Copyright Final Exam

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*Contribution to a collective work*

"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"

A hotel in Vegas hired a band to perform a James Brown review; playing all of James Brown's hits. The hotel did not get permission to do so. James Brown sued the band and hotel. The review generated $500,000 and the hotel during the time of the review saw sales in the amount of $400, 000. Which statement is true about the possible actual damages and profits James Brown could potentially win if he wins the case?

$900, 000. James Brown should expect to win $500, 000 because that is what the review generated by playing his songs and the profits of the hotel who indirectly profited from the review being at the hotel.

*To qualify as joint author, each must:*

(1) *Intend (during creation) that their contributions would be merged into inseparable or independent parts of a unitary whole* (2) *Contribute something that could be protected by © on its own - independently created + minimally creative*

*W/in Scope of Employment?* (basic agency law factors)

(1) Work is of the *K*ind *E*mployee is *E*mployed to *P*erform (2) Work *O*ccurs *W*ithin the authorized time & space *L*imits placed* by proposed employer (3) Work is *performed*, at least in part, to serve the master

What is a *visual art* under VARA?

*"A painting, drawing, prints, sculpture, still photos produced for exhibition only, and existing in single copies or in limited editions of 200 or fewer copies, signed and numbered by the artist."*

*Transformative Work*

*"Could the author have envisioned their work being used this way?"*

*Author =*

*"He to whom anything owes its origin."*

*Fixation* ≠ written in stone. It merely *means*...

*"More than transitory."*

*3 Prongs of Merger Doctrine*

*1. How many ways are there to arrange these facts while still being useful?* *2. What would be the market effect of granting © in such an arrangement of facts?* *3. Can some other doctrine be used, so as to avoid merger?*

VARA Visual art analysis:

*1. Is it a visual art?* *2. Is it protected by VARA?*

Would the following work be protected under the Visual Artists Rights Act of 1990? A lithographic print of a leaping lizard, by Greta. She made only 50 of the prints.

*1. Is it a visual art?* It depends on if they were signed and numbered by the artist. *2. Is it protected by VARA?* Only protected if all copies were printed/signed/numbered consecutively.

Would the following work be protected under the Visual Artists Rights Act of 1990? A creative painted banner depicting marathon runners, made by an artist commissioned by Alligator Fuel Sports Drink. The banner was used as advertising at the Fredricksburg Marathon.

*1. Is it a visual art?* Yes. It is a painting. *2. Is it protected by VARA?* It depends. Do 9-factor analysis. If it is a WMFH, not protected. If it is not a WMFH, it is protected.

Would the following work be protected under the Visual Artists Rights Act of 1990? A mural depicting the workers of the world, made by the employees of a human rights organization for their headquarters. After the lease ran out, the property has been leased to a bank, which plans to paint over the mural.

*1. Is it a visual art?* Yes. It is a painting. *2. Is it protected by VARA?* No, because it is a WMFH.

Would the following work be protected under the Visual Artists Rights Act of 1990? An oil painting of the CEO of Megacorp, painted by a Megacorp employee as part of her job.

*1. Is it a visual art?* Yes. It is a painting. *2. Is it protected by VARA?* No, because it is a WMFH.

Would the following work be protected under the Visual Artists Rights Act of 1990? A 1966 painting by Picasso, which he never sold. It is out of copyright in the U.S. due to publication without a copyright notice in 1967.

*1. Is it a visual art?* Yes. It is a painting. *2. Is it protected by VARA?* No, because it was not published with notice. No valid copyright.

Would the following work be protected under the Visual Artists Rights Act of 1990? A 1990 painting by Ashley, which she sold in 1992 to a collector. Ashley also sold the copyright to the painting in 1993 to Alligator Fuel.

*1. Is it a visual art?* Yes. It is a painting. *2. Is it protected by VARA?* She is protected - not the owner of the copyright.

Would the following work be protected under the Visual Artists Rights Act of 1990? A 1966 painting by Picasso, which he sold in 1968.

*1. Is it a visual art?* Yes. It is a painting. *2. Is it protected by VARA?* Yes.

Would the following work be protected under the Visual Artists Rights Act of 1990? "Falling Weather," a still photo by Jeff. He made only one print for exhibition at his gallery.

*1. Is it a visual art?* Yes. It is a photo for exhibition only. *2. Is it protected by VARA?* Yes.

Would the following work be protected under the Visual Artists Rights Act of 1990? A Pulitzer Prize-winning photo of a marathon winner, taken by a news photographer for publication.

*1. Is it a visual art?* No. While it is visual, it is a photo and isn't for exhibition-only, so disqualified under VARA.

Hoop It Up! is a famous, beloved photo by Janet. It captures three toddlers tossing basketballs. Janet has earned considerable revenue from licensing various uses of the photo. She is surprised to find the photo being used on the front of Footie chocolate cookie boxes. When Janet's agent contacts the seller of Footies cookies, she is informed that no permission was sought because the use is considered a fair use. Footie is a nonprofit company that sells cookies to fund various charitable activities. Millions of dollars earned by selling Footies (with the Hoop It Up! photo on the front), and all the money (other than expenses, which are rigorously minimized) goes to support a number of highly praiseworthy efforts, such as fighting infectious disease and aiding those harmed by earthquakes. Does the use of Hoop It Up! qualify as fair use?

*1. Is there a valid copyright?* Yes. *2. Is it fair use? (Look to Factors)* -a. Nature/purpose of the use? --For profit. (Yes, it is a nonprofit company, but the purpose of the use is to sell cookies, make a profit and then donate that profit. Don't be fooled!) -b. Nature of copyrighted work --For profit, art/entertainment -c. Substantiality of copying/amount used --They used the whole picture. 100% substantial. -d. Effect upon market/potential market for value of underlying copyrighted work? --Yes - economic damages --No - transformative 3. Because it fails the 4 factors (in this case, all of them) it is *NOT A FAIR USE.*

*Elements of an Infringement Cause of Action:*

*1. Ownership of a Valid © 2. Copying 3. Copying Amounts to an Improper Appropriation*

In 2006, Starving Artist sells a painting Goth with the Twin and the copyright in the painting to Investor. Their contract provides that the ranger of ownership of the painting and the copyright "Shall be permanent, irrevocable, and apply to all rights under copyright law that Artist has now, or shall have in the future, in the work." Investor hangs the paintings in a local museum. Over the succeeding years, Investor makes a lot of money by licensing the copyright for various uses. The image appears on posters, coffee cups and window shades. The Investor also has an employee paint an adaption of the work Goth Triplets and has plans for several more paintings starting with Goth Quadruplets. Some 35 years later, Starving Artist sends written notices to Investor that Starving Artist is exercising her right of termination. The notice demands that Investor do the following: *A)* Cease exercising any of the exclusive rights to the copyright holder; *B)* Return the painting to Starving Artist; *C)* Hand over all revenues earned from licensing the copyright; *D)* Cease utilizing Goth Triplets and hand it over; and *E)* Cease the planned preparation of Goth Quadruplets. Does Starving Artist legally have the right to make these demands?

*A)* Yes. *B)* No. Applies to copyright, not ownership. *C)* No. *D)* No. Derivative work, made when transferee had copyright. *E)* Yes. They have to stop at the notice.

Fair Use is an ______ to infringement

*Affirmative Defense*

Idea vs. Expression: 3-Step Analysis

*Analysis* 1. What is the *idea*? 2. What is the *expression*? 3. *Can the idea only be expressed in this one way*? -If yes -> not ©-able -If no -> ©-able --If ©-able, and expressing the idea in the same way -> infringement. Remember: Cannot ©️ an idea - only the expression of the idea!

Sound Recording: *No De Minimis Exception*

*Any amount* taken *from a sound recording* is deemed *improper* appropriation, absent fair use

*Useful Article Doctrine, scope*

*Applies ONLY to* *Pictorial*, *Graphic,* and *Sculptural* works.

*Moral Rights*, 2 Kinds

*Attribution* Rights *Integrity* Rights

©-ing *Ideas*

*Cannot © ideas or systems.* (particularly relevant in area of functional works)

*Most probative similarity:*

*Common errors.* (factual or aesthetic)

*Listed* Fair Uses

*Criticism, comment, news reporting, teaching, scholarship, or research* *Expands* to some other, similar things that "fit" within the uses defined in the preamble, balancing the 4 factors.

Who is the author of a WMFH? Who is the owner of a WMFH?

*Employer* or other person for whom the work was prepared is considered the *author and owns all rights* comprised in © (Default Rule *UNLESS AGREED OTHERWISE*.)

Access can be proven through:

*Evidence that the defendant had a reasonable opportunity to observe the plaintiff's work.* -Common, *Widespread Distribution* of the original work -*A particular chain of events* through which the defendant may have gained access

What *Govt works* can be ©-ed? Not CRUCIAL TO FISHMAN

*Federal: Never State/Local: Sometimes* *BUT:* Fed/State/Local Govts can *own* ©s

For copying to be *actionable*, it must be an _

*Improper Appropriation* of π's work

*Originality*

*Independent Creation + Minimal Creativity* (Feist)

*Feist Publications* v. Rural Telephone Service Co.

*Originality is a constitutional requirement for ©* *Rule:* *Facts are not protected.* The particular organization of facts can be, but not the facts themselves. Rule: *If you are claiming a fact, even a fake fact, the court will treat it the same as a real fact.* (But remember - facts, even fake facts, are not ©️able.)

Originality vs Novelty

*Originality ≠ novelty* - work can be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying

2 Types of *Separability*:

*Physical* Separability (i.e., the lamp) *Conceptual* Separability (i.e., the shape of a belt buckle) (can be either, so long as it is separable)

*Bleistein* v. Donaldson Lithographing Co.

*Rule: Advertisements are protected by © law.* The Constitution does not limit the useful to that which satisfies immediate bodily needs. Narrow Reading: You may not judge if something is aesthetically good or bad. Broad Reading: Courts shoudl not be judging aesthetics at all.

*Baker* v. Selden

*Rule: The system is never ©-ed.* People are not free to copy the book, only to use the system themselves. *Seminal Idea-vs-Expression/merger doctrine case!*

*Apple Computers* v. Franklin Computer Corp.

*Rule:* *Computer code is a language*, and so *a computer program is a work of literature*, and as such *can have © protection* *BUT* Lotus Development Corp v. Borland: A menu command hierarchy for computer spreadsheet program is an un-©-able "method of operation." The means of interface is not a work of literature, and so not subject to protection! *(Some things are not ©-able, even if they are unmerged expressions, if they are "methods of operation")*

*Meshwerks* v. Toyota Motor Sales U.S.A.

*Rule:* *The *standard for "original work of authorship*" is *not "minimal degree of skill," or effort,* it is *"minimal degree of creativity"*

*Williams Electronics* v. Artic International

*Rule:* Infringement of a computer program is *not limited to copying of the computer program text but also to duplication of a computer program* fixed on a silicon chip.

*Lotus Development Corp.* v. Borland Int'l

*Rule:* Some things are *not ©-able*, even if they are unmerged expressions, *if they are "methods of operation"*

*Burrow Giles Lithographic Co.* v. Sarony

*Rule:* Taking *a photo is an original work and worthy of protection.* A photo is distinct from its subject.

*Gracen* v. Bradford Exchange

*Rule:* Works *derivative of unprotected* works *require a modicum of creativity* (the usual requirement). Works *derived from protected* works *require some heightened degree of creativity*

*Mazer* v. Stein

*Separability Test:* *Whether the "artistic" part is SEPARABLE from the "utilitarian" part*

*Derivative Work =*

*Significant variation!*

*"The Ordinary Observer Test":*

*Test: Whether ∆ wrongly copied enough of the π's protected expression to cause a reasonable lay observer to immediately detect the similarities between the π's expression and the ∆'s work, without any aid or suggestion from others.*

*9 Categories for a Specially-Ordered or Commissioned WMFH:*

*Translation* *Instructional text* *Contribution to a collective work* *Test* *Answer material for a test* *Compilation* *Supplementary work* (e.g., a book's instruction, illustrations, index) *Part of a motion picture or audiovisual work* *Atlas*

2 Kinds of *3rd-Party Liability*:

*Vicarious* Liability *Contributory* Liability

___ do not qualify for VARA protection.

*WMFH*

*Prove "Strikingly Similar"* (Arnstein)

*When two works are so strikingly similar as to preclude any reasonable possibility that the defendant's work was independently created, access may be presumed.* The similarities must be such that they *can only be explained through copying*, precludes any chance of independent creation. eg, copy a sentence verbatim, or a Mountweazel.

A work consisting of *sounds, images, or both, that are being transmitted, is "fixed" if*

*a fixation of the work is being made simultaneously with its transmission.*

*Functional Works*

*main purpose* of work = *accomplishing a task*

*Separability*

*when item has "an intrinsic utilitarian function"* (i.e., is a useful article) *only those features separable from the utilitarian aspects are protected.*

*Basic Requirements* of Copyright Law

*©️* may apply to *ORIGINAL WORKS OF AUTHORSHIP* that are *FIXED* in a *TANGIBLE MEDIUM OF EXPRESSION* now known or later developed.

*Bright Tunes Music v. Harrisongs*

*∆'s mental state is irrelevant.* Unconscious/unintentional copying still actionable.

Nathan wrote a play in 1965 while working as an employee of the Ultimate Play Theater. His duties included script writing and editing. Ultimate Theater published the play that year, with a copyright notice reading "©️ Nathan 1965." When does this copyright begin and end?

- [ ] 1965 + 28 years with automatic renewal of another 67 years - [ ] 95 years -> 2060

Some *categories* generally treated as *not having sufficient creativity:*

-*Fragmentary* words and phrases, *sequential numbers*, *listing of ingredients*, *instructions / directions*, *simple artistic elements* (e.g. solid black stripe, use of typeface) not ©-able

*Ownership of a Valid ©*

-*Subject Matter*? -*Formalities*? -*Initial ownership* or trace title to initial owner?

Useful Article Analysis:

0. is it a useful article: meaning, is it a utilitarian function (Star Atheltica- a uniform wicks away moisture) 1. Perception as art- as a practical matter, usually always satisfied. In star athletica, we cut the chevrons off the uniform, as these were separate from the cut and shape of the garment. 2. Qualifying as PGS work on its own- is the separate feature itself useful without the design? Is the design that is removed qualify as a protectable pictorial, graphic, or sculptural work on its own or in some tangible medium of expression.

*To show substantial similarity, 2 Part Inquiry:*

1) *"The Protected Expression Test"* (∆ must have copied protected expression, not just ideas.) 2) *"The Ordinary Observer Test"*: (Test for substantial similarity)

*W/in Scope of Employment?* (*additional 10 factors* from *Community for Creative Non-Violence* v. Reid)

1) *Whether work is part of regular business of hiring party* 2) *Ownership of tools* 3) *Method of pay* 4) *Benefits* 5) *Actual control* 6) *Tax treatment* 7) *Skill required* 8) *Right of control* 9) *Whether hiring party has right to assign additional projects* 10) *Location and duration of work*

*Process for DMCA Notice and Take-Down* (results in the ISP being shielded from liability for © infringement by users of their service.)

1) Find out *Who* the ISP is. 2) Provide Proper *Notice* to ISP and Website: --a. Identify the allegedly infringing *material*. --b. Identify *yourself (under claim of PERJURY)* that you are in fact the holder of the ©, and you did not authorize the use. --c. *Sign* the notice. 3) Once the ISP/Website receives the notice, they must *Act Expeditiously* to remove the allegedly infringing content. 4) ISP/Website must provide prompt *Notice* to the User who posted the allegedly infringing content and give them an opportunity to respond. 5) *Replacement* of the material within 10-14 business days after receipt of a qualifying counter-notification from the original poster, unless the complaining party has filed suit by that time. 6) *Failure* to act because the notice was not read, or failure to receive notices because the ISP or website failed to keep the address for service up to date* means *THEY LOSE DMCA SHIELDING.*

A surveillance video is shot by a fixed camera that was turned on and left running? 1) ©-able? 2) What if the video tapes are taped over every week?

1) Originality? Yes. Authorship? No. So not protectable. 2) Taped over every week = not fixed (fixed = more than transitory)

Vicarious Liability

1. *Ability to control AND* 2. *Direct financial benefit from infringement*

"The *Protected Expression Test*" (∆ must have copied protected expression, not just ideas.) Must separate what is protectable from what is unprotectable *(3-Steps):* ALTAI

1. *Abstraction:* Break down the elements into their component parts 2. *Filtration:* Separate protectable from non-protectable elements 3. *Comparison:* Compare the protectable portions of the two works

*"causing/contributing to/inducing" in contributory liability =*

1. *Actively encouraging or inducing through specific acts*; *OR* 2. *Distributing a product (stable article used in commerce) used to infringe, if not capable of substantial non-infringing use*

Ways to Prove Copying:

1. *Direct Evidence* (i.e., admission of copying) 2. *Circumstantial Evidence* --*A. Prove Access + Probative Similarity* (Arnstein) *OR...* --*B. Prove "Strikingly Similar"* (Arnstein)

Contributory Liability

1. *causing, contributing to, or inducing direct infringement* 2. *With actual knowledge* (Knowing of infringing material is insufficient. π must show ∆ had actual knowledge, but *no willful blindness.*)

Would the following work be protected under the Visual Artists Rights Act of 1990? The song "Pretty Woman."

1. Is it a visual art? No- it's a song! Not protected under VARA.

Data, Inc. compiles property information for municipalities. The municipalities send out forms to their residents with various questions about their real property (including such things as ownership, lenders, residents, use, renovations and additions). When the forms come back, Data Inc's employees input them into a database, which is stored computers in the municipal offices and may be accessed by the public and by municipal employees. Data, Inc. has made several creative choices about how to organize the information. The municipalities pay a fee to Data, Inc. A rival compiler, Digital Data, sends in workers who download the entire database and take the copy to their home office. There, they extract their own similar data service. Data, Inc. sues for infringement. Please discuss the cause of actions available.e

1. Is the date purely factual or is there creativity involved? (can't copyright facts) 2. Did Digital use the organization (protectable) or just the data? 3. Don't forget - Govt (not federal) works may be protectable.

Fair Use Analysis:

1. Is there a valid copyright? 2. Is it fair use? (Look to Factors) A) Purpose and Character of the Use B) Nature of the Work C) Substantiality D) Effect on the Market --i) Economic Harm? --ii) Transformative Work?

4-*Factor* Test for Fair Use:

1. Look at the *purpose/character* of the use. (case by case basis) 2. *Nature* of ©-ed work 3. *Substantiality* of copying/amount used --Was a significant portion taken? ---How does this particular portion taken impact the marketplace value of the original work? 4. *Effect upon market/potential market* for value of underlying ©-ed work? --*Economic harm*? ---*Transformative work*?

Attribution Rights

1. They have to *attribute* the work to you; give you credit. 2. *Prevents others from using author's name* (truth in art) 3. *Cannot use author's name if work has been changed so that it would damage author's reputation.*

The Sherbert Theater Company rents out its theater to an impresario. The parties sign a typical lease, known as a "four walls agreement." Sherbert receives its typical weekly lease payment and relinquishes all control of the theater to the impresario - who then stages The Lion King without permission from Disney. Is Sherbert liable?

1.Which theory of liability would apply? Vicarious or Contributory? (examine the elements) 2. Sherbert would have contributory liability.

What copyright act were derivative rights first protected under?

1909

Work created/copyrighted in 1935. Artist still alive. When is his termination period?

1935 + 56 (28 + 28) = 1991. Term period 1992-1997. Has to give 2 years notice, so by end of 1995.

Jim writes a novel in 1945. Publishes notice in 1945. When does his copyright end?

1945 + 56 (or 28 + 28) = 2001. Termination period starts AFTER 2001, for 5 years, so 2002-2007. Has to give 2 years notice, so by end of 2005.

Sound recordings were first protected in the US in what year?

1972

Billy Jean purchased a photo of Michael Jackson, her lover, at an auction during an estate sale at Never-Never Land. She was so in love with the photo and memories of her love of Michael, she wanted to share it with the world. Rather than getting the rights from the Jackson family - who is still in morning over the death of Michael and bickering over money - she hires an artist to create a panting based upon the photo, with her image superimposed in the painting. She has the commissioned the painting to be converted to a digital print, and she uploaded it to Facebook, Twitter and other social media platforms, announcing that she is indeed Billy Jean and that she has another child by Michael. The estate of Michael Jackson is furious and wants to sue Billy Jean for infringement. If the photo was taken in 1986, can the photographer terminate? When?

1986 + 35 years. Term period = 2021-2026 Notice by end of 2024

In 2000, Kelsey wrote down the choreography to her dance, Lawyer in the Making. She published the work without including notice of copyright. She never registered the copyright or filed a renewal certificate. When would her copyright begin and end? Would it make a difference if the work was never published? Would it make a difference if the author was not identified, making it an anonymous or pseudonymous work?

2000 life + 70 95 years from publication or 120 from fixation, whichever EXPIRES FIRST

Allen and Brad create a joint work in 1980. Allen dies in 1990 and Brad dies in 2000. When will the copyright expire?

2070

In 2000, Kelsey wrote down the choreography to her dance, Lawyer in the Making. She published the work without including notice of copyright. She never registered the copyright or filed a renewal certificate. Suppose the dance was a work made for hire, so that the author and copyright owner was her employer, Nichols Dance Co. When would the copyright expire?

2120

What is the stat royalty rate for a DPD (digital phonorecord delivery)?

9.1 cents

Belmont Records obtains a compulsory license to record one song on an album. The song "Gotta Get an A" is 5.3 minutes long. How much would Belmont Records have to pay to use this song?

9.275 cents per record

Which of the following is not an example of a reproduction?

A music file is streamed from a website to a listener.

In 2006, Stanley Artsist sells a painting entitled Twin Bridges About to Flood and the copyright in the painting to an investment group. The contract provides that the transfers of ownership of the painting and the copyright in and to said painting "shall be permanent, irrevocable and apply to all rights under personal property law and under copyright law that Artist has now or shall have in the future in said painting." Investor group pays agreed contract price. Investor group hangs the painting in a local museum. Over the years, the investor group makes quite a lot of money by licensing the copyright for various uses. The image appears on posters, coffee cups and window shades. The investor group even had an employee paint an adaptation of Twin Bridges About to Flood entitled Twin Bridges Almost Flooded and has plans for several more paintings starting with Twin Bridges at the Peak of the Flood. Please discuss the rights of Artist.

A: 1976 Act applies. B: Can terminate in 2041. (Notice by 2039) C: Derivative works still belong to investors since legally acquired.

William Warren published his first book of poetry in 1939. He properly renewed the copyright in 1967. In 1974, he died. In his will, he left the copyright to Poetry Magazine. In 1995, Warren's children realized that it was time to exercise their terminations rights, because it had been 56 years from the beginning of copyright. Can they terminate? Would the result be different if while still alive Warren had given the copyright to Poetry Magazine as a charitable gift?

A: Their termination period = 1996 B: If charitable gift, no termination.

A: Who is the valid copyright owner of the photo? (assume the Jacksons are, but Q doesnt say.) B: Derivative Work C. Substantially similar, admission, access. Jacksons win.

In 1940, a freelance writer wrote a screenplay, Something Old, Something Blue, and sold it to a movie studio. The resulting movie, released in 1940, was a success in the theater and is still regularly shown. The freelance writer has learned that plans are being made to release the movie again. What are his rights?

A:1909 Act. 56 years from date of creation can term in 1996. B: 5 year window = 1997-2002. C: Would have to notify by end of 2000.

Peer to Peer filesharing makes it possible to:

Allow many different computers to be connected directly to each other without any centralized computer which stores the files.

*Defending* against *circumstantial evidence* of copying

Any circumstantial evidence of copying *can be rebutted with evidence from ∆ of independent creation.* (Especially by showing that ∆ could not reasonably have had access to the plaintiff's work.)

*Useful Article*

Article having *intrinsic utilitarian function* that is *not merely to portray the appearance* of the article *or to convey information*

Integrity Rights

Author can *prevent distortions, changes, if it could damage author's image/reputation.* Author can *prevent destruction* of their work, *but only if the work is widely recognizable* ("of recognizable stature")

Determining Death, post-78

Author presumed dead 95 years from year of first publication OR 120 years from year of creation (whichever EXPIRES first)

A software developer takes on various projects for a start-up company. He works under the supervision and direction of the company, takes on additional tasks when assigned, and regards himself as an employee in his dealings with the company. But he is relatively independent. He works at home, not at the office. He sets his own hours and working conditions. He does not receive a salary but is paid in stock. Nor does the company list him as an employee for tax purposes or employee benefits. Is the software he writes a work made for hire?

Because there is no writing, it cannot be a WMFH.

Bob performs Jack's composition in a nightclub. The composition has not been recorded or written down. As Bob performs, sees someone recording without permission

Bootleg recording could be a ©-ed recording, BUT if you're infringing someone else's work prevents from own ©

Celeste has developed fame as a result of selfies she has posted on Facebook. She decides to market photos of herself as a coffee table book. She meticulously dresses herself and arranged furniture and artwork for a backdrop. She sets a camera on a tripod, picks a filter, sets the lighting, frames a shot and focuses the camera. Celeste asks her neighbor, Frank, to press the button to take the picture. She and Frank eventually have an argument, and Frank claims that the copyrights to the photos belong to him. Who owns the copyright?

Celeste, because there is no intent for joint authorship.

Elvis Presley was free to base his song "Love Me Tender" on the song "Aura Lee" because it was in the public domain. However, what was he required to do?

Cite the original author

*Comment & Criticism*

Comment & Criticism are *fair use* (even when done for profit), and *create a rebuttable presumption of fair use*

Clause that guarantees record company reduced mechanical license rates for artist's songs

Controlled composition clause

Two of the most important of the minimum standards required by the Berne Convention are:

Duration of copyright protection for the life of the author , plus 50 years and fair use for education and news reporting

Zach and Cody write a musical together, hoping for a Broadway hit. Their relationship sours. Zach is still seeking investors when he learns that Cody has freely permitted carious troupes to perform the work. Commercial opportunities fade for a work that is no longer new. Are the troupes liable for performing the work without Zach's permission? Is Cody liable to Zach for infringement?

Each brother has the right to assign transfer and use. Cody may be liable to Zach for an accounting.

*Ownership of Joint Works*

Each co-author owns an *equal, undivided, fractional share of the whole work* - regardless of the quantity/qualify of the contribution(s)

Access is a _ question

Fact

Bob compiles an encyclopedia of sports trivia. He pores through newspapers, books and other sources to find some of the facts. Other facts he digs up himself from interviews with retired athletes. He uses several new categories and new ways of grouping sports information. He also makes deliberate choices about what information to include, based on numerous factors. Shortly before publishing his book, he learns that facts are not protected by ©. Please provide guidance on whether © offers him protection for his hard work.

Facts aren't original. They don't owe authorship to any individual. Protection for the way he organized, edited the facts but not for the facts themselves. He could also include the interviews he did and those would definitely be ©-able because he provided original authorship.

A political candidate can always use Fair Use when using music in campaigns. (T/F)

False

A website that allows users to download from a choice of many copyrighted musical compositions and sound recordings in public domain with authors listed would have to obtain at least the following licenses: mechanical licenses for the reproduction of musical compositions from the Harry Fox Agency or individual publishers and licenses for the reproduction and performance of the sound recordings from SoundExchange and the sound recording copyright owners ?

False

Any teacher can use copyrighted works according to the Face-Face Teaching exemption under section 101 (1)

False

If I get permission from Beyonce' to create and record a country version of "Crazy in Love" I would also own a portion of the copyright to the actual song "Crazy in Love" and the life of the derivative work would extend the life of the original song? (T/F)

False

If a department store leased floor space to a third party and that third party sold bootleg CDs without the knowledge of the department store, the department store can not be found liable for the infringing activity? (T/F)

False

If a work is created by two or more authors the term of copyright will last for the life of the last surviving author plus 70 years after the first author's death?

False

If four members in a band co-write a song all of them must register the copyright or the application will be denied. (T/F) NOT FOR FISHMAN.

False

If you own a home study and use computers to record music, a portion of your purchase of that computer went to the "Musical Works Fund" as a royalty under the Audio Home Recording Act.

False

In an infringement case that issues an injunction, a court can not make an artist discontinue sales or take back unsold copies from both retailers and distributors. True or False?

False

It is permissible to use up to six measures of music from a copyrighted song to avoid copyright infringement. It is known as the "Six-Bar Rule" exception. (T/F)

False

The Statute of Anne established that the King / Queen owned all creative works (T/F)

False

The courts have recognized "subconscious infringement" as an exception and it is excused in certain infringement cases because it is not intential. (T/F)

False

When assessing Actual Damages you never use the Statutory Rate because all you do is multiply the cost of the infringing CD times how many CDs were sold to determine Actual Damages in all copyright infringement cases. True or False?

False

When you transfer ownership of a work a new copyright term begins.

False

You can only infringe on someone's copyright if you make profit on the project? (T/F)

False

You must register each individual song separately on a new record? (T/F)

False

The First Sale Doctrine limits people reselling CDs to not selling it for more than what they first bought it for.

False- FSD addresses that once a copyright owner has gotten value out of their work by selling it (not simply dispossession) to another + the work was made lawfully, the owner of the copy may display it or distribute that ONE copy, or destroy it. Still cannot reproduce it.

Because musical compositions is based on a wide musical vocabulary, arrangements can contain minor variations in order to be copyrightable as derivative works.

False.

It is necessary that authors work together at the same time and place to create a joint work (T/F)

False.

Generally, if you win a suit for copyright infringement, you can only recover the damages or profits that were earned within 5 years before the law suit. (T/F)

False. It should be 3 years.

If two songwriters write a song in 1990, and one of the songwriters dies in 2000 while the other dies in 2010, the song's copyright will last through 2070.

False. It would last through 2080.

Under the No Electronic Theft Act "NET" if an offense involves 10 or more copies of one or more copyrighted works that have a retail value of $3000, the minimum penalty is three years in prison, a fine of $250, 000 or both. True or False?

False. It's $2500 instead of 3000, and the maximum penalty is three years.

If you make a derivative work from a song that is in public domain you must list who the original author is and give a portion of publishing to the estate of the dead author?

False. Only obligation is to list the original author.

What are the three basic requirements for a work to be capable of copyright protection?

Fixation, Expression, Originality.

*Inference from circumstantial evidence* of copying

From this evidence, can be inferred --> *more likely than not that ∆ copied π's work*.

In the Supreme Court Grokster case, the U.S. Supreme Court ruled:

Grokster and Streamcast were likely guilty of contributory copyright infringement by inducing and encouraging users of their software to infringe.

-Bob buys a used desk and finds several old letters inside. -He restores them, deciphers them using creative reasoning and research, then claims © on the letters. What can Bob do to obtain a valid ©?

He could annotate them, describe his process, anything might meet the higher bar of significant variation re: derivative works.

Initial and renewal

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.

What types of work are covered under copyright law?

Literary, music, dramatic, dance, graphic, audio visual, audio visuals, sound recordings, architectural works 102 NOT AN EHAUSTIVE LIST but we like to group them into this bunch

Performance Rights Organizations have three main responsibilities: 1. paying songwriters and publishers based on the number of performances of their music 2. issuing licenses and collecting license fees 3.

Monitoring public performances of music

The PolCon Convention brings together politicians from all parties for nonpartisan panels discussing matters from campaign strategy to fundraising to relocation of families. At one public panel, Senator Stinton discusses her recently-released autobiography. Mower, a filmmaker on the panel, requests the exclusive right to make a film adapted from the book, promising any profits to go to charity. Stinton publicly agrees to Mower's offer. Mower starts work on a screenplay. But before long, he learns that Stinton has authorized another film. Mower complains, arguing that the film would violate the exclusive rights granted by Stinton. Evaluate Mower's claim.

Mower believes he has an exclusive transfer to the writing, but all he has is a non-exclusive license.

*Probative Similarity*

Must prove the *works share certain probative similarities that collectively help to prove that factual copying has occurred*. Probative similarities *may be found in unprotected elements* of the work.

Belmont student, Kim, wanted to create a country version of the Beyonce' song "Crazy in Love". Kim creates the adaption during her live performance of the song at Curb Cafe on Friday night. The performance was not recorded or otherwise fixed. If Kim did not obtain a license to create the derivative work will her creation be protected by copy right law?

As § 204 of the Copyright Act states, "a transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed." Would the following require a signed writing? *Condi gets permission from Raul to sample one of his recordings in a song she is recording. Condi intends to take a 3-second snippet from Raul's recording and use it repeatedly as part of her work - and hopes to sell millions of copies.*

No signed writing.

As § 204 of the Copyright Act states, "a transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed." Would the following require a signed writing? *Eddie phones Lester and receives permission to include ne of Lester's sonnets in a collection of poetry.*

No signed writing.

As § 204 of the Copyright Act states, "a transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed." Would the following require a signed writing? *Publisher agrees to print 1,000 copies of Lester's book of poetry in exchange for ten percent of Lester's sales.*

No signed writing.

Mae has tons of unique recipes that she has adapted for easy cooking with children. She is concerned that someone might copy her idea of meatloaf cupcakes with mashed potato frosting. Can she use copyright to protect her intellectual property?

No! Meatloaf not a fixed medium! She could copyright a cook-book, or her precise ingredients, but not the idea of a meatloaf cupcake.

Connie and Ebony are improvisational comedians. During their act, they take suggestions from audience members and improvise skits. They learn that local stand-up comedians have copied some of their acts. Can they get copyright protection without resorting to a scripted act?

No, because there is nothing fixed, unless it is recorded.

Is registration required to own a copyright?

No, but there are particular benefits for doing so (damages, bringing a suit, etc. )

Do all performances require permission of copyright owners first?

No.

Its 1993 and I just got my new Rio for Christmas. I download all my MP3s to the device. I sell the Rio with all the music erased from the Rio to my friend Jason. I also sell Jason all my old CDs. Have I committed copyright infringement?

No.

You are a drama teacher at your local high school. Your school is producing the classic Broadway Wizard of Oz remake The Wiz. The original 1975 Broadway musical was written by Charlie Smalls and Luther Vandross. You understand a little about obtaining license from Prof. Holt back at Belmont. You know that once a musical composition has been distributed to the public anyone may reproduce the composition. So, you set out to secure a compulsory mechanical license so you can use the music. Will you get the license?

No.

Zack wrote a song and transfered the copyright to DD Music in 1990. Zack could terminate the transfer during the 5year period beginning in 2015 and ending in 2020?

No.

Author writes a story and reads it in public. She then inadvertently destroys the only copy of the story. Moviemaker was at the reading, loved the story and has a tremendous memory. He would like to copy the story into a script without Author's consent. Can Moviemaker do this?

No. Destruction of a work does not destroy its protection.

Tony happens on the Internet site Freeze, which contains numerous photos of individuals engaged in activities in which slow motion photography appears to make the individuals look as if they are frozen in time. While browsing the site, Tony recognizes a photo that he submitted to a photo contest two years earlier. Tony does not want the photo to be used on the site because the majority of the photos are of subpar quality. Tony sends an email to the website insisting that the photo be removed. Freeze does not check the email until almost a month later, and at that time they remove the photo and send a notice to the photo contest that it has been removed. Please evaluate under the Digital Millennium Copyright Act. Is this notice sufficient?

No. Has to specifically say that he is the copyright holder under penalty of perjury, good faith statement, give location, signature. Improper notice. Freeze fails the agent requirement. So they don't have DMCA protection. Remember- Tony submitted photo to contest, who gave it to Freeze. So no infringing activity if Tony signed over the rights (which he would have)

-An anthropologist discovers a number of ancient designs carved into rocks. -She painstakingly makes replicas of the carvings by skillfully rubbing over specially designed paper placed on the designs. Does she have a © on the designs?

No. It is a derivative work and doesn't meet the higher bar.

-Bob buys a used desk and finds several old letters inside. -He restores them, deciphers them using creative reasoning and research, then claims © on the letters. Does he have a valid © in the letters?

No. Not independently created and doesn't meet the higher bar of significant variation re: derivative works.

Mattel, the maker of the Barbie Doll, develops an idea to follow up with a contrasting line of dolls -young and stylish, with exaggerated features, big heads and big attitudes. A competitor learns of the dead and markets Bratz dolls, with wild commercial success. Is this copyright infringement?

No. They only had the idea, hadn't expressed the idea yet. No expression so don't even get to steps 2, 3 of analysis. If Mattel had already made the dolls and they got copied, would do derivative works analysis. Remember: Cannot ©️ an idea - only the expression of the idea!

Even if I could obtain a Compulsory License from Quincy Jones for "Ease on Down the Road" what other licenses would I need to hire singers and musicians to record a new sound recording of the song?

None..no other license needed

Burden of proof for fair use

On the *accused infringer*

When a music file is downloaded it involves how many exclusive rights that may complicate licensing?

One.

X dies, leaves 4 children. 2 of them license the work for publication. Who has the right to terminate?

Only the 2 children who executed the transfer.

Poet writes a series of poems about spring. Poet assigns the copyrights n the poems to Publisher for an agreed sum. Publisher commissions Musician to set the poems to music. Musician does so, resulting in a number of popular songs. When Poet hears how much money the songs are earning, she demands a share. Poet argues that the songs are joint works and that she is a joint author entitled to a share in the profits . Are the songs joint works?

Poet no longer owns the copyright, and there was no intent to create a unified work. Look to whether there was intent at the onset was to have joint authorship. No work made for hire is at play here because it isn't in any of the 9 categories.

VARA, © Ownership

Protection *belongs ONLY to the author*, not some other © holder. *A valid © HAS to exist, but artist doesn't need to own it* to get VARA protection.

Formalities, 1976 Act:

Publication: *Not* Required Notice: *Required, Curable* Deposit: *Required to File Suit, Sanctions for Failure* Registration: *Required to File Suit*

Formalities, 1909 Act:

Publication: *Required* Notice: *Required* Deposit: *Required, Sanctions* Registration: *Required for Renewal/Suit*

When an individual downloads a music file, a _________________, not a performance occurs at the time of the download.

Reproduction

Requires a signed writing.

As § 204 of the Copyright Act states, "a transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed." Would the following require a signed writing? *Peter sells Margie the exclusive right to reprint a chapter from the novel, with such right limited to publication in a magazine during December of that year.*

Requires a signed writing.

As § 204 of the Copyright Act states, "a transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed." Would the following require a signed writing? *Toney gets a loan from a bank, putting up the copyright in a software package as collateral.*

Requires a signed writing.

*The "Separability" Rule:*

Requires that the *aesthetic features are capable of existing independently of the utilitarian aspects* of the article.

*Minimal Creativity*

Requisite level of creativity is *extremely low* - even a slight amount will suffice

what is not one of the exclusive rights belonging to a copyright owner?

Right to Purchase

Who can terminate a transfer?

Rule: If it's not the artist, only those who executed the transfer can terminate.

A music lover buys a CD of her favorite artist at a retail store. She listens to the CD repeatedly for six months, and then grows tired of it. Using "ripper" software, she converts the tracks on the CD to MP3 files on her computer, and uploads the MP3 to a file sharing website where she is able to obtain for free the newest single by the same artist. She can do this under which of the following laws or copyright principles?

She cannot.

In 2010, Jen creates a short story. She spends several days working out most of the details in her head, and then writes it all down over several days. She subsequently types the words into her computer and emails them to her publisher. The publisher soon prints 1000 copies of the book and delivers them to various bookstores. The books are put on display and most are sold over the next few months. Meanwhile, just after the book is published, Jennifer registers the book with the Copyright Office At what point does Jen have a copyright?

She had protection beginning when she wrote it down on the paper.

Gianni choreographs a ballet retelling the fable of the tortoise and the hare. Gianni does not care to write the choreography down in annotations or verbal form. Rather, she guides the dancers through the piece bit-by-bit. At the dress rehearsal, a photographer takes dozens of photos of the performance. Gianni had given permission. Does Gianni have a copyright in the performance?

She may only have copyright protection for the limited moments of photography, because of fixation

Sound Recordings, *WMFH*

Sound recording *not a category* - but record *labels argue* that it is a *contribution to a "collective work".* (examples of clauses in contracts)

Sidney has been a full-time employee of Tabloid for many years. Her job is to take pictures of celebrities. Tabloid pays Sidney a regular paycheck and offers participation in the company employee retirement plan. Tabloid assigns Sidney to photograph specified celebrities and also instructs her to photograph other celebrities of the opportunity arises by chance during another assignment. Sidney has signed a multiyear employment contract, which does not contain a clause assigning copyright in photos to Tabloid. Sidney left her camera gear in the office one Monday morning while she went on a stroll to get out of the office. Suddenly, she noticed that Wobbly Allen, a reclusive filmmaker, is ambling towards her, hiding behind big sunglasses and a sombrero. She grabs a camera out of the hands of Terri Tourist and quickly takes six pictures of Allen. Tourist then grabs the camera back and vanishes. Sidney learns that Tourist is peddling the photos to other tabloids. Tourist argues that because the photo was made with Tourist's camera, the copyright belongs to Tourist. Who owns the copyright in the phots?

Tabloid hired Sidney, and it is within the scope of her employment, so they own the copyright. WMFH.

What does substantial similarity indicate?

That it may *cut into original's market*.

The compulsory mechanical license was established under which copyright movement?

The copyright act of 1909

A public performance occurs when a work is performed at a place where a "substantial number of people" other than family and friends are gathered. The Copyright Act defines "substantial number of people" as:

The number is not specified by the Act.

*Authorship =*

The person fixing the work in its medium*

Published Pre-1923; Duration

The work is *now in the public domain.* (even w/ max. extensions, would have expired in 1997)

What happens to foreign works published in the U.S. before March 1, 1989?

They are protected by the UCC

-Bob buys a used desk and finds several old letters inside. -He restores them, deciphers them using creative reasoning and research, then claims © on the letters. Suppose Bob takes a photo of the letters for archival purposes. He carefully positions several lights so that every facet of the letters are shown. Does his photo meet the requirements of originality?

This photo is ©-able. The photo is a derivative work. If someone transcribes from the photo, photographer has a claim. But transcriber could argue photographer doesn't have permission from the original author.

What is the statute of limitations on Copyright Infringement?

Three Years.

What was the main reason for dividing the term of copyright into two ?

To protect authors

A public performance occurs anytime a work is performed at a place open to the public.

True

Anyone is free to perform a copyrighted work in private?

True

CCNV v Reid is a case about work for hire?

True

Copyrighted works are separate pieces of property from tangible form in which they are embodied (T/F)

True

Courts tend to make relatively high statutory damage awards in situations when the defendant is a repeat offender? True or False

True

Creation occurs when an original work is fixed in tangible form.

True

Even if a song is written by one author, copyright ownership may be split among several parties (T/F)

True

I can buy a CD and make a copy for my car.

True

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. (T/F)

True

If my brother gives me his legally purchased CD I can sell it to my friend for $20.

True

In the 2 Live Crew case with Roy Orbison the court rejected the idea that the commercial purpose of a use automatically makes the use unfair. Is this statement True or False?

True

It usually takes six months for a registration application to be processed at the Copyright Office. (T/F)

True

Performance right organizations only license non-dramatic public performance of music.

True

Repeat offenders of The Digital Millennium Copyright Act are subject to penalties of up to $1,000,000 and imprisonment of up to 10 years. True or False?

True

Section 106 (4) of the Copyright Act regarding public performance rights does not apply to "sound recordings".

True

The 1998 Term Extension Act was lobbied by Disney and the Gershwin because they own valuable copyrights that they wanted to extend the life.

True

The adaptation right and the right to make derivative works are one in the same?- NOT FOR FIshMAN_ kinda dumb. "Adaptation" is in the language of the statute which is confusing.

True

The duration, or term of protection, of a copyright depends on what type of work it is.

True

The public performance right of Section 106 (4) does not apply to copyrighted sound recordings.

True

Under the 1909 Copyright Act, the failure to use copyright notice or if notice was improperly placed on a work, the work automatically entered the public domain? (T/F)

True

User's right philosophy- the purpose of copyright is to encourage the widest production of artistic work (T/F)

True

Virtually all sound recordings are derivative works? (T/F)

True

Weird Al Yankovic's music may not be considered parodies at all because they typically poke fun at the singer and society at large rather than the song itself. (T/F)

True

You must pay the statutory mechanical royalty rate for each record made and distributed. So, if your recording contains more than one song, you would pay a royalty for each song.

True

You must register a work before you can file a copyright infringement law suit. (T/F)

True

True.

Criminal provisions of the 1909 Copyright Act did not apply to sound recordings. True or False?

True.

I started a magazine that reviews new songs in the market. I get sued because I printed parts of lyrics in my critics. I can use Fair Use as a defense because?

True. Because I used the lyrics to comment or criticism in my review of the music.

Congress was given "power to promote the progress of science and useful arts" in what document?

US Constitution

American copyright law, historically based upon the users right philosophy, may also be described as

Utilitarian

DON;T READ. The Wiz was eventually turned into a box office film. Like many musicals of the period, the performances in the soundtrack album are not those used directly in the film, but re-recorded by the same artists at an earlier and/or later date. The track selection is made up of both songs from the original 1975 Broadway musical by Charlie Smalls and Luther Vandross, as well as new songs written for the film by Quincy Jones, Nickolas Ashford & Valerie Simpson, and Anthony Jackson. This soundtrack marks Jones' first collaboration with Jackson; Jones would go on to produce Jackson's hit solo albums Off the Wall, Thriller, and Bad.[3] The album, with its hit single "Ease on Down the Road", was more successful than the film itself, which was a commercial and critical failure. Can I get a Compulsory License for "Easy on Down the Road"?

Yes

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.

Can you lose your right to terminate a transfer?

Yes.

Is it normal for educational books to be translated without permission from original authors?

Yes.

In 1946, Hermana wrote a love song, Jesse. She published with the required notice in 1946. She sold the copyright to Robert Records in 1950 (along with renewal rights, which Robert subsequently secured). In 2006, Jesse still generates a nice income. Roberts Records receives royalties from past recordings of the song. They also get royalties from sales of sheet music. Hermana wonders whether she can somehow get the copyright back, along with the rights to the royalties. Can she achieve her goal?

Yes. Has to be done before end of 12/31/2006.

*EXCEPTIONS* to Moral Rights NOT FOR FISHMAN.

You *cannot have a claim if:* the mutilations/distortions *happened over time, unless it was gross negligence* If modifications are *due to conservation*, or if modifications are *made for public presentation.* *Reproductions are not covered by VARA.*

If you have five infringing songs on one CD which statement is true?

You are liable for five statutory damage awards. One for each work infringed.

a legal right of authors to determine how their work is used.

*Transfer of Ownership* - *Writing Requirement*. Must Identify:

a) *who* is transferring; b) *what right(s)*; to c) *what work*. (Writing does not have to be formal, and does not have to be a contract -Can be electronic signature on email -Must be clear and show agreement of owner or agent)

Which of the following are useful articles? Of those identified as useful articles, which meet the separability requirement? a. Swiss army knife; b. Instruction manual for a car; c. A human dummy used in anatomy classes; d. A radiator cover wit han ornate design; e. A car engine; f. Design of an automobile body

a. *Utilitarian Function?* Yes. *Separable?* Maybe. b. *Utilitarian Function?*Yes. *Separable?* Yes. c. *Utilitarian Function?*Yes. *Separable?* No. d. *Utilitarian Function?*Yes. *Separable?* Yes. e. *Utilitarian Function?*Yes. *Separable?* It depends. f. *Utilitarian Function?*Yes. *Separable?* Yes.

Azra wrote Twenty-Eight Years of Solitude, an epic poem, in 1960. He meticulously put "©️ 1960 Azra" on every published copy. Then he went into advertising and forgot the work. When does his copyright begin and end? What is the result if he had published the work in 1970?

began 1960 ended 1988 ends 2065

Nadia wrote Four Score and Fifteen Years Ago, a ballad, in 1960. She made sure copyright notices appeared where required. She registered the work and duly filed a renewal certificate in 1988. When does her copyright term begin and end?

began 1960 ends 2055

blank.

*"Merger Doctrine"*

if there is *only one or a limited number of ways of expressing a particular system, even the expression won't be protected* in order to keep the idea from being restricted (court hates to apply merger doctrine)

What are the two requirements for Joint Work?

intent to combine, and two or more authors must contribute to a work.

A work is *"fixed"* in a tangible medium of expression when

its *embodiment in a copy or phonorecord*, *by or under the authority of the author,* is *sufficiently permanent or stable* to *permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.*

Sound recordings: The *owner* of the recording owns ___

only a couple of sticks

in a compilation the copyright granted for the compilation is based on

originality and expression found in arrangement of prior material

right to *copy* & right to *make copies* & right to *make derivative works*

Sound recordings: The *artist* owns ___

the rendition as embodied in th ephonorecord in the way it is sung, played, arranged, or mixed.

Ideas cannot be copyrighted (T/F)

true

Sometimes publishers who own valuable songs that are about to enter public domain re-record them in order to promote and exploit the new derivative work giving the the song a "second life".

true

The Copyright Act provides several remedies that are meant to stop infringing parties from the infringing act. One of those remedies allows the court to hold all the equipment used to make the infringing goods even computers and recording equipment? True or False

true

For purposes of the termination right, the most important date is:

when the transfer of rights is made

Court's evaluate which factors most heavily in determining work made for hire cases?

whether the worker is paid a salary, has employee benefits, and social security taxes.

Created/Not Published pre 1978; Duration

Created Post 1978; Duration

© Attaches: *Upon Fixation* First Term: *Author's Life + 70 years* WMFH, Anonymous, & pseudonymous works: *95 years from publication, or 120 years from creation, whichever is shorter* Joint works: *Life of LAST SURVIVING AUTHOR + 70 years.*

Works under copyright pre-78; Duration

To *prove improper appropriation*, must show:

Terminating Transfers under 1909 Act

▪Can terminate *after 56 years from date of CREATION* ▪Author has a *5 year window* ▪Needs to give at least *2 years' notice*

Terminating Transfers under 1976 Act

▪Transfers may be terminated after *35 years* ▪Author has a *5 year window*, beginning in 35th year, to terminate ▪*Must serve written notice* upon transferee within *2-10 years of effective date* of termination ▪Right to terminate cannot be assigned nor K'ed for with sale

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