Copyright Law

databases: _____ are not protectible!

FACTS ARE NOT PROTECTABLE! There is no originality to facts presented (they are discovered or reported by compilers—not created by an author) The first person to find the fact has not created a fact, he or she has merely found its existence

Merger rule

Where the idea (or system, process) can effectively be expressed in only one, or a limited number of, ways, allowing copyright would exhaust all possibilities of future use of the substance, the subject matter is therefore not copyrightable at all.

Two ways a work can be for hire:

i.employee; and ii.within the scope of employment; OR iii.specially commissioned work; signed K that says work for hire; or work fits in one of nine categories listed

Scope of employment: common law agency test (from Avtec)

i.it is the kind of activity he is employed to perform; ii.occurs substantially with in the authorized time and space limits; AND iii.actuated, at least in part, by a purpose to serve the master.

§1101(a) TRIP (regarding fixation/transmission of a live musical performance)

prohibits the fixation or transmission of a live musical performance without the consent of the performers, and also prohibits the reproduction or distribution of copies or phonorecords of an unauthorized fixation of a live musical performance.

§102(a)(8) What does AWPA do?

the Architectural Works Copyright Protection Act makes an architectural work an original work of authorship eligible for copyright protection Protection extends to free standing structures, not individual units comprising a larger structure BUT what about the arrangement, selection of common architectural features? Look to the definition.

§101 Architectural work

§ 101. Architectural Work: the 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

Subject Matter of Copyright: Fixation §101

"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 author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."

Sole authorship

"where a plaintiff (Lindsay) alleges that he exercised such a high degree of control over a film operation ... may be said to be an 'author' within the meaning of the Copyright Act."

Section 301: preemption with respect to other laws

(Only applies to FIXED works!!) 1.On or after Jan. 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 &103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such under the common law or statutes of any state 2.Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any state with respect to - a.subject matter that does not come within the subject matter of copyright as specified by sections 102 & 103, including works of authorship not fixed in any tangible medium of expression; or b.any cause of action arising from undertakings commenced before Jan. 1, 1978; or c.activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106;

Test for Substantial Similarity in a Computer Program Structure

1. Abstraction: a. Isolate each level of abstraction contained within the program (retrace and map each of the designer's steps) 2. Filtration: a. Examine the structural components at each level of abstraction to determine whether their particular inclusion at that level was idea or was dictated by considerations of efficiency, so as to be necessarily incidental to that idea; required by factors external to the program; or taken from the public domain i.Elements Dictated by Efficiency: When there is essentially only one way to express an idea, the idea and its expression are inseparable and copyright is no bar to copying that expression aa. Under these circumstances, the expression is said to have merged with the idea itself ii.The more efficient the set of modules are, the more closely they approximate the idea or process embodied in that particular aspect of the program's structure iii.The question is whether the use of this particular set of modules is necessary efficiently to implement that part of the program's process being implemented aa. If the answer is yes, the expression represented by the programmer's choice of a specific module or group of modules has merged with their underlying idea and is unprotected iv.Elements Dictated by External Factors: where it is virtually impossible to write about a particular historical era or fictional theme without employing certain stock or standard literary devices, such expression is not copyrightable aa. External factors: 1) the mechanical specifications of the computer on which a particular program is intended to run; 2) compatibility requirement of other programs with which a program is designed to operate in conjunction; 3) computer manufacturers' design standards; 4) demands of the industry being serviced; and 5) widely accepted programming practices within the computer industry v. Elements Taken From the Public Domain: material found in the public domain is not protectable 3. Comparison: a. Once a court has sifted out all elements of the allegedly infringed program which are ideas or are dictated by efficiency or external factors, or taken from the public domain, there may remain a core of protectible expression

Limitations under §113(c) (dealing w/ useful articles)

1. Does not allow the copyright owners of designs of useful articles to prevent photographs of those articles from being made and used in advertisements or commentaries about the articles as long as the item has been "offered for sale or other distribution to the public." 2. No greater copyright rights than the article would otherwise have.

Federal Preemption of state law: the 3 diff types

1. Express Preemption: a.Federal law may expressly preempt particular state laws or causes of action b.Copyright Law expressly preempts and prohibits state law claims concerning subject matter within the general scope of copyright that are equivalent to copyright infringement claims 2.Occupation of the Field (implied preemption—may be implied from a federal statute's scope, purpose and legislative history) a.Occurs when federal law completely excludes the states from acting in the covered area b.May be inferred from: i.A scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it; or ii.Where an act of Congress touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject 3.Conflict Preemption (implied preemption) a.Even when federal law has not completely occupied the covered field, particular state enactments of common law claims for relief may nonetheless conflict with the purpose of the federal statutory scheme b.To determine whether a particular state law or cause of action creates an unacceptable conflict with a federal statutory scheme, i. Courts must inquire whether the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress

Fair use: factor 2 nature of copyrighted work

1. Factors favor FU: a.A work of information: Fact compilation, treatise on scientific, biological or historical work b.Out of print or unavailable 2. Factors against FU: a.Works particularly susceptible to harm from mass reproduction: e.g., consumables such as workbooks, exercises, standardized tests. market easily destroyed b.Creative work: e.g., novel, drama c.THE FACT THAT THE PLANTIFF'S WORK IS UNPUBLISHED IS A FACTOR TENDING TO NEGATE THE DEFENSE OF FAIR USE - but not determinative if fair use is found using all the factors.

Analysis for PGS Works:

1. Is the work a PGS work? No: then apply standard originality and fixation requirements to determine copyright. Yes: Continue. 2.Is the work a "useful article"? a. No: apply usual requirements (originality and fixation) b. Yes: Continue 3.What is its function? a. Look at it from the standpoint of the creator or manufacturer, or from the standpoint of the ordinary, reasonable person—we are looking at the common use of this article i. Evoking emotions does not make an object a useful article 4. If it is a "useful article," are there separable pictoral, graphic, or sculptural elements (either physical or conceptual separability)? No: there is nothing in this work that gets copyright protection Yes: we have copyright protection to the extent that the elements that are capable of existing independently of this thing.

Acquiring, keeping, and transferring copyright: Formalities

1. Publication; 2. Notice; 3. Registration; 4. Deposit.

Test for Substantial similarity in a computer program structure policy considerations

1. Substantial effort alone cannot confer copyright status a. "Sweat of the brow" doctrine is invalid 2. Patent registration, with its exacting up-front novelty and non-obviousness requirements, might be the more appropriate rubric of protection for intellectual property of this kind

Technical Interchange and theories

1. The disassembly is a fair use as a matter of law if: a.IT IS THE ONLY WAY TO GAIN ACCESS TO THE FUNCTIONAL ELEMENTS; AND b.THERE IS A LEGITIMATE REASON FOR SEEKING SUCH ACCESS c.The end product MUST be non-infringing 2.By restraining © owner from acquiring patent-like protection over the work, the case is consistent with § 102(b) that places ideas, process, and methods of operation in the public domain THEORIES Theory 1 - Productive Uses a.We will favor those uses that add something to society b.Copyright furthers its goal—encourages creation c. Transformative uses (added something to the original work and made it their own) Theory 2 - Reasonable and Customary Uses: a.Fair use is meant to excuse such uses b.Copyrighted expression without having to give permission c.Reasonable and customary can change over time Theory 3 - Market Failure: a.A way for the courts to allow a use to occur where there is a market failure b.If you have high transaction costs, markets fail.

RENEWAL TERMS AND TERMINATION OF TRANSFERS: Who can terminate and when?

1. Who? a.Author; b.Widow; c.Children (lineal c.descendants, per stirpes); d.Executors. 2. When? a. May be exercised in a 5 year window beginning at the end of the 35 years from the date of execution of the grant. Except: i. if the grant is a first publication grant - then 35 years after publication OR 40 years after the grant whichever is EARLIER. b.Notice must be served not less than 2 nor more than 10 years prior to the date of termination c.Example: Grant on 4/1/00; Notice must be served between 4/2/25 and 3/31/38 (10 years before the 5 year window opens on 4/2/35 and the termination date on 4/1/40); Five year window to exercise 4/2/35-4/1/40.

Reproduction right: exact copies

1."Piracy" cases - defendants make copies of cds or dvds and sell them; 2.Defendants not pirates, rather are making exact copies covered by a defense such as fair use or for archival purposes; 3.Copies that are made automatically such as those made on a computer's RAM at startup. 4.Affirmative defenses: a. § 405(b): Innocent infringer: person who "innocently infringes a copyright, in reliance upon an authorized copy ... from which the copyright notice has been omitted and which was publicly distributed by authority of the copyright owner ... incurs no liability for actual or statutory damages ... for any infringing acts committed before receiving actual notice that registration for the work has been made ... if such person proves that he or she was misled by the omission of notice."

Technological Protections Complete Analysis from Reimerdes

1."Technology": a computer program is technology 2."Circumvent a technological measure": descrambling a scrambled work, decrypting an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner. 3."Effective Control": a measure will qualify as an effective control measure if: a.In the ordinary course of the operation of the measure, b.The control requires— i.The application of information (as password or algarhythm or a two-digit number....); or ii.A process; or iii.A treatment; and b. You have to do it with the authority of the copyright owner. c. Just because protection is hackable, does not mean that it is not effective 4. "Traffic": to engage in dealings in it, conduct that necessarily involves awareness of the nature of the subject of the trafficking 5. "Provide": to make it available or furnish it. 6. "Offer": to present or hold it out for consideration 7. Does the technology that circumvents the effective control measure fall within one of the statutory exceptions? a.§1201(f). Interoperability: one may circumvent, or develop and employ technological means to circumvent, access control measures in order to achieve interoperability with another computer program provided that— i.Doing so does not infringe another's copyright and, to others, ii.If the person ... provides such information solely for the purpose of enabling inoperable inoperability of an independently created computer program with other programs, and iii.To the extent that doing so does not constitute infringement. b.§1201(f)(3). Reverse Engineering: permits information acquired through reverse engineering to be made available to others by the person who acquired the information i.The right to make the information available extends only to dissemination solely for the purpose of achieving interoperability as defined in the statute. ii.DOES NOT APPLY TO PUBLIC DISSEMINATION iii.Defendants were not the ones who engaged in the reverse engineering but merely took DeCSS off of someone else's website and posted it on their own. c.§1201(g). Good Faith Encryption Research: Factors to consider: i.Whether the results of the putative encryption research are disseminated in a manner designed to advance the state of knowledge of encryption technology versus facilitation of copyright infringement? ii.Whether the person in question is engaged in legitimate study of or work in encryption? iii.Whether the results of the research are communicated in a timely fashion to the copyright owner? d.§1201(j). Security Testing:Fair use is not a defense to violations within §1201—it only limits the rights granted in §106 8. INFRINGEMENT IS A SEPARATE ISSUE THAN §1201

De Minimis Copying

1.A technical violation of a right so trivial that the law will not impose legal consequences; 2.Copying has occurred to such a trivial extent as to fall below the quantitative threshold of substantial similarity (actionable copying has quantitative and qualitative elements; where quantity only de minimus, may not be actionable); 3.The defense of fair use.

What if anything, is protectable about a compilation?

1.Acts of selection; 2.Acts of Coordination and Arrangement a. whether the compiler has demonstrated originality in its arrangement or coordination

Fair Use affirmative defense?

1.Affirmative defense asserted and proven by D; but P must first establish a prima facie case of © infringement (copying and substantial similarity); 2.A mixed question of law and fact: if a reasonable trier of fact can reach only one conclusion, a court may conclude as a matter of law that the challenged use is a FU.

Fair use: factor 4-effect on the potential market

1.Case law states that this is the most important element, as it relates to the incentive of creating work 2.Court shall isolate those uses of a work moat directly threatening to the incentives for creativity, which © tries to protect a.Uses that diminish potential sale of the work b.Uses that interfere with the work's marketability c.Uses that fulfill the demand for the original 3.Potential harm is sufficient: a meaningful likelihood of future harm by a preponderance of evidence

Fair Use: Factor 1 Character of the use

1.Commercial v. non-commercial a.Commercial use: one that earns a profit. Even if the ultimate goal is for education, the nature is still commercial if the use generates profit. b.If commercial, a presumption against FU, but not conclusive. 2.Transformative use of D (especially in parody, even more important than commercial use, Campbell) 3.Bad faith: against FU. See Harper (D knowingly exploited the stolen manuscript). 4.Morality or other equitable consideration? See Hustler v. Moral Majority (parody ad of Rev. Jerry Falwell verbatim copied for fund-raising as comment to defend against the personal attack)

Transfers of contributions to a collective work §201(c)

1.Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vest initially in the author of the contribution. In the absence of an express transfer of copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series. 2. Thus an article written in a newspaper carries two separate copyrights with it: one vests in the author of the article, the other with the newspaper as the copyright holder of the compilation.

Copyright infringement liability -direct infringement vs. secondary infringement

1.Direct Infringement a.Under Netcom need some element of volition or causation b.No scienter requirement 2.Secondary Infringement: Must have a direct infringer a.Are we going to hold other secondarily liable? b.Vicarious infringement: i.right and ability to control/supervise the infringing activity ii.direct financial interest in such activities c.Contributory infringement: i.knowledge of the infringing activity ii.induces, causes, or materially contributes to the infringing conduct iii.In the case of contribution of machinery or goods for means to infringe, there is no liability if the device is "capable of substantial non-infringing uses."

Post 1976 Act but pre-BCIA formalities PLUS deposit and restoration

1.For works fixed after 1/1/1978, or fixed before 1/1/1978 but not published (or registered) prior to 1/1/1978; 2.Was the work disclosed to the public before 3/1/1989? If yes: was it a general or limited publication? If no: calculate duration. Publication after 1/1/78 but prior to 3/1/89: 1.If general publication: a. Needed notice; OR b. Cure - added by the 1977 Act, see Section 405. 2.If limited publication: a. Don't need to worry about notice. Publication post 3/1/89: 1. Notice is not required; Still a good idea: a.With notice, the innocent infringement defense is no longer viable; b.May assist in licensing potentials 2. Registration: IV. a. Optional under the '76 act, protection begins upon fixation; i. US works MUST be registered in order to bring suit - § 411. b.Under 1909 Act, had to register in order to file for renewal c.Benefits of Registration: i.Timely registration has evidentiary benefits per § 410 (timely = within 5 years of first publication) ii.Timely registration is required for certain remedies (statutory damages and attorney fees) under § 412 (timely in this setting = prior to infringement commencing) OR if infringement commences after publication, the registration was filed within 3 months from first publication. 3. Deposit: §§ 407-8 Two copies of published works; One copy of unpublished works; Special rules in 37 CFR § 202.20 Failure to deposit: registration is not "complete" (can't sue, don't get benefits of timely registration); fines if a demand for deposit is not complied with 4. Restoration: Works of Berne and WTO members that had lost protection - NOT US works! Lost US protection due to failure to comply with formalities Restored protection as of 1/1/1996 (for works of most countries) Must still be subject to protection in country of origin Provisions for "reliance parties"

Termination provisions-§304(c) Duration:Subsisting Copyrights Who can terminate and when?

1.Grants made by authors can be terminated by: a.Author; b.Widows; c.Children (lineal descendants per stirpes); d.Executors. 2.Grants made by others can only be terminated by the person making the grant 3.Termination is for the last 39 years; 4.Five years window - after the 56th year from the date of copyright; 5.Notice must be served not less than 2 nor more than 10 years before termination date.

Duration of Copyright: Works created and published or registered prior to 1/1/78

1.If in the public domain: remains in public domain (except restoration under GATT); 2.If not in the public domain: Remember the basic scheme: 28 (1909 Act) + 28 (1909 Act)+ 19 (1976 Act) + 20 (1998 Copyright Term Extension Act)= 95 years 3.If, on January 1, 1978, work was in its renewal term: a.The additional 19 (plus 20, for a total of 39) is added automatically to the renewal term b.For a work to be in the renewal term on January 1, 1978 a renewal certificate had to be filed with the Copyright Office c.Beginning in 1962 Congress passed "stop gap" measures to ensure that works in renewal terms that were scheduled to expire before the passage of the new act would have protection until the new act passed 4.Works in the first term on January 1, 1978 (further divided by 1992 amendment): a.Works whose protection began prior to 1964, this amendment did not affect them—you still had to have that renewal certificate on file; i.If the renewal certificate was filed, you received a renewal term of 47 years (28 + 19) to which we added another 20 in 1998 ii.Bottom line: if the renewal was filed, they got 95 years of for protection b.For works whose protection began in or after 1964, renewal occurs automatically and there is no need to take an affirmative step to file for renewal—they just had to not engage in a divesting publication i. Bottom line: for works protected ion or after 1964, have a copyright duration of 95 years 5. Duration of pre-1978 copyrights: a.Don't get the full 95 years unless renewals were filed for works created prior to 1964 b.The last 20 years were added in 1998 c.In order to get the last 20 years, the works had to still bee subject to copyright protection in 1998

Useful Articles §101 Pictoral, Graphic, and Sculptural Work

1.Include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproduction, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. 2.Useful Article: is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally part of a useful article is considered a "useful article".

Prima Facie Case of Infringement

1.Plaintiff must allege and prove ownership of a valid copyright; 2.Infringement: plaintiff must prove that the defendant violated one of the exclusive rights reserved to the copyright owner under § 106. a.copying in fact (that defendant obtained & used the copyright owner's protected expression); AND i.direct evidence or admission by defendant ii.circumstantial evidence such as 1) access to the plaintiff's work, and 2) similarity between the two works b.improper appropriation i.The ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same ii.Idea/expression dichotomy again: where there are both protectible and unprotectible elements, the observer's inspection must be more "discerning," ignoring those aspects of a work that are unprotectable

Duration of Copyright: Works created but unpublished and unregistered before 1/1/78

1.Previously, common law copyright (potentially perpetual); 2.if still subject to protection on January 1, 1978, duration is the same as works created post January 1, 1978 (life + 70 years, etc.); Except: a.Copyright lasted at least until December 31, 2002, and b.If published prior to December 31, 2002 then copyright lasts at least until December 31, 2047.

Pre-1976 Act formalities

1.Publication: Used for works created and "published" before 1/1/1978 2.Whether a work is "published" can be tricky - use MLK a. General publication - "when a work was made available to members of the public at large without regard to their identity or what they intended to do with the work." i.Investiture and divestiture ii.Two methods of general publication: aa.Tangible copies of the work are distributed to the general public in such a manner as allows the public to exercise dominion and control over the work; bb.The work is exhibited or displayed in such a manner as to permit unrestricted copying by the general public. b. Limited publication - "communicates the contents of the work to a select group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale." ii. Was the work registered anyway? (Applies ONLY to unpublished works not reproduced for sale) aa. If yes: calculate duration based on 1909 rules (as modified by '76 Act and CTEA) bb. If no: continue to SectionC. c. Release to the news media for contemporary coverage of a newsworthy event is only a limited publication 1. Notice: Was there strict compliance with notice requirements under 1909 Act? a.If No: work is in the public domain b.If yes: have to calculate duration based on 1909 rules (as modified by 1976 Act and CTEA). Formalities: i.Word or symbol ©; ii.Name of copyright holder; iii.If literary, musical, or dramatic works - date of publication (on title page or page immediately following) 4. Deposit: 1909 Act required deposit of two copies with the copyright office (failure to promptly satisfy could be cured by paying fine and depositing copies) 5. Registration: After completion of requisite formalities, copyright owner could register with the copyright office. a.Optional during first term; b.Failure to register created a bar to any infringement action; c.Registration required in order to receive renewal term.

The distribution right

1.Right to control the first public distribution of the work; may by sale, rental, lease or lending. Transfer of physical copies. a.Public: therefore, copying an article from internet and send it to a family member or friends is not (although reproduction right infringed); but to a stranger: yes b.Publication: one copy may suffice c.Federal courts found the affirmative act of making a work available through an electronic network for end-user downloading infringe 2.Can be infringed either simultaneously with reproduction, or by itself (usually in music industry when unlawfully made audio or video tapes are acquired by a retailer and sold to the public)

Moral Rights: §106(A) Rights of Certain Authors to Attribution and Integrity

1.Rights of Attribution and Integrity. - Subject to section 107 (fair use) and independent of the exclusive rights provided in section 106, the author of a work of visual art - a.shall have the right - i.to claim authorship of that work, and ii.to prevent the use of his or her name as the author of any work of visual art which he or she did not create b.shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and c.subject to the limitations set forth in section 113(d), shall have the right - i.to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and ii.to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

Fair use: factor 3 amount used

1.Since substantial similarity has been established (note that FU is a defense), the issue is whether the D has taken more than is necessary 2.Necessity and proportionality (use commensurate with need): e.g., a literary critic may need to quote literally, but she cannot quote more than is necessary to make her critical point: if two paragraphs are enough, two pages infringe. 3.This factor has qualitative as well as quantitative dimensions: the heart of the work test. See Harper (300 out of 200,000 words) 4.Connection with the fourth factor: exploring derivative work or if entirely reproduced, displace the needs for the original.

Duration of Copyright: Duration for works created after 1/1/78

1.Single author: life of the author + 70 years; 2.Joint author: life of the last survivor + 70 years 3.Other: Works for hire, anonymous authors, & pseudonyms a.120 years; OR b.95 years after publication (whichever comes first).

proof of copyright: subconscious copying, and reproduction right with substantially similar copies

1.Subconscious copying: when one found a particular combination of sound appealing, that may be because his subconscious knows it already had worked in a song he his conscious mind does not remember. (My Sweet Lord and He Is So Fine) 2.Copyright is infringed when one intentionally makes copies of a ©ed work, even though the person copying does not know or has no reason to know of the ©. 3.Reproduction Right - Substantially Similar Copies: a.where exceptional striking similarity found, it by itself constitutes proof of access sufficient to withstand SJ. See Arnstein and My Sweet Lord b.access and copying may be less subject to inference: e.g., both derive from common reference to another work, typically in the public domain, geographic insulation (How Deep Is Your Love created and unpublished in Chicago while Feeling is created in France) c.The seemingly divergent approach as to striking similarity is solved by Posner in Ty: access (and copying) may be inferred when two works are so similar to each other and not to anything in the public domain that it is likely that the creator of the second work copied the first, but the inference can be rebutted by disproving access or otherwise showing independent creation

Public Performance and Public Display §101 Def.

1.To perform or display a work "publicly" means: 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 communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or different times. a.NOT limited by first sale because that concerns public distribution not public performance b.DOES include transmissions over the internet

RENEWAL TERMS AND TERMINATION OF TRANSFERS: Termination provisions-§304(c) Duration:Subsisting Copyrights. Which rights are eligible?

1.Transfers made before 1/1/78; 2.Really about recapturing the extra 39 years added in '76 & '98; 3.Transfers made by authors and widows, children or executors; 4.Only transfers of the renewal term (transfers of initial term ends automatically); 5.NOT works for hire or dispositions by will.

§203 Termination of transfers and licenses granted by author-which grants are eligible?

1.Transfers made on or after 1/1/78 2.Transfers made by the AUTHOR 3.NOT works for hire or disposition by will

New uses (new methods of distribution not contemplated at the time of contracting): 2 theories

1.Two theories of how to deal with new use problem: a.A license of rights in a given medium (motion picture rights) includes only such uses as fall within the unambiguous core meaning of the term (exhibition of motion picture film in a motion picture theaters) and excludes any uses that lie within the ambiguous penumbra (exhibition of motion picture on television) b.The licensee may properly pursue any uses that may reasonably be said to fall within the medium as described in the license c.Look to the contract language to decide how broad or narrow to construe new uses 2.Authors can expressly reserve new or certain uses by contract 3.If still unclear, then use custom or trade usage in the industry as benchmark

Alternative forms of protection for computer programs:

1.Utility patent protection 2.Trade dress protection (interfaces, graphical user interface...) 3.Trade secret protection (some of this stuff is secret in the sense that it is not easily accessible) 4.Sui generis protection (a new form of protection designed just for computer software)a. The industry expects the computer software gets utility patent protection as well as copyright protection—this would mean either layering on another type of protection or taking away protection an industry has grown comfortable with using and has built their business around 5.They get the kind of protection that we give to literary works (protect the source code and object code the same as well as give protection to the non-literal aspects/elements)

Mechanics of transfers: §204 Execution of transfers of copyright owners

A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the right conveyed or such owner's duly authorized agent.

Subject Matter of Copyright: Originality Reqs

A work must be "original" to be eligible for copyright protection 1.Must be independently created by the author; 2.Must contain a minimal degree of creativity; a. More than merely trivial contribution. 3. Courts generally reluctant to judge the "originality" of a work.

Duration of Copyright: For works created before 1/1/1978

A. Duration for works created before 1/1/1978: 1.Initial term of 28 years; 2.Renewal term of 47 years; 3.Total of 75 years

Remedies for infringement:

A. Preliminary Injunctions - 1.Required proof: a.Likelihood of success on the merits; or b."Fair ground for litigation and a balance of the hardships" in favor of plaintiffs 2.Irreparable harm: a. Often presumed B.PermanentInjunctions: 1.Court has authority to grant; 2.Court may also deny "where great public injury would be worked" a. results in a "liability rule" instead of a "property rule" C. Damages: 1. Prevailing Plaintiff can Recover: a. Actual damages and additional profits of the infringer (section 504(b)); or b. Statutory damages (section 504(c)) i. MUST have a "timely" registration under section 412 unless within three month safe harbor 2. Less: a. Infringer's provable deductible expenses and b. Elements of profit attributable to factors other than the copyrighted work D. attorney fees Section 505 - at court's discretion to prevailing party

Technological Protections: §1201(a) and (b): Digital Millennium Copyright Act Anti-Circumvention provisions

A.§ 1201(a): Digital Millennium Copyright Act Anti-Circumvention provisions: 1.No person shall circumvent a technological measure that effectively controls access to a work protected under this title. 2.No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that...circumvents a technological measure that effectively controls access to a work protected under this title. a.is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under the copyright act; b.has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under the copyright act; or c.is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under the copyright act. B.Section1201(b)-Or technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

§101 Transfer of copyright ownership defined

An assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license. a. A nonexclusive license may be granted orally or may be implied from conduct

Architectural Works: Building Pre-AWPA v. Post-AWPA

BUILDING Pre-AWPA The building is not protected as a pictoral, graphical, or sculptural work (§113) because it is a useful article (it has a utilitarian function) and would fail the separability test.The aesthetic choices must not be choices driven by utilitarian or efficiency concerns. Columns that are not supporting anything but are merely decorative, embellishments,... would be protected somewhat. in the plans themselves or in the building itself (the plans can become the fixation of the architectural work). Post-AWPA Architectural works: need to be fixed in order to be subject to protection—you can fix architectural works). §120. Limits on Architectural Works

Copyright rewards _____, not ______.

COPYRIGHT REWARDS ORIGINALITY NOT EFFORT

Can you contract around §106A rights?

Can contract around § 106A rights, provided: a. Contract has to specifically state that you are waiving the visual arts rights i.I waive my moral rights—maybe that is enough ii.Probably should elaborate in the contract

Can have originality either in the ____ or the ____ of the facts in the compilation

Can have originality either in the selection or the arrangement of the facts in the compilation a. Arrangement- how else are you going to arrange the white pages in the white pages other than alphabetically by surname

Computer software is categorized as what? Is it subject to copyright protection?

Categorized as literary works subject to §102(a)(1) copyright protection

Section 102(b): Regarding idea/expression dichotomy

Comes from Section 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.

Copyright infringement is a ____ liability offense

Copyright infringement is a strict liability offense: § 501. Infringement of copyright - a.Anyone who violates any of the exclusive rights of the copyright owner as provided by section 106-122 or of the author as provided in section 106A(a), or who imports ... in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. b.The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it.

Subject matter of Copyright: In General §102

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... i.literary works; ii.musical works, including accompanying words; iii.dramatic works, including accompanying music; iv.pantomimes and choreographic works; v.pictorial, graphic, or sculptural works; vi.motions pictures and other audiovisual works; vii.sound recordings; and viii.architectural works.

Databases: copyright protection?

EVEN IF THE ARRANGEMENT OR SELCTION OF DATA IS SUFFICIENTLY ORIGINAL, COPYRIGHT PROTECTION IN FACTUAL COMPILATIONS IS FACTUALLY "THIN." a. In order to infringe a "thin" copyright protection, the defendant must copy the compilation's original elements (i.e. its selection and arrangement) exactly or almost exactly

Works for hire test

First - the court considers the hiring party's right to control the manner and means by which the product is accomplished. Then look at: (1-4 most important per Aymes) i.skill required; ii.the provision of employee benefits; iii.the tax treatment of the hired party; iv.whether the hiring party has the right to assign additional projects to the hired party; v.(5-12 in no order. None determinative) source of instrumentalities and tools; vi.location of work; vii.duration of relationship; viii.method of payment; ix.the extent of hired party's discretion in when and where to work; x.hired party's role in hiring and firing assistants; xi.is work part of regular business of hiring party; xii.whether hiring party is in business;

Characters: Sufficiently delineated characters test

Graphical works are protected unto themselves as graphical works—we almost do not have to go to the stage of characters unless someone dresses up as for example Bart Simpson, starts talking like Bart, dressing like Bart and acting like Bart, then we have to start talking about character (when you have live people portray characters in movies, plays, t.v. series,...). b.The protection is limited to the character as defined by performances in the copyrighted works. Only a uniquely developed character with some degree of novelty is copyrightable. 3.Minor characters or stock characters, those necessary to tell a story of a certain time period or genre, are not protectible 4.Rights of publicity exist separate from the copyrights

§115 Compulsory License:

In the case of non-dramatic musical works, the exclusive rights provided by clauses (1) and (3) of section 106, to make and distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section. a. Availability and Scope of License i. When phonorecords of non-dramatic musical work have been distributed to the public in the US under the authority of the copyright owner, any other person, including those who make phonorecords or digital phonorecord deliveries, may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work. A person may obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use, including by means of a digital phonorecord delivery. A person may not obtain a compulsory license for use of the work in the making of phonorecords duplicating a sound recording fixed by another, unless: a.such sound recording was fixed lawfully; and b.the making of the phono records was authorized by the owner of the copyright in the sound recording or, if the sound recording was fixed before 2/15/72, by any person who fixed the sound recording pursuant to an express license from the owner of the copyright .... ii. A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner ______ However, in some circumstances—known as compulsory licenses—a copyright owner's permission is not required, provided that the user follows certain rules and pays fees set by law. Such compulsory licenses are commonly used by satellite television providers, cable providers, webcasters, and music companies. Indeed, compulsory licenses are an essential part of their business models, allowing them to distribute and utilize content in an efficient and legal manner.

The NET Act:

Infringes a copyright willfully either: a. for purposes of commercial advantage or private financial gain; or b.by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000 c.Adds a broader definition of "financial gain": the term financial gain includes receipt or expectation of receipt of anything of value including the receipt of other copyrighted works d.Willfulness: Must be a voluntary, intentional violation of a known legal duty (Moran)

Fair Use §107 Limitations on exclusive rights: fair use

Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), 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.

Architectural Works: Plans Pre AWPA v. Post AWPA

PLANS Pre-AWPA Pictoral, graphical or sculptural works, §113. What is protected is the actual plans. If you copied the plans, that would be infringing. Building the building based on the plans is not infringement. Cannot copy the blueprint plans without proper authorization. Post-AWPA A copyright owner may claim infringement of both the architectural plans and the structure based on such plans. In addition to an architectural work, the plans are still a pictoral, graphical and sculptural work as well as a fixation of such work.

Joint authorship: Section 101

Section 101: "a work prepared by two or more authors with the intention that their contribution be merged into inseparable or interdependent parts of a unitary whole" i."a work" - means contribution must be copyrightable; ii."author" - means must be an author; iii."with the intention" - means an intent to be joint authors

§106 Exclusive Rights in Copyrighted Works

Subject to sections 107-122, the owner of copyright under this title has the exclusive right to do and to authorize any of the following: 1.to reproduce the copyrighted work in copies and 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 publicly by means of a digital audio transmission.

§103(b): Compilation or derivative work

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope duration, ownership, or subsistence of, any copyright protection in the preexisting material. a.Must be more than a mere copy; b.Copyright protection should not be extended to miniscule variations from underlying works

First Sale Doctrine §109 Effect of transfer of particular copy or phonorecord

The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. 1. Important general limit to distribution right. 2.Rooted in the difference between ownership of the copyright and ownership of the material object in which the copyrighted work is embodied. 3.After the first sale of a copyrighted material, the new owner may sell the copyrighted object (book, cd, etc.) without the approval of the copyright owner 4.NO rental right for records or software under section 109(b) 5.Section 602(a) - Importation into the US, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the US is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501... a. Interpreted by the court in Lanza as meaning that lawfully made copies which are shipped overseas can be re-imported to the US without violating statute.

What part of the work is considered when determining the originality of the compilation?

The work as a whole is considered when determining the originality of the compilation. (Roth Greeting Cards: "the total concept and feel" of two cards are the same and infringement found; Atari Games: arrangement of geometric shapes may be indicative of authorship)

What are the fundamental purposes of the idea/expression dichotomy?

Two fundamental purposes: a. Separating aspects that belong in the public domain versus those that deserve protection; b. Boundary line between that which belongs in the realm of patent law and that which belongs in the world of copyright

How do you divide architectural work?

YOU HAVE TO DIVIDE THE ARCHITECTURAL WORK INTO PRE AND POST AWPA (Architectural Works Copyright Protection Act)

§101 Derivative work

a derivative work is a work based upon one or more preexisting works, such as 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.

Two ways author can create derivative work:

a.based on something already in the public domain; or b.based on a copyrighted work. i. Section 106(2) grants the owner of a copyright to prepare derivative works

Test for joint authorship (Aalmuhammed)

i.a copyrightable work; ii.two or more authors; iii.the authors must intend their contributions be merged into inseparable or interdependent parts of a unitary whole (Court defines the last factor as meaning that both parties must intend to be joint authors).

Derivative works: Mode of transformation

a. "Recasting" and Originality: i.7th Cir. says that if the work does not fall under one of the enumerated derivatives, then to be a derivative, the work must fall into the catchall of "recast, transformed, or adapted." ii.Declined to say that mounting an original work onto a tile and reselling it is a derivative work iii.9th Cir. disagreed saying that the mounting of high quality pictures of art onto ceramic tiles is a derivative work iv.Question as to whether originality enters into the analysis. b. Required Form: must an infringing derivative be "fixed"? i. 9th Cir. says YES. (Galoob) A toy that enhanced an existing video game not a derivative work because there was no fixation. c. Linking and Framing: i.Linking - a hyperlink on a webpage that allows the user to click to go to that page; ii.Framing - a type of linking that displays the linked page within the original web page.

Compilations §103

a.A compilation is 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. b.Collective work is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.

Audio Home Recording Act

a.Required DAT to have SMSC technology to prevent 2nd to 3rd generation copying b.Put a little tax on equipment and tapes sold and this tax goes to a royalty pot, 1/3 goes to musical copyright owners and 2/3 go to sound recording owners c.§ 1008- immunity for noncommercial use by consumers for digital audio tapes . . . but this does not include computers i. so it is clearly lawful to copy your CD to a tape, but once you use your computer to copy then you are outside of the § 1008 immunity

Characters: At what point do you cross over from creating a stock character to creating an independently copyrightable character—one that we would see and recognize? what's the the test for this?

a.Story being told test (Warner Brother: Sam Spade): only characters that constitute the story i.The character must be the most central focus of the work ii.Very few courts ever apply this test by itself unless there is a situation very similar to the Sam Spade case (assigned away the copyright—now author wants to continue writing and wants to use the same character—but the copyright owner gets to control what happens with the use of that character). b.If the character is only the chessman in the game of telling story he is not within the area of the protection afforded by the copyright.

§ 512 of the Digital Millennium Copyright Act: Safe Harbors for ISPs

a.Transitory digital network communications b.System caching c.Storing information on its systems at the direction of users d.Links, indexes, or other directories referencing infringing material e.Must have notice provision that warns users against infringement f.If there is a complaint by the copyright owner, series of steps the ISP must take g.Pitfalls of (c) & (d): i.Designation of an agent - invites notices ii.Vicarious liability (see vicarious infringement above) iii.Having a policy for terminating repeat infringers = right and ability to control The DMCA's "safe harbor" regime offers immunity to claims of copyright infringement if (among other requirements) online service providers promptly remove or block access to infringing materials after copyright holders give appropriate notice.

Section 202.1 Materials not subject to copyright

a.Words and short phrases; familiar symbols or designs; mere variations of typographic ornamentation; lettering or coloring; mere listing of ingredients or contents; b.Ideas, plans, methods, systems, or devices, as distinguished from the particular manner in which they are expressed or described in a writing; c.Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms, and the like, which are designed for recording information and do not themselves convey information; d.Works consisting entirely of information that is common property containing no original authorship, such as, for example: standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists or tables taken from public documents or other common sources; e.Typeface as typeface. f.Scenes a faire

Architectural work: Post-AWPA stuff

a.You want to know who owns the copyright: i.You can determine this by looking at the contract between the architect and the person whom he built the building for ii.The architect does not want to give the full assignment of the copyright because they would not be able to design any buildings in the future that would incorporate any of the copyrightable features b.§120. Scope of Exclusive Rights in Architectural Works: (a). Pictorial Representations Permitted: the 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 space. (b). Alterations to and Destruction of Buildings: notwithstanding the provisions of §106(2) (derivative works), the owners of a building embodying an architectural work may, without the consent of the author or copyright owner of the architectural work, make or authorize the making of alterations to such building, and destroy or authorize the destruction of such building.

Public Performance and Public Display Limitations

a.§ 109(c) - Notwithstanding the provisions of § 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located. b.§110- i.Teachers and pupils in a classroom; ii.Non-dramatic literary or musical work at a place of worship iii.Performance of a non-dramatic musical work by a governmental body iv.Performance of a non-dramatic musical work by a vending establishment ... to promote the sale of the work v.Others

Section 117: Limitations on exclusive rights-Computer Programs

allows the owner of a copy of a computer program to make or authorize the making of another copy without infringing copyright law, if it is an essential step in the utilization of the computer program or if the new copy is for archival purposes.

Databases: Article 10(2) of Berne

compilations of date or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such

§201(a) Initial Ownership

copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work.

Sound recordings: Reproduction Right

i.§ 114(b)-The exclusive right of reproduction (106(1)) of the owner in a sound recording is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. ii.Does not include the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sound imitate or simulate those in the copyrighted in the copyrighted sound recording iii.§ 112- radio stations have the ability to make Ephemeral Copies

Sound recordings: Public performance right

i.§ 114(d)- Limitations of Exclusive Right of § 106(6) ii.narrow public performance right that covers only when digital means are used. Not a general public performance right.

Works for hire: §201(b) Works Made for Hire

the employer or other persons 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. Section 101 defines work for hire as: a.A work prepared by an employee within the scope of his or her employment; or b.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 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.

§103(a): SM in §102

the subject matter of copyright as specified in §102 includes compilations and derivative works, 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.

Derivative Work Right §101 AND tests

§ 101. Derivative Work: a work based upon on or more preexisting works, such as 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." 1.Must be "substantially similar" - a.2nd Cir. Test: "requires that the copying be quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred. The qualitative component concerns the copying of expression, rather than ideas [facts, expression in the public domain, or any other non-protectable elements].... The quantitative component generally concerns the amount of the copyrighted work that is copied ... which must be more than de minimus." (BET) b."Ordinary observer" Test: "the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal [of the two works] as the same." c."Total concept and feel" Test: analyze "the similarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting" of the original and allegedly infringing works

Sound recordings: Derivative Right

§ 114(b)- The exclusive right of a copyright owner of a sound recording to make derivative works (106(2)) is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.