3rd
Copyright Date:
2017
20 chapters
have results for copyright
Chapter 11. Remedies 53 results (showing 5 best matches)
- the counterfeit or illicit label is used in connection with a phonorecord of a copyrighted sound recording or copyrighted musical work, a copy of a copyrighted computer program, a copy of a copyrighted motion picture or other audiovisual work, a copy of a literary, pictorial, graphic, or sculptural work, a work of visual art, or copyrighted documentation or packaging; or
- Where a defendant’s actions have infringed the plaintiff’s rights under both copyright and trademark law, the plaintiff may recover both copyright and trademark damages.
- called the U.S. Customs Service). A copyright owner may obtain a remedy under § 602(b) against copies that were made unlawfully under the laws of another country, as well as copies that were lawfully made in their country of origin but which would have been infringing if Title 17 had applied in that jurisdiction. For example, if a particular country does not extend the protection of its copyright laws to works by United States authors, then copies made in that country are subject to exclusion under § 602(b). In contrast, if copies are made overseas under a license from the U.S. copyright owner, then § 602(b) does not apply, even if the U.S. copyright owner objects to the importation of those copies. This rule parallels that of § 602(a) (see §§ 7.4[A] and 8.2[C] above.)
- Federal regulations provide the copyright owners with two avenues for obtaining relief under § 602(b): (1) obtain an injunction in a civil infringement proceeding, in which case U.S. Customs will enforce the court order, or (2) provide a copy of the copyright registration (along with a fee and other documentation) directly to U.S. Customs, which will then detain any articles that it identifies as infringing, giving both the importer and the copyright owner the opportunity to present evidence in order to resolve the dispute. Remedies under § 602(b) include seizure, forfeiture, and destruction of the infringing articles.
- Actual damages represent the injury to the market value of the copyrighted work caused by the infringing activity. An estimate of actual damages based on lost sales or lost licensing fees often involves some degree of speculation, but courts will deny an award if the estimate is unduly speculative. Courts may consider expert testimony or other evidence on such matters as the decline in the fair market value of the copyrighted work or the price which the defendant would have had to pay in order to obtain a license for its use. The copyright owner must also establish, with reasonable probability, that the infringing conduct was the cause of its loss.
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Chapter 4. Formalities 43 results (showing 5 best matches)
- Three types of formalities are associated with federal copyright law: notice, deposit, and registration. For newly created works, none of these formalities is currently a prerequisite to owning a copyright. However, deposit and registration affect the copyright owner’s ability to enforce a copyright and to enjoy certain remedies against infringers. Even though copyright notice is no longer required for works first published on or after March 1, 1989, copyright notice still offers some practical benefits. Because many people still equate the absence of a copyright notice with a lack of copyright protection, a prominent copyright notice can deter potential infringers. Also, by identifying the copyright owner, the notice facilitates a potential user’s efforts to locate the copyright owner in order to secure the appropriate permissions. When infringement occurs, a defendant that had access to a copy or
- Under the 1909 Act, federal copyright ordinarily did not attach to any work until that work was publicly distributed with copyright notice affixed. However, unpublished works enjoyed perpetual protection under common law copyright. Once a work was published with a proper copyright notice,
- Because the question whether a work was publicly distributed with or without copyright notice was of crucial importance prior to March 1, 1989, courts were often asked to determine whether a particular distribution was private or public. Where
- Sections 19 and 20 of the 1909 Act prescribed the form for the mandatory copyright notice. In general, it consisted of either the word “Copyright,” the abbreviation “Copr.,” or the symbol ©, accompanied
- Under § 10 of the 1909 Act, copyright notice was required to appear on all copies of a work that were publicly distributed or offered for sale in the United States under the authority of the copyright owner. Omission from even a single copy could cause the work to enter the public domain. Section 21 recognized an exception where the copyright proprietor sought to comply with the notice requirement, but by accident or mistake omitted the notice from a particular copy or copies; in such a case, the copyright was still enforceable against anyone who had actual notice of the copyright, but the copyright owner could not recover damages against an innocent infringer who was misled by the omission of the notice, and could, as a condition to obtaining a permanent injunction, be required to reimburse the infringer’s reasonable outlay that was innocently incurred. In applying § 21, courts tended
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Chapter 2. Copyrightable Subject Matter 101 results (showing 5 best matches)
- If a work satisfies these requirements, it is automatically protected by copyright until the copyright expires. Thus, copyright subsists in any work that satisfies § 102(a), unless it is disqualified by § 104 or § 105, until the term of copyright has been exhausted. This is true regardless of whether the author registers the copyright, includes a notice of copyright on the work, or undertakes any other formal steps to “protect” the copyright.
- Under current law, compliance with formalities is not a prerequisite to copyright protection. Thus, a work that satisfies § 102 enjoys federal copyright protection from the moment it is fixed in a tangible medium of expression (
- In the case of musical recordings, it is important to distinguish the copyright in the sound recording from the copyright in the underlying musical work. A sound recording captures a specific performance of a musical work. Typically, the copyright in the musical work and the copyright in a sound recording of that work are owned by separate persons. The copyright in a sound recording is normally owned by the record company that produced the recording. The copyright in the underlying musical composition may be owned by the author(s) of the music and lyrics, or by an assignee of the author(s)—typically a music publisher. A single copyrighted musical work may be recorded many times, resulting in many copyrighted sound recordings.
- For example, in 1973 Dolly Parton wrote the music and lyrics for the song “I Will Always Love You.” She is therefore the author of the musical work, and she either owns the copyright or has
- Under § 103, copyright in derivative works extends only to the original material contributed by the person who created the derivative work. If the underlying work is in the public domain, it remains so. If the underlying work is protected by copyright, that copyright is independent of, and unaffected by, the derivative work copyright.
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Chapter 7. Exclusive Rights 71 results (showing 5 best matches)
- The six exclusive rights of a copyright owner are set forth in § 106. Three of these exclusive rights apply to
- Because moral rights are independent of copyright and independent of ownership of the physical object, a transfer of any interest in the copyright, or of the physical object, does not assign or waive moral rights. Similarly, a moral rights waiver has no effect on ownership of the copyright or the physical object.
- In addition to the exclusive rights of a copyright owner under § 106, authors (as opposed to copyright assignees) enjoy certain moral rights under § 106A. Moral rights are discussed in § 7.8 below.
- others from engaging in those activities. Thus, for example, ownership of copyright in an obscene film does not give the copyright owner an affirmative right to perform the film publicly, because such performances may violate local obscenity laws, but it does allow the copyright owner to prevent someone else from publicly performing the film.
- The adaptation right of § 106(2) gives the copyright owner the exclusive right to make, and to authorize the making of, derivative works that are based on the copyrighted work. Section 101 defines a “derivative work” as follows:
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Chapter 6. Assignments and Licenses 47 results (showing 5 best matches)
- In contrast, copyright was indivisible under the 1909 Act. For an assignment to be valid, it had to include the entire copyright. An attempt to assign anything less was treated as a license. Only the owner of the entire copyright could register the copyright and sue infringers.
- A written instrument was also required for assignments of statutory copyrights under § 28 of the 1909 Act, although here, too, some courts allowed subsequent written ratifications of oral assignments. Unlike current law, however, § 28 did not require exclusive licenses of statutory copyrights
- Under § 205 of the 1976 Act, copyright transfers and any other documents pertaining to a copyright can be recorded with the Copyright Office.
- In addition to transfers, § 205(a) provides that any other documents pertaining to a copyright may be recorded in the Copyright Office. This privilege applies to both registered and unregistered copyrights.
- , a federal district court held that any state recordation system pertaining to interests in copyrights is preempted by the recording rules of § 205, so that a security interest in a copyright can be perfected only by recording that security interest with the Copyright Office, and not by filing a UCC–1 financing statement under state law. Thus, under
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Chapter 10. Defenses 54 results (showing 5 best matches)
- A narrow defense of innocent intent is recognized under § 406(a). The defense applies only with respect to copies or phonorecords that were publicly distributed by or under the authority of the copyright owner
- Fact or Fancy? The Implications for Copyright
- Under § 507, a civil action for copyright infringement must be commenced within three years from the date on which the claim
- The misuse defense applies when the owner of a copyright attempts to extend its monopoly beyond the scope of the copyright grant in a manner which contravenes the public interest. A copyright owner that engages in misuse loses the right to enforce that copyright for so long as the misuse continues.
- Because federal courts have exclusive jurisdiction over federal copyright claims (although not over common law copyright claims), the Eleventh Amendment effectively precludes a claim for damages arising from federal copyright infringement if the infringer is a state, a state agency, or a state actor, unless the state expressly and unequivocally waives its immunity. Accordingly, arguments based on “implied waiver” are unlikely to succeed. A waiver will not be inferred, for example, by a state’s registration of copyrighted works. However, analogous case law concerning patent infringement suggests that, where a state invokes federal court jurisdiction as a plaintiff, it waives its immunity with respect to compulsory counterclaims.
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Chapter 3. Copyright Ownership 36 results (showing 5 best matches)
- Section 202 provides that ownership of the copyright in a work is separate from ownership of a physical embodiment of a work. Thus, when an art collector purchases a painting, the collector owns the physical object but, absent a separate conveyance of the copyright, acquires no interest in the copyright. Conversely, a party may own the copyright in a work, or an interest in the copyright, without owning the original embodiment or any other copy of the work.
- Copyright ownership arises initially through authorship, and may be transferred by assignment, inheritance, or any other means by which property may be conveyed. Copyright interests may also be licensed, on either an exclusive or non-exclusive basis. Thus, copyright ownership issues involve matters of authorship, assignments, and licensing. Ownership issues may also involve determining the respective rights of persons who own copyrights in collective or derivative works, on the one hand, and the persons who own copyrights in the underlying works that are included in those collective or derivative works.
- The author of a work initially owns the entire copyright in the work. The simplest scenario is where an individual acts alone in creating a work, and the work is not a work made for hire. As the sole author and copyright owner, the creator is free to license or assign any or all of the copyright, or retain full ownership.
- in the employer or commissioning party. As a result, that party enjoys rights which are broader than those of a copyright assignee. As the legal author of the work, the employer or commissioning party owns the copyright free and clear of the inalienable
- For the employer or commissioning party, the legal consequences of creating something as a work made for hire differ from the consequences of acquiring the copyright in that work by assignment. As the author, the employer or commissioning party owns the copyright free and clear of any inalienable author’s rights—specifically, moral rights under § 106A (see § 7.8 below) and termination rights under §§ 203 and 304(c) (see § 6.6 below). In contrast, if that party had acquired the copyright by assignment or license from the creators, the creators would retain their authorship status, and thus the right to protect their moral rights and to terminate the assignment or license.
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Chapter 5. Copyright Duration 40 results (showing 5 best matches)
- In response to this concern, the Copyright Office has recommended legislation that would permit the use of a work whose copyright owner cannot be identified or located, subject to an obligation to pay a reasonable license fee to the copyright owner if and when that person comes forward. In addition, the copyright owner would be foreclosed from obtaining injunctive relief against the continued use of a derivative work which the user created after being unable to identify or locate the copyright owner of the underlying work. These limitations on remedies would be available only if the user performed a reasonably diligent search for the copyright owner, and gave attribution to the author and copyright owner if their identities could be ascertained with reasonable certainty.
- The term of copyright protection for works published prior to January 1, 1978 is determined under the 1909 Copyright Act (except for works published prior to 1909, all of which are now in the public domain). The statutory copyright term under the 1909 Act commenced upon publication with notice, and consisted of an initial 28-year term followed by a renewal term. As originally enacted, the renewal term lasted 28 years. However, as a result of a series of congressional enactments culminating in the 1976 Act, the renewal term was
- Yet another set of rules governs works created prior to January 1, 1978 which were neither in the public domain nor protected by federal copyright as of that date. Most, though not all, of the works in this category would have been unpublished works. Under the 1909 Act, unpublished works were protected by common law copyright, which was perpetual until publication, at which point the work either entered the public domain or began its limited term of statutory copyright, depending on whether it was published with notice. (For details and exceptions, see §§ 4.1–4.2 above.) Under § 102 and § 301 of the 1976 Act, however, common law copyright in fixed works was abolished, and all fixed works became subject to the limited term of statutory copyright under § 302. Accordingly, works created but uncopyrighted (and not in the public domain) as of January 1, 1978 lost their perpetual copyright on that date. Under § 303(a), their perpetual copyright was replaced by statutory copyright, which...
- If a work qualified as a restored work under § 104A, then its federal copyright has now been restored. In other words, even though that work was previously in the public domain in the United States, it is once again under copyright. The date on which the copyright was restored depends on the date on which the source country became an eligible country. Copyright was restored as of January 1, 1996, with respect to any work whose source country already adhered to the Berne Convention or was already a WTO member as of that date. For all other works, copyright was restored on the date that the source country became an eligible country (
- Once copyright is restored to a work, § 104A(b) provides that the copyright vests initially in the author or initial rightholder of the work as determined by the law of the source country. Subject to a statutory exception for certain “reliance
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Chapter 1. Introduction 4 results
- The most recent comprehensive revision of the federal copyright laws culminated in the Copyright Act of 1976 (the “1976 Act”), which took effect on January 1, 1978, and which is codified, with amendments, in Title 17 of the United States Code. Perhaps the most significant change introduced by the 1976 Act was the elimination of common law copyright protection for fixed works of authorship. Under the Copyright Act of 1909 (the “1909 Act”) and earlier federal statutes, unpublished works of authorship enjoyed perpetual common law copyright protection, a doctrine carried over from English law. For most works, federal copyright law did not apply until publication. In contrast, under the 1976 Act, federal copyright attached to an original work of authorship from the moment it was fixed in a tangible medium of expression. Thus, as of January 1, 1978, common law copyright was virtually eliminated for such works. Moreover, any attempt by a state to provide its own equivalent of copyright...
- Because copyright in works created or published prior to January 1, 1978, is governed in many respects by the 1909 Copyright Act, a copyright lawyer must be familiar with both the 1976 Act and the 1909 Act in order to accurately assess the current copyright status and ownership of these pre-1978 works. For that reason, although this text focuses on the 1976 Act, it also addresses those provisions of the 1909 Act that are essential to modern copyright practice. Except where otherwise indicated, all statutory references in this text refer to Title 17.
- Essential to federal (as opposed to common law) copyright is the concept of the limited term, which is required by the “limited Times” language of the Patent and Copyright Clause. Any work published in the United States before 1923 has now entered the public domain due to expiration of its term of protection. Some works published in 1923 have already lost their copyright protection, while others are scheduled to enter the public domain in 2019. The last works published under the 1909 Act will not enter the public domain until 2073.
- The Patent and Copyright Clause of the United States Constitution grants Congress the power “to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.”
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Chapter 8. Limitations on Exclusive Rights 77 results (showing 5 best matches)
- Unlike the owner of a copyright in a musical work, the owner of the copyright in a sound recording does not enjoy an exclusive public performance right under § 106(4). When a copyrighted sound recording is publicly performed—for example, in a club or on the radio—the record company that owns the copyright in that sound recording is not entitled to collect any public performance royalties. In contrast, the owners of copyright in any of the musical compositions embodied in that sound recording will receive performance royalties collected by their representative organizations (usually ASCAP, BMI, or SESAC). The only public performance right
- A person seeking to duplicate a copyrighted sound recording (rather than independently re-creating the sounds of the recording) may use a compulsory license to reproduce and distribute the copyrighted musical compositions included in that recording only if (1) the existing sound recording was fixed lawfully, and (2) the duplication of the sound recording is authorized by its copyright owner or, if the sound recording was fixed before February 15, 1972 (the date on which sound recordings first became eligible for federal copyright protection), by a person who made that recording either under an express license from the owner of the copyright in the musical work or pursuant to a compulsory license to record that composition.
- The second difference between the mechanical compulsory license and the digital compulsory license is that the latter can be applied to digital deliveries of sound recordings by a party other than the owner of the copyright in the sound recording. A party other than the copyright owner of a sound recording may provide digital deliveries of phonorecords of that sound recording only if (1) the copyright owner of the sound recording authorizes the digital deliveries and (2) either the copyright owner of the sound recording, or the party making
- Where an activity qualifies under § 118, the copyright owners of the works being performed or
- Satellite carriers, distributors, and copyright owners may establish royalty rates for the § 119 license through voluntary negotiation; in the absence of voluntary agreement, the rates will be determined by Copyright Royalty Judges. Each carrier must submit its royalty payments to the Register of Copyrights, who then distributes the royalties among the copyright owners who submit timely claims indicating that their works were included in the satellite carrier’s secondary transmissions.
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Chapter 12. Digital Millennium Copyright Act 49 results (showing 5 best matches)
- The Digital Millennium Copyright Act of 1998 (“DMCA”) revised the 1976 Act by adding three sets of complex rules, accompanied by civil remedies and criminal penalties, designed to address concerns of copyright owners and Internet service providers arising from the growth of the Internet and the resulting increase in unauthorized copying and distribution of copyrighted works. The rules codified in § 512 define a set of safe harbors which enable Internet service providers (ISPs) to limit their liability for the infringing activities of their users. The rules codified at § 1201 prohibit the circumvention of technological devices that copyright owners use to protect their digitized works from unauthorized access and copying. The rules codified at § 1202 prohibit the falsifying or unauthorized alteration or removal of certain copyright information attached to or accompanying a copyrighted work.
- Section 1202, also added by the DMCA, creates two causes of action designed to prevent the falsification or the unauthorized alteration or removal of copyright management information attached to or accompanying a copyrighted work.
- the name of, and other identifying information about, the work’s copyright owner, including the information contained in a notice of copyright;
- might be used to limit the rights which copyright law gives to consumers who purchase electronic goods containing copyrighted material. For example, in
- , the Ninth Circuit upheld a finding that the operator of a peer-to-peer file-sharing service utilizing BitTorrent had red flag knowledge where (1) the defendant had used his own service to download copyrighted material, (2) 90–95% of the material available through the service was copyrighted, and (3) the defendant’s website displayed, and automatically updated, several lists of popular content, which included numerous copyrighted works.
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Chapter 9. Infringement 47 results (showing 5 best matches)
- Subject to three exceptions, a civil action for infringement of a copyright may not be instituted until the copyright has been registered or preregistered under § 411. (See § 4.2 above.) If the copyright owner has submitted a properly executed application to the register the work, but registration has been refused, the plaintiff may still file an infringement action if notice thereof is served on the Register of Copyrights. The latter has the option to become a party to the action with respect to the
- Generally speaking, the more creative a work is, the more likely it is that its copyright owner will succeed in an infringement claim based on nonliteral similarity. If a work is only minimally creative—such as a database—the plaintiff will typically need to demonstrate near-verbatim copying (also called “bodily appropriation”) in order to establish improper appropriation. This is one consequence of the difference between a strong copyright and a “thin” copyright.
- Because registration is a prerequisite to bringing an infringement claim for a United States work (see Chapter 4), ordinarily a plaintiff will rely on the registration certificate to establish ownership of a valid copyright. If the copyright in a work was registered before or within five years of first publication, then the registration certificate is prima facie evidence that the copyright is valid and that the person named on the certificate is the owner. If registration is obtained more than five years after publication, then the evidentiary weight of that certificate is left to the court’s discretion.
- A plaintiff who is not named on the registration certificate must produce a chain of title establishing that person’s status as owner or exclusive licensee of the rights allegedly infringed. The defendant, in turn, may submit evidence to rebut the presumption of ownership and validity. If the Copyright Office has refused to register the copyright, then the plaintiff can proceed with the infringement action if notice thereof is served on the Register of Copyrights. The court will then determine whether the plaintiff has a valid copyright in the work, under the standards discussed in Chapter 2. The degree of
- This, too, is a question of fact. The appropriation is improper only if it consists of a material amount of copyrighted expression. Thus, if the copying consists only of facts, general ideas, and unoriginal expression, there is no illicit copying because there is no improper appropriation; in other words, the defendant copied from the plaintiff, but did not infringe the plaintiff’s copyright. Also, if only a de minimis amount of copyrighted expression was copied, there is no infringement; however, there is no clear rule as to what constitutes a de minimis amount, and courts have been willing to treat a small amount of copying as material provided that it is qualitatively significant. (For more on de minimis copying, see § 9.3[B][3] below.) Courts will grant summary judgment for the defendant if the only material similarities between the works consist of uncopyrightable elements of the plaintiff’s work.
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Chapter 13. Preemption 25 results (showing 5 best matches)
- Federal copyright law preempts enforcement of state statutes or common law in a number of situations. There are two types of copyright preemption: (1)
- The origins of statutory preemption under § 301 lie in the 1976 Copyright Act, under which, for the first time, federal copyright protection was extended to all works of authorship beginning at the moment of tangible fixation, regardless of whether the work was published. The 1909 Act, in contrast, denied federal copyright protection to most unpublished works, relegating them to the protection of common law copyright under state law. When unpublished
- A shrinkwrap license is a non-negotiated agreement that accompanies the purchase of a copy of a copyrighted work—typically, computer software. The copyright owner purports to license (rather than sell) to the purchaser the copyrighted content embodied in the tangible good, and imposes a series of conditions and restrictions on the use of the copy and/or the copyrighted content. These conditions and restrictions typically purport to limit or negate the rights which copyright law ordinarily
- If a work fits within one of the general copyrightable subject matter categories under § 102 and § 103, but is unprotected by federal copyright because it is unoriginal, then § 301 will preempt any state law that provides copyright-like protection to the work. For example, if a poem is ineligible for federal copyright because it was copied in its entirety, § 301 preemption will apply. Section 301 also preempts application of state misappropriation laws which prohibit the copying of uncopyrightable information from copyrighted works (such as information contained in a copyrighted biography, data reproduced from copyrightable software, or real-time scores and other information obtained from a copyrighted broadcast of a basketball game). Although in these cases the information itself is not copyrightable, this is because it lacks originality; therefore, state law protection is preempted by § 301. The same result applies to any copyrightable work that has entered the public domain.
- Even before enactment of statutory copyright preemption in 1976, it was well settled that, under the Supremacy Clause of the Constitution, states could not enact laws which interfered with the purposes of federal copyright or patent laws. Such interference may occur, for example, where a state extends protection to a work that Congress intended to place in the public domain (as in
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Preface 4 results
- This book is for anyone who needs a concise but thorough introduction to copyright law. It is aimed at lawyers, students, artists, authors, and businesspersons, as well as intelligent consumers who just want to know more about the copyright issues reported by the media.
- Copyright law has grown increasingly complex over the years. Also, there are many misconceptions that are surprisingly persistent, and new misconceptions arising all the time. A better understanding of copyright law will prevent costly mistakes, avoid unnecessary litigation, encourage consumers to take an active interest in legislative proposals, and enable authors and artists to focus on their creative work without the distraction of legal entanglements.
- Because federal copyright law is a creature of statute, every aspect of copyright law addressed in the book is accompanied by references to the pertinent statutes and, where appropriate, their legislative histories. The most important aspects of each statute are discussed in the text, so that the reader can derive a good understanding of the material from the text alone. However, all of the relevant statutory citations are included in the text for those who wish to develop their understanding further.
- The book assumes that the reader has no prior knowledge of copyright law, but it does not shy away from addressing aspects of the law which are ambiguous, in a state of flux, or the subject of conflicting opinions from courts and commentators. Where the law is still evolving, the text identifies the areas of uncertainty and the most recent authorities that have attempted a resolution. The text also notes areas where further legislation is needed or is currently under consideration.
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Title Page 1 result
Outline 12 results (showing 5 best matches)
Center Title 1 result
Index 29 results (showing 5 best matches)
Copyright Page Your search matches the chapter title
- Publication Date: January 13th, 2017
- ISBN: 9781634603041
- Subject: Intellectual Property
- Series: Nutshells
- Type: Overviews
- Description: This product offers a compact yet comprehensive and up-to-date overview of U.S. copyright law in an uncluttered and readable format. Coverage ranges from the fundamental concepts of originality, authorship, and infringement to the highly technical rules governing digital phonorecord deliveries and digital public performance rights in sound recordings, the safe harbor provisions that limit the liability of Internet service providers, and the anti-circumvention and copyright management information provisions of the Digital Millennium Copyright Act. The evolving doctrines of fair use and contributory liability are also given thorough attention.
