ࡱ> e@ 0bjbj%% (NOOk%    ZZZnMMM8JM4~S|nWW"(W(W(WX&-X,YXuwwwwww$\R~Z[XX[[  (W(WxE{E{E{[. 8(WZ(WuE{[uE{E{[{BZU(WV -[5M3sJu0^,zd,Unn    ,ZU qXvXTE{;YDYqXqXqXnn9ME{nnMGENERAL PRINCIPLES AND OVERVIEW characteristics of work of authorship. Typically PUBLIC GOODS( non-excludable= once expose ppl to them, cant exclude people from possessing/enjoying them b/c cant get it out of their heads Non-Rival= many can possess simultaneously w/o depriving anyone else of possession/enjoyment Rival( tangible, only one can possess at a time (eg particular copy) Non-rival( intangible (ie lyrics) History: authorized by Constitution; fed statutes since 1790 (1st Congress) Possible theories to guide the law Natural Rights Theory: innate sense of entitlement to your creations, to any profits made from them more in Euro law; limitless? Instrumental Theory (see below): give rights b/c like the consequences law designed to solve public goods problem of able goods( give incentives to create/disseminate works in the 1st place Property-law theory is related: idea ( incentive to efficiently exploit works if you get benefits (( avoid externalities) Applied to : incentive to manage, maintain, improve work Basis of US law BUT dont need incentive argument to apply to be able FUNDAMENTAL TENSION IN LAW B/W: (2 irreconcilable absolute positions) Incentivizing Production/Creation (assumes not just in it for the art) & Enabling Cost Recouping Rights( incentives to create (constitutional basis) Rights( incentive to distributors (to both distribute + pay owner more) Negative Access Effects: only really interested in having it created so public at large can have access to it No competition( Higher price( some wont be able to afford it. Happens b/c: he can needs to charge more to recoup costs of creation (though this may be good so hell create more) too little use will be made of it Arguments against it being explained by incentive-to-create: Law as stands is broader than incentive rationale alone supports Other motivations to produce the work (ie sake of art, peer approval/esteem) Life +70 is much longer than need to incentivize applies to certain things that dont need incentivizing (ie personal letters) Even w/o can make $ off work (ie concert tickets, original costs more) People prefer original( will still have value SUBJECT MATTER AND STANDARDS 2 Threshold Qs: (1) Has Congress granted protection? (2). Was Congress w/in authority to do so? CONSTITUTIONAL SUBJECT MATTER/STANDARDS Copyright & Patents Clause: Art. 1, 8, clause 8: Congress shall have the powerTo 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 In Constitution b/c unlike real property, IP easily circulated b/w borders( need uniform approach 4 Limits: (1) promote progress of science and useful arts (2) expressly limited time (3) Can only secure rights to writings (4) can only secure rights to authors Author and writing defined very broadly (Burrow-Giles) Author: originator of work Burrow Giles: originality= original, intellectual, conception of author Claim: No original thought b/c mechanical reproductions; photos are not original HELD: photos MAY be original (leave open whether they always are) J: very produced( accept trial court finding of creativity Can use device to create a work (BG) but dont have in whatever device independently makes Depends on whether human made creative decisions that directed it ex: what sections to record/etc; where to position the mics; what elements to include Writing: physical form (need tangibility) expressing ideas of the mind Definition of writings broadened to accord new technology Burrow-Giles: SCT 1884 (ed Oscar Wilde photos copied/distributed w/o permission Claim: photos= reproductions of something existing in the world( not writings( Congress had no power to protect them HELD: above. Look to CONGRESSIONAL INTENT( obviously not just actual writings, words since historically, from 1st statute, included more 1790 Act: Protects charts, maps, books (( includes pictorial reps) (prints & engravings added 1802; musical comps added 1832) Goldstein: SCT (handout)- approval of Congress extension of writings to not just visual but tangible (BG has said forms by which ideas are given visible expression) Facts: challenge to state law protections of sound recordings HELD: writings includes more than just visual; includes any physical rendering of the fruits of creative intellectual or aesthetic labor Promote progressof useful art defined broadly Includes works for commercial purposes (Bleistein advertisements); not just fine art Works must have originality= some limitation, but VERY LOW standard Intellectual production, thought, mental conception unwilling to make anything that looks like a qualitative judgment (Bleistein) Facts: circus advertisements jacked, used for others Claim: work drawn from life( no originality HELD: VERY LOW STANDARD for originality. Wont make judgments outside the narrowest and most obvious limits personal reaction of individual upon nature= necessarily contains something unique As long as not copying from someone elses ed work, enough originality STATUTORY SUBJECT MATTER & STANDARDS (102) 102: Subject Matter of Copyright: In General (what can be ed?) Original works of authorship fixed in any tangible means of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (**= defined in 101) (1) Literary works** (2) Musical works, including any accompanying words (3) dramatic works, including any accompanying music (4) pantomimes and choreographic works (5) pictorial, graphic, and sculptural works** (6) motion pictures** and other audiovisual works** (7) sound recordings** and (8) architectural works Original (very low standard= minimal amt. of creativity) See below Works of Authorship Fixed in a Tangible medium of expression STANDARD 1: WORKS OF AUTHORSHIP Any CREATIVE EXPRESSION; does NOT look at artistic merit ( judges ill equipped to make these decisions, act as critics (Bleistein) Purposely undefined (house report) Statute includes non-exhaustive, illustrative list of 8 categories (House Report stresses non-exhaustive) + lists compilations & DW as able SM Also inc: computer program, database, DW, compilations, non-artistic, literary, website text, photo, comp. programs, building design, brochures/catalogues Might inc: scripted sports game, football playbook (DP) Might inc: video of soccer game Categories are not mutually exclusive Categories important in that later rights apply or not, etc to diff categories House Report: 3 categories not included in the list of (8) 1. Unforeseen technologies that may be protected by analogy 2. Unforeseen technologies that may require explicit new legislation ( saying dont intend to freeze as is today but neither intent to allow unlimited expansion 3. Things already in existence currently not thought worthy of protection Have seen this in past (ie 1790 paintings, music not protected) perfume? EE: Alternative explanation for why short phrases/words not able b/c just too short to be work of authorship (bc a word could potentially be creative) EE: something made thru mechanical process (ie video camera mounted 24/7) might be uned b/c no author; need an author! Likewise, natural wonder not able Likewise, paintings done by animals taught to do them not able; need human author ( office) BUT if position mics/exert creativity in recording animals, the resultant sound recording MAY be work of authorship EE: Computer generated works( ASK: whether work reflected originality on part of a human office: something done by computer, randomly, unrepeatable, comp completely chose how it came out is NOT able STANDARD 2: ORIGINALITY (Feist- SCT 1991) protect only original works of authorship(2 Con. Requirements (( writing & Author) 1. Independently created: not copied from someone else (Hard to make this claim as an evid. matter) Acuff Rose: you gotta stand for something or youll fall for anything) HELD: found examples of similar phrases thru time( no independent creation Does not need to be unique/novel to be original 2. Minimally creative: VERY low; just some creative spark Some thing this is relatively new minimal creativity LOW threshold (not repudiation of Bleistein but continuation) (emphasized in Feist) unless creative spark is utterly lacking or so trivial as to be virtually nonexistent so mechanical or routine as to require no creativity whatsoever Note: even phonebook could qualify (ie Chinese arranged by category of interest in comm..) Even unintentional (ie mess up brush stroke) OK BUT still exists and can invalidate: some cases of independent creation not MC Magic Mailing (Envelopes copied not sufficiently creative (pre-Feist, Dis Ct. decision)) Feist Matthew Bender: West page numbers not original enough (this is all that was actually copied other than the opinions); corrections in punctuation also not minimally creative Parts Numbering Cases: some think external constraints/industry standards( no room for creativity (tho others disagree lots of #s could use) (and other bases for no - merger) some categories generally treated as not having sufficient creativity (MM) Office Regulations (authoritative but not definitive) & MAJORITY: words and short phrases, such as names, titles, and slogans, not able (may be trademarked) ex: most personal sort of deodorant BUT Held: hugga-hugga and brr able as part of lyrics Some: some titles are long enough to qualify forms of expression dictated solely by functional considerations ex: many legal docs little/no protection b/c use of particular words/phrases necessary to comply w/applicable legal requirements mere listing of ingredients/contents familiar symbols or designs (ex: solid black stripe on envelope) mere variations of typographic ornamentation, letter, or coloring clichd language and expression Why require minimal creativity? 1. Constitution says so 2. Building block theory: dont want to tie up building blocks other authors could be using= interfere w/wide creativity if no creativity in them Kaplan (81): fending off small quantity of words Ex: envelopes, where does that leave other junk mailers? 3. Incentive Point: only want to incentivize things we have to 1. to extent about incentivizing creation/dissemination of widest variety of authorship, not clear we need protection to get someone to come up w/these things 2. might de-incentivize coming up w/more creative things if could get protection for something so uncreative STANDARD 3: FIXED IN ANY TANGIBLE MEDIUM OF EXPRESSION Statutory requirement for federal protection Requires embodiment in material object Copy or phonorecord Unfixed works (ex: live performance) Unprotected by fed law State law can protect Fed anti-bootleg law 1101 bars unauthorized fixation & trafficking of live musical performances (sound recordings & music videos) Inc: (1) unauthorized fixation, reproduction of such C/Ps (2) transmits/communicated sound/images of live musical performance to public (3) distributes/offers to dis/sells/rents/ traffics C/Ps described in (1) in US Musical( comedy excluded; traffic defined in (b) Has been Qed by various circuits as unconstitutional( risky to rely on it, b/c: no durational limits (per Art I, 8:8) violative of Congress power under the writing requirement? Args ag: writings= intellectual creation, whether or not in physical form Args for: writings= fixed works of authorship Other potential basis: commerce power to regulate recording of performances (tho unclear if this is OK given limits put in the clause( founders intent) Note: may also be protected if underlying work is ( making unauthorized copy/phono of that (though only helps if performer holds of underlying song) 101: fixed: embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is fixed for purposes of this title if a fixation of the work is being made simultaneously with its transmission. Embodiment in copy or phonorecord: Definitions Copy: material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term copies includes the material object, other than a phonorecord, in which the work is first fixed( Need: Something in which the work can be perceived, reproduced, or otherwise communicated Includes memory stick w/documents, since may be perceived w/the aid of any machine or device Note: work as distinct from tangible embodiment of it work in a book= literary work; words of the statute physical object= copy, distinct from the literary work embodied in it Phonorecord: material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term phonorecords includes the material object in which the sounds are first fixed like subset of copies; must be about sounds CD= phonorecord of BOTH (poss) musical work and sound recording Must be by or under the authority of the author (not bootleg unauthorized recording of show) Idea-Expression Distinction 102(b): In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. No protection for works ideas = alt expl. 4 Y short phrases/words not able (b/c otherwise gives protection to idea it expresses) Systems, methods, processes: unprotectable ideas protects expression in fixed original works of authorship, not the ideas embodied in them Other idea categories: concepts, building blocks Universally understood to exclude facts from protection of statute Statute doesnt use word facts- does say discovery); Feist: statute parallels constitutional analysis Idea or expression never defined: Malleable Policy Based distinction: is this the sort of copying should permit? May look to: degree of originality, thick or thin protection, affects free flow of ideas/info, reduce ability of others to create work or leaves many alternatives? Building block others should have ability to use? Many other ways it could have been expressed? Idea= essentially label for elements of work deemed to be unprotectable, which naturally varies w/type of work Diff medium(diff unprotectable building blocks Ex: literary works= themes, stock characters Ex: photo= diff ideas MERGER DOCTRINE: blunt instrument( takes away all protection RULE: If ideas can be expressed in only one or a few ways Then expression of the idea unprotected To avoid monopolization of the idea Veeck (5th Cir) (building codes): once codes adopted into law, became uned under merger doctrine; became ideas or facts; expression inseparable from the ideas Note: other courts might feel differently Particular concerns for functional works: functional elements not protected; only expressive aspects R ASK: is it necessary to copy the element to implement the unprotected idea? Vs. rule that ideas not protected: ideas stay in PD; functional elements may be patentable ( need to separate out protected expressive aspects from unprotected functional asp. Ex: magic trick; functional( ok to copy method but not creative elements even expressive elements unprotected when functional (Baker v. Selden (SCT 1879) ) Facts: book explaining new way of bookkeeping, inc. forms to be used Claim: To extent he has in book, forms must be able since they are the core of the book D: the forms effectively gives S control over the system HELD: Forms nec. to use the system( not able. Need patent if want to protect the system Turns Ss arg on its head Ss only protects expression of how to use the system (explanation, illustrations) Significance: Court thinks VERY IMP to police boundary b/w and patent even explanation may be unprotected, if only a limited # ways of explaining the system/process/instructions( expression dictated by system being described (Merger) (Morrissey v. Proctor & Gamble (1st Cir 1967) Facts: P&G published similar sweepstakes rules to Ms ed ones Held: sweepstakes as a system/method is a process( not able. Limited # ways to express the system; if allowed M on their way of writing rules, would soon exhaust all possibilities= render system unusable EE: short ingenious program likely not able; so short( few other ways to write it.. Instructions & Rules: functional, do Baker analysislike the forms or like the expl? more creative explanation( more likely to be protected (but only creative parts protected Why so importance to police boundary b/w and patent? much easier to get than patent Dont want to be way to avoid patent procedures Dont want ppl to be able to get on something denied patent Different durational limits on either Dont want to thwart the diff incentives/purposes of patent law Parts Numbering Cases: Court thinks resulting # is just a mechanical application of the system External constraints/Industry Standards( no room for creativity Merger suggested: limited # ways to express the idea( even if some creativity would treat expression as having merged w/system/idea Others: lots of #s could use (in a diff case)( protected SUBJECT MATTER + STDS: Facts & Compilations 103 (a); SM inc. compilations & DWs; but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. 103(b): in comp/DW extends only to material contributed by the author, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. in Comp/DW independent of of preexisting material (and doesnt affect it) 101: Compilation: a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term compilation includes collective works Exs: anthologies, directories, case books, encyclopedias, newspaper, westlaw.lexis, stocktables Fall into other categories (eg literary works, sound recordings, factual compilations of data, etc) FACTS Facts NEVER able( Originality Requirement (Feist) (constitutional req.) Facts are discovered, not created (Discovery`" Creation) ( no originality( no protection All facts: science, history, biography, news BG: need  author for originality; facts don t originate w/discoverer, exist in the world! ( will never satisfy minimally creative requirement Rejected  Sweat of Brow theory (had been accepted by lower courts Even if can convince facts produced, efforts in doing so wont( TENSION: if took Feist facts unprotectable too far, could have entire book reprinted as fact. Interpretation and Analysis as Facts May not be protectable (though particular expression is protectable) 102(b): designed to allow copying of stuff like this Dillinger (7th Cir 1990, 124): No infringement when Nashs theory on Dillingers death jacked for TV episode, b/c took only his facts, not his expression may conflict w/Mason (interpretation of factual claim of legal title) Hindenberg: film using very specific elements from theory-book (inc. age/birthplace of saboteurs, smuggling monkeys aboard) OK b/c= facts/theories from his research May be protectable (( analysis/interpretation is creative( protectable) Mason: analysis of historical evidence= creative( protectable Wainright: (2d Cir, 128): Predictive business analyses protectable; Predictions some of most creative 129 End of 1st paragraph in 2nd block quote (DP): check CDN: predictive analysis not necessarily fact (others disagree.) Estimated coin prices involved creativity/creative judgment/skill( not unable facts Figured out relevant data; analyzed w/o a set formula (( created facts( contrary to Feist, where said facts are discovered) Issue: so are all prices, including those CDN used, able? DP check my notes AM: Why the discrepancy? No clear answer probably combo of: (1) Distinguish future predictions from historical fact? (2) Distinguish on facts of the case (more v. less copying) (3) Pre/Post-Feist (4) Wainright wrong? Should have based on copying exact expression? (5) potential to be objective fact vs. not (6) importance of having certain things in PD (7) need for standardization in unprotectable ones (but Rural, history doesnt fit this (8) something special about history? (see Nash/Holling lang) Copyright Estoppel Doctrine: holding out as fact allows copying as fact (Nash) not enough if silent; need affirmative claim( estopped from later claiming as fictional Unclear: if initial rep quickly withdrawn (ie Blair Witch Project) Note: dont need to show reliance like regular estoppel Explanatory hypotheses treated as historical fact! (imp to historical craft for others to use them) FACT COMPILATIONS Potential compilation creativity in selection and arrangement (Feist) Non-obvious choice from more than a few options (2d Cir: Matthew Bender) Emphasis on creators use of judgment Feist: NOT MC; if this is, what isnt?! (note: could have also argued principles of functionality( cant alphabetizing system) (also, to extent copier put it in bigger book, had diff selection) (maybe organizing by 1st name would have been.not in Iceland tho..) THIN COPYRIGHT : To extent get protection b/c minimally creative selection/arrangement, that is all that is ed! (can stop copying arrangement/selection but not the facts) Assesment Tech (7th Cir) (2003) (p. 152): cant use act to block access to non-ed work (AT assembled municipality data DP read this) No creativity where selection and arrangement (2D Cir 1998): (Matthew Bender= lower court trying to apply MC standard; agree certain elements (key numbers, syllabus) able( Q whether S/A isNO.) 1. Dictated by industry convention/external factors (at play in Feist) Here: industry convention (ie parallel cites, only certain sources really used in the industry) Ex: restaurant hypo: is the guide only useful if includes certain info? Limited # restaurants to include based on what law students want( overlap explained? 2. Obvious, routine, garden-variety in light of previous use BAPCO: yellowpages directory (11th Cir, 1993, p. 149) HELD: every directory needs a geographic area; nothing creative in picking one; obvious. Dont want to give anyone monopoly on guides to ___ Dissent: disagrees; not using exact city borders Ex: restaurant hypo- is selection garden variety for restaurant guides? Using #100 obviousEven having index of pricing might be OK under this 3. Total # options available is small Here: many binary/single choice; accumulation of even many of these `" requisite creativity Proposals for separate system of protection (p. 155) EU: protects actual facts compiled under certain circs (substantial investment in collection/maintenance of facts)= database collective; only protect databases in countries that respect their protections; need reciprocity for protection in the EU. Extra Protection Bills have been proposed: Sui Generis systems of protection= of their own kind= not or patent but specific to these compilations TENSION: providing incentive to develop compilations vs. protecting ability to use facts Common thread in majority of these cases: fear that if in compilation found too easily, may give owner too much control over unable material (facts) MB: West= official reports( only other way to get info to go to slip ops( to extent pagination/addtl info could be used to keep ppl from copying case reports. Common in dissents: fear if dont give protection, wont get enough factual compilations created MB Dissent: if can do it differently= minimally creative MAPS Attempt to represent reality as accurately as possible may limit scope of creativity Potential creativity (Mason Maps: maps designed to show land ownership/legal state of land in the county; D copies maps for keys as its own system of database storage) Exercise of Judgment: Interpretation of source materials Deciding what to include, reconciling conflicting info (which might be done differently) Pictorial Creativity: Pictorial choices in depicting information Scales, formats, graphics, etc. May often involve choices among a few options, obvious in light of prior works May only have thin copyright: protection against literal copying Likely today to be this (given ability to scan, make minor changes unclear of value of this) more in RE map (MM) less in ordinary roadmap: prob thin if that de minimis creativity if analogize to earlier things (mere typographic arrangement, colors, font) Bender Factors: External factors: only so many way to put things on a map (ie blue river) industry convention/prior use/externally dictated- convention to have highways be bold line so ppl can see them easily Policy Concern: maps might end up being skewed to avoid infringement 163, Q1: suggests 2d Cir thinks traditional protection of maps based on sweat of brow theory Other claim in MM: MERGER (idea= real estate ownership map based on public info) HELD: no merger b/c more than a few ways to express these ideas; competitor maps SCENES A FAIRE (page 130, Q 3) similar to merger doctrine; primarily for fictional works (vs. functional works) dont protect elements necessitated by works unprotectable ideas= facts, basic plot , settings elements necessitated by works unprotectable ideas can be used by others deals w/fact that there will necessarily be similarities of expression in works that treat similar objects certain themes, settings, etc call for certain expressive details certain events, characters, settings, dress, accents, etc that are as a practical matter indispensable or at least std in treatment of a topic not protected (or others would have trouble using the same idea) MORE GENERALALY: any elements needed to implement unprotected ideas, or elements that necessarily flow from the idea, not protected more original the idea( more rule comes into play ex: competition where one gets kicked off each week Derivative Works 103 (see compilations for text) 101 Derivative Work: 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 DW= transforms, adapts, or recasts some expression from a previous work Must be based on some pre-existing work of authorship, not just pre-existing materials 9th Cir: pic of vodka bottle not DW b/c vodka bottle not itself work of authorship need to recast/transform/adapt( Probably not DW if just add an introMight be a small compilation One: video store putting commercial ads before movie`" DW Abridgment, Condensation given as exs( Probably includes editing scenes out of a movie/book May inc: highlighted casebook (arguably transformed) (tho MC is sep Q& ) Must RTA some expression in the work, not merely ideas it contains While Romeo/Juliet plot wont cut it, if make painting of very detailed scene.arguably transformed/recast/adapted verbal description into visual one Copyright in DW (applies to compilations, too) Protects only the derivative authors new, original contributions typically the differences b/w them Independent of copyright in underlying work: doesnt affect it in any way Not for any part in which underlying work has been used unlawfully 103(a) ( I can sell translation you made of my book unlawfully Invalidity Provision: may be denied protection even in your original contributions to extent original contributions are parts that use the underlying work unlawfully Easy: translation- none able Hard: film version of novel Depends on: what kind of underlying work involves; unclear what will happen Courts discretion: whether to really separate out or could strike an entire film, for ex: Also affects duration on the DW: Unlawful( expires when the underlying work expires Lawful( may get much longer term than underlying work Subject to originality standard like all works (tho seems originality standard applied diff to diff subject matter- compilations vs. literary vs. musical works) May be stricter for, at least creativity part of it for: Visual art- might need substantial variation (Batlin, 2d Cir, uncle sam) Note: Feist, decided after Batlin, appeared to set single standard for all works Definitely not OK: just changing to diff medium and changes dictated by that medium rather than for artistic reasons Stricter for other DW? Music eg? Q 6, p 180 Particularly w/pop music, might not be much room for variation in terms of versions; might be area we look to see if variations sufficient to be creative Easier cases: translation, film version of a novel, sound recording Cases trying to figure out how to apply Originality Requirement in context of DW (all pre-Feist, tho Feist claimed to sum up all b4) Alfred Bell (2d Cir 1951)(engravings of old PD paintings( clearly DW; no infringement) HELD: very low threshold for originality; something more than a merely trivial variation.some distinguishable variation b/w DW and UW something recognizably the authors own (sounds like Feist) suggests may be met even if no showing or exercise of skill or judgment, if variations are inadvertent (ie due to bad eyesight, defective musculature, startle from thunder)= all part of persons individuality reflected (DPch) Note: others might not go as farseems to collapse IC and MC Alva Studios: (SDNY 1959) (scale reproduction w/exactitude of Rodins Hand of Gd) HELD: entitled to despite no distinguishable variation other than size (( seemingly doesnt pass under Bell). Possible explanations: Used sweat of the brow( overruled by Feist? (tho there is language suggesting they thought there was sufficient minimal creativity.) DP Based on Skill Creativity in scale? Hard to arg b/c: then copying at 75% would be creative? Limited options? Dictated by external factors? ( weaker case today w/o being able to use SOB OTHERS: have come out other way on this ( slavish copies mechanical repro) Batlin (2d Cir 1976): Uncle Sam Mechanical Banks; substantial variation test (as opposed to minimal creativity, trivial variation) (underlying work in PD) HELD: Doesnt satisfy Alfred Bell: not more than merely trivial variations must be distinguishable upon casual observation also, thinks some changes nec.(changed medium( dont treat as creative closer to view of originality seen elsewhere (taking acct whether function drove change) 166 5th par must be some substantial variation( higher standard? Note: suggests distinction b/w high art and low art Alva Studios doesnt apply: Not exact replica; no skill involved; no public benefit Bank in no mans land- too much variation for Alva Studios, not enough for Alfred Bell Dissent: should apply Bell test; irrelevant why changes were made (medium) Others: insufficient MC (seeming to apply relatively stringent demand for MC post-Feist) Sherry Towels: 172 palm trees in FL Grayson: plate illustration of Wiz (p173) (protecting public use of PD works) Durham: Wind up toys of mickey, Donald, goofy (protecting original owner) Pillsbury: Inflatable Pillsbury doughboy costumes (Protecting original owner) Mere change of medium (ie 3-D costume based on character) (above 2) Why the reluctance to find DW changes sufficiently original for protection? 1. Dont want to restrict publics ability to use underlying PD work (by UW author or new author) Grayson (WOZ): purpose of originality req. to avoid entangling subsequent artists depicting underlying work in probs. Problems w/this rationale: 1. Odd to think of this as whole purpose of the req, b/c could make same arg in non-DW context 2. presumably 1st DW creator only has in the changes made to the original work( infringement claim only against same/substantially similar changes ( unclear this speaks to need for higher standard in DW context to free subsequent copiers from potentially harassing infringement suits 2; incentive matter 3. protection so low in 1st place 4. to protect original owner: if licensee can get in whatever theyre using license for, original owner will have to worry about infringing when they use their own work for DW Ex: Durham (Disney windups), Pillsbury- if minor changes could get in windups, Disney will have to figure out another way to make windups if they want to/if want to license to others to do so BUT can always negotiate in initial licensing- unlikely owner like Disney would let that happen likely K that as part of license get to any changes made. Licensing always involves creation of new, independently able variations which DW creator will own. Unclear whether w/respect to film version of novels, etc, should require v. high standard of originality so many changes unprotectable so I can later make my own version (and use those changes) PG&S WORKS Its a mess! Most troublesome line in copyright act PG&S works are generally protectible SJM; expressly carved out as such Photographs: added to statute in 1860s; Constitutional (Seroni) SM What is potentially original= protectible in original photos? (Kaplan) Standard explanation: originality of choices made re: camera, lighting, etc. Concern: for choices( can get for very accurate ___? (prob not!) ( Focus on RESULTS instead 1. Rendition= how subject rendered/depicted (photographing in same way) 2. Timing= right place, right time (catch of the day) BUT doesnt protect from someone else catching the same object/scene( seems originality really in the rendition 3. Subject itself: while generally dont get rights to subject, photographer may if they created the scene (exs: puppies in lap, Oscar Wilde) Unclear how far Kaplan expects this to go- unclear if 2 men w/puppies, arial view of the shot would infringe. 4. Particular Composition: elements brought together & how theyre composed Might not always be clear (maybe Mannion saw him that way) Held: cloudy sky not original (even though he chose to use it) Mannion v. Coors (SDNY 2005) (cropped version of photo in billboard baller) HELD: looks to entire image, not individual components; focus on overall rendition (despite discussing individual components) Rejects D of only copied unprotected idea of black man in t-shirt w/jewelry, since took pose, angle, etc. Kaplan: notion of unprotectable idea & protectable expression not useful in visual art context, since too hard to separate. Wrong: lay meaning of idea misconceives how its used in (as label) ALL: certain parts of visual works/photos protectible and certain parts not Limited protection for useful articles 101: the design of a useful article: shall be considered a PGS only if, and only to the extent that, such design incorporates PGS features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article Goal (HR): protect works of applied art, not industrial design (ie shape of car/appliance) Unless shape of industrial product contains some elements that can b separted from utilitarian aspects Useful Article Definition: Article having an intrinsic utilitarian function, that is not merely to portray the appearance of the article or to convey information Easy Cases: Picture (NO: conveys appearance); Belt buckle (YES: holds belt together); office exs: boars, cars, household appliances, furniture, work tools, garments, etc. Not: anatomy human dummy (bc purposes to convey info and appearance) Hard Cases: articles w/intrinsic utilitarian function and other non-utilitarian functions Ex: Costume Cases: util ft= cloth body, non-util= convey appearance( Case law & office Distinguish: mask (not useful; just portrays appearance) from body (useful) Ex: toy airline held NOT to be useful article bc appearance intrinsically linked to role as toy 2 Questions: 1. is the PGS work a useful article? under statutory definition? 2. if so, does protect its design? MAYBE! Depends on whether has PGS features that can be identified separately ( Protectible only to extent that PGS features (form) are separable from utilitarian aspects= additional limits on protectability (House Report) Physically OR conceptually separable (statute doesnt say it but all courts do) House Report: refers to design features that are literally/conceptually separable Physical: can be separated (ie some ornament on a thing) Conceptual: can be identified as separable. HARDER. Easy case: 2 dimensional item- pic on t-shirt, fabric design, wrapping paper Hard case: 3- dimensional object (belt buckles, bike wracks, makeup model mannequins) No clear test for conceptual separability (physical separability is pretty clear (and harder to meet)) 7th & 2d Cir TEST: how much utilitarian function of the item influences or drives the aesthetic PGS features (vs. artistic judgment exercised independently of functional influence) Brandir (2d Cir) (bike rack: unprotected b/c evry change in shape 4 aesthetics affcts function Primary-subsidiary aspect test = look at primary end features serve to decide if separable( primarily ornamental and subsidiarily utilitarian or vice versa? Pivot Point (mannequin heads) (7th Cir using 2d Cir) Applied: artist didnt get detailed functional info( couldnt have been driven by ft. Counterargs: knew what he was designing for; hungry model look largely dictated by external constraints (need to eyes, not fat, etc ( unclear how unconstrained he was by functional concerns Resp: he had lots of options for expression, etc. Counterresp: sounds like diff ways to sculpt particular hungry model face( Merger b/c this is one of number of ways this can be expressed. Dissent: flunks conceptual sep test. Should ask: are facial/sculptural features part of fn. of article/do they serve utilitarian purpose? (looking at diff level of generality) Barnhart (torso mannequein) (2d Cir) (not separable but unclear why; dont do prim-subs) Unlike belt buckle, w/mannequins sculptural features inextricably intertwined (doesnt tell us much- repeating the conclusion) Dissent: should judge conceptual separability by thinking about what happens in mind of a reasonable observer who looks at the useful article (stimulate 2 diff concepts not nec at same time (ornamental vs. utilitarian)( conceptually deparable Wont happen w/viewing even most artistic chair (seems wrong context) Prob: privileges useful articles that have tradtl forms of art Kisselstein- belt buckles (Primary aspect of ornamentation separable from subsidiary util fn) Other possible protections: Patent: for novel, non-obvious design Unfair competition law: protect others passing off jacked designs as originals Efforts to enact sui generis (=of its own kind) regime for industrial design have this for design of boat hulls; authors note: could take older proposals for useful article as boat hull, define boat hull as useful article and would be easy to amend hasnt happened new proposal: regime for fashion design Reasons to not just say PGS features protected by : dont want to protect aesthetically pleasing shape of things that could be protected under patent law Preserving patent law, its higher standards, less time Tho could argue would only protect the PGS elements, would still have to ask Q of extent to which design impinges on functionality, want to make sure not preventing competitors Dont want courts to get it wrong and tie up functional stuff for too long w/too low standard (=Congress rationale for the sep. test) ARCHITECTURAL WORKS 101: Architectural Work: design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features Pre-1990: protectable as PGS works, if at all Still Applies to: pre-1990 architectural works (anything created on/after Dec 1st 1990 or embodied in unpublished plans but not constructed as of Dec 1st 1990) Sculptural works; plans= pictorial/graphic works Additional Issue: to what extent does in 2 dimensional PGS work give rights over 3 dimensional embodiment of the work Drafters: NONE. Just like drawing of car`" exclusive right to build it 113(b): rights don t extend any father in this area than they did in 1977; freezing law as exists Demetretis: this is applied to architectural works Now a separate category of subject matter (as of Dec 1, 1990) (102) No separability limitation= benefit of no longer being PGS work Protection for design of a building (habitable structure used by human beings) (pagoda not bridge) Design can be embodied in any tangible medium (3-D building itself, 2-D plans) Includes: Overall form, arrangement/composition of spaces & elements w/in it No protection for: individual standard features Functionally required elements of design ( functionality remains as a concern, just not treated under higher separability standard Not much case law; still hard to win infringement case despite no more conceptual separability hurdle LIMITATIONS: 120 (p 255) (a) can make/distribute/display pictorial representations (pics, paintings, photos, etc) if if the building in which the work is embodied is located in or ordinarily visible from a public place Inc: movie, etc Holds even if part of it is a sculptural work(bc so many are) (b) building OWNER has right to alter or destroy or authorize to be altered or destroyed, notwithstanding 106(2), which ordinarily gives owner exclusive right to prepare DW Note: doesnt give permission to rebuild if totally destroyed in tornado (Congress didnt anticipate this) Why was this done? Berne Convention requires member countries to give protection to architectural works Maybe also reflects desire to give architects more protection than industrial designers (idea more art than industrial design is) CHARACTERS Not a separate category or type (DW, Comp) of work; one element of some other kind of work that may be protected (like facts) Type 1: visually depicted characters long protected easier to protect/differentiate Type 2: verbally depicted characters- harder to protect b/c inherently more general historically, hesitation about protecting Hand fully delineated TEST: the less developed the character the less they can be ed Still, safe so long as only take the idea of the character Higher Standard: Same Spade story being told TEST (9th Cir) (Warner Bros): Does character constitute story being told or merely a chessman in telling the story? Similar to James Bond case= idea ppl interested in JB movie b/c want to see character at work; dont care about particulars of the story( James Bond= the story being told HELD: commercial infringed character. BUT reasoning unclear. P260-61 young, tuxedo clad British looking man uncannily calm under pressure and attractive and attracted to female companion, escape from villain, dry wit and subtle humor of dialogue, in high chase w/gadgetry Stock character? Discusses music/scenario( not getting at character but at larger elements of the work( looks like ordinary infringement case. Hard to believe protected at level of generality described above Dicta here; influential dicta in 9th Cir. Modern trend toward greater protection (see in cases) Anderson v. Stallone (Cal 1989): guy claims actual Rocky IV movie used his treatment w/o permission HELD: treatment infringed 1st 3 Rocky movies; bodily appropriation (= taking whole) of character in sequel that merely builds on relationships/character developed in 1st 3 movies Doesnt say other characters delineated enough to be protectible Note: 103(a): DW not protectable b/c infringed Compare Gamin (Posner) (comic book characters): shows concern in other direction, that allowing protection at too high level generality will block building blocks others need for own expression Dont want to allow stock characters to be ed Once decide sufficiently delineated to be protectible, what aspects of character are protected? Name: problematic b/c short phrases/words not able but association of a specific name w/specific character Appearance: easy w/visual; tough w/verbal (b/c people might picture differently) Personality: might be sufficiently developed reader knows how theyll react SUBJECT MATTER & STDS: Government Works US Govt Works: Works prepared by fed govt or fed govt employees as part of official duties not protected 101:work of the US govt= work prepared by officer/employee as part of that persons official duties (inc. (fed opinions, statute, 9/11 commission report) EMPLOYEE, not independent contractor; irrelevant if its published or not statute explicitly permits US to acquire ownership of s (105) Rationales: notice required by DP( do individuals require access to the materials to have knowledge of the law? Incentives might not apply issues of free speech: risk of govt censorship? (not an issue if material freely available elsewhere) State Law /judicial decisions NOT able (inc. local ordinances, state statutes, state judicial ops) Banks: SCT 1880s: No in state judicial opinion (can be plausibly extended to statutes ordinances) Rationale: NOTICE/due process. Judicial opinions= authoritative exposition of the law citizens bound to follow; need to know the law to follow it (& even moreso 4 statutes) Rationale 2: public ought own product paid employees produce (paid thru taxes.) Rationale 3: Citizenship authorship of laws view :apart from $, legislators acting in representative capacity of citizens as a whole( citizens are true authors/owners of the laws Split: whether privately authored materials adopted as law are able: Veeck (5th Cir): Model building code adopted by Santa Ana; put on non-profit website; POLICY analysis (b/c no precedent or statutory guidance( find NO : *ACCESS issue. (due process issue). ( too narrowly restrict access to the works Dissent: No evidence not enough access already( no DP issue *Dont need for incentive( other incentives for this (1) political (benefits building trade to have codes adopted (2) uniformity incentive (makes life easier) (3) can still sell value added versions Dissent: worried about incentives to produce codes( all worse off A. might get worse legislation B. might need to pay more for legislation (hire experts, consult= time/$) Merger Arg: no other way to express idea than this lang; must follow code as enacted; its the language thats authoritative Possible takings claim deprived of ability to use its , which it initially had Note: model statute not adopted generally IS able, b/c creative word choice, etc (tho seems rulelike) Note: if found able, could still be subj. to considerable copying under idea/expression & FU Hypo: would patent application( patent be able? Args: (1) merger (2) official govt work (3) fair use (4) estoppel (when writing something w/expectation is will be included in official legal doc) Split: whether OK for westlaw to put legal materials online (briefs, etc) SPLIT:: Non-legal materials authored by state/local govts (look to basic purpose behind it: notice required by DP, intentive provided by , issues of free speech..) Suffolk County (2d Cir): proper understanding of Banks doesnt deny protection to non-legal works of authorship created by state/local govt Tax maps; interestingly, treated as matter of fact; wont say as matter of law need this incentive to produce (usually Q of law whether particular works/category gets ) May treat as Q of incentives vs. access again OBSCENITY No statutory bar to in obscene works Split on whether protectable, though none go so far as saying not entitled Mitchell Bros: 5th Cir: Constitutional allow it; nothing to say otherwise Does system, not each work, promote science & useful arts? (response to arg constitution doesnt allow it bc not promoting sci/useful arts.) congress could rationally believe best way to promote by not distinguishing (chilling effects, changing perception of obscenity over time, national uniformity concerns) Unclean hands defense? 5th Cir rejects as D to infringment Devils Films (NY Dis): accepts as consideration in courts determination of exercise of equitable powers (in context of remedy in infringement claims) (though doesnt absolutely deny protection) Conflicts w/5th Cir: says no prohibition, not going to create/apply equitable D like unclear hands in particular cases dealing w/obs. OWNERSHIP: Who can claim protection? Authorship vests initially in the author/authors of the work (201(a)) = usually creator of the work EXCEPT FOR employment & collaboration contexts Author (SCT): must create expression, not just idea, of the work (Survivor Ex) SCT definition of authorship: MUST: (1) translate idea into EXPRESSION (rote transcription( NO MC) (2) expression put in FIXED FORM Creation may be separate from fixation: Creator can authorize another party to fix If fixation involves mechanical transcription, no intellectual modification or enhancement (at control of person who created the work) Lindsay (p 302) (SDNY 1999): quoting Reid (b/c no minimal creativity) (Titanic) HELD: Author= one who actually creates the work= shows originality, conception, intellectual production; doesnt need to be the one physically shooting Final image= his vision( he is the author Enough he: directed, specified camera angles and shooting sequences, gave detailed instructions, directed from surface, screened footage for approval each day LOOK TO: who initiated the work, who contributes creative expression, who controls the creation of the work, who makes creative decisions, who 3rd parties would consider the author Works for Hire 201(b): In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. 101: Work made for hire (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a supplementary work is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an instructional text is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. 2 Mutually exclusive ways: employee or independent contractor (Reid- mutually exclusive) Option 1: Work of employee w/in scope of employment w/in scope of employment (unpredictable; all over the map, even w/similar facts in same cir) Look to: whether work was actuated by purpose to serve interests of employer Whether work is of type employee is employed to perform Whether work occurred substantially w/in authorized work hours/space depends on ordinary course of your work General CL agency definition for Employer= multi factor balancing test (Reid, SCT!) Most imp factor: benefits and tax treatment (deduct payroll taxes) (Aimes & co.) Why? Moral symmetry. If want someone to be employee benefiting you, need to give them benefit of an employee equity consideration. Skeptical otherwise. P314: Restatement factors control is one of them( relevant, but not dispositive (in either direction MG) K saying so is a factor, but not dispositive Other factors: source of instrumentalities/tools; location of work; duration of relationship b/w parties; whether hiring party has right to assign addtl projects to hired party; extent of hired partys discretion over when/how long to work; method of payment; hired partys role in hiring/paying assistants; whether work is part of regular business of hiring party; whether hiring party is in business Reid (SCT) (nativity sculpture of homeless done at instigation of CCNV) Use multi-factor balancing, NOT Control Test (b/c conflicts w/mutually exclusive prongs- oftentimes IC controlled by hirer& `" E-E & lacks predictability) Here: skilled occ.; supplied own tools; worked in his studio; no daily supervision; 2 month K; no right 2 assign other work; freedom in deciding how long/when 2 work, payable upon completion, no benefits or taxes, SS, unemployment insurance Martha Graham (E, despite being a genius and no one exercising control over her.) Old: pre-1978: look to whether work created at instance and expense of the hiring party Option 2: Specifically commissioned work of an independent contractor, where the parties expressly agree in writing its a WMFH;. Formal Requirements: (high bar) Must be w/in 1/ 9 specific categories (concern over bargaining power and termination rights Contribution to a collective work; part of motion picture or other audiovisual work; translation; supplementary work; compilation; instructional text; test; answer material for test; atlas Many: areas involving many contributions where centralized ownership may be advisable Note: does NOT include PGS= Legislative Compromise Note: includes part of collective work( INCLUDES: magazines, newspaper, etc. Must be a written agrmt, signed by both parties, stating expressly that the work will be for hire unclear when agreement must be signed, though court might take such agreement in absence of fulfilling 2nd requirement (category) as transferring ownership of Effect: hiring party =AUTHOR of the work made for hire( vests in them (only in US). Affects: Length of (corps dont have determinate life) Transfer of (and termination thereof) (IMP b/c not waivable. ) Limited scope of moral rights If dont qualify. (ways around these formalities) Hiring party can always K to have the transferred afterwards (( author still gets term) Sound recordings: had been in; scandal( taken out( bad arg record= compilation Court will usually find implied license for hirer to make contemplated use of the work Why treat categories diff? otherwise employment K would assign authors rights to Employerbut still allow employers financing creation of big works to be safe( have incentive to do so Co-Authors & Joint Works 101: Joint Work: work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole = status relationship; cant just K as such (otherwise would have extended- grandma & grandson) Can K that each owns undivided share w/full exploitation rights and duty to account, but wont affect status for termination of transfers, length Rights/Implications of Joint Authorship Each author owns undivided fractional interest in whole work Fractional: if 2 authors, each own 50% of whole Undivided: each owns share of whole work, not just part to which they contributed Each joint author free to exploit the work themselves, can exercise all rights for whole work Duty to account to others for their share of profits from use Other implications of joint authorship: (1) term (2) termination of transfers (3) VARA rights Allocation of co-owners rights and obligations can generally be altered by K What Constitutions Joint Work: 2 or 3 Requirements (depending on Circuit.) Each Author must contribute able expression 9th Cir. may require more: mastermind Aalmuhammed: Advises Washington on Malcolm X; make indy able contributions HELD: For JW like a movie, author= person who superintended whole work Note: odd to look for mastermind in joint work Note: studio Ked for everyone to be indep Ks, just not him Satisfied in Thomson: gave lyrics, dialoguenot idea or mechanical transcription VERY MINORITY VIEW: Gaimain (7th Cir) (comic book character): in 7th Cir WRT comics, dont need indep able material to be joint author! skeptical of this requirement being read too strictly. Gives ex: of academic giving detailed idea of article which he cant write to someone to actually write out. Flatly contradicts notion ideas not protectable by Intent (at time of creation) to merge contributions into unitary whole May also require intent to be co-authors when the work is created (Childress test 2d Cir) =entertain concept of join authorship in their mind dont need to know about legal consequences of co-authorship( person can contribute a LOT w/o being joint author Purpose: Bar overreaching contributors from being authors (Ex: author-editor) & having ensuing dramatic consequences attach from small contributions While can K WMFH for 9 categories to avoid this, cant always 2d Cir Objective indicia of intent: (these could be ambiguous & enable one to deceive others) decision-making authority- may be tought to tell billing/credit right to exploit -Ks, how held out to 3rd parties Note: Collective work( each owns respective contributions, author has thin to reproduce entire work & revisions (( freelancer owns in article but newspaper owns in edition) (EE 133) Dont qualify for joint work( might be a compilation of separate individual works Foreign Authors 104 (p 1086-7) law territorial: rights in US depend solely on US law; Intl agrmt req national trtm Foreign Authors works protected in US: Distinguish b/w published and unpublished works Unpublished: Protect regardless of authors nationality Published: protection based on either: nationality of author: nationals of or domiciled in (a) US or (b) country w/which US has relations (usually via both being signatories to some multilateral treaty; sometimes b/c president extended protection to that country by proclamation) Place of first publication in:US or any country w/which US has relations 1st publication includes any made w/in 30 days of 1st publication Have relations w/almost all countries in world Transfers of Ownership transfers: assignment (transfer whole thing), mortgage, exclusive license, or any other conveyance, alienation, or hypothecation (use as collateral for loan) of a or any of the exclusive rights comprised in a , whether or not it is limited in time, place, or effect, but not including a nonexclusive license (P 344: statute 202, 204) transfer of copy v. transfer of copyright transfer of one doesnt transfer the other (202) (inc. original= where expression 1st fixed) ( might end up w/ you cant use if dont also K to buy the actual thing! (b/c cant exploit it w/o the physical object Forward: (pre-1978 act) CL: transfer of material object( presumption of transfer; J: found didnt intend to transfer (just did so for personal enjoyment)( overcame presumption( no transfer transfer of copyright does not include non-exclusive license (these are NOT transfers) Divisibility Principle: does include transfer of any subdivision of the can divide by right, time, location (( very flexible; new) must be in writing (not or memorandum) to be valid (204(a)), signed by grantor MOST: later writing to validate prior oral agrmt OK( valid as of date of oral Cohen: transfers of ownership must be in writing, no reason to exempt movies Purpose: prevent against inadvertent transfers Likewise, payment wouldnt serve as substitution transfers can happen by wills/intestate succession Joint Work( need all to join in for transfer? DP CHECK nonexclusive license (not w/in definition of transfer) (not a holder) = permission, as opposed to ownership( cant sue for infringement Co-authors can grant non-exclusive licenses can be oral or implied from conduct (tho wont know terms until court determines them) Cohen: didnt get rights b/c not in writing, did get implied, non-exclusive license to use footage in movie, based on conduct of paying $58K for the footage, knew for that purpose reason better to get in writing: only owner can re-license/market might be hard to prove oral agrmt OWNERSHIP: Transfers of Ownership- Scope of Grant/New Media State K law generally governs license interpretation (disputes are generally K Qs) Tho may be influenced by fed law (9th Cir Cohen) Broad grant of rights in future, unknown media generally enforceable under US law Exs: any new media existing now or dev. in the future by any means now nor any future means Note: some countries (Germany) dont allow owner to transfer things away in advance, grant away rights in media unknown at time of grant ( lang. might be effective in US but not elsewhere Other K options: reserve new media to owner; allow non-exclusive license in new media; provide right of 1st refusal; pay separately for new medium; provide for arbitration proceeding Might not want to buy whole b/c dont want to pay for more rights than you need If K doesn't expressly address new media MUCH better if it does! Courts have trouble 2nd Cir: licensee gets any use that may be said to fall reasonably within the medium described in the license unless specifically excluded by the grantor (Boosey & Hawkes v. Disney (2d Cir 1988, p 360) (sync license for Fantasia in film inc. distribution on video cassette?) ( interpret license w/ordinary K principles; burden on party arguing against reasonable reading to negotiate for language that would express agreed upon limitation (rejects approach of reading phrase as understood at that time) Fools errand to try ascertain intent b/c no intent re: something that didnt exist Favors grantee: fairer to put burden on grantor to frame exception to the rights being transferred (unclear why. K default favors drafter, not grantor!) Not clear how to figure out what reasonably comes w/in the medium (30 sec phone clip?) Unclear how they wouldve viewed e-books. Rosetta Books (SDNY) (( in 2d cir) (e-books= diff medium( NOT OK) K: exclusive right to print, public, and sell the work in book form (lists a bunch of uses) need to look to understanding of terms in context of trade & its customs, practices, usages, terminology (= regular K interpretation principles) vs. video cassette = new method w/in same medium (here, need software program to use data( distinguishes digital from analog (can be manipulated in ways analog info cannot) Cohen court, though, thought videos were v diff Policy Rationale: encouraging development in new tech well served by finding authors retain new use rights to their works; no reason to think old licensees more likely to make advances in digital tech than start-ups 9th Cir: reads K language narrowly to preserve law purpose of author protection Cohen v. Paramount (9th Cir 1988) p. 356) (sync licenses again- does by means of TV inc vid cas absence of broad grant language for future media implicitly suggests no transfer for new media Focuses on difference in user control over tech (Ephemeral TV vs. VCR) = fed law influencing outcome despite case being decided on state law grounds) ( owners reserve all rights not transferred Trying to protect authors from transferring 2 many rights at 2 low a price Note: fed law still controls writing req. DP be sure to understand this rel. General Principles for solving these sorts of disputes Interpret against drafter (tho might be hard to know who that is) Pay attn to language of license (better to use language from statute!) Absence of something from grant might indicate expectations Check whether extension of existing medium or new, breakthrough medium (tho unclear how to apply this- 2d v. 9th cirs) FORMALITIES old: need notice on every distributed copy new: no formalities, automatic (though benefits of notice, registration) (Berne) has practical advantages (remedies are greater, proving infringement is easier when registered) FORMALITIES: 1909 Act Publication (MLK case) Dividing line between state (= CL protection) & federal protection Reason for the divide: Published( more likely to get noticed & copied( need formalities Unpublished might be private( protect privacy interest w/CL Point at which author is economically exploiting the work. State Protection Unpublished works; began as soon as created; lasted until published Indefinite term, potentially perpetual (so long as never published) Granted one exclusive right: to first publish the work General publication ended state protection = Work made available to public w/o restriction (MLK473:4, 474:2) 1976 def doesnt apply Had to be authorized by the author (some even held no divestment if publisher had promised to include notice but didnt) Limited publication didnt end state protection or start fed Communicated to a select group for a limited purpose (MLK 473 par. 4) Ex: giving paper to certain colleagues for comment, Oscars, MLK speech to news Oscars squib (9th Cir 1991): Academy gives 100 oscars (sculptures) = limited pub. ( select group, limited purpose implied restrictions on further transfer of copies Shows: how public publication can be and still qualify for limited distributing religious pamphlets to 100/thousands based on receptivity probably not limited Especially w/o right of further distributing or copying Relevant factors: # recipients, how chosen, restrictions on the work, whether work became disseminated further Public performance, exhibition or display does not generally count as general publication (no matter how broad the audience) Unless displayed in a way that allows unrestricted copying by the public Though restrictions may be implied If news publications record= limited publication (no general right to redistribute) Public performance never publication, no matter how public (bc harder to give notice) MLK: (11th Cir) (CBS uses footage in doc in front of 20K ppl, nationwide news, copies dis to news) HELD (divided court): though widely heard/seen, was merely public performance, not publication( general rule- performance`" pub- applies. Held 2: distribution was limited (bc only to journalists) Why not treat performance like publication? Hard to meet formalities Surrender less control(  point at which exploiting the work rationale doesn t apply asmuch Split: whether publication of DW based on work= UW published Split: whether having instructions/K that publisher would include notice violated( divestment Sound recordings: Some: phonorecord`" copy( distributing sound recording OK Some: no functional difference( need notice 1976 Statutory amendment: distribution of phonorecords before effective date of 1976 act did not constitute publication of musical works embodied in them 303(b) (apply this retroactively FORMALITIES: 1909Act Notice (MLK Case) 1909 Act (7/1/1909 12/31/1977)= CATEGORY 1 Triggered by publication (courts sometimes fudged whether had been published or not b/c of harsh penalties Required on every published copy to secure federal Statute said location, type, form, content, etc This was all you needed to get fed , though Omission (or error) from any copy was fatal: thrust work into public domain If didnt comply at time of publication( straight into public domain (some exceptions for works of foreign origins) Strict compliance usually required as to content, location, or notice (or( PD) Often ( unintentional forfeiture of Narrow exceptions in force until 1978: if omitted by accident/mistake from a particular copy or copies; must have attempted to comply (not just id didnt know the law); still, couldnt recover from innocent infringer who relied on lack of notice Rationale: (House Report) Facilitating having things ppl want in PD enter when author has no desire to claim provides useful info (date- see if still in existence, name- who to get in touch w/) requires relatively easy step by holder to preserve rights put others on notice affirmative burden to claim special protection of ; default = PD Split: whether publication w/o proper notice outside US divested US FORMALITIES: 1976 Act Formalities (Effective Jan. 1, 1978) Federal attaches on fixation, not publication ( state law only protects unfixed works of authorship (ie impromptu jazz or comedy) Publication defined (101) Distribution of copies to the public (pretty much same as before) HR indicates intent to define public so that limited publication isnt publication (public not actually defined) ( idea of limited publication probably survives Persons under no implicit or explicit condition in disclosure of their contents Public performance or display alone `" publication But room to think that unrestricted copying during course of public performance might constitute publication Notice (1/1/1978  2/28/1989) = CATEGORY 2 protection attaches at fixation Notice required on published copies or phonorecords to maintain (so publication was still imp= trigger for notice req) Notice requirement/consequences softened (EE 148 DP go back if have time) Some omissions or errors excused entirely No loss of if notice omitted from no more than a relatively small # copies or phonorecords distributed to the public No loss of if publisher omitted notice despite clause in publishing K 405: Cure options: Other omissions or errors curable in 5 years If leave notice off, have 5 yr window during which if you (1) register your (2) make reasonable effort to put notice on all future copies, treat as if maintained from beginning 406: consequences of mistakes (rather than entire omissions) made less burdensome/less likely to cause actual forfeiture TODAY: Notice from 3/1/1989: entirely optional= CATEGORY 3 Protection attaches non-conditionally upon fixation of the work b/c of Berne Convention: member states cannot impose formalities (we joined it in 1988). Shows contrasting approaches: Berne: = moral/natural right shouldnt be conditioned on formalities US: incentive to produce( limiting to those who take proactive steps limits to those that display theyre incentivized by it practical incentives to put it on: info about who owner is, so public knows who to contact 4 license warning/deterrent function in litigation, D cant raise innocent infringement D, which may reduce damages restoration of lost s for foreign authors ((failure to comply w/formalities/failure to renew) IF: 1. work 1st published in eligible country at least 30 days before US publication 2. work hasnt passed into PD in source country due to expiration of period of protection 3. work is in PD in US due to failure to comply w/formalities, lack of protection pre-1972 for sound recordings, or lack of national eligibility 4. author was a national of an eligible country FORMALITIES: Registration & Deposit Formalities, but not required Even under 1909 failure to comply didnt( forfeiture But WAS required to obtain renewal ANY owner can register (so if author transfers , eg, can register that) If register wrong, might not get the advantages 407: Deposit- copies of published work must be deposited in library of congress (mandatory) See EE 158 for details failure doesnt affect , but means they can send written demand for it and impose fines for non-compliance also, required as part of registration( may mess up registration Why? So Lib. Of Congress grows, they dont have to buy them 408: Registration Permissive, not a condition to protection Fill out app; deposit copies (can use same copies for both deposit/reg purposes); pay fee (now $45 per work) EE 156 4 more Cursory review; just checking everything looks proper (might reject if short words/phrases- eg shock and awe) If Q it, will still register under rule of doubt and say we dont stand by this if questioned Rejection( can go to ct. Can register at any time; published or unpublished works anyone w/exclusive rights may register 408 Can also record other documents Incentives: (1) For US works prerequisite to infringement suits (other than moral rights) US origin: US author or publisher, or works originating in country not part of treaty TREND: need certificate to bring suit, not just to have registered (can be 18 mo lag Application denied( can still bring suit (2) Certificate= prima facie evidence that work is able & that all facts stated therein are true (if register promptly!) ONLY IF registration made w/in 5 years of 1st publication Ex: if says Im sole author( burden on other party to demonstrate joint work (3) Availability of statutory damages & attorneys fees in suit 412 (not 106A) Only if work registered before infringement starts Or if work registered w/in 3 months of 1st publication (4) Notice to public Distinction b/w US and foreign works Registration as pre-requisite to infringement suit only applies to US b/c werent sure if violated Berne Restoration of in works whose foreign authors failed to comply w/formalities that used to be required (and so who had lost ) Did NOT do this for domestic works 2 District Court cases: Congress has power to take things out of PD (based on Eldred, history of doing so for particular works in 19th) DURATION, RENEWAL, & TERMINATION DURATION Created: A work is created when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work. 5. categories: 1. Created on/after Jan 1, 1978 2. Created but not ed or published by 1/1/1978 3. in 1st term of on 1/1/1978 (( look to 1909 to see if in 1st term) 4. in renewal term of on 1/1/1978 5. in PD on 1/1/1978( DONE! 1976 ACT TERM 302(created on/after Jan 1,1978) (DP: look up created def) basic term: 302(a) starts: creation (= fixation) end: Authors life + 70 years (302(a)) (was life + 50 until 1998) (Eldred: this is OK) Joint Works (302(b)): Life of last surviving author + 70 Works made for hire (single or joint) 302(c): Shorter of: (also anonymous, pseudonymous) 95 years from year of 1st publication (was 75 until 1998) 120 years from year of creation Can rely on records of author deaths ( office) (302(d)) Any person having an interest in a copyright may at any time record in the Copyright Office a statement of the date of death of the author of the copyrighted work, or a statement that the author is still living on a particular date If 95 years after publication or 120 years after creation, whichever comes 1st, nothing in office records to indicate author hasnt been dead 70 years, can presume they have been dead at least 70 yrs (302(e)) Good faith reliance= complete D to any infringement All terms run until end of calendar year (305) (unlike 1909 act) Proposals for dealing w/orphan works: (when cant find owner- most common w/photos) 497-500 Adjust things on remedies side (if show reasonably diligent search( pay only reasonable compensation; no automatic injunction) Works created but not published or ed before January 1st, 1978 (303) uncopyrighted, not PD on 1/1/1978 (e.g. created but unpublished, protected by state CL ) acquired federal on 1/1/1978 term determined under 302 (life + 70, etc.) Minimum terms Protected until at least 12/31/2002 Reason: Congress concerned about fairness of transition for older works; unpublished used to be protected forever so long as stayed that way If published on or before 12/31/2002, protected to 12/31/2047 Reason: since before could publish at anytime regardless of creation, then get full term, compromise Reason #2: incentive to publish the work New unpublished public domain as of 1/1/2003 1909 ACT: Works under Before 1978 renewal system initial term of 28 years (started by PUBLICATION + FORMALITIES) need to check if proper FORMALITIES met when published or done! if renewed (required registration), renewal term lasts: 28 years, 1909-1977 ( 56 year total (28 + 28) 47 years, 1978-1997 ( in 1978, gave works already under 75 yr term, by adding 19 years to renewal (28 + 28 + 19= 75) 67 years, 1998 (so if in renewal term on 10/27/1998: get 95 years total) ( in 1998, gave works already under from before 1978 20 more years for 95 year term (28 + 28 + 19 +20 = 95) Starting in 1992, renewal became automatic (only if hadnt yet expired/been renewed) 1964+( definitely automatic Duration of Works ed before 1978 In initial term on 1/1/78: 28 years + 67 year renewal In Renewal Term on 10/27/98: 95 year total term RENEWALS (Pre-1976, had to register to get renewal) statute grants new estate at end of initial term to: (order mandated by statute; cant be waived- to prevent author from K w/publisher for them to get it) author, if living if author dead, surviving spouse and/or kids if none, executor of authors will if no will, authors next of kin under intestacy laws New Estate: power to renegotiate rights, exploit them again Assignability Renewal beneficiary can validly assign expectancy, even before vested (Fred Fisher SCT) Remember: even if cant get renewal rights back, might be able to terminate the transfer Expentancy fails( assignee takes nothing & transfer is void Can K w/kids/children, but might not know who they are and subject to change Strong presumption against assignment of renewal term( need express language (Corcovado, p 419-20) (Probably needs to be more than all my interest in) Why separate initial and renewal in diff estates? Authors easily taken advantage of hard to value in the beginning; only after exploitation do you know what its worth Why did they used to require affirmative steps for renewal? To get more works in PD, esp. when not particularly valuable Opp for authors to renegotiate (DP: is each new segment added new opp to renegotiate? New estate?) TERM & DW (DP see handout for summary!) independent s in underlying work, DW use of DW= use of incorporated portions of UW so use of DW w/o permission from owner of in UW infringes UW including where lack of permission due to renewal( new estate of in UW Stewart v Abend, SCT 1990: granted to make/perform DW in initial term & renewal; grantor dies before renewal( inheritor sues for infringement b/c didnt approve) reversed 2d Cir (DW owner can keep using b/c equities( $ & prevented from using own original expression( would grant owner of underlying too much leverage, power) HELD: DW owner infringed of UW if continues to use the DW once grant of rights in UW has lapsed; assignee of renewal rights takes only an expectancy( can only continue using UW if authors successor transfers renewal rights to assignee including where DW has entered public domain by expiration of but UW has not Russel v. Price: (Its a wonderful life) ( only those parts of the film that were newly ed go into PD when film does Congress limited Stewart v Abend holding If someone files for renewal, Stewart v Abend rule applies Automatic Renewal( owner of DW gets to keep using DW, but has no right to make any new DW Policy Analysis Competing Goals: encourage creation( long enough to provide incentives (= whole purpose!) minimizing costs( no longer than necessary to provide above incentive search costs, permission costs, higher price for monopoly users consumers pay more during term than when in PD cost of being restricted from using old work in DW Duration: Set # yrs vs. life + Life + Pros: easier b/c all works by one author end simultaneously (( easier to compute- esp if have successive editions1976 HR), seems more fair if created when young and only becomes valuable when old; seems unfair to take away IP when still alive Life +Cons: uncertain (if dont know when die); seems based on luck of life length Starting point: could be creation or publication (easier to measure, know from work) Divided vs. unitary continuous Pro Divided: is privilege should have to take actions, b/c of costs imposed, to get rewards May have no commercial value but ppl want to use it (ie scribbles) If author doesnt care, should be in PD! MOST works lose value after period of time( might be useful for historical research after that time but not commercially Anti Divided: many works dont become valuable for a long time( might not know at time of renewal harmonization w/the rest of the world (Berne) (though could treat US diff than foreign author Proposal: 50 yrs after pub, pay $1, file form to keep it going (+ every 10 yrs after) for US works Eldred v. Ashcroft (SCT 2003) (SBEA added 20 years for existing and new works) (LOTS of latitude) Claim: content-neutral speech reg( HS (affects publics power to speak, publish already works) HOLDING #1: protection not subject to 1st Amendment scrutiny as long as Congress doesnt alter traditional contours of protection, no need to engage in heightened scrutinyb/c (1) adopted at same time (2) consistent in effect/purpose: to promote speech (3) has built in safety valves: tradl 1st amendment safeguards idea/expression distinction (leaves ideas free for all to use) Fair use (can even use expression sometimes) STILL not categorically immune to 1st Am/ law, b/c only so long as Congress doesnt alter Note: emphasis on these 2( likely to strengthen force of these limitations; CON Status?? HOLDING #2: extension did not exceed powers of Congress under clause still is limited time: No merit/evidence to support claim that perpetual on installment plan (if congress just keeps adding) can apply retroactively: every extension thru history has doesnt violate original works requirement (even tho granting more protection to works that arguably no longer original); this is not what Feist meant (not thinking of term, thinking of whether applies in 1st place) HOLDING #3: Satisfies RB for Congress, not Courts, to figure out how best to achieve constitutional aims( doesnt violate to promote Progres. Part of the clause Parity requirement: dont want to disadvantage author that yesterday instead of tomm Harmonization w/EU (secure protection abroad; permit strong US role in intl IP devlpmt; more incentives for foreign works to be distributed in US) Tho many other areas not harmonized( not really harmonizing just getting extra 20 yrs for our authors in EU Tech, demographic, econ changes (live longer, kids later, works w/longer commercial life) Encourage holders to invest in restoration & public distribution of their works Non-rational reason: public choice story (= benefits from legislation inure to small group of ppl w/incentive to seek those rents by lobbying congress costs borne by general public) (ex: Disney worried Mickey mouse out in 2003) Breyer Dissent: not rational! (should do more searching inquiry b/c expressive interests at stake) Not OK to give private benefit with NO public benefit. No justification( any related objective. No more incentive b/w LOW likelihood still valuable then (and even if it, value in dollar today VERY LOW) Not justified by intl harmonization: Berne doesnt require and still partial and incomplete Parity: dumb b/c no justification for new works, let alone old ones! TERMINATION 203 304(c): applies to pre-1978 grants of renewal term s; parallels 203 authors post- 1977 inter-vivos grant, not MFH(203(a)) 1. not WMFH 2. transfer made by author, inter-vivos 3. January 1, 1978 or later 4. exclusive or nonexclusive grant of a transfer or license of a or any right under a 5-year window starting 35 years after date of execution/signing of the grant (subj to term, publication alternative: if grant covers right of publication of the work, 35 years from publication OR 40 years from execution of the transfer, whichever ends earlier b/c substantial period of time might elapse before publication by notices served 2-10 years in advance ( 1st time possible to do this was Jan 1, 2003 (10 years before 35 years after 1/1/1978) ( 1st time possible to have actual termination: Jan 1, 2013 ( 12 (or 13? DP check) year window to serve notice Who can terminate? party determined by statute 203(a)(2) (1) author, if living (majority of signers if joint work) (2) surviving spouse/kids, in proportion listed 50% to widow, rest split b/w surviving children (3) estate if interest divided, requires majority to terminate and to regrant (203(b)(3) (and minority bound) need over 50% ( if goes to a spouse and kids, NEED spouse and at least one kid Terminated rights revert to terminating parties; ONLY AFFECTS: rights 203(b)(5); all return to author (except using DW made during that time) Get it back in same interest as they own in termination interest Only has effect on rights that arise under this title Rights under US law 203(b)(5) ( has no effect on protection under other countries laws; cant terminate rights outside US Terminated grantee retains right to continue using already-prepared DWs under term of original grant (unlike Stewart v Abend)( what is DW becomes imp!!! NOT WAIVABLE: applies even if made unconditional grant, expressly waived term rights 203(a)(5) ( cant K the right away (changes SCT decision that the could transfer renewal) Marvel Comics: 2d Cir broad view of notwithstanding any agrmt to the contrary( WMFH, which cant renew suffices No grant valid until after termination effective 203(a)(5) ( slight exception allows renegotiation after serving notice but before actually terminating No termination exercised + grant silent on duration= lasts life of 203(B)(6) Why have this system? (1) like renewal, dont know value early on (2) (3) protect authors family (4) concern publisher will convince author to include him in will to avoid termination (5) more in accord w/natural rights view of Reasons not to: (1) publishers less likely to take risk on work b/c may get less back (2) libertarian arg (3) generally in everything else ppl get benefit of unexpected increase in price DP see question #5 in notes right before termination main points 2 RIGHTS OF OWNER Ownership`" total control; only get rights granted by statute (106) ( NOT independent creation; NOT system/methods/ideas& 5 specific rights: quite broad (106) (p 502); vary to some degree by SM involved exclude others from: reproducing work in physical copies/phonorecords reproduction right/right to make copies distributing physical copies/phonorecords to public by sale or other transfer of ownership, or by rental, lease or lending public distribution right preparing DW based on the ed work adaptation right sometimes from publicly performing/displaying those works public performance + public display right AUTHORS of some works of VISUAL ARTS: have attribution & integrity rights, too Rights expressly subject to limitations in 107-122 Questions to ask in determining whether ones use of anothers work is a infringement 1. What category of subject matter involved? 2. which right at issue in the dispute? 3. does that right of the owner apply to this subject matter? 4. if so, are there any statutory exemptions or limitations that apply to the activity in question? 2 contexts in which this generally comes up 1. if know someone is using anothers work but dont know whether its an infringement = whether comes w/in scope of Ps rights under 106 as limited by 107-122 2. if know something comes w/in a right under 106 ( whether Ds work has been improperly copied from Ps work Ex: if hear song on radio that sounds just like mine.def would violate rights if he copied Right of Reproduction in copies and phonorecords 106(1) (p 502) Copy: material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, directly or w/the aid of machine or device Fixed 101: sufficiently permanent or stable to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration (DP check) 106(1): owner has exclusive right to reproduce the ed work in copies or phonorecords Not limited to public acts Reproduce: not defined but explained in House Report to produce a material object/tangible thing in which the work is duplicated, transcribed, embodied, or simulated by exact duplication or by simulation if it is in a fixed form by which it can be. Either directly or by machine or device) (p 503, 2nd paragraph) DP check) Copy defined: any method( any type of medium; includes material object in which work 1st fixed extends to non-literal copies and partial copies = any object into which protected elements (original creative expression) of the ed work have been copied ( may paraphrase, model work on another and can be infringement May be in another medium (( novel version of a short story may be copy of it) Doesnt have to be in form humans can directly view Complicated in Digital Age: DRAM= fixed? DRAM: to view anything on comp (even something you have saved on it!), run program, view image/text, need to copy part of program on DRAM= temp, high speed memory= working memory HR: excludes purely evanescent or transient reproductions such as those captured momentarily in the memory of a computer office (p.505-6): thinks storage in RAM counts as a copy; as long as it can be perceived or communicated, it has econ value and should be w/in rights of owner BUT statute requires more than transitory duration! TREND: to count as a copy (and recent amendments support this reading EE 199) Huge Issue: if every time stored in RAM (= every time look at a digital pic, listen to recording, etc) was infringement, browsing of web could come w/in authors 106(1) rights( more like exclusive right to use the work than copy it THO might be other exemptions, authorizations so not every view of webpage would necessarily= infringement Impact goes beyond digital format . if take RAM doctrine seriously, basically gives owner exclusive rights to read their work, b/c cant read/listen/view work w/o temporarily storing in RAM Doctrine of 2ndary liability( website posters/hosts/comp manufacturers/etc may all be subject to liability Counter-concern: Celestial jukebox= if can stream all recorded entertainment from a network, wouldnt ever have to pay owner to use it Other ways to deal w/this prob: exclusive rights over public performance and public display to control jukebox creator Infringement Elements ownership of a valid : SJM, originality, formalities, initial ownership, transfers, duration registration certificate as prima facie evidence Infringement (1) D Copied from ed work (=Factual Copying) independent creation not a violation, even if exactly the same (unlike patent) direct evidence of copying is rare ( 2 routes to circumstantial evidence: Access + substantial/probative similarity Striking similarity Mental State is irrelevant, so long as D had Ps work in mind when D created the work ( unconscious copying still=copying (may affect remedies, slightly) Managed Copying: study work in attempt to incorporate uned elements in order to compete (( Q not of copying but of whether was improper appropriation) Seen in comp software context (extract unprotected elements, give them to isolated people and have them write software based on the extracted, unprotected elements) (2) Ds copying amounted to Improper Appropriation Copied protected expression, not merely ideas Audience perceives substantial similarity Proving Factual Copying Through Circumstantial Evidence: 2 Ways (enough evidence to get to a jury?) Access + substantial or probative similarity(can infer took adv. of opportunity Access= Question of fact (Arnstein: Cole Porter song on radio; said stolen from room, stooges) Spectrum of strength of evidence: Same creator of both works( widespread dissemination of Ps work( tortured chain of access( mere speculative chain (eg followed by stooges) bare possibility not enough Question of probability: is evidence strong enough to make the inference? Held: work available in Lib. of Cong. at time president of Ds co in DC not enough Hard ex: P gives work to intermediary who works directly w/D on Ds work (p 520 feelings case) Evidence of widespread public dissemination allowed to demonstrate access Substantial/Probative Similarity= Question of fact May be explained by convention or coincidence (esp below the surface, like plot character in literary work, composition/form in visual art) ex: maps will look similar( convention to have N up ex: any 2 waltzes will sound similar b/c standard set of rhythm used May be similarity of unprotected elements (facts, ideas, etc.): Can look at noned parts for similarities in determining whether there was copying Since at this point, determining copying, not infringement( can serve as evidence probative similarity b/c trying to figure out if the similarity is probative of Ds copying Striking Similarity between works Can suffice to prove copying alone, even w/o evidence of access Must be so striking as to preclude possibility that D independently created the work Identifying a prior common source for both Ps & Ds work= poss alt exp. for SS Different standards: (reflect tension b/w doctrine of IC vs. gen. need to prove copying indirectly) 2d Cir: similarity must preclude possibility that P & D independently arrived at same result Would inc. common errors. 7th Cir: similarity must preclude other explanations, with concern of prior common source that would offer an explanation other than copying Even if such evidence is offered, D can rebut the inference. Attack evidence of access or similarity Demonstrate lack of access Give reason for similarity (ie both copied someone else) Evidence of independent creation: prior creation; IC (tho prob of unconscious copying) Selle v Gibb (7th Cir) (Bee Gees): while high showing of similarity, lack of showing of access + considerable evidence of independent creation= insufficient evidence to show copying Proving Improper Appropriation (P must prove in addition to factual copying!) 2 Aspects (Variety of verbal formulations, but 2 main parts to std. inquiry) (1) did D copy protected elements of Ps work? (2) will audience perceive substantial similarity b/w expression in Ps & Ds works? Protected Expression Test: did D copy protected elements of Ps work? (= difficult, case by case analysis) (no clear line b/w expression and idea) Easier: Fragmented literal similarity: if only a portion of work is copied, but copied verbatim ( Question about Quantity; Ringold: VERY LOW quantitative threshold (quilt in poster on set decoration in sitcom episode for 2 mins, never over 15 secs, only part =not deminimis ) Ex: math Q in ETC/Princeton Review case( copied expression (no in math rules or word definitions, but in particular questions formulated to test those things Note: wrong answers not facts( easier to see expression jacked Hard to drawn the line b/w protected/unprotected= Value judgment by the court; case by case, ad hoc contextual decision Guiding Concern: balance protection w/future creation Dont want to give P control over basic building blocks of creativity that need to be available to everyone OR to elements she didnt originate Irrelevant how much of own work D added: looking only at whether something was taken (Sheldon, bottom 530) Hard Cases: non-literal copying: comprehensive non-literal similarity (Nimmer): (look to other examples to determine where protected expression ends and unprotected expression begins similarity not limited to text, or copies would escape liability thru minor variations One Poss: Learned Hand Abstraction Test (2d Cir): at some point, as more of details are left out, point in series of abstractions when no longer protected Nichols (film does not infringe play b/c just took stock character/ideas (Jewish man marries Irish Catholic girl against fathers wishes w/hilarity ensuing vs. Irish boy marries Jewish girl from feuding family w/hilarity ensuing) Sheldon (film does infringe b/c borrowed more than ideas/themes; Took: main traits of character, dialogue, long series of detailed incidents= expression (threat scene where lover breaks up engagement, death scene where heroin poisons lover to preserve engagement, interrogation scene..) Rosenthal: bee pin (9th Cir): MERGER( idea/expression merge b/c so few ways to express a jewel bee pin (explicitly trying to preserve balance b/w competition and protection 531) Ordinary observer/audience test: will audiences perceive substantial similarities b/w expression (vs. copying proof) in Ps work & Ds work? (hardest part of the test to apply) Where work is targeted at a particular audience, fact finder may consider whether that audience would find substantial similarity Lyons Partnership: Barney/Duffy the dragon costume; purpose =amusing children Protection for works concept and feel? Compare two works as a whole, but keep in mind which elements are protected and which arent Steinberg: (SDNY 1987) (New Yorker Cover: View of the World from 9th Ave) while drawing world map from egocentrically myopic perspective not able, they took expression (angle, layout, details, lettering, overall style, cross st) Not just scenes a faire, standard themes of NY depiction Bubble Blowing Santas (p 584) (dis ct): no protection for: stereotypical elements of santa.& functional elements for blowing bubbles protection for: expressive choices No merger like in bee pin b/c virtually infinite # ways of expressing stereotypical elements of Santa in particular expression; . De Minimis: trivial use (ie out of focus, in background of commercial) Comes up in sampling: may depend on whether P has in copied musical work or sound recording Held: sampling simple 3 note sequence too trivial to support finding of substantial similarity 6th Cir: de minimis doesnt apply for literal copying from sound recordings RIGHT OF REPRODUCTION: Phonorecords Distinguish between: (diff set of limits) musical works and sound recordings sound recording: Result of fixation of series of sounds (when sing into mic) tho not inc. sounds accompanying motion pic or other audiovisual work) regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied 1972: when got protection; state law before then fed didnt oust state law; state law will no longer protect in 2067 Pre-1972: releasing record to public `" releasing CL in the recording, despite general rule releasing copies= publication (at least in NY) Many countries: sound recordings not ed but tangentially protected; others give less protection (eg shorter term) Musical work: particular selection/sequence of words and music that a composer uses (what you make when you sit down to write a song) No Limits on Reproductions sometimes difficult to distinguish Newton (Beastie boys get license to sample sound recording but not musical work; Newton sues) HELD: separate musical works from unique performance elements added during recording( portion of composition used was de minimis Dissent: agrees need to filter out underlying musical work from sound recording and its new elements, but disagrees on evidence; thinks composition as written contained instructions for unusual performance method used during recording( part of composition not just sound recording copies and phonorecords (see fixed section for defs) Both: material objects in which ed work is fixed Phonorecords: where sounds are fixed (single phonorecords can include both musical work and sound recording) compulsory mechanical license only applies to phonorecords not copies Copies: where everything else is fixed Limits on Reproduction Right Compulsory Mechanical License: Limited right to reproduce musical works in phonorecords 115(a) applies only to non-dramatic musical works (Not: literary works, audiobooks, operas, bdwy) Triggering event: phonorecords of the work distributed to the public in the US ( if nondramatic musical work creator wanted to exploit the song while avoiding compulsory license, could: perform live, distribute outside US, sell copies or sheet music ( get 1st choice of who records the work, but after that subject to compulsory license Rationale: keep musical works available to public requires advance notice and royalty payments (set by statute) Limitations on the limitation: allows only for making and distribution of phonorecords, including Dig.PDs NOT COPIES: audiovisual version, karaoke CD, sheet music, printed lyrics Doesnt allow for performance; only making/dis Cant use/directly copy the sound recording, just the non-dramatic musical work (Confers no rights in any particular sound recording) ( cant burn the SR (bc that would be making a phonorecords of the musical work and the sound recording), but can make your own recording, and then burn/sell that cant change the basic melody or fundamental character of the work Can make a musical arrangement of the work to the extent necessary to conform the underlying musical work to the style or manner of the performance Dont get in the new arrangement but MAY in the new sound recording available only if prim. purp.=make/dis copies 4 private use (CD store, not movie soundtrack) very few ppl actually take a compulsory license under the statute; usually voluntary granting of mechanical licenses take place in its shadow, done by Harry Fox Agency mainly dubbing limit on reproduction w/respect to sound recording (114(b)) Exclusive right to reproduce SR applies only to reproducing the actual sounds (= dubbing), NOT to simulations/imitations exception to general rule that non-literal copies may infringe)(imitation or simulation) Some: Bright line Rule= if copy any of SR, comes w/in owners rights( no de minimis threshold Bridgeport Music v. Dimension Films (6th Cir 2005)) (controversial) Sampling? Clearly includes dubbing w/in scope of 114 limitation( Typically Q of whether the use is de minimis (eg Beastie Boys, though that was for musical works) Home taping limit: Audio Home Recording Act 1008 limit on reproduction right For both musical work and sound recording Allows some noncommercial consumer copying = 3 part compromise (( advent of digital recordings( flawless copying( prob) requirement of copy controls on all digital audio recording device (ie copying copies) Unclear what counts as digital recording device. Held: portable mp3 player that can merely accept music downloads to it from a comp is NOT one (p 601, Rio) NOT: recordings on general purpose computers( downloading on the internet 2. Royalty Payments: manufacturer/distributor of device has to pay royalties to office for each device distributed (( compensate for fact will lose some $ by virtue of this tech) Applies to media too (blank audio tapes, etc) Royalties distributed among those who own s for sound recordings 3. bar on certain infringement suits (1008): manufacturers and home tapers cant be sued for infringement no suit for non-commercial use of analog or digital audio recording device by a computer for making musical recordings (= home taping exemption) unclear how broad this is: tape CD to tape for car? Make copy for a friend? (keep in mind Napster and what = commercial recording in P2P context) (DP check) OWNER EXCLUSIVE RIGHT: Distribution 106(3) 106(3): owner has exclusive right to distribute copies or phonorecords of the ed work to the public by sale or other transfer of ownership, or by rental, lease, or lending distribution right (exclusive right to distribute copies or phonorecords to the public) applies to all works independent of other rights (can get in trouble by distributing w/o permission) sale or other transfers of ownerships, including rental/lease/lending/importation into the country of copies or phonorecords distribution not defined, but statute includes above LH: even one copy/phonorecords counts (plural includes the singular) Split: whether making available, w/o actually distributing, counts (ie available in libs) All: offering to sell but not selling (making deal w/o having the copies to sell) is ok Includes importation (tho 602(a) exempts brought in as personal baggage, single copies for personal use, some govt/nonprofits) Note: doesnt include possession or acquisition No statutory definition of to the public; Private gift/sale doesnt infringe may also include digital transmission (file sharing, downloading on site, sending on internet) clearly a reproduction but not clear if its a distribution when website transmits the data TREND: treat this as dis; TR: has written against this interpretation LIMITS: First- Sale doctrine (109(a)) (see this also w/display) owner of lawful copy/phonorecord free to distribute w/o permission of owner Owner( rentor, loanee, etc who didnt get ownership doesnt have the right (unless owner also authorized further distribution) ( rentor cant rent to someone else ( owners sometimes characterize sale as a license ( dont own it) Courts may/may not respect this; increasingly saying permanent possession + paying full price= ownership lawfully made( something like fair use copy would qualify, even if owner didnt approve owner can control the first sale of the copy but not further sales Needs to be legal, otherwise owner would have never had a chance to make $ off the 1st sale applies to (among others): used bookstores, video rental stores, libraries in Europe, owner has right to control lending, can ask for compensation therefore Limitation on the limitation: No rental of sound recordings, computer programs Reselling/lending/giving away is OK but no rentals Was evidence of stores renting a record and providing/selling blank tapes along w/it to make copies Doesnt apply to DVDs/videos (interesting) Excludes nonprofit schools & libraries (can loan these things) Doesnt apply to comp programs embedded in machines (ie car, video game players) Resale Right= in some European countries, some states (CA), droit de suite= artist entitled to some cut of revenue when resold OWNER EXCLUSIVE RIGHTS: Right to DW 106(2) (See SM for DW def) substantial overlap w/reproduction right (tho each still has diff limits) B/c of how broadly repro right is interpreted & broad understanding of copy (Sheldon) Sheldon: Ps written play reproduced in Ds movie (even tho quite altered version, since both diff and actually in a diff medium) HR: can infringe repro right in whole or in any substl part, exactly or by imitation/simulatin need to figure out if dealing w/repro right, DW, or both (Horgan: (nutcracker) claim both) How they differ: (adaptation right is broader) Adaptation right doesnt require it to be fixed (( oral translation= DW, not copy) ( if have right to perform a work and change it, have made a DW= infringement But: unclear limits (is imagining a new version of a movie DW?) DW could be a change of a pre-existing copy (rather than making a new one) DW transforms/recasts/adapts underlying work (= FOCUS) (= residual clause in statute) potentially very expansive (inc. mount copy on tile in 9th Cir, tho not in 7th) ( might not need to change work just its context (tiles, program CD to play certain songs?) Horgan v Macmillan(still shots of nutcracker); DW STANDARD= whether substantially similar to UW, not whether could recreate UW from DW (( reject that photo couldnt capture essence of chor. Lee: (7th Cir 1997) tile mounting not DW, b/c insufficient creativity (mechanical) Concern: dont want things like cutting coaster in to be DW Compare 9th Cir: this is DW All: museum changing frame `" DW violation Unclear: whether DW includes right to compile or collage (MOMA hypo) Don t need to publish/distribute& exclusive right to prepare DW must copy protected expression to infringe (see in context of improper appropriation) ( must be  substantially similar (inspired by not enoughI want it that way Most: Ds transformation must amount to original expression to infringe (( need MC...) (Lee) Some: still transforming work, so unclear why not DW( problem is more not minimally creative Held: speeding up video game`" DW (tho if was done w/sufficient creativity or in parodying way& ) Limits on DW Right First Sale Doctrine irrelevant here; only limit on right to distribute/display Compulsory mechanical license for some limited arrangement of musical work as necessary for a performance 115(a)(2): 110-11: can skip/block obscenity from DVD Use of DW may infringe underlying work( potentially 2 infringements Stewart v Abend (SCT 1990): publicly showing film= performing UW AND the film Likewise, if ends on DW before the underlying work (rare) (Its a wonderful life) THE RIGHT TO PREPARE DW: Moral Rights origins in continental Euro law; not a feature native to us; inalienable (cant waive/transfer) in many systems reflects natural right view (authors personality/reputation tied to the work) (US: more econ approach FOUR BASIC RIGHTS (1st 2 best known) Attribution= right to be identified w/the work/as author or not to prevent ones work from being attributed to someone else; to be anonymous if choose Integrity= right to prevent public presentation of work in a manner/context harmful to the reputation of the author/contrary to her style, protect work against distortion of mutilation Protects against destruction/distortion of the work Disclosure= right to decide whether to create the work in the first place, decide when the work is completed and whether to disclose it to the public Right to decide whether/when work will be published Withdrawal= right to terminate the public exploitation of the work or to require modifications, typically if the author feels the work no longer reps his/her artistic views, style, vision (least used and protected) US Tradition: patchwork of US law we think, altogether, add up to protect same kinds of interests:: VARA, - DW, unfair comp, defamation Berne Convention: requires members to protect attribution & integrity 1989: Congress took position existing set of laws satisfied this requirement; lots of disagreement over this position Ex: DW rights prevents owner of a copy from distorting it Ex: misattribution could be false advertising These rights must be given independently of authors economic rights, and even after the transfer of the said rights TRIPS Agreement: mid 90s: in context of WTO agrmt, said have to comply w/Berne obligation, or else WTO has power to allow trade sanctions to be imposed by other countries Reason: no real enforcement mechanism under Berne (other than to bring case alleging violation in world court, which has never happened) Note: doesnt require compliance w/attribution/integrity elements Note: neither TRIPS nor Berne give any individual rights( author can never sue under these or sue the US AND only constrain how we treat foreigners! OTHER MORAL RIGHTS PROTECTIONS Right to prepare DWs: Bars modification w/o owners consent( essentially like right of integrity approach of how little will count as DW (tile) makes huge diff in how much US is really protecting Unfair Competition (Lanham Act 43(a)): presenting distorted work to public as authors= actionable misrepresentation (prevent misattribution) Gilliam 2d Cir 1976: Monty Python: brought as unfair comp claim (misattribution & integrity)- K didnt inc. right to alter( unauthorized DW) Held: infringed underlying script( DW. Good law after Dastar? SCT 2003: statute limits trademark law as source of right of attribution (TV series based on PD books; lists itself as producer( LA claim 4 misrepresenting origin; Held: narrow reading of 43(a) to preserve ; cannot extend law; must preserve distinctin ( Dilemma: preserving no limits on work in PD vs. protecting attribution rights State Law Protections(esp NY, CA) (not preempted if provide rights not=106A) Generally protect fine art: attribution, integrity rights Overlap (though not complete) w/VARA, may extend further NY: inc. rights against reproducing work in modified form & attributing to author K Law: if go beyond scope of permission granted (Gilliam: right to edit must be expressly granted) Defamation claim (distort & represent to be from author); False advertising Others protections: right of termination; authors right of 1st publication (Harper & Row) MORAL RIGHTS: VARA: Visual Artists Rights Act 106A (1991) works of visual art (painting, drawing, print, sculpture, or photographic image (if the photograph was produced for exhibition purposes only) Single or signed limited (200 or less) editions (Author must sign and number them all) Excluded: (Essentially protects fine arts) WMFH reproductions produced in large # of copies film/ book/magazine advertising or promotional material, packaging material or container, merchandising, etc Pollaro: purpose of mural was for lobbying( NO. Gets tricky ie Reed case, sculpture was used for communicating a message Works not protected by (for whatever reason) Poster, map, globe, chart, technical drawings, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, database, electronic info service, electronic publication, or similar publication If qualified, RIGHTS TO: (explicitly subject to fair use limitation) (106A(a)) (little case law( unclear) ATTRIBUTION: Right to: Claim authorship 106(a)(1)(A): ((might require affirmative demand unclear. May need to have claim go unheeded to have liability attach) Ex: painting hung in gallery w/o identifying info Prevent misattribution (106(a)(1)(B)) of any work to you if you didnt create the work 106(a)(2) prevent attribution if work has been modified, distorted, mutilated in a way that would have detrimental effect on your honor or reputation INTEGRITY: Right to: 106(a)(3)(B): Right to prevent destruction if work of recognized stature Modification( conservation or public presentation (inc lighting, placement) not destruction, distortion, mutilation, or other modification unless caused by GN 106(a)(3)(A): Prevent distortion, mutilation, other modification. that would be prejudicial to honor/reputation (Modification( conservation is OK) LH: unlikely fair use will be relevant here (tho if it is, it applies) Not subj to 1st sale doctrine, tho public presentation, including lighting and placement `" violation Not transferable( author retains them even if transfer away 106A(e) In accordance w/Euro view that separate moral and econ rights Generally for LIFE OF THE AUTHOR (106(a)) WAIVABLE, but only if express, in writing, and clearly identifies specific work and use allowed, signed by author (dont want them to give up rights all at once, want neg. for each one) Joint work( one can waive rights for all such authors BUT doesnt apply to most reproductions of the work (c)(3) (= severe limitation) Attribution rights dont apply to any reproduction or use in conn. w/any newspaper, periodical, etc Integrity rights: such reproduction is not a destruction, distortion, mutilation Ex: what if gallery copies a painting in its catalogue? Application and duration July 1st, 1991: applies to all works after (for life of the author) Pre-1991: applies if author has not transferred title to work, for as long as the Joint works: life of longest-lived author Public Performance Right 106(4) 106(4): applies to literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works Perform: To perform a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. unlike other rights, not extended to all types of matter (only those listed) (see above) no general public performance right for sounds recordings (or PGS, architectural) limited sound recording right: via digital (not radio) audio transmissions ( not CD) performance defined VERY broadly (see definition above) (HR p 667) recite, render, play, dance, act a work (either directly or indirectly) multiple performance doctrine (eg broadcast) = every step in chain is an act of performance (singer signing, transmitting to station, cable station sending, individual turning on receiver= rendering) Exclusive right to perform work publicly (see next section for public discussion) Private performances excluded Rationales: huge transaction costs problem for getting permission; privacy concerns No requirement that performance be for profit (unlike previous acts) PUBLIC Performance 101: To perform or display a work publicly means (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise comm. a performance or display of the work to a place specified by clause (1) or to the pub, by means of any device or process, whether members of the pub capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. (1) performance at a place (need to know how many people, who they are) (a) semi-public: substantial # gathered, outside of normal circle of family & its social acquaintancs (b) open to the public Includes places available to the public even if occupied by only one party at a time (Columbia Pics v. Aveco: video rental rooms; Held: public (clearly performing) b/c still open to public( will rent to anyone willing to pay( availability makes it public) Most: But not all such places eg hotel rooms (9th Cir: Holiday Inn putting DCD players in room & providing DVDs OK; each room like private dwelling/apt Otherwise, could stretch arg to rented houses/apts. (2) Performance by transmission (a) To a public or semi-public place, as defined in (1) (b) OR to the public ( so doesnt matter if to private places) Even received by diff people at diff times/places (Aveco) (ex: streaming on web) Includes limited segment of public (eg cable subscribers, hotel room) (LH; not actually in the statute) (Ex: Holiday inn central console of DVDS; Held: PP!) Seems to be about having commercial, arms-length relationship b/w transmitter and receiver Music Performance Generally hard to enforce (violations dispersed and fleeting; transaction costs nightmare to get permission for each individual song) Performing Rights Societies (ASCAP, BMI, smaller CSAC)= imp mechanism for exercising PPR right License non-dramatic performance of musical works Each PRS is an organization of owners of musical works (composers & songwriters, NOT performers who make sound recordings) owners grant PRS non-exclusive rights to publicly perform their musical works and to sublicense that PPR to 3rd parties NOT: right to make CDs (= copy), use in a soundtrack (= reproduction in sync) YES: if TV station wants to SHOW movie w/song in it, need license Nondramatic: can be hard to tell Grant blanket licenses; any work in their repertory, as many times as they want Divide license fees among copyright owners Use Sampling to monitor; lots of disagreement For digital transmission, may be easier to keep track of exactly which tracks have been played( more accurate distribution Nonexclusive, copyright owners can license directly owner could theoretically still license independently, but anyone who wants to license substantial amt. of music would go thru PRS Note: antitrust concerns; Ocasek; regulated by antitrust regs Sound recordings: used to be irrelevant (was no in sound recordings; even when was granted, didnt include PPR) Why? Radio stations, restaurant/bar/stores didnt even want to pay for musical work ( lots of pressure to not pay extra for sound recording Exclusive Public performance right only for digital audio transmissions No general right of public performance Not for radio broadcast, retail store playing CD, etc. Reason: concern transmissions replacing sale of sound recording= celestial jukebox concern Covers: satellite radio, music choice channels on digital cable service, webcasting Some exemptions and compulsory licenses Exemptions: Compulsory Licenses: Non-interactive transmissions (cant pick what song when) Transmitter must meet long, complicated list of conditions on kinds of transmissions theyre making Variety of music needed to qualify (cant transmit more than 3 selections from 1 phonorecord in 3 hours or 4 from any single recording artist) Interactive transmissions fully w/in owners right Ex: transmitting particular sound recording on demand over the internet PUBLIC DISPLAY RIGHT: 106(5) 106(5): in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and 101: Display: to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially Display: showing a copy, directly or by device Inc: wearing a t-shirt of it Used to be relatively unimportant; more imp now w/internet Split: whether including inline link (= file actually appears on your page) on page= displaying photo (Perfect 10 Case) Exclusive right to display work publicly Applies to most but not all types of work literary (show pages online); musical (sheet music, guitar tabs, lyrics) NOT to: sound recordings, architectural works, limited to individual images for motion pictures/other audiovisual works Showing a film= performance, not display publicly= same as in context of public performance Limitation: FIRST SALE DOCTRINE 109(c) (1) Owner of particular lawfully made copy (or any person authorize by such owner) can display publicly like first sale doctrine for display right instead of distribution right w/o this: reading magazine on plane would be ingringing (2) Directly or by projection of no more than one image at a time Covers: showing painting in gallery, hanging art in school (3) To viewers present at the place where the copy is located =Limitation to the limitation: covers all of the (1) place public displays but not (2) transmit type ( Right of display is essentially exclusive right to transmit displays to the public; non-transmitted displays are OK LIMITS ON PPR AND DISPLAY RIGHTS 110 110 limitations on performance and/or display rights Grab bag of specific limitations Most apply to specific types, some to all works Traditional permission for non-profit performances? (110(4)) BROADEST: 110(1): Classroom Performance and Display: by instructors or pupils in course of face-to-face teaching activities of a nonprofit educational institutions, in a classroom or similar place (must be place where audience confined to class members) ( Not: film part of fundraiser; corporate training; showing film as part of nonprofit training 110(2): distance education (EE 228-9) 110(3): performances in place of religious nature, in course of service at place of worship 110(4): Non-profit performances of non-dramatic literary or musical work, NOT a transmission to the public, WITHOUT any purpose of direct/indirect commercial advantage, WITHOUT compensation to performers/promoters/organizers IF: (A) No direct or indirect admission charge OR (B) Proceeds used exclusively for educational, religious, or charitable purposes (after deducting reasonably costs of producing) 110(4)(B): owner can give notice NOT allowed to use for such purposes (in case doesnt agree w/the cause.) EE 231: odd- need to know about it to do it; 7 days notice inc. reason why This will probably protect Law Revue playing covers of songs; virtually giving back what 1976 took (b4 exclusive right was only for profit performance) if filming non-profit event, would need to get permission from if wanted to use it in a film. Playing music in TVs/bars 110(5): Clearly= performing under 1976 act SCT had held otherwise under 1909- Aiken, p 701); now have multiple performances doc (a) HOMESTYLE RECEIVER EXCEPTION: communicate transmission by RECEIVING in a public place, so long as a single receiving apparatus like kind in private homes(( doesnt inc DVDs, CDs) , UNLESS: Direct charge made to hear/see transmission OR Transmission received is further transmitted to public EU: this is an OK exception (b) Fairness in Music Licensing Act EXCEPTION (1998) Only nondramatic musical works OK to communicate transmission so long as done in retail establishment under 2000 sq. ft., OR food service establishment under 3750 sq. ft. ( can then comm. any transmission (radio/TV), even if using fancy equipment Why? Powerful lobbying by bars/restaurants EU: violates WTO TRIPS Agrmt req. of owners in musical work having right of PP Limitations/exceptions must be for special cases that dont conflict w/normal exploitation of the work; here, retail stores, bars restaurants affected (compared w/(a) which affects only 15%) Deadline to comply has long passed; were out of compliance( pay $1.2 mil annually in damages to EU rather than amend the law (paying off foreign owner) FAIR USE LIMITATION (First added to statute in 1976; unique to US in its broadness treated as affirmative defense (some academic debate if this is as should be) applies to all SJM categories, all 106 rights requires case-by-case consideration at least of 4 factors listed in 107 (flexible doctrine) (largely policy analysis w/doctrine( hard to predict) other factors may be considered if relevant factors may be considered and weighed together and in context by court look to how strongly each factor weighs, how they interrelate, not just if 3 favor, 1 doesnt very little guidance on how to actually do this (though many say 4th most imp, Campbell focuses on transformativeness) specified favored uses 107: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research office exs: quotes in review or criticism to illustrate/comment; quoting short passage in scholarly work to clarify authors observation; parody; summary w/brief quotations in a news report; reproduction by a library of portion of work to replace part of damaged copy; reproduction by teacher/student of small part of work to illustrate a lesson; incidental or fortuitous reproduction in news broadcast of work located in scene of event being reported 3 SCT cases: SONY (betamax); Campbell (pretty woman); Harper & Row (the nation) All cases of clear infringement absent fair use 4 Factors to look at (listed in statute 107) PURPOSE AND CHARACTER OF USE, including whether such use is of a commercial nature or is for nonprofit educational purposes (a) TRANSFORMATIVENESS: add indep creative material( new expression, meaning, msg? Campbell: central though not absolutely necessary (ex: copying for class, VCR) Rationale: More likely to have done something furthering goals (incentivizes new works, etc) ( need to give more breathing room to transformative works more transformative the use( less significant r factors against FU (Campbell) lower courts have run with this; look to how parodic it is Some: transformative ness, if not for critical/commentative purposes is less favorable to FU D (Seinfeld Aptitute case: Homage; not criticizing or commenting) Parody is clearly transformative (tho not presumptive/dispositive); satire? Would a reasonable person reasonably perceive a parodic character? whether work is parody is Q of law not fact (at least in 9th cir) Mattel (Barbie and household items) (9th Cir) (parody is objectively defined rhetorical device( survey of viewers opinions irrelevant) Dr Seuss: 9th Cir: not parody; all DW are transformative Doesnt have to be funny, so long as aim= to comment, criticize UW 11th Cir The Wind Done Gone: as long as aim is to comment, criticize prior work by borrowing/appropriating elements of original and transforming them to create new artistic work Why Parody, less satire? Think more imp. to allow borrowing to comment on social issues than to poke fun at popular song Hypo: Law Revue Beat it: seems more satire than parody b/c not commenting on the original work (though could arg it is) (b) COMMERCIAL v NON-PROFIT EDUCATIONAL: one of favored uses? no presumption for/against fair use for either type some things listed as fair use in 107 often carried on for profit in US Campbell (1994): commercial purpose= only one element of the inquiry commercial nature of use weighs against fair use much easier 2 make FU claim 4 parody performed 1 time in a school (Breyer) Likely to be market harm, commercial user apt to bear the cost Note: private uses may have commercial quality if substitute for purchase or if used for barter (Napster: filesharing= commercial use) Uses mentioned in statute favored (see above) (Harper: not dispositive! News) Productive uses & using unprotected aspects also favored (ie reverse engineering) NATURE OF COPYRIGHTED WORK USED: Some works subject to more fair use than others Factual/functional works v. expressive/fictional works Fact works subject to more fair use Sometimes hard to tell if copying facts or not( give more leeway if some expression copied from a factual work Creative works closer to e& of what is about( need more protection against borrowing( less likely to have good claim of fair use if used a fictional work Varies even w/in fact works based on expressiveness Published works v. unpublished works (key in Harper v. Row) Harper: Rationale of FU to grant in situation where reasonable holder would grant permission; not reasonable one would allow another to scoop his own material! Published works subject to more fair use Unpublished works not completely shielded from fair use Authors right to decide when/whether/how to make work public; imp for economic & personal reasons; Right of 1st publication: can only be done once While No presumption, VERY heavy (Salinger case: unpublished letter of JD Salinger( no fair use, heavy emphasis on fact that unpublished) AMOUNT & SUBSTANTIALITY of PORTION USED in rel. to ed work as a whole Quantitative and qualitative measure relevant Copying even small amt may be unfair if what is copied is the heart of the work (Harper v. Row: 300/200,000 words; qualitatively substantial, since took e& of= most interesting parts) Dissent: so few words, relatively; Court threatens creative process and free flow of idea under 1st Amendment; nor intent of fair use doctrine Concern: (a) reasonableness of amt./substantiality copied (b) in light of purpose of the copying (factor 1) Parody vs. satire relevant here (more reasonable w/parodyIf commenting on something totally unrelated, unclear why need to borrow from ed work at all) PARODY: must be allowed to copy enough to conjure up target (so audience know who is being made fun of) (Campbell) surest way to do this is usually to take the e&/most recognizable feature Campbell: parodies will usually do this, since necessary for ppl to understand( taking e& doesn t weigh against fair use for a parody Still, can only take as much as needed to conjure up original (tho very UNCLEAR how to tell what is too much.. remand) ( may protect using entire work! (ie SONY) (esp if work is thinly protected) 3 Questions: (1) Did copier take that fit proposed use? (2) Did copier have alternative to taking portion copied? (Ex: Harper & Row; could have paraphrased reported unprotected facts, ideas, unoriginal material (3) whether amt taken was likely to diminish potential market for owner Effect of the use on the potential market for or value of the ed work: harm caused by Ds particular use AND harm of unrestricted & widespread conduct like Ds, to original work and market for DWs Often said to be single most important factor Harper & Row SCT 1985 (scooped Time magazine) Consider if use were widespread Effect on original work Lost sale of ed work= direct NOT decreased sales b/c criticism/competitive product made from unprotectable elements Market Harm (for original work and DW market): statute speaks of potential markets( Need to avoid circularity: usually limit to reasonable traditional, likely to develop markets (otherwise every use could be characterized as one that may bring in $) Seinfeld: reasonable market for books about TV shows; fact it exists, even if chosen not to enter it, is what counts; decision entitled to respect WorldWide Church of God, squib p 675 (9th Cir) (racist text removed; splinter group uses) Held: at worst neutral? Irrelevant they wouldnt print it. leaves open Qs re: changes over time, new markets (Sony) Campbell: NO potential market for parody (not traditional/reasonable/likely to be developed) Counter-ex: Weird Al gets permission Court doesnt want this, b/c will put too high a price on something we think is good for society Other potential markets? Non-parodic rap version of pretty woman (no evidence on record whether this use will affect market for rap versions) Affirm. D( D didnt provide this evidence( not entitled to SJ( remand generally need concrete showing (ie market survey) No presumption of market harm based only on fact that Ds use was commercial (Campbell) (cant use commercialness against them twice) Consider effect of displacement by defendants use, not of disparagement by it Wind Done Gone: doesnt matter if less people by original bc made it seem f*ed up Displacement: dont buy original b/c new one satisfies the desire Can presume market harm from mere verbatim/exact duplication for commercial purposes Other relevant elements not in statute or in Campbell SPLIT: Bad faith or improper conduct? Harper & Row SCT 1985; Knowingly exploited a purloined manuscript) Compare Campbell: FN 18: going ahead after being explicitly denied permission not relevant( leaves open whether improper character Some: for fair use of reverse engineering, initial copy must have been lawfully acquired BUT: even illegally acquired copy may be subject to FU, other factors permitting Conversely, good faith? (ie if tried to get permission) Bases for Fair Use Allowance Give breathing room for creating new stuff Economic View: transaction costs: allow fair use in cases where transaction costs would be so great that the use wouldnt be fulfilled Rather than 2 losses (society loses use & owner loses $ b/c not getting paid anyway), only have 1 loss (artist loses $ but society gets use) If true:, would expect scope of fair use to change as transaction costs decrease 1st Amendment rationale: need to balance against potential constitutional infringement by law Harper: dont need ordinary 1st Am scrutiny b/c built in safety valves; Framers intent; etc ( reject D: copied memoirs to provide info about matter of public concern= 1st Am D Eldred: see pg 32- duration Still: unclear if this is enough to make sure free speech protected (CHILL.!) Fair Use and New Technologies New technologies of dissemination of ed works New Arg: transformative in that purpose is new/different, rather than expression Kelly, 9th Cir (visual image search engine w/thumbnails) While clear 106(1) violation, FU b/c above; functional/tracking purposes + other factors (no harm to market, unless count market for thumbnails= circularity prob) ex: Google book project will turn on FU D; get full record if publisher cooperates, snippets if not (tho not from ref books); may argue transformativeness, like Kelly, in totally diff purpose= info locating, rather than communicating info therein (tho 2d Cir( Kelly not binding) comprehensiveness supports transformativeness still have licensing Qs(tho would be imp to get allOLD, Ks silent on right to make digital scanned copies( a mess!) Counter-Args: (1) not adding meaning (2) robbing publisher from doing the same (not really) Perfect Ten case: after filing case, enters licensing agrmt w/cell phone co for thumbnail versions (intentional?) New technological uses by end users of the ed works SONY SCT 1984: TIME SHIFTING= fair use (did 4 part analysis) most owners dont object; no showing of harm, impaired value of s who did Dissent: stretching FU too far; deprives authors of control( incentive to create !; FU ought only apply to productive uses (maj rejects this= where 9th cir went wrong) Unlike maj, sees as commercial (like stealing); AND shows market for seeing programs at other time, even w/o ev( owners entitled to share of that! (circ prob) Potential harm: reduces value of re-run license; market for pre-recorded videos of TV shows; ad revenues down b/c less viewers for commercials; Nielson ratings (though already accounted for them in time-shifting) (but no evidence of this!) might be diff today! On demand,,, treat file sharing as commercial activity ? (b/c getting something for free would otherwise pay 4 Prob: unclear would pay for it if actually had to buy it In b/w Position: 9th Cir (Napster): repeated & exploitative copying of ed work, even when not for sale, may constitute commercial use ( Still a stretch if copy newspaper article to show to class every year, not commercial SECONDARY & VICARIOUS LIABILITY (from case law, not in statute) Why Sue 2ndarily? (1) easier to locate (2) deeper pockets ALWAYS ASK FIRST: what is the alleged direct infringement? Cant ( Important when thinking of extent of liability we want to impose on direct users just b/c seems wrong individuals should be held accountable for ripping personal CDs on ipod, denying liability in that case denies 2ndary liability as welll!!! Balance competing interests/Costs: Artistic protection vs. technological innovation (Grokster: Aim of law in this area= to manage the trade-off) 1. casting net wide enough to give ultimate protection/de-incentivize infringing behavior Tho can actually lower cost of enforcement b/c top-down (need to find, prosecute individual users- costly + ineffective) 2. higher costs: forced monitoring on 3rd parties, resultant costs on the public, deterring technological innovation, cultural interchange, investment, chilling use of legitimate uses/activities Higher control for vicarious, higher knowledge for contributory; May be liable for both (Napster) VICARIOUS LIABILITY (Gershwin test p. 850, end 1st par) D liable for anothers infringement if D: Had right and ability to supervise infringing activity K right w/o practical use of it is enough (Shapiro) Actual control w/o K right is enough (Gershwin) Fonovisa: had right to exclude any vendor for any reason Unclear: what to do if have right but no ability (ie L who has right to evict for infringing behavior, but has no way to know) Can be shown by: K, actual control, where one supplies needed goods/services 4 activity Had direct financial interest in such activity Fonovisa: admission fee, parking, rent but no direct cut of sales; diff than L-T b/c get more fees from draw of infringing copies being sold; more like dancehall cases Unclear this is direct: need more info/stats; court being sloppy at SJ? May just means could meet financial benefit test Classic Ex: of not direct: L-T renter hypo Need not be a specific % of infringers revenue (dance hall cases) *Knowledge not required* Origins in respondeat superior; expansion beyond employer-employee context Directness of financial interest required may be becoming more attenuated not clear how lower courts will read Fonovisa requirement of directness Shapiro: classic case; later crystallized into Gershwin test; concessionaire sells infringing recordings in dept store; Look to 2 lines of cases: (1) L-T (typically not liable) (2) nightclubs (typically liable, even tho IC) J: (1) control (had K right to fire, even tho didnt actually supervise) (2) 10% revenue from records sold Napster (9th Cir): online equivalent to Fonovisa: financial benefit= increased ad revenues from more users & ability to control= ability to locate infringing material using search indices & right to terminate users access CONTRIBUTORY INFRINGEMENT liability imposed on someone who: (Gershwin test, seen in Fonovisa) with knowledge of the infringing activity objective knowledge standard (Napster) (ordinary reasonable person in Ds position) actual knowledge reason to know induces, causes, materially contributes to a. by acting w/direct infringer (ie granting bunk license, suggesting changes, manager) b. by providing a device or service used for infringment infringing activity of another Unclear what you need to know: SPLIT: whether need to know of activity or know that the activity is actually infringing (( Is notice from owner enough w/o knowing that their claim is accurate? May be hard to telll..) TRADITIONAL VIEW: need to know of activity, not whether the activity is/isnt infringement Based on: general principle that mental state of infringer is irrelevant in context of direct infringement (tho may affect remedies) Napster: notice from owner triggers knowledge Some: in OSP context, need notice that makes us comfortable person knew of infringing nature of activity Fonovisa is easy case for contributory infringement To extent test applies woodenly, may end up w/liability further than think justified when considering extent to which were comfortable imposing policing responsibilities L-T Hypo where T infringes: seems to impose duties on 3rd parties to police on owners behalf Think about: reasons for 2ndary liability, whether met here What if: L gets notice from owner. Like Fonovisa? Vs. Vicarious Liability (almost always both brought in 2ndary liability claim) CI= CONDUCT BASED LIABILITY ( basic TORT idea: one who directly contributes to anothers wrongful conduct ought to be held liable for that conduct ( D has committed some act that contributed to infringing conduct of 3rd party, hold D liable for her own act of inducing/causing/materially contributing VL= RELATIONSHIP-BASED LIABILITY, not for acts/omissions DUAL USE DEVICES SONY (SCT 1984): NEW TEST for dual-use devices( seems would have been liable under CI (knowledge( partly assumed; some evidence of actual (ad said build a library) + librarying + enabling) New Test sale not contributory infringement if: (borrowed from patent law) Product widely used for legitimate, unobjectionable uses (857) Indeed, if merely capable of substantial [or commercially significant] non-infringing uses ( have some choice about what the new test is GENERAL VIEW: read as whether CAPABLE of substantial non-infringing uses True of VCR: time-shifting= fair use + many owners authorize Unclear: how much is substantial? Capable or actually happening? When? SONY dissent: no liability if significant portion of products use is noninfringing ( focus on ACTUAL USE= empirical Q as opposed to majority who focuses on CAPABILITIES Here, would go back to dis ct who punted and figure out various uses Category of cases to which the new test applies (as characterized by the Court): equipment/articles of commerce that may be used in the broad sense to exercise/infringe on any 106 rights of the owner (rather than necessarily limited to reproductions) Definitely covers: Sale of copying equipment (ex: VCR) Dual-Use Tech: devices/services that can be used for both infringing and non-infringing purposes (blank CD sellers, photocopy machines) Reason for the new test: ***Balance rights of the owners w/the development of new technologies (which can be used for good, non-infringing purposes)*** Concern old test didnt strike proper balance (bc SO many things could be held as infringing products musical instruments, photocopiers, computers, camcorder, typewriters!) Ex: GUITAR: easily, like SONY presumably know some people perform works w/o permission and they materially contribute by providing the equipment At least POSSIBLE could maintain claim under these products Concern giving owner too much power: If SONY had lost, requested relief was enjoining sale of VCRs (tho unclear would have gotten it) Majority (CAPABILITIES) vs. Dissent (ACTUAL USE) Disadvantages of Majority Very Uncertain: what is substantial? (see this in Grokster) Difficult to Predict: how capable is the device.? Test results may be problematic over time: what if in practice potential noninfringing use never catches on? ( elevates theoretical capabilities over facts on the ground of rapid infringement Disadvantages of Dissent Timing/Planning Problem: dont know if infringing until after ppl start using Knowledge problem: seller not really ever in position to know how products being used out in market (ex: radio for comm. b/w ships? recording for historical figures?) Empirical Problem: messy Q of how ppl actually are using them Aftermath: once VCR common, courts didnt want to consider possibility of levy scheme on sale of VCRs/cassettes; easier for congress to impose via statutory change INDUCEMENT (not many cases about it, but has been part of classic statement of CI for a long time) Grokster: entirely decentralized network; software enables file exchanges/locating; essentially operates the network; allows for exchange of any type of file, not just music (unlike Napster, where sent request thru them) Limited SONY Holding: cant be liable merely for distributing device w/substantial non-infringing uses (nature of machine/uses alone cant prove INTENT in CI) ( can still gather intent elsewhere & impose liability Not meant to foreclose rules of fault-based liability derived from the CL 9th Cir: no knowledge of infringing activity at time made contribution (when provide software)( end the inquiry. Dont need to worry about capable substantial commercially sig. See appendix for split on Court re: SONY analysis TODAY: 4 justices left on Court. liability for one who distributes (dual use) device (Grokster: not inconsistent w/SONY) with object of promoting use to infringe Court suggests liability goes beyond any particular infringement that is a direct result of the promotion FN 18 (76) (distribution of a product can itself give rise to liability and evidence. Culpable act is not merely encouragement of infringement but also distribution of the tool infringing use) ( extent to which can separate out device from acts to promote is a little uncertain as shown by clear expression or other affirm. steps taken to foster infringement ( purposeful, culpable expression and conduct; not merely ordinary acts incident to product distribution, like tech support ( doesnt do anything to discourage lawful innovation Google enabling infringing searches doesnt cut it even if device capable of substantial noninfringing uses (diff claim than SONY( not inconsistent (there, claim just about distributing the device) Proving inducement classic instance is advertisement or solicitation (sending msg to infringe) Here: targeted former napster users Other ways (unclear how much of what you need relevant not dispositive; concern w/treading too closely to SONY border) 1. Evidence of Targeting (even if not part of ads themselves) Here: similar name, internal memos show proposed ads to target napster users 2. Business Model (tho notes mere fact would make more $ if more infringing use not itself enough to condemn.this would have been a problem for SONY) Direct financial benefit? Advertising $ increased by more ppl ( more $....(no evidence for this; while common sensical doesnt seem OK) 3. Attempt to use a filtering tool? (tho in FN says this alone would not be enough. Would tread to close to SONY) Here: did nothing to limit sharing to PD/authorized Unclear how easy this is; Court thinks fact they didnt try is relevant But not only by failure to take affirmative steps to prevent, or making more money from more infringement LOTS OF OPEN QS! Inducement hasnt been developed COA before now Can Grokster sell software to another company? Maybe! b/c arg no: gratuitously designed to infringe? Could apply to VCRUnclear how far Grokster court will go wrt inducement claims! Remedy Issues: against acts? Ds? Tech? Modified Contributory Infringement Test applied in NAPSTER (for online context) p863 Comp system/operator learns of specific infringing material on system + fails to purge the material= knowingly contributing to infringment ( not just b/c they know can be used this way; need to KNOW and do nothing about it BURDEN: not entirely on operator; owners bear burden of identifying infringing material and notifying napster of it Alternate Readings of SONY Holding Napster (9th Cir): SONY just about knowledge prong of ordinary CI test( cant impute constructive knowledge to seller/maker based on nature of equipment (fact its capable/likely to be used by end users for infringing purposes) ( irrelevant if have ev. Of actual/other constructive knowledge (which they did) Evidence: evidence of actual knowledge (internal memo); constructive knowledge (napster execs had downloaded songs, has used screen shots in ads showing availability of files) ( reject D of SONY protecting b/c substantial noninfringing. Unclear this is correct: would mean SONY wouldve been decided differently if had received notice of actual users engaged in librarying Napster: SONY doesnt apply to vicarious liability at all (seems wrong when look at SONY lang) Groskter: see above OSP: Background OSP= any provider of online services, inc. network access (BROAD) Netcom (district court case settled) (shows how these issues would be adjudicated w/respect to ordinary principles of law( so what we would do if didnt qualify for safe harbor) (at SJ stage) Facts: disgruntled former scientologist posts church of sci docs on dissident news group; sci writes Netcom a letter saying to take it down. Suit against: him AND Netcom= ultimate connection b/w his bulletin board server & the internet) HELD: no direct liability for netcom (tho tech good reasons to argue for it (9th: temp storage in RAM= making a copy( Netcom itself engaged in acts of reproduction, maybe dis, maybe PD) = POLICY DECISION: internet would come to a halt if held everyone who operates a wire connecting customers to internet liable for directly infringement every time carry infringing traffic thru wire; impossible to effectively monitor + control ( such claims only allowed to proceed on basis of 2ndary liability HELD: No Vicarious Liability b/c no direct financial benefit (subscribers pay flat monthly fee) HELD: Possible Contributory Infringement! *note: at SJ stage* Suggests wrt Knowledge, need knowledge that material was actually infringing, not just that it was there (( equivocal notice from owner implied to not be enough to suffice) = different from traditional view that only need know whats happening. BUT unclear this is the case since only at SJ stage OSP SAFE HARBORS (remember: not qualifying `" liable; just means don t get this special shield from liability( use Netcom approach above) Congress responds to Netcom be enacting statute 512 COMPROMISE b/c important owners and ISP reps DMCA: 2 major provisions: 1. These safe harbors 2. prohibition on circumventions of technological protection measures Shield OSP from liability If OSP qualifies, subject only to limited injunctive relief No monetary relief( almost a free pass Qualifications: 1. Must be an OSP 512(k): Broad Definition: provider of online services or network access or operator of facilities therefore (DP check) Narrow def on internet connectivity provider? Inc: amazon, ebay etc; 2. Threshold requirement: (1) adopt and reasonably implement, (2) and informs subscribers/account holders (3) of repeat-infringer termination policy, that provides for termination in appropriate circumstances of repeat infringers What is sufficient repeat infringer policy? Unclear. No method/req. Some: read requirement in light FAVORABLE to OSP (Corbis (WDWA 2004) (no SH b/c didnt react sufficiently to notice of infringement) HELD: above( in appropriate circs (even if receive multiple notices of infringement, doesnt nec mean have to terminate user against whom those notices are received b/c not clear if can tell from these if infringing Suggests: need something more than notice; need unequivocal knowledge its infringement (site says this is illegal) (otherwise affrm. Ob) Some: take less OSP friendly approach( failure to terminate user after receiving 2 notices from owner= failure to reasonably implement 512(i) policy AOL (9th Cir): genuine issue material fact as to whether policy has been reasonably implemented b/c of e-mail problem Might be: tied to take down/put back provisions? Keep in mind: strict reading may harm innocent infringer, for whom the notices were inaccurate! Can we assume accuracy?! Who is repeat infringer? Clearly 2+, but unclear how much more + When is termination appropriate? What if notice only after 1,000? Not repeat Whose responsibility is it to locate infringers? affirmative obligation? Problem: administration costs of having ppl police youtube w/ knowledge 3. Accommodate and not interfere w/standard tech measures (defined in statute) 4. meet specific safe harbor requirements of 512(a)-(d) (vary by type of service provider is engaging in) Shields four types of OSP activities: (most action in (c) and (d)) (a) transmission conduit: connecting customers to internet & transmitting their traffic AOL : transitory digital network communications holding: AOLs storage and retention of infringing work for 14 day period complied w/ 512(a) requirements limiting retention to intermediate and transitory storage for no longer than is reasonably necessary for the transmission, routing, or provision of connections (b) system caching (c) storage of users material on SPs system at direction of a user** Inc: hosting a website/chatroom, storing users mp3 files in music locker (UNG v. MP3.com case), videos uploaded and stored on youtube If qualify( limited injunctive relief (d) providing information/location tools** Inc: directories, hyperlinks, search engines, sites w/links to other material/activity. Relevant to YouTube b/c has search feature ( if not only storing stuff but providing info/location help for it Storage, information location safe harbors: 512(c) and (d): Essentially preserve contributory & vicarious liability NO LIABILITY IF: (A) (i) no actual knowledge that the material or an activity using the material on the system or network is infringing; (ii) not aware of facts/circs from which infringing activity is apparent OR (iii) upon obtaining such knowledge/awareness, acts expeditiously to remove, or disable access to, the material AND (like CI) (B) no financial benefit directly attributable to infringing activity, in a case where has right/ability to control AND (c) upon notification of claimed infringement as in (3), responds expeditiously to remove/disable access to, material claimed to be infringing Contributory Liability 512(c)(1)(A): (Though may require higher showing than tradl rules) need actual knowledge that the material on the network is infringing, or if not aware, of facts/circumstances from which infringing activity is apparent (sounds like CI standard) ( essentially saying still on the hook for contributory infringement sorts of claims ISSUE: what is the standard of actual knowledge? Stricterinfringing, not just activity LH: RED FLAG STANDARD: if page says download pirated music here., fact its material not enough b/c cant tell if theres authorization/FU claims from that intent NOT to impose affirmative obligation on SP to monitor its content/actually seek out infringing conduct AOL (9th): AOL had reason to know when holders attempted notification only failed to provide actual notice b/c of unreasonable prob w/AOLs email notification system Further Support: non-DMCA compliant phone call (b/c from someone not purporting to rep holders) reporting other infringing activity 2nd CI prong: storing infringing matter + making it accessible to infringing groups, after receiving notice, could reasonably be found to constitute material assistance Note: focusing on IMPLEMENTATION, not nature of the policy Vicarious Liability: if meet 1st condition (no knowledge), still need to show dont receive financial benefit directly attributable to the infringing activity in a case where the SP has ability to control this infringing activity Stricter financial benefit prong: Financial benefit must be directly attributable to infringing activity( might require more of a direct connection than courts like Fonovisa have been willing to find Applied to YouTube: if made fee on every download, or ad rev on # hits/page,, would be directly attributable( need to know more about advertising model/revenue AOL (9th Cir) Direct Financial Benefit Holding: may be satisfied by showing infringing matter on web site is part of web sites draw to users, even if proportion of OSPs income directly linked to infringing activity is not substantial Must be a DRAW, though, not added benefit (NAPSTER) (tho the draw need not be substantial) Stricter ability/right/power to control to avoid having this prong be repetitive of earlier requirement MOST: must be more than right to take videos down/kick people off since need to be able to do this to qualify for safe harbor in the 1st place! (though havent indicated what!) Notice/take-down/counter-notification procedure: even if in the clear after applying the 2ndary liability tests, still have this.3 1. Upon proper notification of claimed infringement, must respond expeditiously to remove/disable the content claimed to be infringing 1st time in statute have procedure for notification for claimed infringement Notice must meet requirements set for in C3: ALS v. Reimart squib details them: need substantial, not absolute, compliance ID of ref or link to claimed infringing material, info reasonably sufficient to permit SP to locate that reference or link ( gives strong incentive to notify customer whose material is being taken down owner must state under penalty of perjury they have good faith belief this is infringing material, subject to penalties for knowing material misrepresenting that this is infringing (Rossi Squib) May be VERY HIGH standard for finding liability though: Rossi (website saying download movies but when clicked couldnt really. MPA filed notice of alleged infringement w/SP; taken down; Rossi sued saying knowing material misrep- if you bothered to look youd know) 9th Cir: NO. MPA under no duty to investigate, and didnt actually know ( not clear how easy to show materially, knowingly misreped 2. User can counter-notify= say NO, material has been taken down as result of mistake/misidentification( should be put back up G(3): content of counter-notification requires statement under penalty of perjury that material was removes as result of mistake or misidentification 3. SP has to tell owner of counter notification( owner has to either go to court and file infringement suit w/in 10 days, in which case it stays down, otherwise SP has to put material back up Balance being struck in Take down/put back provision: Why Users might not like this BIG COST to SP if dont take down infringing= losing safe harbor entirely! ( trigger happy to take things down (bc only if take down when notified do they retain protection) Small amt content amidst vast amt doesnt matter to them ( owners getting prelim & poss permanent injunctions merely by serving notice Penalty of perjury! ( will put many off. ( concern this is essentially automatic injunctive relief even w/ putback procedure Might CHILL/limit amt. noninfringing activity online While also penalty of perjury for initial notice, see above for LOW standard for knowing material misrep (hard to meet) Why owners might not like this to extent initial burden of monitoring is on them, dont want that burden to be too high REQUIRES litigation upon counter-notification to keep it down (costly!) COSTLY to monitor and file notices (& extent of it wasnt known when it was passed) Esp since users can just make new accts Seems SP could do better job of affirmatively policing using TECH to filter out infringing content( would make more sense Unclear if a Court would read this any differently or would wait for Congress to change it Applied to YouTube (they will probably rely on 512 safe harbors as one D to the claim) Terms & Conditions: will terminate users access if determined to be repeat infringer= notified of infringing activity more than twice or had user submission removed more than twice Safe harbors & inducement (Grokster) Viacoms complaint against Youtube included inducement Think about: extent to which YouTubes business model depends on high volume infringing activity & has failed to attempt to filter infringing material Think about: whether this is enough or need other evidence of clear affirmative steps to foster use of youtube for infringing purposes. How does inducement claim fit w/safe harbors? Not clear in 1998 when DMCA enacted there even was this inducement COA( depends on whether Grokster fleshed out existing law or introduced a new claim Could argue: inducement more like 2ndary liability claim DMCA has preserved (maybe w/elevated standards)( ought be available under safe harbor Statutory Counter-arg: shall not be liable for monetary relief unless these conditions are met ENFORCEMENT AND REMEDIES ASK: 1. Registration met( eligible for SD? 2. if going for AD, evidence provided for list profits? Injunctions INJUNCTION 502: Courts may grant final or temporary injunctions on terms as it may deem reasonable to prevent or restrain infringement of a both types granted ROUTINELY Potential Issues for permanent (1st Amendment), esp. if D contributed a lot of own expression (Stewart v Abend) Public denied access to both infringing and non-infringing If D thought fair use; made transformative use( denied use of transformative expression ( SCT: suggests: may be cases where court ought deny injunctive relief (looks like compulsory license) (MOST: don follow this advice/exercise discretion) Duns Lumberman: one of few SCT cases where approved of above injunction scheme Can tailor scope to address these needs (ie enjoin only using portion.) Look to: (1) threat of irreparable harm to P (2) balance of harm b/w this harm and harm suffered by nonmoving party if injunction granted (3) public interest Actual Damages & Profits Regime 504(b) 504: Actual Damages and Profits. - The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work. Prevailing owner can recover (not cumulative only get to profits not taken into acct. in damages) actual damages suffered due to infringement AND any profits of infringer attributable to the infringement and not taken into acct. in computing of damages ACTUAL DAMAGES Goal: (HR, Davis): compensate owner for actual harm suffered due to infringement 3 Categories of Common Actual Damages 1. owner. b/c of infringing activity of D, has lost sales of copies of the work to 3rd parties( entitled to profit would have made Ex: Bubble blowing Santas (only need one) BUT unclear amt. of sale by D necessarily= amt. lost by P (not 1-1_ 1. If price diff, unclear all would have nec. bought at higher price 2. If product is somewhat diff, D might have sold more than P would have May also look at harm to value of the product (image, etc.) 2. P lost revenue that would come from license P might grant to 3rd parties (tho may depend on evidential support- Cream vs. Frank Music) look to standard license would have granted. Cream (926): Shaft theme song in malt liquor commercial Held: could/would have charged 80K in market for this (had evidence someone else wanted to, Shlitz commercial drove them away: old marketing bandwagon, assoc. w/Shlitz) Compare Frank Music: Hallelujah Hollywood at MGM grand 10 mins; Kismet owner unable to license anyone to put on full production HELD: insufficient evidence of anyone deterred 3. P lost revenue would have made from licensing D for the use Davis (2d Cir): sculptural eyewear in GAP ad: lost license fee can be compensated for under statute; Uncertainty of amount lost`" uncertainty of fact of damages Insufficient evidence to make cream type claim Insufficient evidence to show harmed value of the work Need to be able to place value on the lost license without undue speculation to be awarded( some evidence (could be general market ev) Not about whether speculatively would have made the deal; probably do willing buyer/seller analysis (this is new category) INFRINGERS PROFITS not accounted for in damages (usually theyre the same) HR, Davis: Goal not to compensate owner but to force wrongdoing infringer to disgorge the beneficial profits received from the infringing activity( not unfairly benefit from wrongful act (1) what are the profits? Statute lays out burden scheme: (1) burden on P to prove gross revenue (not profit) infringer made (2) burden on D to prove deductible expenses 1st Q: which revenues are relevant? Indirect Profits are included under the statute Frank: includes profits from hotel and casino (( promotional value of HH drew people) Cream: liquor sales in period commercial ran (here, no direct profit: hasnt sold the ad, been paid to run it, etc) Must be reasonably related revenue to infrin. (2d Cir) (( proof probs_ Davis: proof problem w/arg revenues of corporate parent count; argued kakhis, etc sold better (not just eyewear; unclear GAP even sold eyewar) Frank: better ev: annual report to shareholders- said HH is big draw. 2nd Q: expenses must be actually related to production of the infringing work (( may include indirect expenses, but D must show this) (2) Apportion Profits: which profits attributable to infringing activity and which to other things? Burden on D to prove elements of profit attributable to factors other than work BUT courts dont follow this absolutely( make reasonable approximation in absence of proof (when evidence presents some division that can rationally be used as a springboard) Cream: while Shiltz didnt show this, court refused to award all $4.8 mil in profits to P (even tho P met their full burden and D didnt) one thing we know for certain is 4.8 not solely due to use of the Shaft clip Estimate may be high (esp. if dealing w/direct rather than indirect profits) other possible sources of profit: brand loyalty; good product; other features of the ad/etc; low price; etc. Statutory Damages: 504(c) owner can elect to pursue statutory damages at any time before final judgment Unpublished + infringement occurs before effective date of registration( NO SD Published + infringement commences after work 1st published and before registered( NO SD, UNLESS registered w/in 3 months after publication ( 3 month grace period to register D entitled to jury determ. of SD, even tho statute says court determines them (Feltner) BUT so long as owner willing to take minimum statutory damages dont need jury trial (bc no discretion exercised) (BMG v Gonzalez 7th Cir) AMOUNT: for all infringement involved in the action, w/respect to any one work, for which any one infringer is liable individually or jointly/sev (( expect Court will take into acct # infringements in deciding what is just); Courts discretion which of these to go by(only place where state of mind of infringer plays a role) Regular Case: b/w $750 and $30,000, as the court considers JUST Willful Infringement (burden on P): ceiling raised to $150,000 Knew or should have known Acted in reckless disregard Wild Oats: found t-shirts made w/Engels photos w/o permission= willful infringement, since photos taken from book and knew/should have known was infringement; acted in reckless disregard if not actual knowledge Innocent infringement (burden on D): floor lowered to $200 Unaware & no reason to believe Not available if notice on copies of work accessible to D 402(d) Special provisions for non-profit educational institutions/employees thinking its fair use (narrow; may take down to zero..) Court has discretion to authorize award to prevailing party of attorneys fees 505 Depends again on above registration/timing qualifications Fogerty v. Fantasy (SCT 1994): same standards for awarding to D or P; can award to either Relevant factors: frivolousness, motivation, objective unreasonabalness (both in facts and legal), need to advance considerations of compensation and deterrence). ISSUES: What constitutes one work? (see this in book) for the purposes of this subsection, all parts of a compilation or DW= one work Split: ( can only recover once for anything in it or for compilation AND works inside Held: each episode of a weekly television program= separate work ( 9th Cir) Arg: that just means can recover for the selection/arrangement, etc as one work Why have statutory damages? Combat possible under-enforcement problem INCETIVE to owner to enforce rights even when actual damages would be low or difficult to prove & DETERRENCE 1. ASCAP/BMI: important since infringements (like playing a song once) likely to( low AD( wouldnt justify going to court 2. P2P context (BMG v. Gonzalez): adds up! (most settle) There: SD of $22,500 upheld( $750/song, 30 songs downloaded, against indiv. Q: whether this runs afoul of recent SCT decisions of constitutionally excessive damages in context of punitive damages unclear if Congress imposing the range as opposed to open ended award by jury makes a diff Criminal Liability (recently expanding) Threshold: limited to willful infringement: need to know what youre doing is illegal not much caselaw on this Must also be: (3 kinds of willful infringement criminally penalized) 1. For purposes of commercial advantage or private financial gain (includes receiving ed works( in 101 financial gain post Napster) financial gain includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works Penalties: 5 years in prison for 1st offense, up to 10 for subsequent and fines 2. Reproduction/distribution of 1+ copy of 1+ works with total retail value over $1000 in any 180 day period ( even if not doing it commercially, scale on which you are can make it criminal (and MANY probably meet this! Note: no individual P2P users have been prosecuted Why? 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Willful dissemination of pre-release work on computer network Statute of Limitations: 5 years (as opposed to 3 years for civil actions) Procedural Points registration= prerequisite to bringing infringement suit 3 year statute of limitations from when claim accrues for civil infringement claims 507(b) Split: whether repeated ongoing acts= continuing wrong (so all included so long as last of them occurred w/in 3 yrs( get in whole course of infringing conduct) or whether separate and independent Exclusive Jurisdiction in Federal Courts: Arising under 28 USC 1338 ( may be state law cases that involve , if not the main point of dispute Preemption: if ever dealing q/sate law claim involving SMJ, think about poss of pre-emption, whether the state law claim fails b/c fed law bars state from granting these kinds of rights (could happen in fed court looking at state claim, too) Technological Protection Measures (DMCA Chapter 12) IMP in digital era (bc once digital can make perfect generational copies & easy to disseminate) Criticisms of TPMs: Prevents legitimate uses (like fair uses) May lock up nonable elements, by controlling access to them Privacy concerns (( monitoring) May discourage innovation Classic ex of using tech to address the problem: use code/algorithm to block access to work in ordinary clear/viewable/audible format to anyone who doesnt have key/password to decrypt (Ramirez) all DVD player authorized to have key to unlock film( can watch but not copy PROBLEM: CODEBREAKERS( tech arms race Unilateral Tech Disarmament: Chapter 12 (Digital Millennium Act DMCA) ( 1996: New treaty signed at world intellectual org in Europe require signors to protect owners use of tech measures protecting their works of authorship Some: already met this thru 2ndary liability scheme TPM= technological protection Measure Statutory Scheme: 2 kinds of control; 2 kinds of prohibitions imposed 2 TYPES OF PROHIBITIONS for 2 TYPES OF technological protections 1201(a) - (b) 1. Broad Device Ban: prohibits making, selling, trafficking, importing, offering to public in any device, technology, product, service, component or part thereof that circumvents an Access Control 1201(a)(2): prevents one who has access to a copy of a work to effectively access the work w/o permission Right Control (Anticopying) Measure 1201(b) Broad definition of circumvents in statute: bypassing, deactivating, avoiding, or impairing a TPM 2. Act Ban: prohibits act of any person circumventing one of these tech control measures (Anticircumvention rule) no person shall circumvent a tech measure that (1) effectively controls access to a work (2) protected under this title) ( must be a ed work (tho even thin protection counts- selection/arrangement) Applies to Access Controls NOT rights control Reason for distinction: theory making unauthorized copies sometimes permitted by fair use, but fair use never sanctions unauthorized access Limited exceptions to these bans: Very specific! Not uniform (might not be exemption from all) (ie Security research, law enforcement, protecting minors.) Civil and Criminal Penalties for violations 1202: regulates use by owners & interference w/use by owners of use of management info Unclear how courts will read 1201: may read narrowly and hold liable only if seek to infringe or broadly and find violations even when purpose is to use uned aspects of the work or make fair use (since otherwise would be superfluous) Streambox Case: one of 1st after 1200 enactment (server will transmit media files ONLY to real player software; uses secret handshake (via copy switch in file) Trusted System= BOTH access and right controls (restricting exercise of reproduction right) (common: (1) want ppl to use real player= business reason (2) cant be sure other software will follow the rights controls embedded in the copy switch) ( to make sure file recipient can only exercise authorized rights, need to make sure only access material on trusted platform( blurs Congress distinction HELD: Streambox VCR circumvents both types of controls (Both secret handshake and copy switch are TPMs (access & rights respectively)) (2) meets 1 / 3 conditions required by statute (1) primarily designed for purpose of circumventing (2) limited other purposes (3) SONY not a D b/c trafficking is separate claim from 2ndary liability may be D to access controls but NOT to rights controls violations? SONY: about 2ndarey liability based on distribution of a device; HERE: Congress has set up new area of liability (trafficking) w/its own scheme Ramirez (circumvention of content system of DVDs studios use to limit playing of DVDs to authorized DVD players which allow viewing but not copying; kids create DCSS to get decrypt CSS encrypted DVDs; post on website; CLAIM: against online sites that posted the links/DCSS( trafficking) TRUSTED SYSTEM: Access Control: can only access content on authorized player Rights Control: authorized players only allow certain rights HELD: Rejects Arg Fair Use( shouldnt ban b/c can be used in legal ways, b/c Congress was aware of this( balanced these concerns in only banning acts of circumvention of access controls, not rights controls (so can still circumvent TPMs to make a copy!) BUT: only works if you are tech savy! Most cant do the act if dont have the device! BUT #2: to extent most controls MERGED in trusted system, unclear can engage in acts of circumvention of rights control w/o simultaneously or 1st circumventing an access control( probably doing both( in trouble. Constitutional NOTE: says Fair use, despite D, is not Constitutional entitlement (tho Eldred); even if it is constitutionally required, doesnt mean needs to be allowed to be made in most convenient way; can do it others ways (ie videotape Possible future arg: Eldred said at least where Congress hasnt altered traditional contours of law maybe now open to 1st amendment challenge? 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