Chapter 14- Copyright

What can be copyrighted under federal statute

1) Literary Works (inc. computer software) 2) Musical works & their words 3) Dramatic works, inc. any accompanying music 4) Pantomimes & choreography 5) Pictorial, graphic, and sculptural works 6) Motion pictures and other audiovisual works 7) Sound recordings

Reasons why plagiarism is more common today

1) The rush to make a dollar in our media-saturated society provides a strong impetus to many to borrow from the works of the successful 2) It's much easier to borrow from others today by using the Internet 3) Stealing the intellectual property of others doesn't seem to be nearly as wrong as it once did

Guidelines for copying material for educational purposes (1976)

1) be brief (<1000 words) 2) be spontaneous- no time for permission 3) no more than 9x/ semester and limited #/author 4) carry copyright notice 5) not be a substitute for purchasing original work and not cost student more than copying cost

4 main functions of trademarks and service marks

1) identify one seller's goods and distinguish them from goods sold by others 2) signify that all goods bearing the trademark or service mark come from a single source 3) signify that all goods bearing the mark are of an equal level of quality 4) serve as prime instrument in advertising and selling goods

6 rights under copyright law

1) right of reproduction of work 2) right of preparation of derivative works 3) right of public distribution of the work 4) right of public performance of the work 5) right of public display of the work 6) right of public digital performance of a sound recording

4 limitations on copyright monopoly

1) work must be able to be copyrighted 2) monopoly protects only original authorship or creation 3) copyright protection does not last forever 4) doctrine of "fair use"

Registration of Copyright

1. Fill our form depending on type of work 2. Pay fee 3. Deposit 2 complete copies of work with Copyright Office Registration begins (depending on court) at time of mailing or form or upon receiving certificate

Development of copyright protection in U.S.

1790- U.S.adopted copyright law similar to U.K.'s. allowed authors to protect work for 14-28 years. 1802- added prints to books, maps, and charts 1831- added 14 years to grant and musical compositions were added later in century photography, fine art, and translations were added

Copyright Notice

A work needed this to be protected from infringement after the 1989 Berne Convention Not required to be on product now, although encouraged Says "Copyright", "Copr." or symbol with "C" in the middle + Date of Publication. Should also contain name of owner/holder

Misappropriation

Also known as unfair competition. Sometimes used as additional legal remedy for copyright infringement look at AP v. INS case

Infringement condition #1: Originality of the plaintiff's work

Analyze originality prior to copyright Common scenarios that appear as "unoriginal" -Using history for a major portion of the novel -Scenes a faire- the natural-flowing elements of the story (ex. dinosaur zoo) -Ideas that are naturally going to occur (e.g. the Cosby Show)

Trademarks

Any word, symbol, or device (or combo) that differentiates an individual's or company's goods and services from the products or services of competitors Assures the buyer that he/she is getting the real item Can get a trademark for more than the name (ex. Shape of Coca-Cola bottle) Does not provide exclusive rights over words- only over what is necessary to avoid consumer confusion Cannot trademark generic business words (e.g. freebie) Is possible to trademark a color (e.g. pink home insulation or teen-gold dry cleaning pads) Provides service marks for businesses, certification marks for goods and services, and collective marks identify and protect members of organizations (e.g. National Association of Relators) Protection for a "trade dress" (i.e. the way a product is packaged) Trademark must be renewed after 5 years and then is subject to 10-year renewals. Can remain indefinitely, such as Colgate, Chiquita, Kodak, and Tobasco

Development of copyright protection in U.K.

Began with mechanical printing. in early 18th century, British Parliament passed 1st copyright law that gave legal claim of ownership of a piece of literary property to the person who created the work or to a person who acquired the rights to the work from the author The whole point is the fostering of the creative spirit. Authors must be rewarded for their work in order for them to produce more.

Ways that you can copyright facts

By collecting them in a certain way through 1) telephone books and databases -Rural Telephone Service and Feist Publications -Misappropriation laws can be used to bar database piracy 2) news events -Broadcasters cannot play the same interview or relay the transcript of another news company, but they can relay what was said during it -copyright law protects the expression of the story- the way it was told. 3) research findings -Gene Miller's book "83 Hours Till Dawn" about kidnapping of Barbara Mackle was created into a documentary by Universal Studios. She sued. High court said that research cannot be copyrighted. ----Author Jay Nash wrote about bank robber John Dilinger. Proposed that he lived, rather than died. CBS series followed this idea. Nash could do nothing, because he presented his work as fact, not as fiction -Dan Brown's "The Da Vinci Code" took ideas from 1982 book by Baigent & Leigh. They sued in U.K., but nothing happened because they could not state the central theme. No clear precendent for how much an author can borrow from another person

Infringement condition #3: Copying and Substantial Similarity

Can be obvious in cases of dubbing or reprinting famous Case: publication of HP guidebook. Ended up containing too much of Rowling's work Pictures- difficult to determine. ex. of statue in Bonaventure Cemetery overall, ask if general idea of two works is similar and then if it is, how is the theme carried out?

Steps to establish a trademark

Can search to see if name has been used (doesn't have to me registered) previously through the U.S. Trademark Electronic Search Systems Apply to Patent and Trademark Office in D.C. with nonrefundable fee of $275-$375

AP vs. INS (1919)

Case from more than 80 years ago: AP (Associated Press) charged that INS (International News Service) pirated its news. However, AP's material was not copyrighter. There were too many dispatches for them to do so. INS argued that knowledge was in public domain then. Law of appropriation developed

Copyright

Deals with intangible property. Who has the rights to something?

'Postal Service' Case of Trademark Infringement

Did not involve court. Rock band called "Postal Service" produced songs in Seattle. USPS sent them cease-and-decist letter. 15 months later, sent them permission to use name if they would promote use of mail and include note about trademark name on albums. Postal Service also agreed to sell the band's CD on its Web site

DMCA (1998)

Digital Millenium Copyright Act. abide by copyright protection regulations on internet and fair-use defense in cyberspace. Issues with VCR being used illegally

What to look at to determine if a particular work is fair use

Examine: 1) Purpose and character of the use 2) Nature of the copyrighted work 3) Amount and substantiality of the portion used in relation to the copyrighted work as a whole 4) Effect of the use on the potential market for or value of the copyrighted work Similar to common-law fair-use doctrine

Case Study of Fair Use Criteria: Savage broadcast

Favored defendant- not unusual to criticize show, only 4 minutes/2hours were used, and plaintiff never implied that he had another possible consumer base

Case Study of Fair Use Criteria: Gawker Media releases early look at Sarah Palin's book

Favored plaintiff- commercial use, unpublished, substantial amount used (21 pages), and posting came during a campaign (speculation of affecting market?)

Copyright Law and the internet

Generally accepted standards: -Storing copyright work on computer's memory is violation -Transmitting copyrighted work via internet is public performance violation -Can't download copyrighted material -ISP can't offer unauthorized copyrighted work -an Online Service Provide acting as a "conduit" will not be held responsible -must be fixed in tangible medium to be held responsible

San Francisco women - class on lap dancing, pole dancing, and strip tease

Has not been challenged yet. Argue that their unique arrangement of these exercises into a workout is copyrightable

How trademark protection can be lost

If a name isn't used by company for many years (ex. "Futura" vehicle by Ford that later became Pep Boys') If company does not defend themselves when someone else tries to mimic their product. Benefit is when "Google" became a verb. Negative is that it lost the capital "G" and people forget its origin Trademark does not include parodies though, such as "Chewy Vuiton" handbag for dogs

Film and TV

Illegal downloading of movies and e-books Largest problem- streaming To help combat it, companies are releasing more movies/shows free online Movies in theaters are now released on the same day around the world (at least, it's more common)

Patents

Important to technological development. Inventors give up secrets for govt protection of items. 3 different kinds of patent protections: 1)Protects items that have utility, such as a machine or a process, 2)Protects design, the appearance of an article of manufacture (style of furniture, etc.), 3)Protects plants, but only those that can be produced asexually through a means other than seeds Does not exist until issued by govt. While waiting, it is called "pat. pending"

Damages

Innocent infringement: $750-30,000 Knowing infringement up to $150,000 Judge can order impoundment and/or destruction of infringing works Defendant can be charged with criminal offense, particularly when there is financial gain

Law of appropriation

Intended to stop: a) a person trying to pass off his/her work as someone else's b) a person trying to pass off work of someone else as his or hers

Copyright Infringement and the Internet

Internet lends itself to infringement issues Ex. Google claimed in 2009 that it would scan all books. In 2011, federal court rejected this even with their offers for payment and copyright owners opting out. would give Google too much power Users even show frustration on internet when copyright owners try to enforce it

Federal Trademark Dilution Act (1996)

It used to be that you could only trademark a name for that type of product or similar products (ex. a creator of a treadmill could call it a "Walkman") This law gave owners of trademarks and trade names legal rights against any use of name on any object Does not include its use in news, parody, satire, or other forms of expression

Lipman v. Commonwealth

Judge said that reporter could not copyright his transcript of what had happened at accident when woman drowned, because it relays the viewpoint of others. Not an original work

Bleistein v. Donaldson Lithographing Co.

Judges are not meant to determine if something is a novelty of high quality. Only requirement for copyright is that the work be original.

LANS and Audio Video

LANS was capturing raw footage and selling to news companies. Audio Video was recording news broadcasts and selling them. Found invalid, because creativity of LANS recorders in capturing material constituted copyright

Fair Use #1: Purpose and Character of Use

More likely to be considered fair if it is nonprofit, noncommercial Areas likely to be protected under fair use (not exhaustive): criticism and comment, teaching, and scholarship/ research Examples of criticism that were allowed: -When one TV show shows clips from another and criticizes -When a Web site critiques the beliefs of a cult and quotes their teachings Not allowed: -Posting a news article and asking for criticism **Compare the amount of copyrighted work used in each example Purpose of Use: -A journalist quoting a poem in order to talk about the author or someone putting the quotes on signs to sell them -A teacher passing out copied articles vs. a teacher sending a collection of articles to a copy center to be binded as a book (commercial reasons for the copy center)

Materials not protected by federal copyright statute

Non-tangible mediums, such as speeches, performances, and sketches However, you cannot film a live performance due to federal laws that prohibit unauthorized recording of a live musical performance, right to publicity, and common-law copyright 1) Trivial materials (titles, slogans...) 2) Ideas (can protect a script though) 3) Facts 4) Utilitarian goods- things that exist to produce other things (ex. lamp), but design can be copyrighted 5) Methods, systems, math principles, formulas, and equations. However, order of examples in book can be Also, non-original works

Plagiarism

Occurs when a writer takes the ideas, thoughts, or words from another and passes them off as his or her own Ex. New York Times reporter Jason Blair was guilty of fabrication and plagiarism. Most of subjects didn't complain though, because they assumed reporters plagiarize.

Doctrine of "fair use" (1976)

Permits limited copying of an original creation that has been properly copyrighted and has not yet fallen into public domain

Infringement condition #2: Access

Plaintiff must prove that defendant stole work

Baker v. Selden (1879)

Point of publishing book is to convey knowledge. However, it can be frustrating if the knowledge cannot be used without incurring piracy charges Fair Use Doctrine emerged, allowing limited copying of works

Politics and Copyright

Political campaigns heavily use the internet now. HOWEVER as part of DMCA, sites must take down material immediately and question of fair use would come later in court. Therefore, opposing parties are demanding that their videos used by opposing news sources must be taken down. Call for clarification that DMCA should not be used during campaigns McCain and others sued for using artist's song in campaign video online.

Fair Use #2: Nature of the Copyrighted Work

Questions to consider: 1) Is the copyrighted work still available? 2) Is the copyrighted work "consumable"? (can it be used only once?) 3) Is the work informational or creative? (more likely to be fair use if its informational) 4) Is the work published or unpublished? (valuable right of author to be first to publish work, clearly recognized by 1976 Copyright Act). See case of Harper & Row Publishers v. Nation Enterprises

Fair Use #3: The Portion or Percentage of a Work Used

RELATIVE amount is more important than amount used Cannot use synonyms, as seen in case of Hamilton's copyright of Salinger's 'Catcher in the Rye' Parodies complicate the issue, because they must reflect content of the original work (ex. Al Franken's book that mocked FOX by using their catch phrase. was acceptable) Commercial parodies were ruled non-fair use until 2 LIve Crew's rap song parody that took the "heart" of "Oh, Pretty Woman"s original melody/lyrics, but added much more to it. Parody books: -"The Wind Done Gone" slave version of "Gone with the Wind" was settled & -"60 Years Later" version of "Catcher in the Rye" used too many scenes/ characters of original work

Rural Telephone Service and Feist Publications (1991)

Rural collected local numbers/names and Feist published regional sets of numbers/names. Rural sued Feist, saying that they had a collection of facts and they had the "sweat of the brow" (they invested hard work into attaining the facts and deserved reward) Court rejected saying that 1) alphabetical listing is not unique and 2) goal is to encourage arts and science, not reward hard work This ruling had a large impact because of internet databases that can alphabetize information. Now, cannot be copyrighted unless collected in a unique or artful manner

Copyright protection for clothing

Senator Schumer of NY- protection for fashion designers' clothing Mardi Gras parade costumes All of these cannot be copyrighted under "apparel" or "costumes" but can be as "works of art" or "regalia"

Production Contractors, Inc. (PCI) & Chicago TV station WGN (1985)

Showed that although PCI ran a Christmas parade, they cannot sue WGN for airing it, because the parade is not an original idea for which they can sell exclusive rights for

Copyright Law of 1976

Still used today. Said that copyright is governed by federal law and statute. 1988- Congress approved U.S. participation in Berne Convention (102 yrs old), the world's preeminent international copyright treaty

Harper & Row Publishers v. Nation Enterprises

The Nation Magazine published information on why Ford pardoned Nixon that came from the unpublished memoir Resulted in general population being terrified of publishing material before author had, even though this wasn't necessarily NOT fair use

"Trademark dilution"

Too vague of terminology under Federal Trademark Dilution Act. Trademark infringement requires proof of consumer confusion and it's not easy to prove that. Have to prove that reputation is actually tarnished by other entity (ex. Victor's Little Secret wasn't allowed after lawsuit by Victoria's Secret)

Fair Use #4: Effect of Use on Market

Usually given the most weight in court If plaintiff can't show economic impact from copying, might result in fair use ruling Perhaps the defendant is using is using the copyrighted item for profit, but if its effects don't have economic impact for the original, then does it matter? Creating a line of erotic Barbie dolls won't change market for original Barbies What about using Stephen King's screenplay to create a work that is then sold to movie producers before he sells his? This may hurt his profit

Freelancing and Copyright

Ways in which publishers might buy rights from artists: 1) All rights 2) First serial rights- publisher can only use piece 1x 3) First North American serial rights- same as #2, except it can only be published in N Am 4) Simultaneous Rights- publisher buys rights to print the material at the same time other periodicals print the material 5) One-time rights- rights to publish piece one time and no guarantee that it hasn't already been used Usually, creator will sell all rights and then have them reassigned back to them

Infringement and 3 conditions courts use to determine infringement

When someone has violated the use of another's copyright 1) Is the copyright of the plaintiff's work valid? 2) Did the defendant have access to the plaintiff's work prior to the alleged infringement? 3) Are the 2 works the same or substantially similar?

Plagiarism vs Copyright

You can infringe on a copyright with plagiarizing You can plagiarize without breaking the law Plagiarism is ethical concept. Copyright is legal concept. Cases of either in Film, Books (inc. Harry Potter), and Journalism (NYT, WSJ, Miami Herald, WP, etc)

File Sharing

ability of computer users to move files from one computer to another or a great many other computers since 2009, it has has become virtually impossible to stop. MP3s have come about. File-sharing services for music have continued to pop up, despite court support for recording industry -2003-2008 RIAA (Recording Industry of America) sued 35,000 people for swapping music online then iPod/iPhone were developed

Sonny Bono Copyright Extension Act (1998)

added 20 more years to the protection of a copyrighted work. anything created after 1978 will be protected for life of creator + 70 years. after this, it goes into public domain. works created before 1978, when the 1976 law was in place, are protected for a total of 95 years after the date of original copyright

fair use doctrine in copyright law

allows some "aggregation" of material

"aggregators"

individuals or companies that bring together the work of others for their own use becoming more common

"safe harbor"

portion of DMCA that exempts ISPs from being held accountable for transmitting copyrighted material that users have put on the internet HOWEVER, companies (especially Viacom- owner of MTV and Comedy Central) demanded that YouTube remove copyrighted material. As long as YouTube takes down material upon demand, it is not held accountable.

"hot news misappropriation doctrine"

prevents free riding on breaking news from others sites, which was apparent in AP vs. INS case said that breaking news from bank stocks did not fall into hot news doctrine, because it's like google publishing that NYT is reporting on presidency

Review/Comparison of: Copyright Law, Trademark and Patent Protection

protects "all works of authorship fixed in a tangible medium of expression". includes writings, photographs, paintings, music, drama, and other similar works. Copyright doesn't protect ideas, rather specific expression of those ideas. Trademark protection is based on marketplace use; can last forever. Patents and copyright are statutory creations; limited by law.

"transformative uses"

taking a work and using it for another purpose ex. picture of Obama looking up to the sky for "HOPE" campaign was taken by AP. was used for different purpose during Fairey's campaign for Obama Adding something is usually considered transformative, while taking away something is typically considered not

"works for hire"

works created for a publisher, which then holds the copyright. protected for 95 years after publication.