- Copyright Law
Introduction: Overview of Copyright Law
The Copyright Owner
When Does Copyright Protection Begin?
When Does Copyright Protection End?
Rights of a Copyright Owner
What May Be Copyrighted?
The Purpose of Copyright Law
Sources of Copyright Law: Domestic Legislation
Federal Preemption of State Law
International Copyright Treaties
Copyrightable Versus Noncopyrightable Subject Matter
What Is Copyrightable?
Originality: A Low Threshold
What Is Original?
What Is Fixation?
Copyright Law Protects Expression, But Does Not Protect Ideas
Which Expressions Are Entitled to Copyright Protection?
Importance of the Right Copyright Pigeonhole
Pictorial, Graphic, and Sculptural Works
Oscar Wilde Photograph
Compilations, Collections, and Derivative Works
Collective Works and Compilations
Extent of Compilation Protection
European Database Protection
Original Work and Derivative Work Have Separate Copyrights
What Is Not Copyrightable?
Typefaces and Fonts
Names, Titles, Slogans, and Short Phrases
Uniform Resource Locators (Web Site Addresses)
Systems and Methods of Operation
Lotus: Massachusetts Software Case
Contrast with Altai Analysis
Interoperability Is a Favored Public Policy
Systems Are Not Protectable
Who Owns the Copyright?
General Rule: The Author Owns the Copyright
Works Made for Hire
Who Is an "Employee"?
The Relevance of Classifying a Work as Made for Hire
Key Factors for a Joint Work
All Joint Authors Share Equally
Limitations on Joint Authors
Duration of Copyright
Works Created on or After January 1, 1978
Works Made for Hire
Anonymous or Pseudonymous Works
Works Created Before January 1, 1978
Works Created Before 1978 But Published in 1978 or Later
Works Created and Published Before 1978
December 31 Rule
Public Domain at Expirationof Copyright Period
Exception for Foreign Works
Summary of Above
How to Obtain a Copyright: Registration and Notice
Copyright Is Automatic
The Advantages of Federal Registration
Mechanics of Registration
Effective Date of Registration
Notice Still Advisable
Form of Notice
Notice on Phonorecords
Where Should the Notice Be Placed?
Rights of a Copyright Owner
Exclusive Rights and Their Limitations
Limitations on the Reproduction Right
Libraries and Archives
Musical Works: "Mechanical" Compulsory License
Certain Software Copying Permitted
Software Copying for Computer Repair or Maintenance
Broadcasters' Ephemeral Recordings
Organizations Serving Blind and Disabled
Derivative Work Right
Right Not to Distribute
Limitations on the Distribution Right:The "First Sale" Doctrine
First Sale Rights Limited as to Phonorecords and Computer Programs
Public Performance Right
Exclusive Right Relates to Public Performances Only
Performing Rights Societies
Limitations on the Owner's Performance Right
Transmissions to Classrooms and Limited Distance Education
Public Display Right
Are Framing and Inline Linking Public Displays?
Limitations on the Public Display Right
Viewers in the Same Place
Similar Limitations to Public Performance Right
"Moral Rights" for Works of Visual Art
Moral Rights Are Noneconomic Rights
The Visual Artists Rights Act
What Is a "Work of Visual Art"?
Three Rights of Attribution
Right of Integrity
Rights of Attribution and Integrity Are Separatefrom Copyright Rights
Rights Are Personal and Not Transferable
Transferring a Copyright and Terminating the Transfer
Rights Transferable in Whole or in Part
What Is a Transfer?
How May Copyrights Be Transferred?
No Writing Necessary for Nonexclusive Licenses
Contributions to Collective Works Such as Periodicals
Does the Written Instrument Transferring Copyright Need to Meet Any Specific Requirements?
Can Cashing a Check from the Proposed Assignee Constitute a Valid Assignment?
Should Copyright Transfers Be Recordedin the Copyright Office?
Mechanics for Recording a Copyright Transfer
Conflicts Between Transferees
Normal Contract Interpretation Rules Apply
May Assignments (Transfers) of Copyright Be Terminated?
What About Derivative Works Prior to Termination?
Formalities of Termination Notice
Can a Licensor Waive the Right to Terminate?
Works Made for Hire Are Not Subject to the Termination Right
Effect of Termination
Litigation of Copyright Infringement and Claims Under Other Laws
Where to Sue? Subject Matter Jurisdiction
Federal Courts . . . Usually
Federal Jurisdiction: Copyright Infringement
Federal Jurisdiction: Interpretation of the Copyright Act
Examples of Federal Jurisdiction When Copyright Act Needed Interpretation
Suits Against the Government
State Government Immunity from Suit
International Jurisdiction Issues
The Yellow Submarine Case: Authorization to Infringe Overseas Not a Violation of the U.S. Copyright Act
Who May Sue?
Copyright Owner and Exclusive Licensee
Assignment and Prior Infringement Claims
Statute of Limitations
When Does the Claim Accrue?
Each Infringement Is a Distinct Injury
Civil Copyright Infringement Complaint
Civil Copyright Infringement: Direct, Contributory, and Vicarious Infringers
Who Is Liable?
Liability for the Infringement of Others-Vicarious Infringement and Contributory Infringement
Elements of Contributory Infringement
Knowledge: Actual or Constructive
Material Contribution to the Infringement
Limit on Contributory Infringement: The "Staple Article of Commerce" Theory
The Betamax Case
Sony Distinguished from Napster
Inducement Liability Under Grokster
Requirement of Direct Infringement
Elements of Vicarious Infringement
Personal Liability of Corporate Officers
What Is Copyright Infringement?
Elements of an Infringement Claim
Plagiarism Is Not the Same as Infringement
Ownership: The First Element of Infringement
Copying: The Second Element of Infringement
How Does a Plaintiff Show Copying?
First Element of Copying: Opportunity to Access Plaintiff's Work
Example of Successful Wide Dissemination Argument
What if the Work Is Not Widely Disseminated?
The New England Patriots Case: Example of Plaintiff's (Unsuccessful) Chain of Events Argument
Example of Chain of Events Argument That Withstood Summary Judgment
Independent Creation Negates Access
Second Element: Copying of Copyrightable Elements
Merger Doctrine and "Scenes a Faire"
Merger Doctrine: Limitation on Copyrightable Elements
Massachusetts Merger Doctrine Case
Statutes Subject to Merger Doctrine
Public Policy Behind the Merger Doctrine
Scenes a Faire: Limitation on Copyrightable Elements
Copying the Overall Pattern of a Work
Copying Individual Segments of a Work
The Ordinary Observer Test
Total Concept and Feel
First Step: Abstraction
Second Step: Filtration
Elements Included Due to Logic or Efficiency
Elements Dictated by Considerations External to the Software Code in Question
Third Step: Comparison
Defenses to Copyright Infringement
History of Fair Use
Purpose of the Doctrine
The Copyright Act Fair Use Provision
Fair Use Factors Not Exclusive . . . Supposedly
No Single Fair Use Factor Is Decisive
Fair Use Is an Affirmative Defense, Not a Right
The Pretty Woman Case: Example of Defendant Bearing the Burden of Proof
Opposing Viewpoint: Fair Use as a Right
The First Fair Use Factor: The Purpose and Character of the Use
"Good Faith" Is Relevant to the Character of Use
The Gerald Ford Biography Case: Example of Bad Faith
The Naked Miss Puerto Rico Universe Case: Example of Good Faith
Transformative Use of Images
Classroom Use . . . Brevity and Spontaneity
"Temporary" and "Intermediate" Use
The Ticketmaster Case
The PlayStation Case: Software Is Further from the Coreof Copyright Protection
The Second Fair Use Factor: Natureof the Copyrighted Work
Fair Use of Unpublished Works
Third Fair Use Factor: Amount and Substantiality of the Portion Used
Gerald Ford Biography: Important Qualitative Taking
The Importance of the Material Used to the Defendant's Work May Also Be Relevant
The Fourth Fair Use Factor: Effect on the Potential Market, or the Value of the Copyrighted Work
Example of Use's Negative Impact on Market for the Original
2 Live Crew Case: Example of Need to Assess Market for Derivative Works
The Market Test Is Focused on the Particular Work
But Not Necessarily on the Particular Use
Misuse Is Not Limited to Antitrust Violations
Examples of Copyright Misuse
Plaintiff's Software License Forbids Development of Products in the Same Field as Its Software
Plaintiff's License Implicitly Forbids Development of Products That Compete with the Copyrighted Product
Plaintiff Prevents Customer from Using a Competing Product
Plaintiff Uses an Infringement Lawsuit to Obtain Property Protection for Uncopyrighted Information
Plaintiff Engaged in Illegal "Tying" of Products
Pondering the Future of Copyright Misuse
Fraud on the Copyright Office
Plaintiff's Remedies for Infringement
No Double Counting
Real-Life Calculation Problems of Damages
Jury Award of Damages
Increase for Willfulness
Decrease for Innocent Infringement
Statutory Damages Only Permitted for Registrations Prior to Infringement
Injunctions Are-or Should Be-Tailored to the Infringement
Relief in Claims Against Federal Entities
Impoundment, Recall Orders, and Destruction
Destruction or Other Disposition of Infringing Articles
Protecting Copyright Management Systems: AntiCircumvention
Summary of Anticircumvention Provisions
What Are "Copyright Management Systems"?
Example of Encryption
The Streambox "Secret Handshake" Case: Example of Equipment that Facilitates Circumvention
Classes of Exempted Works
Copyright Management Information
Liability for Online Copyright Infringement
Summary of Section 512 Safe Harbor
Who Is an OSP?
What Steps Must an OSP Take to Benefitfrom the Safe Harbors?
The Four Safe Harbor Activities
First Safe Harbor: Transitory Digital Network Communications
Second Safe Harbor: System Caching
Third Safe Harbor: Infringing Information Residing on a Network
What Kind of Notice Must the Copyright Owner Give?
What Does an OSP Do When It Receives a Notice of Alleged Infringement?
A Party Sending a Takedown Notice Must Act in Good Faith and Consider Fair Use
OSPs Should Register Their Copyright Compliance Agents with the Copyright Office
Fourth Safe Harbor: Linking to Infringing Sites
Special Consideration for Nonprofit Universities
The Good Samaritan Provisions: The Communications Decency Act of 1996
Criminal Copyright Infringement
Elements of Criminal Copyright Infringement
Only Two Exclusive Rights May Form Basis of Felony
Tampering with Copyright Notices
Building a Copyright Protection Plan