Intellectual Property Rights: Copyrights
first sale doctrine
Copyright Owner can determine how, when and where to distribution the FIRST sales of the work, but once a copy has been sold/distributed, the copyright owner no longer controls the physical object. (The original sale is deemed to exhaust the economic interest in the IP.)
who owns original copyright or works for hire?
Employer, not Creator, owns original copyright § 106 Rights apply EXCEPT Termination Right § 203 (you are not required to learn about the Termination Right for this class) Free to assign or transfer copyright interests Duration: shorter of 1) 95 years from publication or 2) 120 years from creation
What Creative Expressions Does Copyright Protect?
kinds that are fixed in a tangible medium of expression
sound recordings are offered ______ protection than other works
less
the basic term for length of copyright duration
life of author + 70 years after their death
what is a copyright granted to arrangement of words that author used to express ideas?
literary works
examples of musical works and what they are in comparison to sound recordings
lyrics, music, melody, harmony
Section 102(a) of Copyright Act - fixation:sound recordings
material object in which sounds are fixed (with the EXCEPTION of music that accompanies a motion picture or audiovisual work)
Are sound recordings protected to the same extent as other works?
no
Matt is an improvisational comedian. His work is completely spontaneous, and he never writes down his jokes. Each performance is fresh and new. On Saturday night, Matt performed live at Eisenhower Auditorium. The performance was not recorded. Can Matt receive a copyright in the jokes he uses in the performance?
no
Sumukh purchased Michael Jackson's "Thriller" album on CD. Sumukh made a copy of this CD for his personal use. Has Sumukh infringed on the Jackson estate's copyright in the CD?
no
You, the consumer, can rent DVD's from Redbox. Each time you rent a DVD, do you have to pay the copyright owner?
no
are works authored by the US government copyrightable?
no
are works consisting entirely of information that is common property containing no original authorship (examples: standard calendars, height and weight charts, tape measure and rulers, lists or table taken from public documents or other common sources) copyrightable?
no
are works that have passed into the public domain copyrightable?
no
ideas are _______________
not protected
Visual notice (Use of visual copyright notice "© 2017 Karen Maull" ) is ____________ but may be beneficial
not required
To win a copyright infringement action, the copyright owner must prove
ownership of a valid copyright in the work that is the subject of the dispute, defendant copied the work, defendants copying was an improper appropriation
A second generation creator MUST get ________ (a license) from the first generation author to create a derivative work
permission
"sound recordings" are embodied as _________
phonorecords
what are types of material objects in which expressions are fixed?
phonorecords and copies
only an image displayed in ________ can be infringed under the public display right
public
are compilation of facts copyrightable?
sometimes - but ONLY IF expression is original
audio home recording act (AHRA) which is an exception to the reproduction right
the "Audio Home Recording Act" allow consumers to make digital copies of copyrighted music for private, non-commercial use using DIGITAL audio recordings (CD's and MP3's).
public display rights and limitations on copyright owner's rights - section 109(c)
An owner of a copy MAY display the copy to the public so long as -The copy is lawful; -The display is either a DIRECT display or a display of the projection of a single image at a time; -The display must be made to viewers PRESENT at the location of the copy (no transmissions permitted)
what are the remedies for copyright infringement?
- Tort Damages (Actual OR Statutory Damages); - Injunctive relief (if monetary damages are deemed inadequate; - Criminal fines and/or Imprisonment IF infringer is deemed "willful"
Important Provisions of DMCA
-Civil and criminal penalties for those who bypass antipiracy software protections; -Prohibits manufacture, import, sale, and distribution of technology and services that bypass antipiracy protections -Limits the liability of ISP's (Internet Service Providers)
innocent infringers and the potential damages awarded for each infringement
-award PER infrignement -mimimum: $750 (court can reduce to $200 if infringe proves innocence and belief that he had a right to use the material) -maximum: $30,000
willful infringers and the potential damages award for each infringement
-award PER infringement -minimum: $750 -maximum: $150,000
alternative term for length of copyright duration
-for anonymous, pseudonymous works and works made for hire -shorter of (whichever year arrives first when calculations are done) 1) 95 years from publication OR 2) 120 years from creation
copyright visual notice offers benefits because
-notice informs public work is protected, and identifies the year of first publication and the owner; -in the case of an infringement, the notice prevents infringer from raising defense of "innocent infringement
reasons when a photograph is copyrightable
-rendition (angle of shot, light and shade, exposure, effects achieved by filters, and developing techniques; -timing (selecting when to take the photograph; -creation of the subject (choosing what to include in the picture)
Copyrights in Digital Information: One act of file sharing can constitute infringement of multiple rights
-the creation of Unauthorized copies = INFRINGEMENT of copyright holder's "Reproduction Right" -the sharing of Unauthorized copies = INFRINGEMENT of copyright holder's "Distribution Right" -the public display of Unauthorized copy = INFRINGEMENT of Copyright holder's "Display Right"
structure of the Copyright Act
1) Definitions 2) Subject Matter of Copyright and works of Authorship 17 USC §§ 102-103; 3) Rights of Authors 17 USC § 106; 4) Limited Moral Rights for certain defined works of Visual Art; 5) Statutory exceptions to Copyright 17 USC § 107 (Fair Use) - §122.
who is the "author"?
An employer owns the copyright in any work made by an employee within the scope of his/her employment. The employer is considered to be the "author," not the employee/creator.
Frank downloaded 100 movies from the internet. Frank was aware that downloading movies from the sites he used was illegal. Assuming a court determines that Frank is a willful infringer, what are the maximum damages a court may order Frank to pay?
100 x $150,000 = $15,000,000
In the year 2000, Maya wrote a book. Maya died in 2010. In what year will Maya's copyright protection expire?
2080
Penn State Motion Picture Studios hired Sebastian as an employee to create a film. Sebastian created the film "Penn State Memories" in 2000. The studio first distributed the film later in the same year. In what year will Penn State Motion Picture Studio's copyright in the film expire? (WORK FOR HIRE)
2095
Section 102(a) of Copyright Act - definition of "fixed in a tangible medium"
A work is fixed in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the copyright owner, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration
significant limitation on reproduction right - the compulsory license in section 105
After the initial release of a song (a non-dramatic musical work), ANY user may record his own version of the song to distribute (not to broadcast) without infringing on the copyright owner's interest AS LONG AS the user PAYS a compulsory license fee.
for works created on or after January 1st, 1978 the date of protection is when expression was ________ in a tangible medium
fixed
Laws the govern copyrights - enablement - US Constitution Article 1 Section 8 Clause 8
Congress shall have Power . . . To promote the Progress of Science and Useful Arts, by securing for limited times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries
Which of the following forms of IP protection is most appropriate to protect a movie script that you wrote?
Copyright
The Distribution Right - Section 106 (3)
Copyright owner has the EXCLUSIVE right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
Section 102 of the Copyright Act - Subject Matter
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium 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: (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.
who owns original copyright for other works than work for hire?
Creator owns original copyright All § 106 Rights apply; Free to assign or transfer copyright interests Duration: Life of last surviving author plus 70 years
first sale of physical object
HOWEVER, the copyright owner RETAINS rights to the copyright interest in the original creative expression EMBODIED on the physical object. Therefore, no additional "copies" of the work can be made
who has copyright ownership of works in the public domain?
If a first generation work enters the public domain, 2nd generation creators are free to use the first generation work without permission
Section 102 (b) of the Copyright Act - Exclusions
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
WIPO treaty
International Treaty enforced by DMCA designed to provide greater international copyright protection
Copyright A) Notice and B) Registration are ______________, but do offer benefits
NOT REQUIRED
limitations on exclusive rights and fair use - section 107
Notwithstanding the provision of [Copyright Act] sections 106 and 106A, the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching. . . , scholarship, or research is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include 1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) The nature of the copyrighted work; 3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) The effect of the use upon the potential market for or value of the copyrighted work.
Rights of Authors under Copyright Act Section 106
Subject to sections 107 through 122 [17 USCS §§ 107 through 122], the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (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 (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
assuming the 2nd generation creator receives permission (license) to create he derivative work then who gets copyright ownership of derivative works?
The copyright holder of the 1st generation work continues to own the copyright in ALL copyrightable elements from the 1st generation work The creator of the 2nd generation work only owns copyright in his/her ORIGINAL creative contributions
The Public Display Right - Section 106 (5)
The public display right gives copyright owners the exclusive right to display/show their works to the public
Copyright infringement occurs when the defendant copies ___________________ of the copyrighted work without the copyright owner's permission.
WHOLE OR PART
what is a derivative work? Section 106 (2)
a "derivative work" takes a 1st generation work and recasts, transforms, or adapts that expression in an original way to create a new 2nd generation work
The Reproduction Right -- Section 106 (1)
a copyright owner has the exclusive right to reproduce (or to license others to reproduce) the copyrighted work.
what is a copyright?
a form of property ownership that gives creators and owners of creative works the right to control and profit from use of those works
which receives great protection with copyrights under originality: fictionalized works or works of fact?
fictionalized works
Section 102(a) of Copyright Act - Fixation: Copies
any material (other than phono record) in which a work is fixed
what items are not copyrightable?
anything NOT "fixed" in a tangible form
architectural works: plans/blueprints are protected as either __________ or ____________
architectural works OR pictorial, graphic, sculptural works
3D build (actual constructed building) is protected as ___________ but copyright protection only for buildings constructed ________
architectural works, 1990
In the event an infringement lawsuit arises, a copyright owner who registers within the correct time period can be _________ statutory damages and/or attorneys fees.
awarded
registration of copyright is not required but the owner must register the copyright with the US copyright office _________ filing suit
before
registration time period to preserve rights to claim attorney fees & statutory damages
before infringement OR within 3 months after the first publication fo the work
copyrightable works include "intangible expression" embodied in?
book, magazine, newspaper, script, speeches, correspondence, product packaging, CD, DVD, phono record, movies, television shows, theater productions, videos, photos, paintings, drawing, sculpture, architecture
Danielle lives in New York. Jessica lives in Los Angeles. The two have never met, do not share any acquaintances, and are unfamiliar with one another's work. If Danielle and Jessica independently create identical books, who can receive a copyright in the work?
both danielle and jessica
what are examples of phono records?
cd, mp3, casette tapes
any material (other than phono record) in which a work is fixed
copies
the first sale doctrine requires that the ______ be lawfully made AND that the initial public distribution is ___________
copy,authorized
when does copyright begin?
copyright begins AT THE MOMENT an original work is fixed in a tangible medium
copyright protection for architectural works is limited
copyright in an architectural work that has been constructed does NOT include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place
Paraphrasing and Copyright
copyright includes BOTH verbatim copying AND mimicry of expression, presentation and organization of content, etc
The public display right ________ include phonorecords/sound recordings
does not
Copyright owner is entitled to damages for _____ infringed work
each (if an infringer infringes 22 songs, the copyright owner is entitled to damages for EACH song)
Section 102(a) of Copyright Act - Fixation
embodiment of the expression in ANY tangible object satisfies the fixation requirement.
the fair use doctrine is to encourage creative activities that may ________ society
enrich
to receive remedies for actual damages the copyright owner must
establish proof of "actual damages"--how much loss did copyright owner actually suffer
copyright only protects the _________ of the author's idea when it is fixed in a tangible medium
expression
exceptions to copyright infringement
fair use exception and first sale doctrine
requirements of the copyright act: what is originality?
independently created by the author, not copied and as least some minimal degree of creativity is required
NO PROTECTION FOR THE FOLLOWING
individual words, idea, work's theme, work's plot, factual information, other non original common elements
what kind of property does copyright law protect?
intangible property
examples of things that are not copyrightable
titles, names, short phrases, slogans, familiar symbols/designs, mere variation of typographic ornamentation, lettering, coloring, mere listing of ingredients or contents
You own a store that uses a highly stylized "+ " (a stylized image will be shown in class) sign for its logo. This logo is an original design. In addition, the logo for your store has become very well known -- when customers see this logo they immediately think of your store. You want to make sure no other store owner uses your logo. You wish to protect your IP rights. What form(s) of protection would be the most appropriate for you?
trademark
motion pictures and other audiovisual works are all copyrightable so long as composition is original and fixed in a tangible medium? (T or F)
true
pictorial, graphic, and sculptural works are copyrightable so long as they contain original expression? (T or F)
true
copyright infringement occurs when a third party _________ one or more of the copyrights owner's exclusive right listed in section 106
violates
types of works protected as literary works
virtually anything that is written - software programs, video games, etc.
Section 201(b) of the copyright act
works for hire
WIPO
world intellectual property organization
example of copy
written lyric, written musical score, books magazines
Did Fairey infringe on any copyright interest when he created the poster of obama?
yes
Lydia created a beautiful drawing of the Bald Eagle forest in autumn. Lydia sold her drawing in stores downtown. Dylan loved Lydia's drawing, purchased a copy, then made a photocopy of the drawing. He hung the drawing in his bedroom and no one else ever saw the drawing. Has Dylan infringed Lydia's copyright?
yes
Ray sat in Prof. Maull's course and took notes. Ray's notes paraphrase much of both the underlying text and Prof. Maull's powerpoints. In addition, the sequence of information presented in Ray's notes mirrors the sequence of the material presented in the course. Ray sells his notes to Nittany Notes. Has Ray infringed the copyright interests of Prof. Maull, PSU, and the authors of the text?
yes