Copyrights Study Guide PDF

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Copyrights 

CHAPTER 9 – Foundations of Copyright Law o Grant of rights – copyright  books, music, art o Governed exclusively by Federal Law – 17 U.S.C. 301  Provides a method of registration  Allowing access to the federal courts for copyright infringement claims *publication* - the distribution of copies of a work to the public for sale or other transfer of ownership by rental, lease, or lending *creation* - In copyright law, the fixation of a work in a copy or phonorecord for the first time  work is protected from its creation – published or not o Advantages of registration:  Public record  Infringement suit  Prima facie evidence  Statutory damages and attorney fees will be available to copyright owner in infringement case  Protection against the importation of infringing copies o Application fee = $35 (online) – 8 month process – 13 if paper filing o Protection lasts 70 years after death of author o 1976 Copyright Act  Many amendments – Berne Union (1989) - Sonny Bono Copyright Term Extension Act (1998) - Digital Millennium Copyright Act (1998) o NewsNet – free electronic newsletter

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CHAPTER 10 – The Subject Matter of Copyright o Copyright ability: 1. Original 2. Fixed in a tangible form of expression 3. Work of authorship *originality* - in copyright law, a work that is independently created (not copied) and that exhibits a minimal amount of creativity  independent creation by author, can be similar to another work so long as the author came up with it himself o Does not extend to blank form, column headings, names, titles or list of ingredients o “fixed” – embodied in a copy or phonorecord ; permanent or stable to permit it to be perceived, reproduced or communicated for a period of more than transitory duration *copy* - in copyright law, a material object (other than a phonorecord) from which a work can be perceived, reproduced, or communicated, either by human perception or with the help of a machine

*phonorecord* - a material object in which sounds (other than those accompanying a motion picture or other audiovisual work) are fixed and from which the sounds can be perceived, reproduced, or communicated by human perception or with the help of a machine *fixation* - the embodiment of a work in a sufficiently permanent or stable form to permit it to be perceived, reproduced or communicated for more than a transitory period o Eight works of authorship: 1. *Literary work* - a work expressed in words, numbers or other verbal or numerical symbols, such as a book or computer program 2. *Musical work* - original musical compositions or arrangements, including lyrics 3. *Dramatic work* - a theatrical performance or play performed for stage, movies, television or radio 4. *Pantomime* - a performance using gestures as expression to communicate with no accompanying sound; *Choreographic work* - the composition and arrangement of dance movements and patterns 5. Pictorial, graphic and sculpture work - *useful article* - an article having an intrinsic utilitarian function  not protected under copyright law 6. *Motion picture* - audiovisual work consisting of a series of related images that when shown in succession, impart an impression of motion, together with accompanying sounds; *Audiovisual work* - a work consisting of a series of related images intended to be shown by the use of a machine such as a projector together with its accompanying sounds 7. *Sound recording* - a work that results from the fixation of a series of musical, spoken or other sounds 8. *Architectural work* - the design of a building as embodied in any tangible medium of expression o Excluded from copyright protection: - Ideas - Procedures - Systems - Methods of operation - Concepts - Principles - Discoveries - Blank forms - Short phrases - Slogans - Titles - Works in public domain - Facts - Computing devices o Protection extends to the expression of ideas not the ideas themselves – Baker v. Selden, 101 U.S. 99 (1879) *idea-expression dichotomy* - doctrine that ideas are not protectable by copyright although the expression of those ideas is copyrightable

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*merger doctrine* - the principle that if there are few alternative ways of expressing something, only literal copying will infringe because the expression merges with the idea and ideas are copyrightable o Cannot copyright names, titles, short phrases, slogans, clauses, simple checklists – slogans can be part of trademark though *public domain work* - a work or invention that is free for all members of the public to use o Product of corporate authorship- copyright protection 95 years after publication or 120 years from creation, whichever comes first o No copyright protection for U.S. government and its works *scenes a faire* - literally, “scenes which must be done”, stock characters and devices in a work that are uncopyrightable o Offensive, vulgar, deceptive and immoral books, plays and songs are copyrightable – unlike trademarks o *compilation* - a work formed by the collection of preexisting material arranged in such a way that the resulting work is original; includes collective works  Protected if original authorship exists  Selection, coordination or arrangement creates original work o *collection* - a work such as a periodical issue or anthology in which numerous contributions, constituting separate and independent works, are assembled into a collective whole  Protected  Matter making up a compilation is usually not copyrightable while matter in a collective work is Eg: calendar, lists, blank forms  compilations Eg: songs from 80s, podcasts from 80s  collective work o *derivative work* - a work based on one or more preexisting works, such as a translation, fictionalization, revision or abridgement; also called a new version  Copyrightable if original work or authorship included and original work was lawful  Copyright only to this work does not extend to original 

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CHAPTER 11 – The Rights Afforded by Copyright Law o Copyright rights  Reproduction rights  Adaptation rights  Distributing copies  Perform copyrighted work publicly  Perform  digital audio recordings o Rights of reproduction  Copyright clearance center (CCC) – clearing house, granting rights to reproduce and distribute books and periodicals  Can also grant limited rights/ access to work o Rights to derivative works  Author must consent or grant rights for adaptive work  New derivative work is separately copyrightable

*fan fiction* - unauthorized fiction created about preexisting book and movie characters by those other than the original authors, likely infringing the owners’ copyright rights and possibly trademark rights  copyright violation o Rights of distribution and first sale doctrine  Once author has parted with ownership of a copy, the new owner of a lawfully made copy can treat the object his or her own – can freely use, sell , lease or lend work to another  copyright owner’s sale of an item exhausts his/ her exclusive rights to distribution *first sale doctrine* - in trademark, copyright and patent law, the principle that once the owner of genuine trademarked goods, copyrighted material, or a patented item sells it, the buyer can treat the object as his or her own and freely sell, lease, or lend the work to another; in copyright law, the first sale doctrine only, affects the right of distribution  Exceptions to first sale doctrine:  Only applies to lawfully made copies – even if seller sells unknowingly they are still in violation  Does not apply to commercial rentals of phonorecords and certain computer programs  No digital first sale doctrine – digital file is not sole but rather another copy is made *Driot de Suite* - a doctrine in foreign countries that allows the authors of fine woks to share in the appreciation of those works, even after they have parted with ownership of those works – right of continuation  lets original author benefit on any resales, like royalties for artists o Right to perform work publicly  Perform – recite, render, play, dance or act a work  Limited to public performances – copyright rights can only be violated if person does a public performance  Exceptions for sound recording:  Public performance of sound recordings through nondigital transmissions (AM/FM radio) does not trigger obligation to radio to pay royalties  Musical work – notes and lyrics  Sound recording – what you hear: person singing, background musicians, etc.  Exclusive rights of sound recording: - Reproduce the sound recording - Prepare derivative works based on it - Distribute copies to the public - Perform work by means of digital audio only  no right to control other performances or display of work and no right to receive performance royalties from airplay on conventional radio  Other exceptions: - Face to face teaching

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Religious services Promotion of records Nonprofit and charitable performances Veterans and fraternal organizations Agriculture and horticultural fairs Small commercial establishments and the home style exemption - Transmissions and performances for the disabled *Performing rights organizations* - act as an agent for copyright owners of musical works and issue licenses on their behalf Rights to display work publicly  Public  Architectural work – owner of architectural work cannot prevent the making, distributing or public display of pictures, photos or other pictorial representation of the work if the building is ordinarily visible from a public place Exception for owners of lawful copies  Only one image at a time can be displayed to viewers present at the place where the copy or painting is located Moral rights and the Visual Rights Act  *moral rights* - personal rights retained by authors in their works (often works of fine arts) to protect their honor and reputation even after they no longer own the copyright in the work - The right of *attribution* - the right of an author to be known as the author of a work - *The right of integrity* - a personal right of a copyright author to ensure that his or her work not be distorted, mutilated, or used in a way that would injure the author’s reputation  Visual Arts Rights Act (1990)  Visual Arts  Paintings, drawings, prints, photographs or sculptures  Do not include posters, maps, globes, charts, technical drawings, motion pictures, books, magazines, newspapers, etc.  Artist who creates work owns moral rights in it even after selling to another  Lanham Act – prohibits person from making a flase designation about the origin of goods *Compulsory license* - the imposition of a statutorily set fee for use of a copyrighted work

CHAPTER 12 – Copyright Ownership, Transfers and Duration *author* - for copyright purposes, a person who creates a work or, if the work is one made for hire, the employer or commissioning party o Copyright ownership issues

Arise when more than one author of work, work has multiple parts or when work is created by employee  Original authors retain copyrights to all the works, the ownership of the physical object is different o *Joint works* - a copyrightable work created by two or more authors with the intent that their contributions be merged into a unitary whole  Contributions be merged into inseparable or interdependent part of a unitary whole  Cannot merely make suggestions/ give directions to be considered a joint author  Two separable copyrightable works in their own right  Coauthor may grant nonexclusive to a nonparty to use joint work without coauthor permission  exclusive license requires consent from all authors  Death of coauthor  rights transfer to heir(s)  Copyright of joint work lasts until 70 years after the last surviving coauthors death o Ownership in derivative or collective work  Each author owns nothing more than his/her own original contribution  In collective work  parts that compose it remain separate and independent  In joint work  separately contributed elements merge into a unified whole o *Works made for hire*- a work that is presumed to be authored by an employer or commissioning party because it was created by an employee on company time or a work authored by a commissioning party when the parties have agreed in writing that the commissioning party will own the copyright and the work falls into one of nine statutorily enumerated categories  Employer, not the employee who created the work  Works prepared by employees in the scope of employment  *independent contractor* - one who renders services in the course of independent occupation; one who is not an employee of another  Control by the employer over the work: - Employer determines how work is done - Done at employer’s location - Provides equipment and tools to create work  Control by the employer over the worker: - Employer controls worker’s schedule - Has the right to make worker perform other assignments - Determines method of payment - Right to hire worker’s assistants  Status of employer: - If employer is in business to produce such works - Provides worker with benefits - Withholds taxes from the worker’s comp 

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Work must be created within the scope of employment to be a work made for hire Specially commissioned works  If prepared by independent contractor – 3 conditions 1. Specially ordered or commissioned work 2. Parties agree in writing – work done for hire 3. Work falls into one or nine categories a. Contribution to collective work b. Part of a motion picture or other audiovisual work c. A translation d. A supplementary work e. A compilation f. An instructional text g. A test h. Answer material for a test i. An atlas  All 3 elements must be satisfied to be considered work for hire Effects of works made for hire  Ownership – employer or commissioning party  Duration – 95 years from publication or 120 years from creation  Reversion of transfers – under made for hire – no right to terminate or undo transfer  Moral rights – no moral rights to work made for hire Transfer of Copyright  Author of books can grant rights to distribute books to one party and prepare derivative works to another  Can also be specific to geographic region  Copyright rights are divisible Requirement of writing for transfer of exclusive rights  Nonexclusive transfers do not need to be in writing  Copyrights can serve as secured property  Recordation can be made to published or unpublished works Termination of transfers of copyright rights  Transfers of certain copyright rights can be terminated or revoked after 35 years so original author can recapture his/ her work  Transfer of copyright rights can be set aside or terminated  Statutory authority  1976 Copyright Act  effective Jan 1, 1978 – transfer by will cannot be terminated  Termination rights can be exercised by surviving spouse – spouse  child  grandchild Eg: author dies ; widow (w) child (LC) 4 grandchildren (GC) W – 50% LC – 25% GC – 25% collectively 

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To effect termination – must sign and serve a written notice to the grantee no less than 2 years and no more than 10 years before the transfer to be terminated o Duration of Copyright  1909 Copyright Act  Copyright was eligible for renewal during last year of term  Renewed for 28 years  Max length is 56 years  1976 Copyright Act 

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CHAPTER 13 – Copyright Registration, Searching Copyright Office Records, & Notice of Copyright o Application – parties who may file  Author  Copyright claimant – author/ person in organization/ transferee/ heir  Owner of exclusive rights – transferee  Duly authorized agent of the author, claimant or owner of exclusive rights o Application methods:  Online registration - eCO – electronic Copyright Office  Paper forms - Renew a copyright must use paper forms - Required for registering groups of materials o Application Form  Information typically required: 1. Type of work 2. Title 3. Publication/ completion 4. Author(s) *anonymous work* - a copyrighted work in which the author is not identified *pseudonymous work* - a copyrighted work in which the author is identified under a fictitious name, such as the name Mark Twain used by Samuel Clemens 5. Claimants 6. Limitation of claim 7. Rights and permissions information – who is contract if third party wishes to obtain work 8. Correspondent – copyright office contact 9. Mailing of certified info 10. Expedited or special handling 11. Certification o Deposit materials accompanying copyright applications  Application must be accompanied by a nonreturnable deposit of work being registered

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If work published, two complete copies or phonorecords of the best edition If work unpublished, one complete copy or phonorecord

 “Best Edition” *best edition* - the deposit edition of a copyrighted work most suitable for purposes of the Library of Congress; generally, clean, legible, and superior deposit materials Deposit requirements for specific works 1. Visual arts materials – photographs acceptable, swatches, complete copy of game, unless big  photographs 2. Literary works - copies 3. Performing arts – scripts or screenplays 4. Musical compositions – sheet music, full score, CD 5. Architectural works – blueprint, photographs 6. Motion pictures – copy and script 7. Sound recordings – two complete phonorecords of a best edition and any text or pictorial matter 8. Computer programs – first and last 25 pages of code Filing the Application  Select application method, complete form, gather deposit materials  Case # assigned after payment Examination of the Application  8-13 months  Either issue a certificate of registration or applicant will be contacted for additional info  applicant has 20 days for email and 45 for letter – no response, then file closed *rule of doubt* - policy followed by Copyright Office or USPTO to resolve doubts about copyrightability or trademark applications in favor of copyright applicant or existing trademark registrant, respectively Refusal of registration  Applicant “appeals” by written request  Fee of $250 within 3 months of refusals  First request is copyright office  Second request - $500 – Copyright Review Board Special handling *special handling* - expedited processing of copyrighted applications and other documents for specified reasons upon payment of a fee  Special circumstances: - pending or prospective litigation - custom matters - contract or publishing deadlines  $800 and usual application fee  Expedited recordings of docs  $550 and usual fee Supplementary copyright registration

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*supplementary copyright registration* - an application to correct an error or amplify information in a copyright registration  To correct error or amplify info - Original app identified incorrect author - Work was registered as published when publication had not yet taken place - Co-author was omitted - Change int eh name or title of the work has occurred Benefits of securing registration 1. Public record 2. Registration necessary for infringement suits 3. Before or within 5 years of publication  constitutes prima facie evidence 4. Statutory damages and attorney’s fees 5. Protects against importation of infringing copies Preregistration *preregistration* - new copyright procedure allowing owners to preregister certain works that have a history of infringement prior to their release, allowing owners to sue for infringement prior to a work’s commercial release  Intended in situations in which copyrighted works such as movies and songs are leaked prior to release  Work must be unpublished  Must be in the process of being prepared for commercial distribution  Must be certain type of work *due diligence* - a type of audit of intellectual property, usually conducted when a company is sold, when it borrows money, when it offers securities, or when it acquires another c...