BLAW 243- PP 28 Intellectual Property Rights: Copyrights- Exam 3

Public Display Right

The display right gives copyright owners the exclusive right to display/show their works to the public - only an image displayed in PUBLIC can be infringed under the Public Display Right (if only in private = no infringement) - DOES NOT INCLUDE PPHONO-RECORDS/SOUND RECORDINGS

Copyright Defined

A form of property ownership that gives creators and owners of creative works the right to control and profit from use of those works

Which of the following forms of IP protection is most appropriate to protect a movie script that you wrote? A. Trademark B. Patent C. Copyright D. None mere "ideas" cannot be protected

C. Copyright

Fair Use Doctrine: Policy

Encourage creative activity that may enrich society

Architectural Works: 3-D Build

3-D Build )Actual Constructed Building) - protected as 'architectural works' - copyright protection ONLY for buildings constructed AFTER 1990 - see next slide for significant limitation on Copyright Protection

First Sale Doctrine: Physical Object vs. IP embodied on the object

- Copyright Owner can determine how, when and where to distribution the FIRST sales of the copyright owner no longer control the physical object - However, the copyright owner retains rights to the copyright interest int he original creative expression EMBODIED on the physical object. Therefore, no additional 'copies' of the work can be made. (authors distribution rights only count towards first sale) - re-selling is allowed

Paraphrasing and Copyright

- Copyright includes BOTH verbatim copying AND mimicry of expression, presentation and organization of content, etc.

Copyright Infringement

- Copyright infringement occurs when a third party violates one or more of the copyright owner's exclusive rights listed occurs when defendant copies whole or part of the copyrighted work without permission

Copyright: Damages

- Copyright owner is entitled to damages for EACH infringed work EX: If an infringer infringes 22 songs, the copyright owner is entitled to damages for EACH song

Who owns original copyright? Other Works

- Creator owns original copyright - free to assign or transfer copyright interests - duration: life of last surviving author plus 70 years

Copyrights in Digital Information: One act of file sharing can constitute infringement of multiple rights

- Each time a computer file is shared online, it must be 'copied'

Who owns original copyright? Works Made for Hire

- Employer, not creator, owns original copyright - free to assign or transfer copyright interests - duration: shorter of 1) 95 years from publication or 2) 120 years from creation

Originality

- Independently created by the author, not copied - At least some minimal degree of Creativity is required More Protection: Fictionalized Works Less Protection: Works of Fact

No copyright protection for the following:

- Individual words - Ideas - Work's theme - Work's plot - Factual information - Other non-original "common" elements

Copyright

- Protect original creative expression fixed in a tangible medium - Protection begins at moment of fixation - Duration of protection: Natural Persons - Life plus 70 years Work Made for Fire- Shorter of 1) 95 years from date of publication OR - 120 years from date of creation expire with the year that comes first

Patents

- Protects inventions, discoveries and designs - Protected begins on date of FILING with USPTO if USPTO grants protection - Patents for 20 years for utility patents, 15 years for design patents

Trademarks

- Protects word, name, symbol, or device to identify goods or services and distinguish them from those made or sold by others - Protection begins when marks is 1) deemed distinctive as a source indicator and 2) 'used' in commerce - Protected forever SO LONG AS a source indicates mark remains significant to public

Compilation of Facts

- Sometimes copyrightable but ONLY IF expression is ORIGINAL

The First Sale Doctrine

- The copy be lawfully made and, - that the initial public distribution be authorized

Derivative Works: Copyright Ownership

- The copyright holder of the 1st generation work continues to own the copyright in all copyrightable elements from the 1st generation work. - the creator of the 2nd generation work only owns copyright in his/her ORIGINAL creative contributions

Items that are NOT copyrightable

- anything NOT 'fixed' in a tangible form - titles, names, short phrases, slogans; familiar symbols or designs; mere variation of typographic ornamentation, lettering, coloring; mere listing of ingredients or contents - Works consisting entirely of information that is common property containing no original authorship EX: standard calendars, height and weight charts, tape measure and rulers - Works authored by the U.S. government - Works that have passed into the public domain

To win a copyright infringement action, the copyright owner must prove:

- ownership of a valid copyright in the work that is the subject of the dispute - defendant copied the work - the defendant's copying was an improper appropriation

The owner of copyright under this title has the exclusive rights to do and to authorize any of the following

- to reproduce the copyrighted work in copies or phono-records - to prepare derivative works based upon the copyrighted work - to distribute copies or phono-records of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending

Two Step test for copyright infringement

1. Defendant created a substantially similar work (they both look a lot alike 2. Defendant had access to the plaintiff's work

Exceptions to Copyright Infringement

1. Fair Use Exception 2. First Sale Doctrine

Remedies for Copyright Infringement

1. Tort damages (actual or statutory damages) 2. Injunctive relief ( if monetary damages are deemed inadequate 3. Criminal fines and/or imprisonment IF infringer is deemed 'willful'

Derivative Works:

A ' derivative work' takes a 1st generation work and recasts, transforms, or adapts that expression in an original way to create a new 2nd generation work - a second generation creator must get permission

Reproduction Right

A copyright owner has the exclusive right to reproduce (or to license others to reproduce) the copyrighted work.

Pictural, Graphic, Sculptural Works: Photographs

A photograph is copyrightable if it is original in a- rendition (angle of shot, light and shade, exposure, effects achieved by filters, and developing techniques) b- timing (selecting when to take the photograph) c- creation of the subject (choosing what to include in the picture)

Fixed in a Tangible Medium of Copyright Act

A work is fixed in a tangible medium of expression when its embodiment in a copy or phono-record, by or under the authority of the copyright owner, is sufficiently permanent or stable to permit it to be perceived reproduced or otherwise communicated for a period of more than transitory duration Embodiment of the expression in any tangible object satisfies the fixation requirement

Frank downloaded 100 movies from the internet. Frank was aware that downloading movies from the sites he used was illegal. Assuming a court determines that Frank is a willful infringer, what are the maximum damages a court may order Frank to pay? A. 100 x $150,000 = $15,000,000 B. 100 x $30,000 = $3,000,000

A. 100 x $150,000 = $15,000,000

You own a store that uses a highly stylized "+ " (a stylized image will be shown in class) sign for its logo. This logo is an original design. In addition, the logo for your store has become very well known -- when customers see this logo they immediately think of your store. You want to make sure no other store owner uses your logo. You wish to protect your IP rights. What form(s) of protection would be the most appropriate for you? (Choose all answers that apply.) A. Trademark B. Patent C. Copyright D. Both A and B are correct E. A, B and C are correct

A. Trademark C. Copyright

Obama Edited Photograph Picture Did Fairey infringe on any copyright interest when he created the poster A. Yes B. No

A. Yes

Ray sat in Prof. Maull's course and took notes. Ray's notes paraphrase much of both the underlying text and Prof. Maull's powerpoints. In addition, the sequence of information presented in Ray's notes mirrors the sequence of the material presented in the course. Ray sells his notes to Nittany Notes. Has Ray infringed the copyright interests of Prof. Maull, PSU, and the authors of the text? A. Yes B. No

A. Yes

Audio Home Recording Act (AHRA): exception to reproduction right

Allows consumers to make digital copies of copyrighted music for private, con-commercial use using DIGITAL audio recordings, (CD's and MP3's)

Motion Picture and other Audiovisual Works

All are copyrightable so long as composition is original and "fixed" in a tangible medium

Who is the 'author'? - Works Made For hire

An employer own the copyright in any work made by an employee within the scope of his/her employment. The employer is considered to be the 'author,' not the employee/creator

Public Display Right: limitations on Copyright Owner's Rights

An owner of a copy MAY display the copy to the public so long as - the copy is lawful - the display is either a DIRECT display or a display of the projection of a single image at a time - the display must be made to viewers PRESENT at the location of the copy (no transmissions permitted)

Copy

Any material object (other than a phono-record), in which a work is fixed. EX: written lyrics, written musical score, books, magazines, etcc

Willful Infringers

Award per infringement - minimum: $750 - maximum $150,00

In the year 2000, Maya wrote a book. Maya died in 2010. In what year will Maya's copyright protection expire? A. 2070 B. 2080 C. 2095 D. 2120

B. 2080

Penn State Motion Picture Studios hired Sebastian as an employee to create a film. Sebastian created the film "Penn State Memories" in 2000. The studio first distributed the film later in the same year. In what year will Penn State Motion Picture Studio's copyright in the film expire? A. 2070 B. 2095 C. 2120

B. 2095

Sumukh purchased Michael Jackson's "Thriller" album on CD. Sumukh made a copy of this CD for his personal use. Has Sumukh infringed on the Jackson estate's copyright in the CD? A. Yes B. No

B. No

You, the consumer, can rent DVD's from Redbox. Each time you rent a DVD, do you have to pay the copyright owner? A. Yes B. No

B. No

Matt is an improvisational comedian. His work is completely spontaneous, and he never writes down his jokes. Each performance is fresh and new. On Saturday night, Matt performed live at Eisenhower Auditorium. The performance was not recorded. Can Matt receive a copyright in the jokes he uses in the performance? A. Yes B. No

B. No - only the author who created the idea and fixed it in a tangible expression can copyright

Danielle lives in New York. Jessica lives in Los Angeles. The two have never met, do not share any acquaintances, and are unfamiliar with one another's work. If Danielle and Jessica independently create identical books, who can receive a copyright in the work? A. The first to create the work B. The first to register for a copyright C. Both Danielle and Jessica D. Neither Danielle nor Jessica

C. Both Danielle and Jessica

Copyright and Registration

Copyright a) notice and b) registration are NOT REQUIRED, but do offer benefits

When does copyright begin?

Copyright begins AT THE MOMENT an original work is fixed in a tangible medium

Literary Works

Copyright granted to arrangement of words that author uses to express ideas Protected Works EX: - Virtually anything that is written, software programs, video games, etc.

Sound Recordings

Copyright interests in SOUND RECORDING is SEPARATE from copyright interest in the underlying MUSICAL WORK

Expression

Copyright only protects the EXPRESSION of the author's idea when it is fixed in a tangible medium

The Distribution Right

Copyright owner has the EXCLUSIVE right "to distribute copies or phono-records of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending

Remedies for Copyright Infringement: Actual Damages

Copyright owner must establish proof of 'actual damages' how much loss did copyright owner actually suffer

Architectural Works

Copyright protection for architectural works is limited: - Copyright is an architectural work that has been constructed does NOT include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

Copyrights- Subject Matter

Copyright protection subsists, in accordance with this title, in original works of authorized fixed in any tangible medium of expression, now known or later developed, from which the can be perceived, reproduced, or otherwise communicated, either directly or with the aid or a machine or device. Works of authorship include the following categories: - literary works - musical works - dramatic works - pantomimes and choreographic works - pictorial, graphic, and sculptural works - motion pictures and other audiovisual works - sound recordings - architectural works

Pictorial, Graphic, Sculptural Works

Copyrightable as long as they contain original expression. - Cannot be a 'useful object'

Expression V. Idea

Ideas are not protected

Derivative Works: Copyright Ownership and the Public Domain

If a first generation work enters the public domain, 2nd generation creators are free to use the first generation work without permission

Copyrights - Exclusions

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle,or discovery can't protect an idea

Public Display of Unauthorized Copy

Infringement of copyright holder's Display Right

Sharing of Unauthorized Copies

Infringement of copyright holder's Distribution Right

Creation of Unauthorized Copies

Infringement of copyright's holder Reproduction Right

Copyrightable works include:

Intangible Expression

What type of 'property' does copyright law protect?

Intangible Property

Phonorecord

Material object in which sounds are fixed (exception: music that accompanies a motion picture or other audiovisual work.) EX: CD's. MP3's, cassette tapes, etc.

Are sound recordings protected to the same extent as other works?

No - sound recordings are offered less protection than other works

Registration of a Copyright

Not Required, but can be beneficial - owner must register the copyright with the U.S. Copyright Office before filing suit - in the event an infringement lawsuit arises, a copyright owner who registers within the correct time period can be awarded statutory damages and/or attorney fees

Visual Notice

Not required, but may be beneficial - notice informs public work is protected and identifies the year of the first publication and the owner - in the case of an infringement, the notice prevents infringer from raising defense of "innocent infringement"

Copyright Protection

Original works of authorship (expression) fixed in a tangible medium now known or later developed can be perceived, reproduced, or otherwise communicated directly with the aid of a machine or device

Types of materials objects in which expression are fixed

Phonorecords Copies

Architectural Works: Plans/Benefits

Protected as Either - architectural works - pictorial, graphic, and sculptural works

Limitations of Exclusive Rights- Fair Use

The Four Factors 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 4. the effect of the use upon the potential market for or value of the copyrighted work EX: Google book examples- 1st factor

Registration Time Period to preserve rights to claim attorney fees and statutory damages

Time Period - Before Infringement OR - Within 3 months after the first publication of the other work

Innocent Infringers

Tort Proceedings - award per infringement - minimum $750 (or 550) - maximum $30,000

WIPO and the Digital Millennium Copyright Act (DMCA)

WIPO = 'World Intellectual Property Organization' WIPO Treaty= International Treaty designed to provide greater international copyright protection DMCA = U.S. law that implements the WIPO treaty

Duration of Copyright

Works Created On or After Jan. 1, 1978 - when expression was fixed in a tangible medium - Basic term: Life of Author + 70 years A) 95 years from publication b) 120 years from creation - select the year that arrives first; copyright for a work made for hire expires in the earlier of the two years

Originality and Novelty

not required