Copyright

What notice requirement existed for copyright protection post-ratification of the Berne Convention?

The Berne Convention Implementation Act eliminated the notice requirement of U.S. copyright law prospectively. The 1909 and 1976 Act (pre-Berne) regimes still apply to works distributed without proper notice prior to March 1, 1989. Congress encouraged voluntary notice by precluding alleged infringers from asserting the "innocent infringer" defense unless the copies to which she had access lacked proper notice.

How does the Copyright Act define "useful article?"

The Copyright Act defines a "useful article" as an "article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information."

Are blank forms copyrightable?

The Copyright Office considers blank forms, which are designed for recording information and do not in themselves convey information, ineligible for registration.

What did the Copyright Renewal Act of 1992 do?

The Copyright Renewal Act of 1992 made copyright renewal automatic for works created between 1964 and 1977 (any work that was still in its first term in 1992).

How did the court apply the fair use factors in Harper and Row Publishers, Inc. v. Nation?

The Nation's use of stolen portions of Gerald Ford's memoir were not fair use because 1. the infringement was done in bad faith 2. the work was unpublished 3. the infringement took the heart of the work and 4. the infringement deprived Harper and Row of the value of licensing the passages.

Where does Congress derive constitutional authority for federal anti-bootlegging laws?

The Second Circuit held in Martignon that although the anti-bootlegging provisions could find no constitutional support under the Intellectual Property Clause, they could be validated under the Commerce Clause.

What is the constitutional rationale for allowing Congress to extend copyright protection to works that are already in the public domain?

The Supreme Court held in Golan v. Holder that the Intellectual Property Clause does not bar Congress from extending copyright protection to works that are already in the public domain. Nothing in the text or history of the Intellectual Property Clause confines "progress of science and the useful arts" exclusively to "incentives for creation."

What was the rule from Baker v. Selden?

The author of a work is entitled to protection of the particular expression contained in his work, but not the ideas that the expression embodies or describes.

Under the work made for hire doctrine, how do courts determine whether an employee is working within the scope of his employment?

An employee's work is deemed within the scope of employment if (1) It is the kind he is employed to perform (2) it occurs substantially within the authorized time and space limits; and (3) it is actuated, at least in part, by a purpose to serve the master.

In copyright law, what is physical separability?

An expressive element of a useful article is physically separable if it can stand alone from the article as a whole and if such separation does not impair the utility of the article.

What notice requirements for copyright existed under the 1909 Act?

Federal copyright law protected only those works that contained the year of the first publication, the word "Copyright," the abbreviation "Copr.," or the symbol (c); and the name of the copyright holder.

What effect did publication of a work have on copyright under the 1909 Act?

Federal copyright protection under the 1909 Act was triggered by the act of publishing a work.

Under the 1976 Copyright Act, prior to the ratification of the Berne Convention, what effect did registration have on a copyright?

First, successful registration constitutes prima facie evidence of the validity of the copyright. Second, the Copyright holder must register the work prior to bringing an infringement suit. Third, a copyright holder can obtain statutory damages and attorney fees only for infringements that occurred after registration (or which occurred after publication if the work was registered within three months after publication).

Is fixation a constitutional requirement of copyright law, or only a statutory requirement?

Fixation is a constitutional requirement of copyright law, arising out of the Founders' use of the term "writings" in Article 1, Section 8, Clause 8.

When did the Copyright Act of 1976 take effect?

January 1, 1978

What was the rule from Aalmuhammed v. Lee?

Joint "authorship" requires that the parties intended to be joint authors. In determining whether parties have the intent to be joint authors, courts look to who has decision making authority, how the parties bill themselves, and other evidence.

When did the Berne Convention Implementation Act take effect?

March 1, 1989

What is the duration of moral rights protection?

Moral rights protection for works created on or after June 1, 1991 subsist for the life of the author. Moral rights protections for works created prior to June 1, 1991 last the life of the author plus 70 years.

How do moral rights protections in the United States compare to moral rights protections in Europe?

Moral rights protections in the United States apply quite narrowly and are subject to significant exceptions. The rights provided in most European countries are much broader.

Since Feist, how have owners of databases and other factual compilations sought to protect their work?

Since Feist, owners of databases and other factual compilations have turned increasingly to contract law to protect their "sweat of the brow" investment. The European Community has adopted an intellectual property regime specially designed to protect such works.

What was the holding of Sony Corporation of America v. Universal City Studios?

Sony was not liable for contributory infringement based on their sale of VCRs with a recording feature because the devices were widely used for legitimate, non-infringing purposes.

What was the holding of Morrisey v. Proctor and Gamble?

The contest form at issue was not copyrightable because it was so straightforward and simple that there was only one way to express the ideas contained in it. To permit copying would provide a monopoly on the substance of the contest.

Under the 1976 Act, what is the term of protection for a copyright for corporate, anonymous, or pseudonymous entities?

The 1976 Act provided for a term of protection of 75 years from publication or 100 years from creation, whichever is shorter. This term was extended by the Sono Bono Copyright Term Extension Act by 20 years.

What retroactive effects did the passage of the Berne Convention Implementation Act have on American copyright law?

The Berne Convention Implementation Act brought U.S. copyright law into compliance with the Berne convention's minimum criteria on a prospective basis, but did not address the problem of foreign works that had fallen into the public domain due to failure to satisfy U.S. notice requirements. Because the Berne Convention requires that member nations protect copyrights that had not yet expired in their origin nations, Congress added section 104A to the Copyright Act. This provided retroactive protection for foreign works that had fallen into the public domain due to failure to comply with formalities.

In copyright law, what is the first sale doctrine?

The first sale doctrine provides that a copyright holder cannot restrict subsequent resale or distribution by a purchaser of a particular lawful copy of a work.

Under the 1909 Copyright Act, if an author died before his renewal period vested, what happened to the renewal right?

The renewal right passes to the authors statutory successors. Any advance assignment of rights went unfulfilled.

What was the holding in Community for Creative Non-Violence v. Reid?

The sculpture at issue was not a work made for hire, but the case was remanded to determine whether it was a joint work. Reid was not an employee of CCNV.

Under the 1976 Copyright Act, after the ratification of the Berne Convention, what relevance does publication have to the duration of copyright protection?

The term of protection for entity owners of works for hire is 95 years from publication or 120 years from creation for unpublished works, whichever is shorter.

What is the economic justification for the work made for hire doctrine?

The work made for hire doctrine reduces transaction costs by eliminating the need to assign the rights. The doctrine essentially "preassigns" a work to the employer, eliminating the need for an additional transaction.

What exceptions exist to the moral rights granted in VARA?

Two major exceptions exist. 1. A work that changes as a result of the passage of time or conservation measures does not trigger liability. 2. Integrity right does not apply to installations of work in buildings.

What is the merger doctrine in copyright?

When there is only one or but a few ways of expressing an idea, then courts will find that the idea behind the work merges with its expression and the work is not copyrightable.

What compulsory performance licenses exist in copyright?

1. Cable retransmission. 2. Satellite retransmission. 3. Jukeboxes. 4. Public broadcasting. 5. Webcasting

What moral rights are recognized under VARA?

1. Claim of authorship 2. Prevent use of artists name on a work she did not create. 3. Right to prevent the use of the artist's name on works that have been modified or distorted. 4. Artists of works of recognized stature have the right to prevent destruction of their works.

What are the requirements of copyright?

1. Copyrightable subject matter. 2. Originality. 3. Fixation. 4. Formalities.

Where in the Copyright Act does the fixation requirement arise?

1. It is a requirement for copyright protection under section 102(a). 2. Under section 106(1) a defendant has not infringed the right to reproduce unless she has reproduced the copyrighted work in fixed form.

What are the six exclusive rights of copyright?

1. Reproduction. 2. Prepare derivative works. 3. Distribute 4. Perform 5. Display 6. For sound recordings, perform publicly by means of digital audio transmission.

What factors will a court consider in determining whether the fair use defense to copyright infringement applies?

17 USC 107 provides courts will consider four factors. 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 copyright as a whole. 4. The effect of the use upon the potential market for or value of the copyrighted work.

In a copyright infringement suit, what is improper appropriation?

A defendant in a copyright infringement suit has misappropriated a work if he has copied sufficient protected expression to violate the plaintiff's copyright interests.

Under the 1976 Copyright Act, after the ratification of the Berne Convention, what relevance does publication have to the registration of the work?

A deposit is only required if the work is published. Also, registration only serves as prima facie evidence of the validity of the copyright if it occurs within five years of the first publication.

How does the Copyright Act define "derivative work?"

A derivative work is "a work based on one or more preexisting works, such as a translation, music 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.

Under copyright law, what is a "joint work?"

A joint work is a work created by two or more authors with the intent that their contributions be joined into an inseparable or unitary whole.

Under the Copyright Act, do transmissions qualify as fixations?

A transmission of a work consisting of sounds, images, or both, is regarded as "fixed" if a fixation is being made at the time of the transmission.

Currently, what tests do courts apply in determining whether a work is a work made for hire?

A work constitutes a work made for hire if (1) it is prepared by an employee within the scope of employment or (2) it falls within one of the nine enumerated categories and a written agreement between the parties expressly states that the work is intended to be a work made for hire.

What is the test for determining whether a work has been "fixed in a tangible medium of expression?"

A work is considered "fixed" if there has been an authorized embodiment in a copy or phonorecord and if that embodiment is "sufficiently permanent or stable" to permit the work to be "perceived, reproduced, or otherwise communicated for a period of more than transitory duration."

Under the 1909 Copyright Act, when could authors reclaim copyright interests that they had assigned?

Authors could reclaim assignments when it was time to renew them.

In copyright law, what is the de minimis doctrine?

De minimis non curat lex means the law does not concern itself with trifles. The cases applying this principle use it as a shorthand for lack of substantial similarity - where the copyright of the protected material is so trivial as to fall below the threshold of substantial similarity.

Under the 1976 Copyright Act, after the ratification of the Berne Convention, what was the relevance of publication of the work to the deposit requirement?

Deposit is only mandatory for published works.

What was the rule from Brandir International, Inc. v. Cascade Pacific Lumber Co.?

Design elements of a useful article are not conceptually separable if they significantly influenced by functional concerns.

What are the nine enumerated work made for hire categories?

CATS CITAA (1) A contribution to a collective work (2) A part of a motion picture or audiovisual work (3) Translation (4) Supplementary work (5) Compilation (6) Instructional Text (7) Test (8) Answer material for a test (9) Atlas

What was the rule from Arnstein v. Porter?

Circumstantial proof of copying exists on a sliding scale. Where great evidence of access exists, less evidence of similarity is required. Similarly, where access cannot be shown, copying may be proven by the fact that similarities between the works are so striking as to preclude the possibility of independent creation.

What notice requirements for copyright existed under the 1976 Act, prior to ratification of the Berne Convention?

Congress maintained a notice requirement, although it liberalized the rules governing form and location of notice, and it took much of the harshness out of the requirement. Failure to give notice on a small number of copies would not result in forfeiture, nor would even large-scale omissions, so long as they were inadvertent and the copyright holder registered the work within five years after publication and made reasonable efforts to give notice after the omission was discovered.

How will courts determine whether the creator of a work is an "employee" for the purposes of a work made for hire?

Courts will apply common-law agency principles to determine whether the creator of a work is an employee. Courts will consider factors such as the hiring party's right to control the manner and means by which the product is accomplished, the skill required, the source of the instrumentalities and tools, the location of the work, the duration of the relationship, the right to assign additional projects, the method of payment, the hired party's role in hiring and paying assistants, whether the work is part of the regular business of the hiring party, whether the hiring party is in business, the provision of employee benefits, and the tax treatment of the hired party.

Under the 1909 Act, what was the extent of distribution required to divest common law copyright protection?

General publication was required to divest common law copyright protection under the 1909 Act. This is substantially greater distribution than is required to forfeit federal copyright protection.

Under the 1909 Copyright Act, what was the consequence of failing to satisfy notice requirements?

Generally, forfeiture of copyright. Section 21 of the 1909 Act excused omissions due to "accident or mistake," although this provision has been interpreted narrowly.

Are so-called "sweat works" copyrightable?

Generally, no. Although such assemblage of information can be costly and time consuming, it typically lacks a modicum of creativity.

Are historical facts and research copyrightable?

Historical facts and research are not copyrightable on the grounds that they are not original. In Miller v. Universal Studios, the Fifth Circuit held that an investigative reporter who spent thousands of hours researching an event could not exclude a movie studio from producing a film based on the facts he discovered.

What is the rationale for providing copyright protection to maps?

In Mason v. Montgomery Data, Inc. the Fifth Circuit found maps original in two distinct respects. First, Mason had exercised "sufficient creativity in both the selection, coordination, and arrangement of the facts that the maps depict." Second, the graphic artistry of the maps themselves was sufficiently original to qualify for protection.

What was the rule from Nichols v. Universal Pictures Corporation?

In this case Judge Learned Hand articulated his famous "levels of abstraction." Courts must draw a line between the expression and what is being expressed. No copyright infringement may be found if what is copied exists at too high a level of abstraction.

Does a public display right exist in architectural works?

No

May the creator of a work terminate his transfer of that work to his employer as a work made for hire?

No

What was the rule in Anderson v. Stallone?

No copyright protection exists for unauthorized derivative works because those works infringe the underlying copyright.

Are electronic instantiations of data while in transit through an internet service provider's routers fixed?

No, because the fixation is merely for a transitory duration.

Was registration of a copyright required for protection under the 1909 Act?

No, publication and proper notice triggered protection. However, registration in the final year of the initial term was required to renew the copyright. Additionally, registration was a prerequisite to bringing an infringement action.

Under the 1976 Copyright Act, after the ratification of the Berne Convention, must a foreign author register his work prior to bringing an infringement suit in the United States?

No, the Berne Convention Implementation Act eliminated this requirement for authors in Berne member countries. However, the requirement was retained for domestic works and works originating in non-Berne nations.

Under the 1909 Copyright Act, may the author of a derivative work continue to exploit that work during the renewal term of the underlying work?

No. Continued exploitation of the derivative works requires continued authorization from the owners of the underlying works.

Under the 1909 Copyright Act, were the exclusive rights of copyright divisible?

No. Courts interpreted the 1909 Act to preclude the formal divisibility of the rights comprising a copyright. A copyright owner could assign the entire copyright to another, but any lesser transfer was considered a license. One consequence of this was that only copyright owners have standing to bring an infringement suit.

May moral rights be transferred?

No. Moral rights are personal to the artist and may only be exercised by the artist.

Are government works copyrightable?

No. Section 105 of the Copyright Act provides that copyright protect is unavailable for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment. Although the Copyright Act does not expressly limit the protectability of works created by state government, courts have held that certain types of government works, such as statutes, codes, and judicial opinions are inherently part of the public domain.

Under the 1976 Copyright Act, is public performance regarded as a publication of the work?

No. The 1976 Act expressly excludes public performances from the definition of publication.

Has a garden that has been planted been "fixed" under the Copyright Act?

No. The Seventh Circuit rejected a moral rights claim brought by Chapman Kelly, the landscaper who designed and implemented two large elliptical wildflower plots in Chicago's Grant Park. The Seventh Circuit held that a garden is simply too changeable to satisfy the purpose of fixation.

Under copyright law, is the right to reproduce limited to exact copies?

No. The right to reproduce extends to exact copies and substantially similar reproductions.

Does the work made for hire doctrine apply to teachers?

No. There is a significant exception to the work made for hire doctrine that prevents universities from claiming to own professors' works under the work made for hire doctrine.

Does copyright law protect the designs of clothing?

No. U.S. copyright law does not extend to the design of clothing on the ground that clothing is a useful article.

Does a public performance right exist in sound recordings?

Only a limited public performance right exists in sound recordings. This right covers the digital performance of sound recordings.

What types of works are protected under VARA?

Only works of visual art are protected under VARA. This includes paintings, drawings, prints, photographs, and sculptures.

How will courts determine whether a copyrighted work is original?

Originality entails independent creation of a work reflecting a modicum of creativity.

What are the rationales for and against protecting "sweat works" through copyright?

Proponents of copyright protection for sweat works draw upon Lockean (labor theory), economic (without protection, there would be inadequate incentives to compile data), and fairness (unjust enrichment) rationales. Opponents of copyright protection for these works see protection as in conflict with the rationale of protecting creativity. Further, they point to the dangers of monopoly and wasted resources (if several competing companies do the same fact-intensive work to produce the same product).

What was the importance of publication of a work under the 1976 Act, prior to ratification of the Berne Convention?

Publication is relevant to determine when notice is required. Notice was required when physical copies were transferred to the general public.

Under the 1976 Act, what constitutes a transfer of copyright ownership?

Section 101 defines "transfer of copyright ownership" to include an assignment or an exclusive license of any of the exclusive rights comprised in a copyright.

Under copyright law, what is a collective work?

Section 101 defines a "collective work" as "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. Section 201(c) provides that copyright in each separate contribution to a collective work is distinct from the copyright in the collective work as a whole.

Where is the deposit requirement found in the Copyright Act?

Section 407

What is the deposit requirement under the Copyright Act?

Section 407 of the Copyright Act requires deposit in the Library of Congress of two copies of each work published in the United States for which copyright is claimed within three months of publication.

Under the Copyright Act, must a deposit of the work be made with both the Library of Congress and the Copyright Office?

Section 408 requires a separate deposit with the Copyright Office. However, this requirement may generally be satisfied by Section 407's Library deposit.

What is the importation right in copyright?

Section 602 of the Copyright Act affords copyright owners a right to prohibit commercial importation into the United States of a copyright work acquired abroad.

Under the 1976 Act, what is the term of a copyright?

The 1976 Act provided for a term of protecting lasting the life of the author plus 50 years. The Sono Bono Copyright Term Extension Act of 1998 extended that term by 20 years. The 1976 Act also extended the renewal term for 1909 Act works to 47 years.

Under the 1909 Act, what was the term of a copyright?

The 1909 Act employed a dual term of protection, granting a first term of 28 years from the date of first publication that could be renewed in the final year for a second term of 28 years.

Under the 1909 Act, what copyrightable works were regarded as works made for hire?

The 1909 Act took an expansive view of works made for hire, presuming that any works created within the scope of employment or commissioned by independent contractors at the instance and expense of the employer vested in the employer.

To what works does the 1976 Copyright Act apply?

The 1976 Act applies to works created on or after January 1, 1978.

What was the rule from Feist Publications v. Rural Telephone Service?

To obtain copyright protection in the selection and arrangement of facts in a compilation, the selection and arrangement cannot be so mechanical or routine as to require no creativity whatsoever.

What is the consequence of failing to comply with the copyright deposit requirement?

Under the 1909 Act, the Register of Copyrights could demand compliance with this deposit requirement and failure to comply could result in forfeiture of the copyright. Under the 1976 Act, failure to comply gives rise to fines and stands in the way of completion of the registration process.

Under the 1976 Copyright Act, when may authors reclaim copyright interests that they had assigned?

Under the 1976 Act, authors and their heirs may terminate transfers of copyright between the thirty-fifth and fortieth year from the execution of the transfer of rights.

What types of visual works works are excluded from protection under VARA?

VARA expressly excludes (1) works such as posters, maps, charts, technical drawings, periodicals or applied art (2) Any merchandising item or advertising (3) Any work made for hire.

What is VARA?

VARA is the Visual Rights Act of 1990. It directly recognizes the moral rights of visual artists.

How does vicarious copyright infringement differ from contributory copyright infringement?

Vicarious liability attaches to those who profit from infringing activity if they had the right and ability to prevent the infringement. Contributory liability attaches to anyone who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringement.

What remedies exist for violations of moral rights under VARA?

Violations of moral rights are subject to the full extent of civil copyright remedies, although not to criminal sanctions. Artists need not register their works in order to receive statutory damages or attorney fees.

What is Copyright Estoppel?

When an author asserts something as a fact, which he insists his readers believe as the real foundation for its appeal to those who may buy and read the work, he may not later change that position for profit in a law suit.

After Congress retroactively provided protection for foreign works that had fallen into the public domain due to failure to comply with formalities, could derivative works authors continue to exploit the derivative works?

Yes, provided they pay "reasonable compensation" to the original copyright owner.

Must transfers of copyright be in writing?

Yes. Section 204 provides that exclusive licenses and transfers of entire copyrights must be in writing.

Are copies of a work on a computer's RAM "fixed" under the Copyright Act?

Yes. The Ninth Circuit held in MAI Sys. Corp. v. Peak Computing that a copy created in RAM can be perceived, reproduced, or otherwise communicated. Therefore, it constitutes a copy.

Could unpublished works be protected by copyright under the 1909 Act?

Yes. They could be protected under state common law, or constructively published by registration with the Copyright Office.