Chapter 14 Copyright law

the law of misappropriation is intended to stop:

- a person trying to pass off his or her work as the work of someone else - a person trying to pass off the work of someone else as his or her own

When looking at a copyright action courts must look at several factors to determine if it is actionable

-Is the copyrighted work still available? Copying an out of print book is not serious, printing one that is readily available is -Is the copyright what is called a consumable work? a consumable work is something that is intended to be used just once. -Is the work an information work or a creative work? If it is informational it is more likely to be fair use. -Is the work published or unpublished? Author's have the right to be the first to publish.

How long does copyright last?

-Works created after Jan 1, 1978- the life of the creator plus 70 years -Works created by More Than One Person- the life of the last living creator plus 70 years -Works for hire- 95 years after publication -Works created before January 1, 1978- 95 years

educational use guidelines

-be brief, under 1,000 words -be spontaneous- there would be no time to get permission -not occur more than 9 times a term, with a limited number of copies from a single author -carry a copyright notice -not be a substitute for purchase of the original work and not cost the student more than the actual copying cost

infringement

-is the copyright on the plaintiff's work valid? the heart of this matter is to ascertain if the work is original and can be copyrighted - did the defendant have access to the plaintiff's work prior to the alleged infringement? - are the two works the same or substantially similar?

The rights included in copyrights

-the right of reproduction of the work -the right of preparation of derivative works -the right of public distribution of the work -the right of public performance of the work -the right of public display of the work -the right of public digital performance of a sound recording

Some rights a publisher might buy from a freelancer

1. all rights: complete ownership 2. first serial rights: the publisher can only use the right once, for the first publication of the material 3. first north american serial rights: only rights to publish for the first time in north america 4. simultaneous rights: publisher buys the right to publish material at the same time as another company 5. one-time rights: the publisher buys the rights to publish just one time, and there is no guarantee that the work hasn't already been published somewhere else

Works that can be copyrighted

1. literary works 2. musical works, including accompanying words 3. dramatic works, including accompanying music 4. pantomimes and choreographic work 5. pictorial, graphic and sculptural works 6. motion pictures and audiovisual works 7. sound recordings

to determine whether the use of a particular work is fair use:

1. the purpose and character of the use 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 on the potential market for or value of the copyrighted work

The four main functions of trademarks and service marks

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

Trademark

A trademark is any word, symbol, or device, or combination of the three, that differentiates an individual's or company's goods and services from the products or services of competitors

Patents

Inventors give up their secrets, publishing them for all to see and absorb, and in exchange they get 20 year govt. sanctioned monopolies on their technologies

misappropriation

aka unfair competition, from common law, where copyright is the creation of statute

Copyright

an area of the law that deals with property a person cannot touch or hold or lock away for safekeeping, it is intellectual property

research findings and history

cannot copyright facts in history

copyright law v trademark law

copyright law protects all works of authorship, writing, photos, paintings music... trademark protection is based on marketplace use

fair use applies to

criticism comment news reporting teaching scholarship

roots of the law

developed after the printing press in britain

Federal Dilution Trademark Act

gives the owner of a trademark legal recourse against anyone who uses the same or similar trademarks on even dissimilar products the person who first uses the trademark, not the person who first registers the trademark owns it

sweat of the brow doctrine

legal principle recognised by some courts that asserts that even facts are not copyrightable, someone who invests substantial time and energy in amassing these facts deserves a reward for hard work. Not accepted by SC

Baker v. Selden

provided some fair use doctrines in 1879 because it was illegal to copy any copyrighted material for any reason

Plagiarism

taking credit for the work of another, plagiarism is an ethical concept, not a legal one

copyright notice

the failure to affix a copyright notice means automatic loss of copyright

News and copyrights

the style in which a news story is told can be copyrighted, but not the facts within a story

fair use

to balance the author's right to compensation for his work, on the one hand, with the public's interest in the widest possible dissemination of ideas and information on the other.

what cannot be copyrighted

trivial material -- titles, slogans ideas facts utilitarian goods- things that exist to produce other things methods, systems, mathematical principles, formulas, and equations