Copyright Law Exam 1
If a person copies only the music or only the lyrics from a composition, he will be liable for infringement of the work to the same extent as if he had copied both the music and the lyrics.
True
What country has a law addressing orphan works?
Canada- people can use an orphan work if they tried to find/contact the owner with no success, apply to the copyright board for a license, and are approved. If they later find the owner, they have to pay them a fee determined by the copyright board
Is the termination right applicable to works made for hire?
No
It is necessary that authors work together at the same time and place to create a Joint Work?
No
Ideas cannot be copyrighted (T/f)
True
Transfer of Copyright
includes 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
American copyright law, historically based upon the user's right philosophy, may also be described as
An economic (or trade based) philosophy
Section 202 of the Copyright Act
"Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object"- aka, if you just own a physical copy, you dont won the copyright
The Utilitarian Philosophy
(also called "user's right" or "rights balancing")- to encourage the widest possible production and availability of artistic works; assumes that authors will only invest sufficient resources in creating and publishing new works if they will have ownership rights that will enable them to control and profit from their works; belief that copyright is a LIMITED monopoly copyright attempts to BALANCE between the incentives that authors and publishers need to produce original works, and the freedom that creators need to draw on earlier copyrighted works!
The Author's Right Philosophy
(or natural right), an author is believed to be morally entitled to control and exploit the products of their intellect; extends copyright protection automatically, as a matter of principle, to every new form of artistic work
The Copyright Act of 1831
28 years of initial protection + 14 if the author was still alive (gave authors same protection that foreign authors had at the time), gave a renewal right to the author's heirs (rights pass to authors widow or children if the term hadn't ended at time of death), and extended copyright to musical compositions
Pictorial, Graphic, and Sculptural Works
2D and 3D works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans
Copyright is......
...a legal right of authors to determine how their work is used.
Elements of a copyrightable compilation
1. Collection and assembly of pre-existing material (facts or data) 2. Selection, coordination, and arrangement of those materials 3. Creation, through the selection, coordination, and arrangement, of an original work of authorship
How do courts determine the intent of a joint work?
1. Courts examine the conduct of the contributors and any possible statements of intent they may have made 2. Courts may consider the quantity and quality of the contributions 3. Courts will review who is listed as the author on the copyright registration, if applicable
What are the exclusive rights?
1. Right to reproduce 2. Distribute 3. Adapt / Derivative works 4. Publicly perform 5. Publicly display copyrighted work
Main categories of intellectual property
1. Trademarks 2. Patents 3. Copyrights
When is a work prepared within the scope of employment?
1. When it is the type of work that the employee is paid to perform 2. When the work is performed substantially within work hours at the workplace 3. When the work is performed, at least in part, to benefit the employer
3 court evaluations of works made for hire
1. Whether the worker is paid a salary 2. Whether the hiring party provides employee benefits 3. Whether the hiring party pays the worker's social security taxes
What is not protected by copyright?
1. Works in the public domain (when CR expired, published before 1964, proper steps weren't taken to protect the work, or CR owner abandoned work) - free to the public to use if they cite the author! 2. Ideas versus expression (ideas not covered) 3. Facts (not actually created by the author) 4. Names, titles, slogans, and short phrases (unoriginal or just ideas) 5. Unfixed works (not fixed in any tangible form) 6. Works of the US govt (federal, not state)
Copyright protection of sound recordings occurred in what year?
1972
Sound recordings were first protected in the United States in?
1972
When was copyright made divisible?
1976 Copyright Act
When was the termination right implemented into law?
1976 copyright act
Requirements for joint ownership
2+ contributors, intent to combine, and copyrightability of individual contributions
How many copies of a copyright transfer is recommended to have?
3 copies- 1 for the transferor, 1 for the transferee, and 1 for the copyright office
How many states have the community property law?
9
Copyright term for for works made for hire
95 years from publication or 120 years from creation, whichever expires first
Collective works
A compilation of copyrighted works. ; originality is based on selection and arrangement of works includes. Ex: anthologies
The Copyright Act of 1976
A much more detailed and regulatory act! a. Protection: copyright begins when the work is fixed without any registration requirement b. Preemption: all copyrighted works created on or after January 1, 1978 are protected (published or unpublished) c. Subject Matter: any original works can be protected d. Ownership: copyright can be transferrable / Can be split into many shares and in many different ways e. Duration: Copyright lasts the life of an author + 50 years f. Termination Right: authors can terminate transfers of copyright and regain full ownership g. Formalities: copyright notice required for published works h. Fair Use: other people can use the copyrighted works under specific circumstances i. Compulsory Licenses: increases in mechanical royalty rates
Joint work
A work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.
Term extension act of 1998
Allows a second chance to terminate during the 5 year period beginning 75 years after the copyright was secured (transfers made before january 1, 1978)
Who can view recorded copyright licenses?
Anyone! Once a copyright license is filed, it is available to the public online- anyone can check it, which allows for constructive notice
Two most common types of copyright transfer
Assignment and exclusive licenses
When does initial copyright ownership start?
Automatically when a work is created and satisfies requirements for a copyrightable work
March 10, 1783
Continental congress created a committee to oversee copyright in the US- "To promote the process of science and the useful arts"- implemented copyright into US Law to promote creation through financial incentives
The compulsory mechanical license was established under which of the following:
Copyright Act of 1909
The Staute of Anne established that the King or Queen owned all creative works?
False
What happens after termination?
Copyright reverts to the author/author's successors. They must wait for the termination to go into effect before selling or licensing
Community for Creative Non-Violence v. Reid
Court said that independent contractors are not considered employees unless they meet several criteria of employment- they evaluate these things to see if they have the right to control the work of the hired party: i. The skill required to do the work ii. The source of tools and materials used to create the work iii. The location of the work performed iv. The duration of the relationship between the parties v. Whether the hiring party has the right to assign additional projects to the hired party vi. The extent of the hired party's discretion over when and how long to work vii. The method of payment for the work viii. Which party decided whether assistants will be used and which party pays them ix. Whether the work is part of the regular business of the hiring party x. Whether the party creating the work is in business for itself xi. Whether the hired party receives employee benefits from the hiring party xii. The tax treatment of the hired party
Joint owner right to license
Each owner has the right to use the work, authorize others to use it, and issue a mechanical license. All owners must split any profits
The Copyright Act of 1909
Extended copyright to "all the writings of an author" 1. the renewal period changed to 28 years, so 28 initial years + 28 renewal years = 56 max 2. Only applied to published works 3. Still didn't live up to international copyright standards 4. Required compulsory mechanical license to reproduce and distribute sound recordings 5. 2 cent royalty paid to copyright owner of musical works
We use the "6 Bar Rule" as a tool to see if what is copied meets the threshold of copyright infringement .
False
The three basic requirements for a work to be capable of copyright protection:
Fixation, Expression, Originality
Why do we need copyright?
Fo society to function smoothly, it is necessary to have rules governing who owns and who can exert control intangible as well as tangible creations.
Who owns sound recordings?
If under a record label, copyright of sound recordings is almost always owned by the label
When did Congress reject the author's right philosophy?
In 1909, as recorded in the house report on the 1909 copyright act
Slick Sam writes a song, registers it with the Copyright Office, and then transfers it to Cool Carl's Music on June 1 in return for a $5000 advance. The next week, after spending the $5000, Slick attempts to transfer the same song to Trusty Tunes for another advance. Who owns the copyright to the song if Cool Carl doesn't record the transfer agreement before June 30th?
It depends on if and when Trusty records the transfer agreement
When can something be considered a work made for hire if its a commissioned work?
It it is one of 9 types: 1. a contribution to a collective work 2. a part of a motion picture 3. a translation 4. a supplementary work 5. a compilatiom 6. an instructional text 7. a test 8. answer material for a test 9. an atlas
What is rationale for the termination right?
It tries to protect authors from transfers that turn out to be a bad deal; "A provision of this sort is needed because of the unequal bargaining position of authors, resulting in part from the impossibility of determining a work's value until it has been exploited"
1436
Johannes Gutenberg invented the printing press! This made literary works more readily available to the public and allowed for ownership and profit from production and distribution of printed works
1534
Licensing Act
1964
Licensing act expires, eventually leading to the fall of the Stationer's company monopoly and instituting copyright for authors
What types of works are covered under copyright law?
Literary and Music, Dramatic and Dance, Graphic and Audio-Visual
Main copyright industries
Newspapers, Books, Music, Motion Pictures, Software, Radio, Television
Can one spouse give away property without consent of other spouse?
No
Can the termination right be waived by an author?
No
Do works made for hire have a termination right?
No
Can one co-owner grant an exclusive license?
No, because that prevents the other co-owners from granting licenses
Zack wrote a song and transferred the copyright to DD Music in 1990. Zack could terminate the transfer during the 5year period beginning in 2015 and ending in 2020?
No- termination between 35-40 years necessary
Who campaigned for copyright?
Noah Webster and Thomas Paine
3 things needed for copyright
Originality, fixation, expression
What is the most common orphan work?
Photographs, since they often have no copyright information attached to them
Book trade
Printers developed this to purchase the rights to print copies from authors and then own the books they publish
Transfers Made Before January 1, 1978
Provisions under Section 304 allow the author or author's successors to recapture the 39-year extension of the renewal period provided by the 1976 act and the term extension act of 1998. the 5 year termination period begins 56 years after the copyright is secured, which allows authors to recapture the copyright ownership for the last 39 years of the 95 year copyright term
1557
Revised licensing act
Which of the following is not one of the exclusive rights belonging to a copyright owner?
Right to Distribute Right to Publicly Perform or Display Right to Purchase Right to Reproduce (Right to purchase is correct answer)
works that can be protected by copyright
Songs, sound recordings, movies, TV shows, plays, dance routines, books, poems, photographs, paintings, sculptures, computer programs, websites, etc
When can the termination right be exercised?
Termination can be made at any time during a five-year time period between 35 and 40 years after the date of transfer. However, if a transfer includes the right of publication (as most do), termination may be made during the 5-year period beginning at the end of 35 years from publication or 40 years from the transfer date
1710
The Statute of Anne
Congress was given "power to promote the progress of Science and Useful Arts" in what document?
The U.S. Constitution
Who is the largest producer and exporter of intellectual property?
The United States
What philosophy is american copyright law based off?
The Utilitarian philosophy
The Statute of Anne
The first copyright law, adopted in England in 1710, protected authors' new works if they registered them with the government/Stationer's company 1. 14 years of copyright protection + 14 more years if the author was still alive 2. Copyright ONLY for printing and selling books 3. first concept of a creator being able to own and protect their creation 4. Created an incentive to create!
1783
The first copyright statute in the United States was passed in Connecticut (by 1786 12/13 states passed statutes)
If there is more than one transfer, which takes priority?
The first transfer recorded takes priority. If the second transfer is recorded before the first, the first transfer still takes priority if it is recorded within a month of the second.
Dramatic Works
telling a story through action, dialog, and narration
McLean v. Connick
They previously had an agreement to not have equal splits on an album, but then they later created another album together, and one assumed they were going to use the same split as before, and the other assumed equal share. The equal share was honored, as splits don't transfer to new works if not agreed upon in writing again. Showed the importance of having a written agreement if co-owners intend to have anything other than a 50/50 share
CCNV v. Reid is a case about work for hire?
True
Copyrighted works are separate pieces of property from tangible form (CDs)in which they may be embodied?
True
Even if a song is written by one author, Copyright ownership may still be split among several parties?
True
User's Right Philosophy-the purpose of copyright is to encourage the widest production of artistic work
True
Specially Ordered Commissioned Works
When the hiring party is the motivating factor in the creation of the work
When is the transfer priority rule not applicable?
When the transfer was a gift or inherited by will, or if the 2nd transferee knew about the first transfer
How do you record a transfer?
With a document cover sheet form- details basic info about the transfer like names, titles of the works, number of works, date of signing, etc. There is a 105$ fee for the first title and $30 for each additional group of 10 titles
Lyrics
Words written with the intent of being paired with music; if it wasnt intended to be paried with music, its considered a literary work; short phrases, words, or individual notes are not protected
Orphan Works
Works for which the copyright owner cannot be located or contacted -pose a problem for people who want to use these works but are unable to know whether they can be used freely or not
sound recordings
Works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied. ; recording artist or record company must obtain a license from the copyright holder to reproduce copyright covers the rendition or performance of the musical performance- NOT the composition itself
Literary works
Works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied. ; based upon arrangement of words to express an idea; copying the book or even paraphrasing the work's expression would count as infringement
Can derivate works still be used after termination of transfer?
Yes
Can you lose your right to terminate a transfer?
Yes
melody
a pleasing succession or arrangement of sounds; musical notes and the duration of those notes must be in original order to be copyrightable; no exact rule or limit as to how many bars must be copied to be infringement
Rhythm
a regular pattern formed by a series of notes of differing duration and stress; rarely enough to merit copyright protection on its own
Trade secrets
a type of intellectual property that protects any business information that is kept secret and gives a business a competitive advantage
Trademarks
a type of intellectual property that protects any word, name, symbol, or device or any combination thereof used to identify products or services and to distinguish them from those manufactured or sold by others
Patent
a type of intellectual property that provides protection for certain inventions, discoveries, and product design
Copyright
a way that the law gives creators and owners of creative works the right to control and profit from the use of their creations
Compilation
a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship ; only copyrightable if it contains originality of expression!!!!! Two rules: 1. New compilation doesn't affect the "scope, duration, or subsistence" of any preexisting material in the new compilation 2. copyright doesnt cover any unlawful use of preexisting copyrighted material
originality
a work that has been independently created by its author rather than copied from another work; doesn't require any measure of novelty, ingenuity, or aesthetic merit; only requires minimal creativity at the very least (which upholds the purpose of copyright, to encourage maximum creation)
Expression
an idea cannot be copyrighted, but the unique expression of an idea can
personal property
basically protects everything that can be owned other than real property (a car, jewelry, laptop, etc)
Soundtrack
consist of all the sounds within the film- dialogue, sound effects, and music; granted greater protection than sound recordings, so sounds in a film have full performance right and the right against imitation and dubbing
Musical works
copyright covers songs consisting of music and lyrics as well as songs just with instrumental compositions
Assignment
copyright owner transfers all or part of ownership interest in a copyrighted work
Exclusive licenses
copyright owner transfers one or more of its exclusive rights, but still retains one or more of their rights as well
The two requirements for Joint Work are:
each co-author must make his contribution w/ intent to combine two or more authors must contribute to a work
Equal, undivided ownership interests by joint owners
each co-owner owns an equal share of the entire work, even if they didn't contribute equal works. co-owners can alter this assumption of equality and determine the split they want, it just has to be in writing
Copyrightability of individual contributions
each of the contributors must contribute some original expression that would be copyrightable on its own -sometimes individuals who have not contributed authorship to a song will still be credited as authors (e.g., the actual author of the song might be willing to credit a popular recording artist as a co-author, even though not legally accurate, in return for the artist's recording of the song, which may result in much greater exposure, popularity, and income than if the song were not recorded by a popular recording artist.)
Economic Rights Philosophy
may be a more accurate way to describe our philosophy in America as a trade based philosophy
Berne Convention of 1886
member countries agreed that foreign works would be given the same copyright protection as domestic works (US didn't join until 1989)
Pantomimes and Choreographic Works
movements and/or physical attitudes fixed on video; dance steps and simple dance routines aren't original enough to be copyrightable
Fixation
must be able to be read back or replayed in copies for phonorecords ti be copyrightable
Prior to 18th century
no laws protecting creative works, in part because of limited access to reproduction (like printing presses, ways to reproduce books or papers), but they still did see creative works as some form of property greek states relied on government sponsorship of the arts and not on any private ownership and commercialization
copyright
original works of authorship fixed in tangible medium of expression now and later developed from which they can be perceived, represented, or otherwise communicated directly or with aid of a machine or device
In a compilation the copyright granted for the compilation is based on:
originality/expression found in arrangement of prior material
RIAA
passed an amendment in 1999 that added sound recordings as a category of work eligible for treatment as works made for hire, which was controversial because it eliminated an artists/producer's termination right with a label
Community Property
property acquired during marriage and owned equally by both spouses- spouses can sell property without consent of other spouse, but must split the profit
intellectual property
protects certain products of the mind and affords ownership rights to things that have no physical existence
Real property
protects land or things that are build upon land, like houses and buildings
Stationer's company
recorded who owns copyrights; had a monopoly, meaning that no one could print anything unless they had a stamp from them
The Licensing Act
required a license from anyone who wanted to publish a book so that the english crown could prevent the release of books that may cause religious heresy or political dissent- they didn't want to lose control if people started to write bad things about the church or the king
The Revised Licensing Act
required all books to be registered with the Stationer's company, who recorded who owns all copyright and could find and destroy any offensive works
The Copyright Act of 1790
similar to the statute of Anne 1. 14 years of protection + 14 years of the author was still alive 2. Limited to books, maps, and charts
What must be done to exercise the termination right?
terminating party must give a written and signed notice to the transferee, must state intended termination date, can be sent any time between 2-10 years before the termination date, and a copy must be filed with the copyright office.
Who can terminate a transfer?
the author or the author's successors- if the author doesn't have any kids or grandkids, the author's executor gets the termination right
Works made for hire
the person or party on whose behalf of the work is created is considered to be the author and original copyright owners
Harmony
the structure, progression, and relation of chords; rarely copyrightable on its own, but certainly contributes to the copyright-ability of a work as a whole
What is required for a transfer of copyright?
the transfer must be in writing, signed by the copyright owner, specify the rights that are being transferred, who is acquiring the rights, if the transfer is exclusive or non-exclusive, and the duration of the transfer
Exclusive rights to copyright holders
these rights are given to copyright owners to allow them to make money from the use of their works
Intent Requirement
two or more authors must intend, at the time of creation, to combine their contributions into a single work
Inseparable
when the contributions have little or no interdependent meaning standing alone
Interdependent
when the parts have some significant meaning alone but achieve their primary significance because of their combined effect
For purposes of the termination right, the most important date is:
when the transfer of rights is made
Courts' evaluate which factors most heavily in determining Work Made for Hire cases? (choose all that apply)
whether the worker is paid a salary whether the hiring party provides employee benefits whether the hiring party pays the worker's Social Security taxes.
motion pictures
works with a series of related images, often played in succession, with accompanying sound, intended to be shown by use of machines or devices
Can a record company that received a license from a publisher to make a sound recording of a song allowed to continue to sell sound recordings containing song after the songwriter terminates its transfer to the publisher?
yes- derivative works still allowed after termination of transfer