INTELLECTUAL PROPERTY - CH 5 COPYRIGHT LAW

p102 XI. DIRECT AND INDIRECT INFRINGEMENT - Direct infringement

Anyone who makes an unauthorized reproduction, adaptation, distribution to the public, public performance or public display may be liable for direct infringement to the OWNER OF THE COPYRIGHT in the work. Lack of intent to infringe or lack of knowledge of the copyright will not avoid liability, but may affect the remedy available to the plaintiff. Anyone who violates the moral rights of attribution or integrity in a qualifying work of visual art is liable to the AUTHOR of the work.

THE EXCLUSIVE RIGHT TO REPRODUCE THE WORK - The meaning of REPRODUCTION

The right of reproduction is the right to reproduce the work in material copies or phonorecords. To infringe, a D must fix all or part of the copyrighted work in a material object in a manner that is sufficiently permanent or stable to permit the work to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

THE EXCLUSIVE RIGHT TO PREPARE DERIVATIVE WORKS - Limitations on the exclusive right to make derivative works - sound recordings

The right to adapt a sound recording, like the right to reproduce it, is infringed only if the D mechanically recaptures of LIFTS sounds from the copyrighted sound recording, then alters or mixes them with other sounds. Copyright Act s 114.

XIII. ANTICIRCUMVENTION AND DIGITAL RIGHTS MANAGEMENT PROVISIONS - Anticircumvention provisions

the Digital Millennium Copyright Act (DMCA) makes it illegal to CIRCUMVENT a technological measure that effectively controls ACCESS to a work protected under the Copyright Act. It also makes it illegal to manufacture or traffic in devices or services to defeat technological protection measures (both measures to CONTROL ACCESS to the work and measures to CONTROL EXERCISE OF THE EXCLUSIVE RIGHTS OF THE COPYRIGHT OWNER, once access is gained). However, in the case of manufacturing or trafficking, the devices or services must be 1) primarily designed or produced for the purpose of circumventing; 2) have only limited commercially significant purposes or uses other than to circumvent; or 3) be marketed for use in circumventing.17 U.S.C. s 1201.

THE FAIR USE AND OTHER DEFENSES TO INFRINGEMENT - Special considerations in parody cases

A parody based on a copyrighted work is more likely to be excused as a fair use if the parody is at least in part aimed at the copyrighted work itself. If it is, the D generally may copy to the extent necessary to CONJURE UP the copyrighted work in the audience's mind, so that the audience will understand that the work is being parodied. This may involve taking the HEART of the P's work. The amount the parodist can copy beyond what is necessary to conjure up the work may depend on whether his sole purpose was to parody the copyrighted work, or whether he was trying to address additional issues. Campbell v. Acuff-Rose Music, Inc. (1994).

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: The literary works category - the copyrightability of computer programs: Copyright in the user interface

A program's user interface comprises the visual and aural elements through which the program communicates with the user. Aspects of a screen display may be protected if they are sufficiently original and do not merge with the underlying idea. In Lotus Development Corp. v. Borland International, Inc. (1995), the First Circuit held that the menu command hierarchy of a program did not constitute copyrightable expression, but rather, constituted an uncopyrightable METHOD OF OPERATION in its entirety. The Lotus court reasoned that even if the method of operation contained expressive elements, those elements would be uncopyrightable because they were part of the method of operation. The Tenth Circuit has subsequently disagreed that expressive elements INCORPORATED INTO a method of operation are uncopyrightable. Mitel, Inc. v. Iqtel, Inc. (1997).

ANTICIRCUMVENTION AND DIGITAL RIGHTS MANAGEMENT PROVISIONS - Anticircumvention provisions: Technological measure

A technological measure effectively controls ACCESS to a work if, in the ordinary course of its operation, it requires the application of information or a process or treatment, with the authority of the copyright owner, to gain access to the work.

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: The pictorial, graphic, and sculptural works category - Copyright in the design of useful articles

A useful article is AN ARTICLE HAVING AN INTRINSIC FUNCTION THAT IT NOT MERELY TO PORTRAY THE APPEARANCE OF THE ARTICLE OR TO CONVEY INFORMATION. s 101. Pictorial, graphic, or sculptural features embodied in useful articles may be copyrighted if they are PHYSICALLY OR CONCEPTUALLY SEPARABLE from the utilitarian aspects of the useful article. Physical separability exists if the design feature could be physically removed from the useful article and still be recognizable as a pictorial, graphic or sculptural work.

THE SUBJECT MATTER OF COPYRIGHT - The originality requirement

A work of authorship must be ORIGINAL in order to qualify for copyright protection. This means that: 1) the author must have engaged in his own intellectual endeavor, rather than merely copying for a preexisting source, and 2) the work must demonstrate a minimal amount of creativity. Feist Publications, Inc. v. Rural Telephone Service Co., Inc. (1991). Under this rule, de minimis WORKS, such as words, short phrases, slogans, and the like, are not protected. Because facts are DISCOVERED rather than CREATED, they are not original and thus not proper subject matter for copyright. Only the author's original means of expressing the facts can be protected. An author's exercise of judgment in selecting and arranging facts or other uncopyrightable elements in a work may constitute original expression.

THE EXCLUSIVE RIGHT TO DISPLAY THE COPYRIGHTED WORK PUBLICLY - Other exceptions to the exclusive rights of public performance and display

Additional exceptions to the exclusive rights of public performance and public display permit such things as: 1) performance and displays of works by instructors or pupils in the course of face-to-face teaching activities in a classroom or similar place devoted to instruction (Copyright Act s 110(1)); 2) performance and display of certain works by transmission in the systematic instructional activities of a government body or nonprofit educational institution (s 110(2)); 3) certain performances and displays of works in the course of religious services (s 110(3)); and 4) a variety of forms of retransmission of transmitted broadcast signals. The Copyright Act also provides for compulsory licenses to enable cable systems and satellite companies to make secondary transmissions of broadcast signals. In addition, there is a compulsory license to enable public broadcasting entities to make public performances and displays of certain kinds of works.

V. THE EXCLUSIVE RIGHT TO REPRODUCE THE WORK

All classes of copyrightable subject matter enjoy the exclusive right to reproduce the work.

THE SUBJECT MATTER OF COPYRIGHT - The fixation requirement: Copies and phonorecords

All copyrightable works of authorship are fixed either in copies or phonorecords. PHONORECORDS are MATERIAL OBJECTS IN WHICH SOUNDS, OTHER THAN THOSE ACCOMPANYING A MOTION PICTURE OR OTHER AUDIOVISUAL WORK, ARE FIXED ... s 101. All other material objects in which works of authorship are fixed are called COPIES.

OWNERSHIP OF COPYRIGHT - Transfer of copyright

All transfers of EXCLUSIVE rights must be in writing and signed by the transferor, unless the transfer is by operation of law. Transfers of NON-EXCLUSIVE RIGHTS (licenses) need not be in a writing. The Copyright Act provides that assignments, licenses, and other documents pertaining to copyright may be recorded in the Copyright Office. Proper recordation of a document serves as constructive notice of the contents of the document to others.

THE SUBJECT MATTER OF COPYRIGHT - The idea / expression dichotomy: Thin copyright

An alternative way some courts deal with situations in which there are relatively few ways to express an idea is to recognize copyright protection in the plaintiff's work, but refuse to find infringement unless the D's copying is nearly exact. This is called THIN COPYRIGHT. Typically, to infringe a thin copyright, the D's work must be VIRTUALLY IDENTICAL to the plaintiff's copyrighted expression, or BODILY APPROPRIATE the plaintiff's expression.

THE SUBJECT MATTER OF COPYRIGHT - The originality requirement: Scenes a faire (scenes to be made" or "scenes that must be done")

An author may not obtain copyright in scenes a faire: incidents of action, characters, settings, or other elements that are indispensable, or at least standard, stock devices in the treatment of a given topic.

THE EXCLUSIVE RIGHT TO DISTRIBUTE TO THE PUBLIC - The doctrine of first sale: The doctrine of first sale on the Internet

Because Internet transmissions generally entail REPRODUCING the sender's copy and sending the reproduction, the doctrine of first sale will seldom apply to permit purchasers of digital works to transfer them to others via the Internet.

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: Compilations

Compilations are works formed by collecting and assembling preexisting materials or data. Compilations include collective works (such as peridodical issues, anthologies, or encyclopedias) that compile a number of separate, independently copyrightable works. Compilations that are NOT collective works include directories, catalogs, or automated databases that compile materials, such as facts, that are not separately copyrightable.

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: The literary works category - the copyrightability of computer programs: Copyright in the structure of programs

Computer programs are considered LITERARY WORKS for purposes of copyright, and their authors are entitled to copyright protection not only in their literal expression (source or object code) but also in nonliteral elements of expression, such as the program's structure or organization. In Computer Associates International, Inc. v. Altai, Inc. (1992), the Second Circuit adopted the ABSTRACTION-FILTRATION-COMPARISON test for determining which (if any) elements of a program's structure are copyrightable. This test has been widely adopted.

MORAL RIGHTS - The Visual Artists' Rights Act of 1990

Congress enacted the Visual Artists' Rights Act of 1990 (VARA) to comply with the Berne Convention requirement. The Act, however, is very limited in scope, because it only provides moral rights in WORKS OF VISUAL ART. Works of visual art include paintings, drawings, prints, or sculptures that exist in a single copy or in a limited edition of 200 or fewer signed, numbered copies. Still photographs are also included, if produced for exhibition purposes only and existing in a single, signed copy or in a limited edition of 200 or fewer signed, numbered copies. Works made for hire or that do not qualify for copyright are excluded. 17 U.S.C. s 101. Authors of qualifying works of visual art are given the rights of attribution and integrity in their works. 17 U.S.C. s 106A. These rights ATTACH TO THE SINGLE OR LIMITED EDITION COPIES DESCRIBED ABOVE. They do not attach to the intangible work of authorship, as manifested in mass-produced or any other copies beyond the single and limited edition copies described above.

THE COPYRIGHTED WORK - Copying

Copying may be demonstrated by direct evidence or by circumstantial evidence that: 1) the D had ACCESS to the P's work and the D's work is sufficiently SIMILAR to the P's to infer copying; or 2) the D's work is strikingly similar to the P's work, so that it is unlikely that it would have been independently created. In determining similarity for this purpose, all similarities - both in copyrightable and uncopyrightable elements of the works - may be considered, and expert witness testimony may be used.

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: The architectural works category

Copyright Act s 101, as amended by the Architectural Works Copyright Protection Act (AWCPA), defines an architectural work as the design of a building, as embodied in any tangible medium of expression, including a building, architectural plans. or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features. The legislative history indicates that, in enacting the AWCPA, Congress intended to prohibit unauthorized copying of the two-dimensional architectural plans, unauthorized use of the plans to build a three-dimensional building, and unauthorized direct copying of the building. However, only those original architectural design elements that are NOT DICTATED BY FUNCTIONAL CONSIDERATIONS will be protected EXPRESSION within the work.

THE FAIR USE AND OTHER DEFENSES TO INFRINGEMENT - The four factors

Copyright Act s 107 provides four factors that courts should consider in determining whether a D's use was fair: 1) The PURPOSE AND CHARACTER of the use, including whether such use is of a commercial nature or for nonprofit educational purposes; 2) the NATURE OF THE COPYRIGHTED WORK; 3) the AMOUNT AND SUBSTANTIALITY of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the POTENTIAL MARKET for or VALUE OF THE COPYRIGHTED WORK. Courts must consider all four of the factors. No one factor is dispositive, though the SCOTUS has indicated that the fourth factor (the effect of the use on the P's potential market) is the most important. Harper & Row. Publishers, Inc. v. Nation Enterprises (1985). Courts have sometimes augmented these four factors with additional considerations.

THE EXCLUSIVE RIGHT TO DISTRIBUTE TO THE PUBLIC - The doctrine of first sale: Imports

Copyright Act s 602 provides that unauthorized importation of copies or phonorecords of a work into the United States infringes the copyright owner's exclusive right of distribution to the public. However, the SCOTUS has held that the doctrine of first sale is applicable to the importation right. Thus, if a copyright owner manufactured goods incoporating the copyrighted work IN THE UNITED STATES and exported them, it could not, absent an enforceable contractual restriction, prevent foreign purchasers from bringing the goods back into the United States to resell in competition with it. While the SCOTUS has not definitely ruled whether the doctrine of first sale likewise applies in copies and phonorecords manufactured by or under the authority of the U.S. copyright owner abroad, the Ninth Circuit has ruled that it does not. Under this interpretation, the U.S. copyright owner can manufacture and sell its copyrighted works abroad and use U.S. copyright law to prevent resale of those copies in the United States. Omega, S.A. v. Costco Wholesale Corp. (9th Cir. 2008). In 2012 the SCOTUS granted certiorari in another case to review this issue. Kirtsaeng v. John Wiley & Sons (April 16, 2012).

THE EXCLUSIVE RIGHT TO PERFORM PUBLICLY - When a performance is PUBLIC

Copyright Act. s 101 spells out four ways in which a performance may be PUBLIC: 1) if the performance occurs at at PLACE OPEN TO THE PUBLIC; 2) if the performance occurs at any place where a SUBSTANTIAL NUMBER OF PERSONS outside the normal circle of a family and its social acqaintances is gathered; 3) if the performance is TRANSMITTED OR OTHERWISE COMMUNICATED to a place described in (1) or (2) above; or 4) if the performance is TRANSMITTED OR OTHERWISE COMMUNICATED TO THE PUBLIC by means of any device, regardless of whether the public receives it in the same or separate places or receives it at the same or different times.

VII. THE EXCLUSIVE RIGHT TO DISTRIBUTE TO THE PUBLIC - The right of distribution

Copyright includes the exclusive right to distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending. Traditionally, to violate the exclusive right to distribute a copyrighted work, a person had to make an unauthorized PHYSICAL TRANSFER of a material copy or phonorecord to a member of the public. However, recent case law suggests that it is not always necessary to demonstrate physical transfer of a material copy. Transmission of an electronic (digital) copy is likely to suffice. Likewise, some precedent indicates that posting a copyrighted work on a website , where it is readily available for download, or holding an unlawful copy of a work, indexed and available in a public library collection, can be an infringing distribution of the work to the public. Hotaling v. Church of Jesus Christ of Latter-Day Saints (4th Cir. 1997).

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: Government works as copyrightable subject matter

Copyright is not available for any work of the U.S. Govt. Works of the U.S. Govt. are works PREPARED BY AN OFFICER OR EMPLOYEE OF THE U.S. GOVT AS PART OF THAT PERSON'S OFFICIAL DUTIES. s 101. Govt. agencies that arrange for independent contractors to create works for the U.S. Govt. may require independent contractors to waive their right to copyright in some cases, when it is in the public's interest that they do so.

ANTICIRCUMVENTION AND DIGITAL RIGHTS MANAGEMENT PROVISIONS - Copyright management information

Copyright management information includes information that identifies the work, or its creators or copyright owner, terms or conditions for use of the work, and any identifying numbers or symbols. the Digital Millennium Copyright Act prohibits persons from intentionally removing or altering copyright management information, or knowingly distributing copies or phonorecords with illegally modified copyright managment information. 17 U.S.C. s 1202.

OWNERSHIP OF COPYRIGHT - Divisibility of ownership

Copyright ownership is divisible. The copyright owner may transfer some or all of her EXCLUSIVE rights. Any person who receives an EXCLUSIVE RIGHT under the copyright is considered a copyright owner and has the right to sue to enforce the right she owns against others. A person who has only a NON-EXCLUSIVE RIGHT is licensee and has no standing to sue for infringement.

THE SUBJECT MATTER OF COPYRIGHT - The idea / expression dichotomy

Copyright protection never gives rights in ideas, procedures, processes, systems, methods of operation, concepts, or principles (collectively called IDEAS). Moreover, when use or expression of these things NECESSITATES COPYING THE PLAINTIFF'S EXPRESSION, the expression will not be protected - the expression will be deemed to MERGE with the underlying idea and become part of the unprotectable idea itself. Baker v. Selden (1879). In addition, courts may find merger when --the subject matter of a work is so narrow and straightforward that there are only a LIMITED NUMBER of ways to express it. To provide otherwise might enable a person to obtain a DE FACTO monopoly in the subject matter, or idea, by obtaining copyright in all the alternative forms of expressing it.

THE SUBJECT MATTER OF COPYRIGHT - The idea / expression dichotomy: Blank forms

Courts deny copyright protection to blank forms that are designed for recording information and do not in themselves convey information.

ANTICIRCUMVENTION AND DIGITAL RIGHTS MANAGEMENT PROVISIONS - Anticircumvention provisions: Unauthorized use of passwords

Courts have disagreed over whether unauthorized use of a password that was properly issued to a different person constitutes circumvention of a technological measure that controls access to a copyrighted work.

THE EXCLUSIVE RIGHT TO REPRODUCE THE WORK - The meaning of REPRODUCTION: RAM copies

Courts have held that bringing a work into the random access memory (RAM) of a computer constitutes a reproduction for purposes of the Copyright Act, because the work can be perceived in RAM for a period of more than transitory duration. MAJ Systems Corp. v. Peak Computer, Inc. (9th Cir. 1993). However, the Court of Appeals for the the Second Circuit has held that temporary BUFFER copies lasting no more than 1.2 seconds do not constitute copies because they do not last for more than a transitory duration. Cartoon Network, LP v. CSC Holdings, Inc. (2nd Cir. 2008). A number of courts have exonerated Internet Service Providers from reproduction right infringement when their computerized systems automatically make RAM or other temporary duplicates of works posted or transmitted by Internet users. These courts have reasoned that although copyright infringement is a form of strict liability, there must be some element of volition or causation on the defendant's part. Thus, an ISP that provides the automatic means for users to post or transmit (and thereby reproduce) materials, but does not otherwise participate in making a reproduction, lacks the necessary volition/causation and should not be liable as a direct infringer. CoStar Group, Inc. v. Loopnet, Inc. (4th Cir. 2004).

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: Derivative works

Derivative works are works based upon one or more preexisting works, such as translations, musical arrangements, dramatizations, fictionalizations, motion picture versions, art reproductions, abridgments, etc. Derivative works are within the subject matter of copyright, but copyright protection extends only to the original material contributed by the derivative author, not to the preexisting material that the derivative author incorporated into the new work. In order to constitute a separately copyrightable derivative work, an adaptation must constitute a substantial, not merely trivial, variation from the preexisting work on which it is based. The Ninth Circuit has held, in addition, that a derivative work may not be copyrighted if doing so will affect copyright protection in the underlying work. This may occur if the derivative work copyright will enable the recipient to interfere with the ability of the person holding copyright in the preexisting work to license additional derivative works. Entertainment Research Group, Inc. v. Genesis Creative Group, Inc. (1997).

DIRECT AND INDIRECT INFRINGEMENT - Infringement on the Internet

Due to special concerns about copyright infringement on the Internet, and the possibility of Internet service providers being held liable for their users' infringement, Congress enacted Copyright Act s 512, which provides a series of safe harbors from infringement liability for Internet service providers.

THE SUBJECT MATTER OF COPYRIGHT - The fixation requirement

Federal copyright attaches to the intangible work of authorship, not the physical manifestation of it, but the work only qualifies for federal copyright protection once it has been fixed in a tangible form. Fixation may take many forms. The Copyright Act of 1976 (s 101) provides that 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."

OWNERSHIP OF COPYRIGHT - Intial owner of copyright: Works for hire

If a work is MADE FOR HIRE within the meaning of the Copyright Act, the employer or other person who ordered and financed the work is deemed the author for copyright purposes and is the initial owner of the copyright. There are two ways in which a work may be found to be a work for hire. First, it is a work for hire if it was PREPARED BY AN EMPLOYEE WITHIN THE SCOPE OF HIS EMPLOYMENT. Common-law agency principles should be used to determine whether someone is an employee for this purpose. If the hiring party has the right to control the manner and means by which the worker accomplishes the work, then the worker probably is an employee. Community for Creative Non-Violence v. Reid (1989). Second, works CREATED BY INDEPENDENT CONTRACTORS (rather than employees) may be works for hire if: 1) the work FITS INTO ONE OF NINE CATEGORIES OF WORKS enumerated in Copyright Act s 101; and 2) the parties have expressly agreed in a WRITTEN, SIGNED INSTRUMENT that the work will be considered a work made for hire. "a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas"

DIRECT AND INDIRECT INFRINGEMENT - Contributory infringement liability: The Sony rule

In SONY CORP. OF AMERICA V. UNIVERSAL CITY STUDIOS, INC. (1984), the SCOTUS held that a person will not be liable for manufacturing or selling products that may be used to infringe but are also capable of substantial noninfringing uses, merely because he has constructive knowledge that some purchasers may use the products to infringe. The Ninth Circuit has subsequently held that if the provider LEARNS OF SPECIFIC ACTS OF INFRINGEMENT THROUGH USE OF ITS PRODUCTS OR SERVICES, it then incurs a duty to act to stop further infringement. A&M Records, Inc. v. Napster, Inc. (9th Cir. 2001). Failure to act will constitute contributory infringement with respect to any direct infringement that occurs thereafter. However, to incur this duty to act, the provider must have the actual knowledge of infringement AT A TIME IN WHICH HE IS IN A POSITION TO STOP IT. If the provider no longer has any substantial interaction with the direct infringer when he learns of the infringement, he will have no duty to act to stop the infringement.

THE EXCLUSIVE RIGHT TO PERFORM PUBLICLY - Exception to the exclusive right of public performance - nonprofit performances of nondramatic literary or musical works

It does not constitute infringement to publicly perform a nondramatic literary or musical work if the performance is direct (not transmitted), there is no purpose of direct or indirect commercial advantage, the performers, promoters and organizers are not paid specifically for the performance, and there is no direct or indirect admission charge (or, if there is such a charge, the proceeds, after deducting costs of the performance, are used exclusively for charitable purposes). s 110(4). Other exceptions to the exclusive right of public performance also apply to the exclusive right of public display, and are discussed in the next section.

OWNERSHIP OF COPYRIGHT - Intial owner of copyright: Ownership of copyright in collective works

In the absence of an express assignment of copyright, the author of each separate contribution in a collective work retains copyright in that contribution. The author of the collection owns copyright in the expression he or she contributed - usually the selection and arrangement of the individually copyrightable contributions and any explanatory material. Copyright Act s 201(c) provides that in the absence of a writing to the contrary, the author of the collective work will have the following privileges with regard to the individual works he has collected: --the privilege to reproduce and distribute the individual contributions as part of the collective work; --the privilege to reproduce the individual contributions as part of later revisions of the same collective work; and --the privilege to reproduce the individual contributions in a later work of the same series. "only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series."

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: The literary works category - the copyrightability of computer programs: Copyright in the structure of programs - The abstraction, filtration, comparison test

In the abstraction phase, the program is broken down into its structural components, repeatedly, at increasing levels of abstraction or generality. In the filtration phase, the court identifies those components at each level of abstraction that 1) constitute an idea; 2) are required in order for the program to perform its functions efficiently; 3) are required by factors external to the program itself (and thus constitute scenes a faire); or 4) were taken from the public domain. These components are uncopyrightable and must be removed from consideration, or FILTERED OUT. In the comparison phase, the court evaluates the remaining structural components, which constitute copyrightable expression.

THE RIGHTS AFFORDED BY COPYRIGHT LAW - Moral rights in works of visual art

In the case of works of visual art, the ARTIST has the right: 1) to claim authorship in the work; 2) to prevent use of her name as the author of works she did not create; 3) to prevent use of her name as the author of her own work if the work has been distorted, mutilated, or otherwise modified so that the use would be prejudicial to her honor or reputation; 4) to prevent any intentional distortion, mutilation, or other modification of her work that would be prejudicial to her name or reputation; and 5) to prevent the intentional or grossly negligent destruction of the work if the work is of recognized stature. 17 U.S.C. s 106A.

THE COPYRIGHTED WORK - Unlawful appropriation: Other approaches

Jurisdictions that normally apply the audience test have used other standards for assessing infringement when the work at issue includes numerous uncopyrightable elements. In such cases, the audience test's subjective TOTAL LOOK AND FEEL approach may lead the fact finder to find substantial similarity and unlawful appropriation based on similarities of uncopyrightable elements. To avoid such overprotection of copyrighted works, courts have devised the MORE DISCERNING standard and the ABSTRACTION-FILTRATION, AND COMPARISON standard, which introduce an objective evaluation, such as that in the Ninth Circuit's extrinsic test, to the unlawful appropriation determination. When the P is relying on SELECTION AND ARRANGEMENT expression in a THIN COPYRIGHT situation, courts may impose a VIRTUAL IDENTICALITY or A BODILY APPROPRIATION OF COPYRIGHTED EXPRESSION standard, instead of the normal SUBSTANTIAL SIMILARITY of copyrightable expression standard.

X. MORAL RIGHTS - The nature of moral rights

Many countries recognize rights that are PERSONAL to authors, apart from the economic rights discussed thus far. These personal rights are known as moral rights and are based on the view that a work of authorship is an extension of the author's personality or self, and should be protected as such. Generally, moral rights include the RIGHT OF ATTRIBUTION and the RIGHT OF INTEGRITY. The Berne Convention requires member countries to protect these rights.

THE EXCLUSIVE RIGHT TO REPRODUCE THE WORK - Exception to the exclusive right to reproduce - compulsory licenses to record nondramatic musical works

Once a musical composition has been recorded and distributed to the U.S. public in phonorecords under the copyright owner's authorization, Copyright Act s 115 permits other to make their own recording of the musical composition (make a COVER) and distribute the recording to the public. However, the prerequisites spelled out in s 115 must be satisfied. Among other things, the compulsory licensee's primary purpose must be to make phonorecords to be distributed to the public for private use, and the licensee must serve proper notice of her intention to make a compulsory license on the copyright owner. The compulsory licensee must pay royalties as set forth in s 115.

DIRECT AND INDIRECT INFRINGEMENT - Contributory infringement liability

One who knowingly induces, causes, or materially contributes to the infringing conduct of another is liable for contributory infringement. Generally, two elements must be demonstrated: 1) the D must know or have reason to know of the other person's infringement; and 2) the D must actively participate by inducing, materially contributing to, or furthering the other person's directly infringing activity.

MORAL RIGHTS - Other sources of protection for moral rights

Other, more indirect methods of protecting moral rights interests may be available in the case of works other than works of visual art. For example, the author may assert the copyright right of adaptation to prevent mutilation of the work, if he retains copyright. In addition, unfair competition laws may sometimes be used to prohibit false designations of the origin or false representations about the work. In addition, state contract and defamation law, and specialized STATE moral rights statutes may assist an author.

THE EXCLUSIVE RIGHT TO DISTRIBUTE TO THE PUBLIC - The doctrine of first sale: Exception to the doctrine of first sale for record and computer program rentals

Owners of copyright in computer programs, in sound recordings of music, and in the musical compositions that are recorded in sound recordings, may prevent purchasers of program copies and phonorecords from renting out the phonorecords and program copies commercially, or may charge a royalty for granting them the privilege to do so. s 109(b).

THE PURPOSE AND NATURE OF COPYRIGHT LAW - The nature of copyright law: Federal vs. state law

Prior to the effective date of the Copyright Act of 1976 (Jan. 1, 1978), the U.S. had a dual system of copyright. Unpublished works of authorship were protected by state common-law copyright. Once a work was published, common-law copyright ended. Federal statutory copyright was available to works published with proper notice of copyright. In the Copyright Act of 1976, Congress made federal statutory copyright available upon the fixation of a work in tangible form, regardless of publication, and provided that the federal copyright law would preempt state copyright protection for works of authorship fixed in tangible form.

MORAL RIGHTS - The Visual Artists' Rights Act of 1990: The right of attribution

The right of attribution gives the artist the right to be identified as the author of a work, the right to prevent attribution to her of works that she did not create, and the right to prevent use of her name in connection with a work that has been modified in a way that will injure her honor or reputation.

THE EXCLUSIVE RIGHT TO PERFORM PUBLICLY - Rights in unfixed musical performances

Pursuant to the United States' TRIPs Agreement obligations, Congress enacted anti-bootlegging provisions giving NEIGHBORING RIGHTS in live musical performances. 17 U.S.C. s 1101. These provisions prohibit unauthorized broadcasts of live musical performances, unauthorized fixations of such performances, and reproduction, distribution, offers to distribute, and trafficking in unauthorized fixations. Violators are subject to civil copyright infringement remedies.

THE EXCLUSIVE RIGHT TO PREPARE DERIVATIVE WORKS - The right to make derivative works: Relevant considerations in determining whether a defendant's acts consititute ADAPTATION

Some courts have suggested that a defendant's changes must constitute a SUBSTANTIAL VARIATION from the original before an INFRINGEMENT of the adaptation right can be found. (Another way to say this is that the D's alleged infringing work must be one that would have QUALIFIED FOR A DERIVATIVE WORK COPYRIGHT if it had been authorized.) However, other courts have rejected such a requirement. Courts may undertake to assess the ECONOMIC IMPACT of the D's acts on potential markets for the P's work in deciding whether the D's acts constitute actionable adaptation.

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: The sound recordings category

Sound recordings are WORKS THAT RESULT FROM THE FIXATION OF A SERIES OF MUSICAL, SPOKEN, OR OTHER SOUNDS, but do not include the sounds accompanying a motion picture or other audiovisual work. s 101. The sound recording copyright is separate from any copyright that may exist in the work that is the subject of the recording, such as a musical composition or a literary work. Domestic sound recordings fixed before 1972 are not protected by federal copyright. Forms of state protection may be available for them, however.

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: The pictorial, graphic, and sculptural works category - Copyright in the design of useful articles: Copyright in technical drawings

Technical drawings and blueprints are protected by copyright. However, unauthorized use of copyrighted drawings or plans to build the useful article depicted in them generally does not in itself constitute infringement of the plans.

MORAL RIGHTS - The Visual Artists' Rights Act of 1990: The right of integrity

The right of integrity gives the artist the right to prevent any intentional distortion, mutiliation, or other modification of her work that would be prejudicial to her honor or reputation as an artist and, in the case of works of RECOGNIZED STATURE, the right to prevent intentional or grossly negligent destruction of the work.

II. THE SUBJECT MATTER OF COPYRIGHT - The statutory definition

The 1976 Act (s 102(a)) provides that copyright subsists IN ORIGINAL WORKS OF AUTHORSHIP FIXED IN ANY TANGIBLE MEDIUM OF EXPRESSION, NOW KNOWN OR LATER DEVELOPED, FROM WHICH THEY CAN BE PERCEIVED, REPRODUCED, OR OTHERWISE COMMUNICATED, EITHER DIRECTLY OR WITH THE AID OF A MACHINE OR DEVICE.

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship.

The 1976 Act provides that WORKS OF AUTHORSHIP include the following categories: 1) literary works; 2) musical works, including any accompanying words; 3) dramatic works, including any accompanying music; 4) pantomimes and choreographic works; 5) pictorial, graphic, and sculptural works; 6) motion pictures and other audiovisual works; 7) sound recordings; and 8) architectural works. 17 U.S.C. s 102. This list is not meant to be exclusive, but the 1976 Act does not necessarily extend copyright to all subject matter that Congress is authorized to protect under the USCONST's Patents and Copyrights Clause.

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: The literary works category - the copyrightability of computer programs

The 1976 Act, as amended, expressly protects computer programs, which s 101 defines as A SET OF STATEMENTS OR INSTRUCTIONS TO BE USED DIRECTLY OR INDIRECTLY IN A COMPUTER IN ORDER TO BRING ABOUT A CERTAIN RESULT Copyright protection extends both to programs in source code and programs in object code and to both application and operating system programs. Likewise, copyright extends to programs regardless of the medium in which they are encoded, such as disks, flash drives, or chips.

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: The architectural works category - Pre-AWCPA works

The AWCPA applies only to architectural works created after December 1, 1990, or that were unconstructed and embodied in unpublished plans or drawings on that date. ARCHITECTURAL WORKS THAT DO NOT QUALIFY FOR PROTECTION UNDER AWCPA CAN ONLY BE PROTECTED AS PICTORIAL, GRAPHIC, OR SCULPTURAL WORKS. The plans are treated a graphic works, and the buildings are treated as useful articles.

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: The architectural works category - The design of a BUILDING

The AWCPA defines a protectable ARCHITECTURAL WORK as THE DESIGN OF A BUILDING. BUILDINGS are humanly habitable structures that are intended to be both permanent and stationary, such as houses, office buildings and other structures designed for human occupancy. Stores built inside an enclosed shopping mall are not BUILDINGS for this purpose.

ANTICIRCUMVENTION AND DIGITAL RIGHTS MANAGEMENT PROVISIONS - Anticircumvention provisions: Relationship of anticircumvention violation to infringement of copyright

The Circuits appear to differ over the relationship between copyright infringement and violation of the anticircumvention provisions. The Second Circuit has suggested that the DMCA targets circumvention and does not concern itself with what is done with copyrighted material after circumvention has occurred. Universal City Studios, Inc. v. Corley (2d Cir. 2001). Thus, it is essentially irrelevant whether the circumvention results or can result in copyright infringement. The Federal Circuit, by contrast, has held that the anticircumvention provisions were not intended to provide a new property right (a new RIGHT OF ACCESS) to copyright owners, but only to provide a new means of protecting existing rights created under the Copyright Act. Thus, s 1201 prevents trafficking in access control circumvention devices or services (and access control circumvention itself) only if the use of the device (or the circumvention) will infringe or facilitate infringement of copyright. Chamberlain Group, Inc. v. Skylink Technologies, Inc. (Fed. Cir. 2004) cert. denied (2005).

THE EXCLUSIVE RIGHT TO REPRODUCE THE WORK - Other exceptions to the exclusive right to reproduce

The Copyright Act contains a host of other narrowly drawn exceptions to the right of reproduction, including 1) broadcasters' ephemeral recordings of programs containing performances or displays of copyrighted works (Copyright Act s 112); 2) reproduction, distribution, and display of useful objects portrayed in copyrighted pictorial, graphic, and sculptural works (s 113); 3) reproduction, distribution, and display of pictorial representations of useful articles incorporating copyrighted design features for purposes of advertising or sale of the useful articles, news reporting, etc. (s 113); 4) reproduction, distribution, and public display of pictorial representations of copyrighted buildings, visible from a public place (s 120); 5) authorization for public libraries and archives to reproduce works under certain circumstances (s 108); and 6) authorization to make and distribute previously published nondramatic literary works in specialized formats for persons with disabilities (s 121).

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: Government works as copyrightable subject matter - State government works

The Copyright Act does not prohibit state and local governmental entities from claiming copyright in works of authorship created by their officials or employees. However, case law indicates that judicial opinions, statutes, city ordinances, and other govt. laws and regulations must be accessible to the public because of due process considerations. This is generally understood to mean that these works, which have the force and effect of law, may be subject to copying by the public. When a govt. entity adapts a mode code that was drafted by non-govt. entities, the model code loses copyright protection in its capacity as the law of the adopting govt. entity.

THE EXCLUSIVE RIGHT TO DISTRIBUTE TO THE PUBLIC - The doctrine of first sale

The DOCTRINE OF FIRST SALE (17 U.S.C. 109(a)) is an important limitation on the distribution right. It provides that once the copyright owner authorizes transfer of a title to a copy or phonorecord of the copyrighted work, the transferee and his successors in interest are entitled to retransfer or otherwise dispose of that copy or phonorecord without returning to the copyright owner for authorization. However, the doctrine of first sale only applies to LAWFUL copies and phonorecords. A person who acquires a pirated copy of the work will infringe the copyright by reselling or otherwise redistributing it to the public. Moreover, the doctrine of first sale does not authorize the owner of a lawful copy to reproduce it or to distribute the unauthorized reproduction,

THE EXCLUSIVE RIGHT TO DISTRIBUTE TO THE PUBLIC - The doctrine of first sale: Droit de suite

The DROIT DE SUITE doctrine gives the author of a work of fine art the opportunity to share in its appreciation in value when it is resold by subsequent transferees. The U.S. Congress has not adopted the DROIT DE SUITE as an exception to the doctrine of first sale., but the state of California has enacted a statute in the nature of the DROIT DE SUITE.

THE COPYRIGHTED WORK - Unlawful appropriation: The Ninth Circuit's approach

The Ninth Circuit has adoped a two-part EXTRINSIC / INTRINSIC test to determine whether a D's copying amounts to an unlawful appropriation. The extrinsic test constitutes and OBJECTIVE evaluation of the similarities of expression, through use of dissection and expert witnesses. The intrinsic test constitutes a SUBJECTIVE evaluation, based on the overall impression of the average member of the intended audience, without analytic dissection or expert testimony, as in the Arnstein audience test. The Ninth Circuit has held that a copyright infringement P must demonstrate substantial similarity under BOTH the extrinsic and the intrinsic tests in order to prevail. Shaw v. Lindheim (9th Cir. 1990).

THE EXCLUSIVE RIGHT TO PREPARE DERIVATIVE WORKS - The adaptation right and computer program enhancements

The Ninth Circuit has held that even though a D need not reproduce a copyrighted work in order to infringe the owner's adaptation right, the D's work must INCORPORATE THE UNDERLYING WORK IN A CONCRETE OR PERMANENT FORM. Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. (9th Cir. 1992). However, in the digital context, an EXACT, DOWN TO THE LAST DETAIL DESCRIPTION OF AN AUDIOVISUAL DISPLAY in code will constitute the necessary INCORPORATION of the audiovisual display, just as sheet music, which describes in precise detail the way a copyrighted melody should sound, constitutes incorporation of the melody in a concrete and permanent form. Micro Star v. Formgen, Inc. (9th Cir. 1998).

OWNERSHIP OF COPYRIGHT - Intial owner of copyright: Ownership of copyright in joint works - Determining which contributors are joint authors

The Ninth Circuit requires that a party have DECISION-MAKING AUTHORITY over the work before he will be deemed a joint author. Almuhammed v. Lee (9th Cir. 2000). The Second and Seventh Circuits have focused on whether the participants INTENDED for an individual to be a joint author. Evidence that he individual has decision-making authority is relevant to that determination, along with other circumstantial evidence of the parties' intent, such as how they represent authorship to others, whether they share royaltieis, etc. Erickson v. Trinity Theatre, Inc. (7th Cir. 1994).

III. THE RIGHTS AFFORDED BY COPYRIGHT LAW - The exclusive rights of copyright

The OWNER OF COPYRIGHT in a work has the exclusive right to do or authorize the following: 1) reproduce the copyrighted work; 2) prepare derivative works based upon the copyrighted work; 3) distribute copies or phonorecords of the copyrighted work to the public; 4) publicly perform the work (this right applies in the case of all the types of copyrightable works except pictorial, graphic and sculptural works, architectural works, and sound recordings); 5) publicly display the work (this right applies in the case of all the types of copyrightable works except architectural works and sound recordings); and 6) in the case of sound recordings, to perform the copyrighted work publicly by means of digital audio transmission. 17 U.S.C. s 106.

DIRECT AND INDIRECT INFRINGEMENT - Contributory infringement liability: The Grokster INDUCEMENT cause of action

The SCOTUS held, in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster (2005), that the Sony rule does not apply to shelter the provider of products or services used to infringe (even if the products or services are capable of substantial noninfringing uses) if the D distributed the product or service with the CLEAR OBJECT OF PROMOTING ITS USE TO INFRINGE copyright, as shown by clear expression or other affirmative steps taken to foster infringement. Relevant evidence of bad intent in Grokster included: 1) the D's attempts to capture an audience known to be seeking new means to infringe; 2) the D's failure to develop filtering tools or other mechanisms to diminish infringing use of the product; and 3) the D's adoption of a business model that was more profitable if users infringed. The Court stressed that neither (2) nor (3), or on its own, would suffice to demonstrate the requisite intent, but that the three forms of evidence, in combination, could suffice.

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: The literary works category - the copyrightability of computer programs: Copyright in the structure of programs - Selection and arrrangement expression

The Second Circuit has clarified that a programmer's original selection and arrangement of uncopyrightable elements may be protected under the Altai abstraction-filtration-comparison test, because even though uncopyrightable elements are filtered out at one level of abstraction, they may be considered to be copyrightable expression in the aggregate with other elements at a higher level of abstraction. However, a number of circuits have held that when the P is relying on selection and arrangement expression, it must demonstrate BODILY APPROPRIATION OF EXPRESSION or VIRTUAL IDENTICALITY of expression in the D's alleged infringing program. Softel, Inc. v. Dragon Medical and Scientific Communications, Inc. (1997).

XIV. OWNERSHIP OF COPYRIGHT - Intial owner of copyright

The author of a work is the initial owner of the copyright in it and may either explain the work herself or transfer some or all of the rights to others. Unless the work is a work for hire, the author is the person who conceives of the copyrightable expression and fixes it or causes it to be fixed in a tangible form.

OWNERSHIP OF COPYRIGHT - Intial owner of copyright: Ownership of copyright in joint works

The authors of a joint work are co-owners of a single copyright to the work. A joint work is A WORK PREPARED BY TWO OR MORE AUTHORS WITH THE INTENTION THAT THEIR CONTRIBUTIONS BE MERGED INTO INSEPARABLE OR INTERDEPENDENT PARTS OF A UNITARY WHOLE. Copyright Act s 101. To create a joint work (as opposed, for example to two separate works - an original work and a derivative work based on it.), each author must have intended to contribute a part to a unitary whole at the time she created her portion. Each joint author must also have contributed copyrightable expression, not just ideas or facts.

THE PURPOSE AND NATURE OF COPYRIGHT LAW - The nature of copyright law: Rights in the intangible

The common law of personal property protects rights in tangible embodiments of works of authorship, such as manuscripts and canvases. Copyright, by contrast, protects the INTANGIBLE EXPRESSION ITSELF. A transfer of the physical embodiment of a work of authorship does not transfer the copyright. A separate writing is required to transfer copyright.

THE FAIR USE AND OTHER DEFENSES TO INFRINGEMENT - Reverse engineering object code

The copying of object code that takes place in the course of reverse engineering (decompiling) a computer program may be excused as a fair use when reverse engineering is the only means of gaining access to unprotected ideas and functional elements embodied in the object code, and the D has a legitimate interest in gaining such access. (This rule is sometimes referred to as the Sega rule. Sega Enterprises v. Accolade, Inc. (9th Cir. 1992).

THE FAIR USE AND OTHER DEFENSES TO INFRINGEMENT - Copyright misuse

The copyright defense is an equitable defense that renders a copyright unenforceable if the copyright owner has engaged in misconduct in licensing or enforcing the copyright, thereby broadening the scope of his monopoly right beyond what Congress intended. Under the misuse doctrine, the owner's copyright will be unenforceable until the misuse ends and the effects have dissipated. The misuse doctrine may apply even in the absence of an antitrust violation.

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: Compilations - The protectable expression in compilations

The copyrightable expression in a compilation is that expression contributed by the compilation author - usually the selection, coordination and arrangement of materials, along with any original explanatory matter. Compilations, like other categories of copyrightable subject matter, must be original. To be original, the compiler's selection and arrangement must entail a minimum threshold of creativity. If the act of compiling was merely rote, obvious, or clerical in nature, with no meaningful exercise of judgment or intellect, the originality requirement will not be satisfied. Feist Publications, Inc. v. Rural Telephone Service Co., Inc. (1991).

THE EXCLUSIVE RIGHT TO REPRODUCE THE WORK - Limitations on the exclusive right to reproduce - sound recordings

The exclusive right to reproduce sound recordings extends only to mechanical reproduction of sounds fixed in the plaintiff's copyrighted recording. Simply mimicking the P's copyrighted sounds in an independent recording does not constitute infringement. The Court of Appeals for the Sixth Circuit has held that mechanical reproduction ALONE is enough to demonstrate infringement of the reproduction and/or adaptation right in a sound recording - it is not necessary to demonstrate that the D's work is substantially similar to the P's copyrighted expression. Bridgeport Music, Inc. v. Dimension Films (6th Cir. 2005). However, it is not clear whether other circuits will follow thie precedent.

XII. THE FAIR USE AND OTHER DEFENSES TO INFRINGEMENT - The nature of the fair use defense

The fair use defense is available once a PRIMA FACIE showing of copyright infringement or violation of the moral rights in a work of visual art has been made. It is founded on notions of equity and common sense, and must be applied on a case-by-case basis to identify and permit unauthorized uses of copyrighted works that further the purposes of copyright law without significantly undercutting authors' economic incentive to create. Examples of uses that may be found fair (listed in Copyright Act s 107) include uses FOR PURPOSES SUCH AS CRITICISM, COMMENT, NEWS REPORTING, TEACHING (INCLUDING MULTIPLE COPIES FOR CLASSROOM USE), SCHOLARSHIP OR RESEARCH.

THE EXCLUSIVE RIGHT TO PERFORM PUBLICLY - The right to perform sound recordings publicly by means of a digital audio transmission

The general right of public performance is not accorded to sound recordings. However, sound recording copyright owners have THE RIGHT TO PERFORM THE COPYRIGHTED WORK PUBLICLY BY MEANS OF A DIGITAL AUDIO TRANSMISSION. s106(6). This is a more limited public performance right than the general public performance right enjoyed by other categories of copyrightable subject matter. It does not extend to FCC-regulated over-the-air radio or television broadcasts to the public (though it does apply to Internet WEBCASTS). Nor does it apply to digital tranmissions of AUDIOVISUAL works such as music videos, or to forms of digital performances that do not constitute transmissions, such as playing sound recordings on a compact disc player. There are numerous further limitations on the digital audio transmission performance right, including compulsory licenses to permit digital performances by third parties, under specified circumstances.

MORAL RIGHTS - The Visual Artists' Rights Act of 1990: Ownership, transfer, and duration of the rights

The moral rights are granted to the artist and retained by the artist even after she transfers the copyright in the work to someone else. The artist msy not assign her moral rights, but may expressly waive them in writing in a particular instance. In the case of works created on or after the effective date of VARA (June 1, 1991), the rights of attribution and integrity last for the life of the author, or in the case of joint authors, for as long as any author survives. In the case of works created earlier than the effective date, the moral rights will endure as long as the economic rights in the work, assuming that the author retained title to the work June 1, 1991. If the author did not retain title on June 1, 1991, the work carries no moral rights.

THE EXCLUSIVE RIGHT TO PREPARE DERIVATIVE WORKS - Limitations on the exclusive right to make derivative works - Architectural works

The owner of a building embodying a copyrighted architectural work may make or authorize alterations to the building. Copyright Act s 120.

MORAL RIGHTS - The Visual Artists' Rights Act of 1990: Exception to moral rights

The owner of a building into which a work of visual art is incorporated may, UNDER LIMITED CIRCUMSTANCES, remove the work from the building even though removal will destroy, distort, mutiliate, or otherwise modify the work. Copyright Act s 113(d).

THE EXCLUSIVE RIGHT TO DISPLAY THE COPYRIGHTED WORK PUBLICLY - Important exception to the exclusive right of public display - owners of lawfully made copies

The owner of a lawfully made copy of a work may display that copy publicly either directly or by the projection of not more than one image at a time, to viewers present at the place where the copy is located. Copyright Act s 109(c). This exception limits the economic value of the public display right primarily to transmissions of displays via broadcast and Internet.

THE EXCLUSIVE RIGHT TO PREPARE DERIVATIVE WORKS - Limitations on the exclusive right to make derivative works - computer programs

The owner of an authorized copy of a computer program may make an adaptation of the program, if it is done as an essential step in utilizing the program in a computer or is done for archival purposes. However, the altered program may not be transferred to someone else unless the copyright owner consents, and the altered copies must be destroyed as soon as the owner no longer has a lawful right to possess the original program. Copyright Act s 120.

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: The pictorial, graphic, and sculptural works category - Copyright in the design of useful articles: Evaluating conceptual separability

The prevailing test for conceptual separability focuses on the design process. If the designer was SIGNIFICANTLY INFLUENCED BY UTILITARIAN CONSIDERATIONS, then the pictorial, graphic or sculptural design features are INEXTRICABLY INTERTWINED with the utililitarian function of the article, and are not conceptually separable. If the design features were not significantly influenced by the utilitarian function of the article, but reflect the designer's purely aesthetic choices, then the design features are conceptually separable, and can be protected. Brandir International, Inc. v. Cascade Pacific Lumber Co. (2d Cir. 1987). While the Second and Seventh Circuits have adopted the DESIGN PROCESS standard described above, the Fifth Circuit has adopted a LIKELIHOOD OF MARKETABILITY standard, at least in the case of constumes or clothing. Under this standard, conceptual separability will be found if there is a substantial likelihood that even if the article had no utilitarian use, it would still be marketable to some significant segment fo the community simply because of its aesthetic qualities.

THE EXCLUSIVE RIGHT TO REPRODUCE THE WORK - Exception to the exclusive right to reproduce - computer programs: Ownership of copies

The restriction of s 117 to OWNERS of copies of software disqualifies rightful possessors who obtained their rights under a license agreement, rather than through a transfer of title. The Fed Circuit has held that licensees may be deemed OWNERS, and thus entitled to the s 117 exemptions, if the transaction giving them lawful possession RESEMBLES a transfer of title. Relevant considerations in determining whether this is the case include 1) whether the possessor obtained its rights in the software through a single payment; 2) whether the rightful possession is perpetual; and 3) whether the rightful use of the software under the license is heavily encumbered by restrictions that are inconsistent with the status of an owner. DSC Communications Corp. v. Pulse Communications, Inc. (Fed. Cir. 1999).

VI. THE EXCLUSIVE RIGHT TO PREPARE DERIVATIVE WORKS - The right to make derivative works

The right to make derivative works is also known as the right to ADAPT the copyrighted work.. As defined in Copyright Act s 101, a derivative work is A WORK BASED UPON ONE OR MORE PREEXISTING WORKS, SUCH AS A TRANSLATION, MUSICAL ARRANGEMENT, DRAMATIZATION, FICTIONALIZATION, MOTION PICTURE VERSION, SOUND RECORDING, ART REPRODUCTION, ABRIDGEMENT, CONDENSATION, OR ANY OTHER FORM IN WHICH A WORK MAY BE RECAST, TRANSFORMED, OR ADAPTED. In most (but not all) cases in which the right to adapt is infringed, either the right to reproduce or the right to publcly perform will be infringed as well.

I. THE PURPOSE AND NATURE OF COPYRIGHT LAW - The nature of copyright law

The ultimate purpose of copyright law is to stimulate creation and dissemination of as many works of authorship as possible, in order to benefit the public. Copyright law does this by giving creators of works of authorship LIMITED rights in their works. Copyright protection is limited to an author's particular method of expressing an idea. Copyright never gives rights in the idea being expressed, or in facts or other elements of the public domain that the author may have incorporated into the work.

ANTICIRCUMVENTION AND DIGITAL RIGHTS MANAGEMENT PROVISIONS - Anticircumvention provisions: Exceptions

There are some narrowly drawn, specific exceptions to DMCA liability to accomodate reverse engineering of software to achieve interoperability, law enforcement activities, good faith encryption research, and security testing of computer systems or networks.

THE COPYRIGHTED WORK - Unlawful appropriation: Literal vs. nonliteral similarity

There are two types of substantial similarity that may lead to a finding of infringement: 1) literal similarity; and 2) nonliteral similarity (similarity in the works' underlying structure or arrangement). In the case of LITERAL SIMILARITY, the AMOUNT of copying necessary to find infrigement depends on how important the copied material is. The more important the material, the less must be copied. In the case of nonliteral similarity, the main problem is distinguishing uncopyrightable idea (which may be copied) from copyrightable expression of idea. As a general matter, the more DETAIL that is copied, the more likely it is that copyrightable expression, rather than just the underlying idea, has been taken. Judge Hand's ABSTRACTIONS test is often used in drawing the line between idea and expression in this context. Nichols v. Universal Pictures Corp. (2d Cir. 1930). LH: We have to decide how much, and while we are as aware as any one that the line, wherever it is drawn, will seem arbitrary, that is no excuse for not drawing it; it is a question such as courts must answer in nearly all cases.

IX. THE EXCLUSIVE RIGHT TO DISPLAY THE COPYRIGHTED WORK PUBLICLY - What constitutes a public display

To DISPLAY a work is to show a copy of it, either directly or by means of a film, slide television image, or any other audiovisual work, to show individual images nonsequentially. s 101. A computer operator who stores an image as electronic information and then serves that information directly to Internet users displays that information. However, it does not constitute a display merely to link to or frame electronic information that resides on a different computer. A display is PUBLIC under the same circumstances in which a performance is public.

THE COPYRIGHTED WORK - Unlawful appropriation

To ascertain whether the D's copying amounted to an unlawful appropriation, one must determine whether the D's work is substantially similar to the copyrightable expression in the P's work. This evaluation usually is made from the standpoint of the average member of the intended audience for the copyrighted work. Under the Arstein AUDIENCE test, the evaluation is a SUBJECTIVE one, based on the OVERALL IMPRESSION of the average member of the intended audience. Similarities in uncopyrightable elements cannot support a finding of unlawful appropriation / substantial similarity, although similarities in the selection and arrangement of uncopyrightable elements can. The fact that the D's allegedly infringing work contains expression that the copyright owner's lacks, or varies from the copyright owner's in some aspects, does not in itself excuse the D from liability. (A D may not excuse himself by showing how much he DIDN'T copy.)

ANTICIRCUMVENTION AND DIGITAL RIGHTS MANAGEMENT PROVISIONS - Anticircumvention provisions: Circumvention

To circumvent a technological measure is to descramble a scrambled work, decrypt an encrypted work, or otherwise avoid, bypass, remove, deactivate, or impair a technological measure without the authority of the copyright owner.

IV. THE COPYRIGHTED WORK

To demonstrate that a D infringed any of the exclusive economic rights, it must appear that: 1) the D's work was COPIED from the P's; and 2) that the works are substantially similar in their EXPRESSION, so that the copying amounts to an UNLAWFUL APPROPRIATION. Arnstein v. Porter (2d Cir. 1946).

VIII. THE EXCLUSIVE RIGHT TO PERFORM PUBLICLY - The meaning of PERFORMANCE

To perform a work is TO RECITE, RENDER, PLAY, DANCE, OR ACT IT, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. Copyright Act s 101. The initial rendition and any further act by which that rendition is transmitted or communicated or made to recur in a performance.

THE PURPOSE AND NATURE OF COPYRIGHT LAW - The nature of copyright law: Property right vs. personal right

U.S. copyright law traditionally has focused on granting authors ECONOMIC RIGHTS in their works. U.S. authors have relied on other areas of law, such as the law of defamation, unfair competition, privacy law and contract, to protect their PERSONAL INTERESTS in being identified as the author and in protecting their reputation as an author. By contrast, many countries have fashioned their copyright (or AUTHORS' RIGHT) laws to extend such personal rights, along with economic rights. After ratifying the Berne Convention, Congress amended the U.S. Copyright Act to provide personal rights (MORAL RIGHTS) in connection with a narrow category of subject matter denominated WORKS OF VISUAL ART.

THE EXCLUSIVE RIGHT TO DISPLAY THE COPYRIGHTED WORK PUBLICLY - Exception to the exclusive rights of public performance and display - transmissions received on home-style receivers

Under Copyright Act s 110(5), performance or display of a copyrighted work BY TRANSMISSION to a place open to the public or where the public is gathered, on a single receiving apparatus of a kind commonly used in private homes, will not infringe unless a direct charge is made to see or hear the transmission. Congress has amended this s 110(5) exception to give commercial establishments GREATER LEEWAY TO PERFORM NONDRAMATIC MUSICAL WORKS by public reception of radio and television transmissions to the general public. Under the amendment, stores that are smaller than 2,000 square feet and restaurants and bars that are smaller than 3,750 square feet may play radio and television transmissions of nondramatic musical works, regardless of the type of receiver or number of speakers they use. Establishments that are larger than the specified square foot limitations are also exempt from liability if they use no more than 6 speakers or 4 televisions with screens smaller than 55 inches. (There are further limitations on the placement of the speakers and televisions.) A World Trade Organization dispute resolution panel has held the amendment described above to be in violation of the U.S. international treaty obligations.

THE EXCLUSIVE RIGHT TO REPRODUCE THE WORK - Exception to the exclusive right to reproduce - computer programs

Under Copyright Act s 117, the lawful OWNER of a copy of a copyrighted computer program may reproduce the program, if the copying is and essential step in utilizing the program in a computer or is for archival purposes only. Section 117 also provides that hte OWNER OR LESSEE of a computer may temporarily copy a computer program if the computer is lawfully programmed with it, and copying is necessary and solely for purposes of maintaining or repairing the computer.

THE SUBJECT MATTER OF COPYRIGHT - Categories of protectable works of authorship: Copyright for fictitious characters

Under the more widely accepted rule, fictitious characters are entitled to separate copyright protection, apart from the work in which they appeared, if the author very distinctly delineated them. When the character has a visual aspect as well as personality characteristics described by word and story line, courts have been more willing to find copyright protection. (The less widely applied standard that would be applied only in the case of characters without a visual aspect, if then, is the STORY BEING TOLD standard. The character will be separately protected only if he or she constitutes the story being told, and is not just a vehicle for telling the story.)

DIRECT AND INDIRECT INFRINGEMENT - Vicarious infringement liability

Vicarious liability may be found whenever the D has 1) the right and ability to control or supervise the direct infringer; and 2) a direct financial interest in the infringement. It is not necessary that the D know of or participate in the direct infringement.