CINE 230 EXAM 1
Digital Millennium Copyright Act (DCMA)
- "Safe Harbor" for online service providers (removes the companies from being blamed for something posted on their website) - Criminalizes technology that circumvents DRM
Dr. Seuss Enterprises, L.P. vs. Penguin Books USA, Inc.
- "The Cat NOT in the Hat! A parody by Dr. Juice", retold OJ Simpson story in Seuss' style - Satire not parody - Did not ridicule Seuss, but exploited his style, characters, etc. - Commercial/NOT FAIR USE
Leibovitz vs. Paramount Pictures Corp. (1998)
- Ad for Naked Gun 33 1/3, imitated photographers style in vanity fair ad of Demi Moore - Transformative purpose, creative, no market harm
Be familiar with the Air Pirates example and think about the numerous reasons why the South Park episode featuring a parody of Mickey Mouse, Disney and the Jonas brothers would not be an infringement on Disney's copyrights
- Air pirates is exploiting Mickey and Minnie for their aesthetic qualities - Could act as a replacement in the marketplace (people could mistake this for a real mickey and minnie cartoon) - South park Mickey mouse changed many of his attributes and is parody of the character meant to critique - The episode is adding on to the original, not exploiting
What types of works are in the public domain? Are sound recordings made before this date public domain?
- All types of works are in the public domain EXCEPT sound recordings
Before what date are works 100% in the public domain and what does it mean for an intellectual property to be in the public domain?
- BEFORE 1924 (so 1923 and earlier), works 100% in the public domain - Intellectual property to be in the public domain (IP: A work or invention that is the result of creativity)
In Buchwald v. Paramount (1990), what type of law did Art Buchwald use to successfully sue Paramount for developing his idea into a film? Would his idea of an educated, snotty, well-off African prince played by Eddie Murphy who comes to the United States to find love, happiness, and learn a little bit about himself be protectable by copyright law???
- Buchwald used CONTRACT LAW to successfully sue Paramount - The idea would not be able to be protected by copyright law, but the EXPRESSION could be
How has corporate personhood changed IP laws to favor the interests of juristic people? Remember, corporations don't die, they just go bankrupt. Thus, the laws have changed to reflect life of juristic people over natural people and their interests.
- CODIFIED CORPORATE AUTHORSHIP: Can change IP laws to favor the interests of the people (juristic hire - work for hire) - Corporations could be "authors"
What types of copies can we make and for what purpose?
- Cannot display or sell copies, which dilute the original's market - You may have a digital backup of any physical or digital media you have purchased, as long as you possess that media (in the case that the rivalrous good fails) - Blank Cassettes, VHS, writable DVDs - We can make digital backups of any IP we have paid a license for in a rivalrous or non-rivalrous good, we can record to watch later in private, we can rip a digital copy, we can share to our cloud
What is Kirby's main idea in Everything is a Remix?
- Consumption is the starting point of production - Add to the past - Recreate culture; ideas are built off of previous ideas - Copy, transform, combine
What types of expressions does fair use protect (i.e. does it protect patent, trademark, and copyright?)
- Copyright, - Weaker in trademark (ex: nike swoosh = ok in art, but not on shoes) - None for patent
IP laws in America are supposed to strike a balance between whom?
- Culture or Publics & "Authors" - $/Protection & +++ Creativity/Innovation
Do you need to have a © for your work to have copyright?
- Current copyright act of 1976 is governing legislation - No copyright C needed
FAIR USE: Is use transformative (meaning/market)?
- Does it add to the original or exploit it? - It is simply derivative? - Is it replacing something in the market?
Consider Girl Talk and a fair use analysis of his albums. What factors suggest his uses are fair? How does he potentially strengthen fair use or weaken it?
- Doesn't replace the song he sample's place in the market - He does not charge for his music - Its a creative work
What is the duration of copyright for flesh and blood/natural authors? What is the duration for corporate/juristic authors and "works for hire"?
- Duration for natural people = life + 70 years; - Juristic people = life + 95 years
Los Angeles News Service vs. KCAL - TV Channel 9 (1997)
- During 1992 LA Riots, Reginal Denny is attacked in a hate crime and it was recorded in a 4 minute copyrighted video - Not staged, takes minimal work, just a capture = FAIR - "Replaced" original, substituted ability to license = NOT FAIR - The use was commercial, took the heart of the work
Is this true or false and why?: "This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited."
- False. - Bad Lip Reading is a parody - Accounts of the game are facts which are not copyrightable
What is the significance of the Fiest v. Rural (1991, phonebook) case?
- Feist copied from Rural's listings - You can't copyright FACTS/INFO - Copyright can only apply to CREATIVE ASPECTS of a collection
Copyright Act of 1976
- First time sound recordings received federal copyright protection in Act - Fixed term of life + 50 or 75 years; before was renewal terms - No ©opyright registration w/ Copyright Office - Works do not need to be published, just fixed
How is Girl Talk able to perform his music for lots of money without legal recourse?
- He can perform it legally because it is not copyright infringement to play a digital recording to an audience. - He can perform his music for lots of money without legal action because he doesn't charge people for his music. People pay what they want to pay.
Intellectual Property
- IP - Having an idea and claiming it as your own. - Ideas sectioned off, making them rare, sellable, & their own
What are some of the things that copyright DOESN'T protect?
- Ideas - Facts - News/Sports - Recipes, jokes, fashion/clothing - Instructions - Logos - Names - Processes - Inventions - Anything made by federal government - Trade secrets... - Formula, process, design, pattern, recipe...allow for economic advantage
What is the relationship between IP protection and innovation under our Constitution?
- In our constitution, less protection = more innovation but less protection also = more competition
What does he mean when he says that digital technologies remove the "economic censor" and how does this make remixing a democratic practice?
- In the 80's, films and works could not be published unless you had $$$, today you can go to public library - There is simply too much remixing to stay ahead of the curve with the way we connect through technology, making it a free flow of ideas which in itself is democratic
Intellectual Property Basics:
- Intellectual property rights give the owner of the work the ability to exclude others from using their work, in order to monetize intangible assets. - IP rights are limited monopoly rights granted by the government as a balance between creators and society. - IP laws are supposed to balance the rights of creators and society by balancing the amount/time of protection with financial incentive.
The legal concept of fair use:
- It allows people to use copyrighted works for the purposes of commentary, criticism, education, scholarship/research and news without permission or credit. It is a legal defense. - It allows for the parody of copyrighted works - The new work should transform the meaning and the market of the original work used - To test fair use, courts apply a 4-tiered "balancing test". These factors are non-exclusive, meaning that all factors don't need to be fair for the use to be fair.
Combined with what you know from above, how does this make so that A Fair(y) Use Tale is still available online? If Disney wanted to try to take it down how would the baby dancing to a Prince song case play a role?).
- It's parody of Disney's proprietary behavior - It uses very little of each film - Nobody would confuse it for a Disney movie
What does the Copyright Clause in the US Constitution say about copyright/patent monopoly?
- Looser laws encourage more innovation - Less protection = more innovators = more competition = more product = better for consumers
Know the basic difference between economic incentive and moral rights in IP law theory. Does the concept of fair use support or challenge moral rights in copyright?
- Moral rights in IP Law theory: Author maintains more rights of a work even if they don't own the copyright - EUROPE has a moral rights system, USA has a economic incentive system (how can we exploit these works for more money) - Fair use would challenge moral rights in copyright because it allows you to use someone's work in your own way to your own advantage
How are ideas made artificially scarce?
- Non-rivalrous in nature...they can spread infinitely without being weakened - Intellectual property law and the rights granted by law that allow for the exchange of money for access to the idea - Corporations use IP
Do you need to register you work w/ the Copyright office to have protection?
- Only need to register with Copyright Office if you plan to sue or foresee the need to sue
Do and how do fair use exemptions make up for a large amount of creativity, content and money in the content industries?
- PURPOSE and MARKET HARM are the key here, along with parody being protected. - News, Tosh.0 type shows, parody shows, etc.
Beastie Boys v. Goldieblox
- Parody Beastie Boys "Girls" (1987) for viral ad "Princess Machine" - MCA's will states no use of their music in ads - Settle out of court
Before 1912 how did film companies register motion pictures for copyright? What was the first film to get copyright in the United Stations?
- Prior to this there was no federal protection to register motion pictures on copyright - Had to rely on Duping - Fastest dupers were market leaders - First film to become registered as copyright was Edison's THE SNEEZE in 1894, copyright on each frame as a photograph
What is private use? Is private use a fair use?
- Private Use: Non-commercial copying of something - Private use is fair use
When judging if a use is fair, what seems to be the 2 most important factors?
- Purpose and marketplace are the two most important factors, but M is the key. You must create a new marketplace, not infringe on a current one
Be familiar w/ the characteristics of RW culture and RO culture. How is the new media model of communication (many to many) and the mass media model (one to many) reflected in RO/RW culture?
- Read/Write (RW) Culture: Consumption is the starting point of production, add to the past, re-create culture - New media model: Many to many. Everyone makes IP and gives it to others to pass on - Read/Only (RO) Culture: Simply consume culture, you cannot add to this type of culture; culture is professionalized - Mass media model: One to many. Companies and a single course create the IP, we consume it.
Bill Graham Archieves vs. Dorling Kindersley
- Reproduced Bill Graham concert posters & tickets in 480 page biography - Purpose different than original images, doesn't "exploit" them, used for historical value - Transformative market - FAIR USE
IP Rights:
- Rights granted by laws to exclude others from using ideas - Transforms ideas into Intellectual property - Right to monetize intangible assets: Privatize ideas... create artificial scarcity - Implicit agreement between society and creators, knowledge/art/info is shared in exchange for publicly granted exclusive rights - Rights created to INCENTIVIZE INNOVATION by granting a limited monopoly
Under the DMCA (Digital Millennium Copyright Act), what does "safe harbor" mean? Can YouTube or SoundCloud get sued for what their users post?
- Safe harbor: For online service providers, essentially removes the companies from being blamed for something posted on their website - Cannot sue YouTube for user's videos if taken down
Castle Rock Entertainment, Inc. vs. Carol Publishing Group
- Seinfeld trivia book: Contained events, characters, dialogue, etc - Claimed fair use, critique - Infringes on Castle's market to license derivatives - Not transformative, added nothing new - NOT FAIR USE
What is the significance of Campbell v. Acuff Rose in respect to fair use?
- Significance: Commercial parody can be fair use, strictly for profit - Two Live Crew Case, won 1st amendment rights for rap music - Purpose and market are fair, it transforms the meaning, & parody does not hurt market - Ruling: In favor of 2 Live Crew, parody "white bred original" - Paid license to Acuff (Roy Orbinson's publisher) for melody/lyrics on chorus, which is typical in parody (think Weird Al making fun of lyrics not song)
What did the Copyright Term Extension Act of 1998 (CTEA) do to copyright duration and who lobbied for it? Why would these organization lobby for longer duration?
- Sonny Bono Copyright Term Extension Act/Mickey Mouse Protection Act - Added 20 years term duration for corporate works - Lobbied by Disney, Bono - Companies would want the longer duration for more money
What is the significance of the Sony v. Universal case (the Betamax case)?
- Supreme Court Decision: NO MARKET HARM - Significance: Consumers taping TV shows for later viewing ("time shifting") not infringement - Significance: Manufacturers of tapes and recorders are not liable
What types of "shifting" did the ruling allow and how are these shiftings relatable to the present time?
- Taping shows for the future - Space Shifting - Accessing media from different devices (i.e. cloud) - Format Shifting - Converting media files into different formats (i.e. ripping CDs into MP3s)
What amendment to the US constitution made corporations people, in the eye of the law (you NEED to know this)?
- The 14th Amendment made corporations people in the eye of the law - After this, most "authors" became corporations
How does this relate to our ongoing discussion of the content industries and their relationships to piracy?
- The Betamax tape allowed for "piracy" but this piracy gave birth to that market...this is the story of Hollywood, radio, TV, cable, etc. - Corporations attempting to make the most money possible from the consumers
What is the importance of the Statute of Anne (1710) to American IP laws?
- The statue of Anne gives rights to authors of works, NOT publishers - Private copyrights to public grants
How has Disney profited from the public domain and also limited it?
- Their stories are based on works in the public domain, but they ensure no one can use their works
What is the significance of the Townsend Amendment of 1912?
- Townsend Amendment of 1912: Motion pictures get PROTECTION - Protected filmmakers from piracy, but didn't protect the "ideas" in the film
What are other ways of legally protecting ideas that are not IP laws (i.e. contract law and trade secrets)?
- Trade secrets: Protects ideas but not IP's, lasts as long as you can keep the secret - Nondisclosure agreement: Protects ideas through contracts to keep a secret - Contract Law: protects IP but not an IP law
- What is transformation? - How does this play into fair use (transformation of meaning, market, and value added)?
- Transformation: addition to the original meaning or marketplace - Purpose/character and Market... - Did the new use transform the meaning and value of the original, and therefore transform and create a new market with the new work
Piracy:
- Unregulated media practices - Most US Media industries, built on piracy
Viacom International Inc. vs. Youtube, Inc.
- Viacom sues for $1B; court rules in favor of Google under "safe harbor" provision of DMCA
When would it be helpful to have your work registered?
- When you anticipate the possibility of having to sue for infringement because your work will have value in the market and likely be infringed upon. - You can sue for statutory damages ($150k/infringement) vs. actual damages (actual losses due to the infringement)
How is and writing with new media/code/computers different in the eyes of the law? How is writing with video/images/music more democratic for consumers?
- With other medias there is much more possibility of copyright infringement due to ownership of medias. - Remixing medias is easily consumable when attempting to represent or explain a complicated complex; it benefits the consumers - It's easier to consume complex ideas in multimedia
How is writing w/ text democratic in the sense of copyright law and remixing?
- With writing text you just need to cite the source; - With image/music you need a license - Anyone can cite a quote from a book with no infringement
Be familiar with AMOUNT in respect to qualitative and quantitative analyses.
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What are the 5 exclusive rights granted to the owner of a copyright (RP3D!!!) and know what these rights actually are?
1) Reproduce the work (make copies) 2) To perform the work publicly -Excludes sound recordings 3) Prepare derivatives (translations, appear in other media, sample, sync with media, etc.) 4) Distribute copies by sale, rental, lease, etc. 5) To display the work publicly
What are two elements to come out of this Statute and make their way into the US Constitution/Copyright Act of 1790?
1. 14 year initial then a 14 Year Renewal - not forever 2. Public Domain once the work expires if the renewal doesn't happen
What are the two basic components of moral rights in copyright?
1. Attribution - Give credit to the original creator 2. Integrity - Don't change the original work (bars alteration, mutilation, or distortion)
According to Lessig what are 2 significant aspects of remixing?
1. Community - Of creators who make for the community (AMV - animated music video) - Fan base, hierarchy 2. Educational Aspects - Internet based learning - Become more "media literate" - Interest based music - Literate in specific form of cultural expression (Design with photoshop, editing others work, copying others dances, etc)
What are the three main types of intellectual property laws and rights, and what do they protect broadly speaking?
1. Copyright: protects the expression of ideas 2. Patent: Protects inventions 3. Trademark: Protects symbols that denote the source of a good or service
RiP: A Remix Manifesto - 4 Parts
1. Culture builds on the past 2. Past tries to control the future 3. Future becomes less free 4. To build free societies you must limit control of the past
Copyright Ownership if...
1. Fixation: Exists in a medium where the expression can be read, seen, or heard, either directly or by aid of machine 2. Originality 3. Minimal creativity
The remix drives pop culture:
1. Jamaican Sound System Culture: Throw mobile parties, inform about politics, "toasting", then industrialized 2. 70's DJs using percussions from tracks using 2 records to create a loop, mcs turned into routines and concerts
The scope of copyright extends to 8 categories of works. Please list 4 here (you must list all 4 correctly. I am not looking for examples of these works, such as "movies," but the categories):
1. Literary Works 2. Musical Works 3. Dramatic Works 4. Pantomimes and Choreography, 5. Pictures, Graphics, Sculptures, 6. Motion Pictures and audio/visual, 7. sound recordings, 8. architectural works
What are the 8 categories of works protected under the scope of copyright law (be generally familiar w/ them; no need to memorize)?
1. Literary Works 2. Musical Works 3. Dramatic Works 4. Pantomimes and Choreography, 5. Pictures, Graphics, Sculptures, 6. Motion Pictures and audio/visual, 7. sound recordings, 8. architectural works
The 4 non-exclusive factors of fair use: P.N.A.M.
1. P - Purpose and character of new work: - Is it for profit or non commercial? - Does it build on or critique the work used, or simply exploit it for its aesthetic qualities? - Does it critique the work? - Does it add value? - Enrichment/Profit? - Transformation 2. N - Nature of original work: - Work borrowed from: Factual or creative - Courts give more protection to creative works or works of fiction - Factual or created? - Published? 3. A - Amount used (quantity) and the importance to the original - Qualitative: Is it the heart of the original? 4. M - Market harm on the original - Copyright is about money...it's economic incentive
What is the difference between parody and satire? Does fair use protect both?
1. Parody: - Uses copyrighted material as a direct commentary of the work = strong fair use claim and is protected - Using a copyrighted work to critique that work is parody and protected 2. Satire: - Commentary on society in general using copyrighted material, which does not generally have a fair use claim - Using a copyrighted work that doesn't directly critique it, but make a larger social statement is satire and generally not protected by fair use
Lessig Remix: In Remix, what does Lessig say that Sousa was worried about in regards his compositions being used without payment/credit in phonographs and piano rolls, especially in regards to amateur vs. professional creativity and the relationship between production and consumption?
1. We would become consumers not producers of culture. 2. Cultural production would become less "democratic" and made by "professionals" 3. That copyright law should be limited and not regulate all forms of culture
How long does copyright last for?
1790 Act: - 14 years, renewable 14 - Public Domain once the work expires if the renewal doesn't happen 1868 14th Amendment to US Constitution: - Made corporations people in the eye of the law 1897 Act: - 28 years, renewable 14 - Public performance of music compositions 1909 Act: - 28 years, renewable 28 - A work must be PUBLISHED and have the Copyright C attached to it Townsend Amendment of 1912: - Motion pictures get PROTECTION - Protected filmmakers from piracy, but didn't protect the "ideas" in the film 1976 Act: - Life of author plus 50 years; 75 years for corporations - First time sound recordings received federal copyright protection in Act - Before was renewal terms - No ©opyright registration w/ Copyright Office - Works do not need to be published, just fixed 1998 Copyright Term Extension Act: - Life of author plus 70 years; 95 years for corporations (120 years if unpublished, whatever is less) 1998 Digital Millennium Copyright Act (DCMA): - "Safe Harbor" for online service providers (removes the companies from being blamed for something posted on their website) - Criminalizes technology that circumvents DRM
Under CTEA, in what year will new works start fall into the public domain?
2019
A Pirate's Dilema - Remixing
A remix is: - A conscious process used to innovate and create - One of the most powerful forces in pop culture today - Much more than the um of it's parts
Democracy:
Access to info, knowledge and tools not voting
Why is the right to prepare derivatives most important to remixing?
Any use of an author's work in another work is a derivative: a translation, adaptation, using a song in a movie, using a piece of art on a film set, sampling, etc
What is in the public domain?
Anything other than sound recordings made pre 1925
Vaidhyanathan thinks that American IP laws have come to favor whom at the expense of whom?
At the beginning of the 20th century law began to favor producers at the expense of consumers - Law has lost sight of encouraging creativity, science, & democracy; it protects producers and taxes consumers
BAPE & NIKE
Cannot copyright clothing because of utility value
Can an author have moral rights without owning the copyright to their work? - If I am a musician and the record label owns the copyright to the sound recording, could I have a contract stating that I can determine how that song is used if it is changed or altered?
Contract law can almost always dictate how IP can and cannot be used and who is the "author".
What is the most significant amendment made in the Copyright Act of 1909?
Copyright act of 1909: A work must be PUBLISHED and have the Copyright C attached to it
Copyright:
Copyright protection extends to "original works of authorship fixed in any tangible medium of expression"
What's the irony in Disney using the public domain to create many of its iconic works but also limiting the public domain? How is Disney and example of the social/cultural/economic value of a rich public domain?
Disney profits off of works in the public domain pre 1924, exploits them for their own gain, and then slaps copyright laws onto them
TRUE or FALSE: Kleenex has become genericized to refer to any type of facial tissue and therefore is in the public domain.
FALSE
What is loss aversion and how does it relate to copy/transform/combine?
Loss Aversion: Hurts more to lose something than gain something. Happy to copy, but really mad when someone copies you Ex: Disney, Shephard Fairey, Apple - Disney is built on adapting from public domain. Loss aversion halts creativity. - Ideas as property
What film markets did this ruling give way to?
Making these practices and technologies not liable for copyright infringement = Home Video Market
What American media industries were born out of piracy?
Music, movies, etc, Hollywood, radio, TV, cable, DVR, DVD, Apple
If you parody a character, what does it mean to use enough to "conjure up" the original?
Only use enough of the original, so that the audience gets the picture.
Likely a Bonus Question: Apply fair use to the Shepard Fairey "Hope" image on your own. - Obama, Fairey, Mannie Garcia
P - Fair (press photo vs. art), profit or political N - Fair (press photo isn't creative, he didn't stage the photo) A - Not fair (used the whole thing), didn't use Clooney M - Fair (completely different markets/uses), News photo with short shelf life = FAIR USE - Lied in court claiming original
What are rivalrous and non-rivalrous goods? How can IP come in the form of both?
Rivalrous: Consumption by 1 prevents consumption by other - MP3 Non-Rivalrous: Consumption by 1 doesn't prevent consumption by others - CD
This trademark is an example of what kind of mark: [IMAGE OF PLAYBOY BUNNY LOGO]
Suggestive
TRUE or FALSE: Under the trademark and copyright clause of the U.S. Constitution, intellectual property laws should prevent monopolies.
TRUE
In Lenz v. Universal Music Corp (2007, the Prince dancing baby case):
The court ruled that copyright owners that send out a takedown notice under the DMCA, must first consider what concept and why do you think in this case Universal Music should have considered this concept, before taking the video down (apply PNAM)? - Purpose: To make a cute baby video, not to exploit Prince - Nature: Original work was creative - Amount: 30 seconds - Market harm: None = FAIR USE
In the United States, when does a creative and original expression get copyright protection?
The moment the idea is fixed in a medium
From what we've learned thus far, what are the methods that allow us to use other people's IP legally for remixing?
With permission and without: 1) licensing to prepare a derivative and 2) fair use
In the class readings and discussions, we have seen that in America only the ______________ industry was not built on some form of piracy.
a). Book b). Radio c). Cable d). Recorded music ^ e). All of the above
If Walt Disney Co. sued the creator of the Fair(y) Use Tale film that we watched class, the court would consider_________________.
a). The amount copied b). The potential market harm created by the new work c). The purpose and character of the use (for profit, educational, etc.) d). Fair use e). 17. U.S.C. § 107 f). All of the above (***note, this is an example of a bonus question)
