PPT 28 - Intellectual Property Rights: Copyrights
Copy
Any material object (other than a phonorecord), in which a work is fixed Ex's) written lyrics, written musical score, books, magazines, etc.
First Sale Doctrine: Physical Object vs. IP embodied on the object
Copyright Owner can determine how, when and where to distribution the FIRST sales of the work, but once a copy has been sold/distributed, the copyright owner no longer controls the physical object. (The original sale is deemed to exhaust the economic interest in the IP.) HOWEVER, the copyright owner RETAINS rights to the copyright interest in the original creative expression EMBODIED on the physical object. Therefore, no additional "copies" of the work can be made.
When Does Copyright Begin?
Copyright begins at the moment an original work is fixed in a tangible medium.
Literary Works
Copyright granted to arrangement of words that author uses to express ideas Types of Works Protected as Literary Works: - Virtually anything that is written. This includes software programs, video games, etc. NO PROTECTION FOR: - Individual words - Ideas - Work's theme - Work's Plot - Factual Info - Other non-original "common" elements
Copyright Protection for Architectural Works is LIMITED:
Copyright in an architectural work that has been constructed does NOT include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.
Fair Use Doctrine: Policy
Encourage creative activity that may ENRICH society.
Paraphrasing and Copyright
Copyright includes BOTH verbatim copying AND mimicry of expression, presentations and organization of content, etc. - Note: Statutory Exception for sound recordings = mimicry is OK If you paraphrase a movie line and put it in your work, you have to be very careful that could be copyright infringement Even just paraphrasing someone from just normal conversation could be infringement
Public Display Right Example
Jenna makes wonderful art to Kenny. He then hangs the painting in his store. He is therefore public displaying her painting. Her public display rights are limited in that kenny is only publicly displaying it to people in his store not to the overall public. If he had filmed a commercial then people who aren't physically present to see the painting, which would be breaking the public display rights.
Registration of Copyright
Not required, but can be beneficial Owner must register the copyright with the US Copyright Office BEFORE filing suit In the event an infringement lawsuit arises, a copyright owner who registers WITHIN THE CORRECT TIME PERIOD can be awarded statutory damages and/or attorneys fees
Visual Notice
Not required, but may be beneficial Use of visual copyright notice "© 2019 Karen Maull" Beneficial because: 1) Notice informs public work is protected, and identifies the year of first publication and the owner 2) In the case of an infringement , the notice prevents infringer from raising defense of "innocent infringement" Willful infringers have a greater scale of things they will have to pay for. When you put a copyright notice on your work whoever takes that copyright interest without allowance they become a willful infringer
Requirements of Copyright Act: Fixation
"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 copyright owner, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Embodiment of the expression in ANY tangible object satisfies the fixation requirement Types of Material Objects in which Expressions are Fixed = Phonorecords and Copies
Enablement - US Constitution Article 1 Section 8 Clause 8
"Congress shall have Power . . . To promote the Progress of Science and Useful Arts, by securing for limited times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries."
Limitations on Exclusive Rights: Fair Use Exception
"Notwithstanding the provision of [Copyright Act] sections 106 and 106A, the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching. . . , scholarship, or research is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-" The Four Factors: 1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes 2) The nature of the copyrighted work 3) The amount & substantiality of the portion used in relation to the copyrighted work as a whole 4) The effect of the use upon the potential market for or value of the copyrighted work
Copyrightable works include "Intangible Expression" EMBODIED in
*Book *Magazines *Newspapers *Scripts *Speeches *Correspondence *Product Packaging *CD *DVD *Phone record *Movies *Television shows *Theater Productions *Videos *Photos *Paintings *Drawing *Sculpture *Architecture
Copyright vs. Trademark vs. Patents
*Copyright* - Protects original creative expression fixed in a tangible medium - Protections begins AT moment of fixation - Duration of protections: Natural Persons - Life plus 70 years; Work made for hire - shorter of 1) 95 years from date of publication OR 2) 120 years from date of creation (copyright for a work made for hire expires in the year that comes first) *Trademarks* - Protects word, name, symbol, or device to identify goods or services & distinguish them from those made or sold by others - Protection begins when mark is 1( deemed distinctive as a source indicator & 2) "USED" in commerce - Protected forever SO LONG AS a source indicates mark remains significant to public *Patents* - Protects inventions, discoveries, & designs - Protection begins ON date of FILING with USPTO IF USPTO grants protection - Protected for 20 years for utility patents, 15 years for design patents
Copyrights in Digital Information: One act of file sharing can constitute infringement of multiple rights
*Each time a computer file is shared online, it must be "copied." *Creation of Unauthorized copies = INFRINGEMENT of copyright holder's "Reproduction Right" *Sharing of Unauthorized copies = INFRINGEMENT of copyright holder's "Distribution Right" *Public Display of Unauthorized copy = INFRINGEMENT of Copyright holder's "Display Right"
Items that are NOT Copyrightable
- Anything NOT "fixed" in a tangible form - Titles, names, short phrases, slogans; familiar symbols or designs; mere variation of typographic ornamentation, lettering, coloring; mere listing of ingredients or contents - Works consisting entirely of information that is common property containing no original authorship (examples: standard calendars, height and weight charts, tape measure and rulers, lists or table taken from public documents or other common sources) - Works authored by the U.S. government. - Works that have passed into the public domain
Important Provisions of DMCA
- Civil and criminal penalties for those who bypass antipiracy software protections; - Prohibits manufacture, import, sale, and distribution of technology and services that bypass antipiracy protections - Limits the liability of ISP's (Internet Service Providers): -- ISP is NOT liable for any copyright infringement by its customers UNLESS the ISP was AWARE of infringement AND failed to take steps to stop the infringement
Pictorial, Graphic, and Sculptural Works
- Copyrightable so long as they contain original expression. - Cannot be a "Useful Object."
Exceptions to Copyright Infringement
- Fair Use Exception - First Sale Doctrine (in earlier study cards)
Registration Time Period to Preserve Rights to claim Attorney Fees and Statutory Damages:
1) Before Infringement OR 2) Within 3 months after the first publication of the work
Remedies for Copyright Infringement
1) Tort Damages (Actual OR Statutory Damages) 2) Injunctive relief (If monetary damages are deemed inadequate) 3) Criminal fines &/or imprisonment IF infringer is deemed "willful"
Limitation on Exclusiv Rights - Fair Use Exception: Four Factors extra notes
1)example When a second derivative work is so Highly transformative (such as a parody) works are usually deemed fair use 2)Is the person trying to make money or just for educational purpose, not a clear rule but usually financial nature leans more to no fair use. Also, works of fiction are more protected than fact 3)Looks at how much the 2nd gen take or if they took the heart and soul of the work. 4)Ask whether or not 2nd gen will likely or not impair the market for the first gen work. Rap vs classical music wouldn't likely impair the market. But if the 2nd gen was also classical then that could impair the original. Note: WE DO NOT CARE WHETHER OR NOT EITHER THE ORIGINAL OR 2ND GEN WAS POPULAR OR FAMOUS FOR THE FAIR USE TEST.
Who is the "author"? Works Made for Hire: § 201 (b)
An employer owns the copyright in any work made by an employee within the scope of his/her employment. The employer is considered to be the "author," not the employee/creator.
Structure of Copyright Act - Chapter 1
1.Definitions 2.Subject Matter of Copyright and works of Authorship 17 USC §§ 102-103; 3.Rights of Authors 17 USC § 106; 4.Limited Moral Rights for certain defined works of Visual Art; 5.Statutory exceptions to Copyright 17 USC § 107 (Fair Use) - §122.
Derivative Works:Copyright Ownership and the Public Domain
If a first generation work enters the public domain, 2nd generation creators are free to use the first generation work without permission.
Public Display Right: Limitations on Copyright Owner's Rights
An owner of a copy MAY display the copy to the public as long as 1) The copy is LAWFUL 2) The display is either a DIRECT display or a display of the projection of a single image at a time 3) The display must be made to viewers PRESENT at the location of the copy (no transmissions permitted)
Copyrights - Subject Matter - § 102
17 USC Section 102(a): Subject matter of copyright: In general (a) Copyright protection subsists, in accordance with this title, 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. 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. "Copyrightable works INCLUDE but are not limited to..."
Copyrights - Exclusions - §102(b)
17 USC Section 102: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. (Exclusion has been interpreted to include facts, although facts are not explicitly listed).
The Rights of Authors in Copyright §106
17 USC § 106. Exclusive rights in copyrighted works Subject to sections 107 through 122 [17 USCS §§ 107 through 122], the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Derivative Works
A "derivative work" takes a 1st generation work and recasts, transforms, or adapts that expression in an original way to create a new 2nd generation work. A second generation creator MUST get PERMISSION (a license) from the first generation author to create a derivative work. If someone wants to make a new Harry Potter sequel that person would have to ask JK Rowling permission for derivative work. If allowed she has created a 2nd gen work that she can copyright but only of her own original expressions to the ones she added to JK Rowlings original expression.
Reproduction Right
A copyright owner has the exclusive right to reproduce (or to license others to reproduce) the copyrighted work.
Copyright
A form of property ownership that gives creators and owners of creative works the right to control and profit from use of those works
Phonorecord
A material object in which sounds are fixed and from which the sounds can be perceived, reproduced, or otherwise communicated either directly or with the aid of a machine or device. A phonorecord may include a cassette tape, an LP vinyl disc, a compact disc, or other means of fixing sounds. EXCLUSION: A phonorecord does not include those sounds accompanying a motion picture or other audiovisual work.
Pictorial, Graphic, and Sculptural Works: Photographs
A photo is copyrightable if it is original in: A) Rendition (angle of shot, light and shade, exposure, effects achieved by filters, and developing techniques B) Timing (selecting when to take the photo) C) Creation of the subject (choosing what to include in the photo)
Question: Statutory Damages Frank downloaded 100 movies from the internet. Frank was aware that downloading movies from the sites he used was illegal. Assuming a court determines that Frank is a willful infringer, what are the maximum damages a court may order Frank to pay? A) 100 x $150,000 = $15,000,000 B) 100 x $30,000 = $3,000,000
A) 100 x $150,000 = $15,000,000 Because he must pay for each infringed work & he is a WILLFUL INFRINGER and therefore the maximum payment may be $150,000 per infringed work
To win a copyright infringement action, the copyright owner must prove:
A) Ownership of a valid copyright in the work that is the subject of the dispute B) Defendant copied the work C) The Defendant's copying was an improper appropriation.
Copyright Act
Act that defines the protection provided to authors of 'original works' to exclude others from printing or otherwise duplicating, distributing, or vending copies of their literary, artistic, and other creative expressions, including through the various means of technology.
Motion Picture and other Audiovisual Works
All are copyrightable so long as composition is Original and "fixed" in a tangible medium.
Derivative Works: Copyright Ownership
Assuming the 2nd generation creator receives permission (a license) to create the derivative work, - The copyright holder of the 1st generation work continues to own the copyright in all copyrightable elements from the 1st generation work - The creator of the 2nd generation work only owns copyright in his/her ORIGINAL creative contributions If a 3rd gen wants permission he/she has to ask first JK for the allowance and then the 2nd gen. (it has to be accepted by both, but first the 1st gen)
Question: Copyright Duration In the year 2000, Maya wrote a book. Maya died in 2010. In what year will Maya's copyright protection expire? A. 2070 B. 2080 C. 2095 D. 2120
B. 2080 Basic Term = Life of author + 70 years
Question: Copyright Duration Penn State Motion Picture Studios hired Sebastian as an employee to create a film. Sebastian created the film "Penn State Memories" in 2000. The studio first distributed the film later in the same year. In what year will Penn State Motion Picture Studio's copyright in the film expire? A. 2070 B. 2095 C. 2120
B. 2095 Alternative Term: Shorter of 95 years from publication OR 120 years from creation In this case 95 years from publication was shorter because it was created and published in the same year
Question: Copyright Matt is an improvisational comedian. His work is completely spontaneous, and he never writes down his jokes. Each performance is fresh and new. On Saturday night, Matt performed live at Eisenhower Auditorium. The performance was not recorded. Can Matt receive a copyright in the jokes he uses in the performance? A.Yes B.No
B. NO There is no fixation here, if the creator does not authorize recording of these improv then they were never fixed in a tangible medium & therefore he cannot receive a copyright NOTE: Had Matt not allowed any recording and someon recorded him, he could NOT claim copyright & NEITHER could the filmer because she is not the author of the work
Exception for COMPILATIONS of FACTS
Bare Facts = NOT Copyrightable COMPILATION OF Facts = SOMETIMES copyrightable but ONLY IF expression is ORIGINAL
Question: You own a store that uses a highly stylized "+ " (a stylized image will be shown in class) sign for its logo. This logo is an original design. In addition, the logo for your store has become very well known -- when customers see this logo they immediately think of your store. You want to make sure no other store owner uses your logo. You wish to protect your IP rights. What form(s) of protection would be the most appropriate for you? (Choose all answers that apply.) A.Trademark B.Patent C.Copyright
Both Trademark and Copyright Additional Question: What if you took that highly stylized plus sign and put it on the back of a chair, now you could file for a design patent, but not a utility patent because if it is protected by copyright you then can't have it protected by utility patent
Question: Copyright Danielle lives in New York. Jessica lives in Los Angeles. The two have never met, do not share any acquaintances, and are unfamiliar with one another's work. If Danielle and Jessica independently create identical books, who can receive a copyright in the work? A.The first to create the work B.The first to register for a copyright C.Both Danielle and Jessica D.Neither Danielle nor Jessica
C. Both Danielle and Jessica Both can claim copyright protection of their work because copyright doesn't need to claim novelty unlike patents which do
Copyright's Pervasive Influence
CD Web Books Mags Software Movie With YOU in the center
Question which of the following forms of IP protections is most appropriate to protect a movie script that you wrote? Trademark Patent Copyright None - mere "ideas" can't be protected
Copyright because it is more than a mere idea
Copyright and Registration
Copyright A) Notice & B) Registration - Are NOT REQUIRED, but do offer benefits
When does Copyright Infringement Occur?
Copyright infringement occurs when the defendant copies WHOLE OR PART of the copyrighted work without the copyright owner's permission.
Sound Recordings
Copyright interest in SOUND RECORDING is SEPARATE from copyright interest in the underlying MUSICAL WORK.
The Distribution Right
Copyright owner has the EXCLUSIVE right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending."
Copyright Infringement: Damages
Copyright owner is entitled to damages for EACH infringed work For example, if an infringer infringes 22 songs, the copyright owner is entitled to damages for EACH song. - The infringer may be liable for multiple acts of infringement in relation to EACH work -- Ex) infringer violates copyrights holder's (or holders') Performance Right and Reproduction Right = TWO Infringements
Remedies for Copyright Infringement: 1) Actual damages
Copyright owner must establish proof of "actual damages" - how much loss did copyright owner actually suffer.
* The Public Performance Right § 106 (4) And The Performance Right in Sound Recordings § 106 (6) (Class Discussion)
Don't need this
Why is Copyright Difficult to Understand
EXPECTATIONS
Question: Copyright What is the firs issue of copyright infringement
First issue of copyright infringement is figuring out what was the status of the author - that of independent author or emplyee made for a work that is higher - the copyright duration is: If it was group made then it is the life of the last living group member plus 70 years
Fair Use: Case Example 7.15 Google books and Hathitrust
Google came up with plan to digitize every book on earth. The pulled books from libraries and federal libraries and made them into digital form without consent of authors. Also made a search database for this. Hathitrust did the same thing almost but the dif was with Hathitrust gave much less when looking for key search terms Authors filed lawsuits to both companies but the courts determined for both that they were highly transformative (could look for key terms but only see part of the book), increased the market for the original book, they didn't care about factor 2 or 3. So they were deemed fair use
In Class Example of Idea vs Expression
Idea (not protected) - Terrorists take over the White House Expression (Protected by Copyright) - Olympus Has Fallen (Movie Trailer) & White House Down (Movie Trailer) - The two movies were different in the movie trailers in the premise of the main characters
Requirements of Copyright Act: Expression vs. Idea
Ideas are NOT PROTECTED Expression: - Copyright only protects the EXPRESSION of the author's idea when it is fixed in a tangible medium
Requirements of Copyright Act: Originality
Independently Created by the author, not copied At least some minimal degree of CREATIVITY required Greater Protection = Fictionalized Works Less Protection = Works of Fact Novelty is NOT REQUIRED
Remedies for Copyright Infringement: 2) Statutory Damages: Potential Damage Award for each infringement
Innocent Infringers: Tort Proceedings - Award for each infringed work: -- Minimum: $750 (Court MAY reduce min to $200 IF infringer proves both innocence AND belief he had a RIGHT to use the material - very tough standard to meet) -- Maximum: $30,000 - Injunctive Relief possible Willful Infringers: 1) Tort Proceedings - Award for each infringed work: -- Minimum: $750 -- Maximum: $150,000 2) Criminal Proceedings Also Possible - Fines and/or imprisonment - Injunctive relief possible in EITHER tort or criminal proceedings
Copyright: Type of "Property" Protected
Intangible Property
File Sharing via P2P Networking and/or Cloud Computing & Napster and Grokster cases (class discussion)
MAY CONSTITUTE COPYRIGHT INFRINGEMENT if sharing is not authorized by copyright owner! Napster and Grokster cases (class discussion): - Napster came first, started up a company creating software and permitted users to download the software onto their computers. The purpose of the software was to allow users to make copies of any music on the internet - They got sued by artists and lost bc they had contributed to copyright infringement - Grokster came along, users gave the company a tiny bit of code in computer with thousands of others too. Peer to peer network allowed users to download any music. They also lost for the same reason as napster.
Musical Works: Lyrics, music, melody, harmony, etc.
Musical Work can be copyrighted Sound Recording = can be owned by someone else
Question: First Sale Doctrine You, the consumer, can rent DVD's from Redbox. Each time you rent a DVD, do you have to pay the copyright owner? A.Yes B.No
NO
Are sound recordings protected to the same extent as other works?
NO Sound recordings are offered less protection than other works
Question: Copyright copy Sumukh purchased Michael Jackson's "Thriller" album on CD. Sumukh made a copy of this CD for his personal use. Has Sumukh infringed on the Jackson estate's copyright in the CD? A.Yes B.No
NO because the AHRA allows consumers to make digital copies of copyrighted music for private non-commercial use using DIGITAL audio recordings
Copyright Infringement
Occurs when a third party violated one or more of the copyright owner's exclusive rights listed in §106
Copyright Protection
Original works of authorship (expression) fixed in a tangible medium => Now known or later developed => Can be perceived, reproduced, or otherwise communicated => Directly or with the aid of a machine or device
Requirements of Copyright Act:
Originality Fixed in a Tangible Medium Expression vs. Idea
Architectural Works
Plans/Blueprints: Protected as EITHER - "Architectural Works" OR - "Pictorial, Graphic, and Sculptural works" 3-D Build (Actual Constructed Building) - Protected as "Architectural Works" - Copyright Protections ONLY for buildings constructed AFTER 1990 -
First Sale Doctrine
Requires: 1) The copy be lawfully made AND 2) That the initial public distribution be authorized
Exception to Reproduction Right: Audio Home Recording Act (AHRA)
The "Audio Home Recording Act" allow consumers to make digital copies of copyrighted music for private, non-commercial use using DIGITAL audio recordings (CD's and MP3's).
WIPO and the Digital Millennium Copyright Act(DMCA)
WIPO = "World Intellectual Property Organization" WIPO Treaty: International Treaty designed to provide greater international copyright protection. DMCA (Digital Millennium Copyright Act) = U.S. law that implements the WIPO treaty
Copyright: Tension and Challenge
The main challenge is the public always wants free access to copyrighted things Secondary Challenge: Innovation - It's a law that has been written broadly enough to encompass situations now but also ones we haven't seen yet possibly
Public Display Right
The public display right gives copyright owners the exclusive right to display/show their works to the public. Only an image displayed in PUBLIC can be infringed under the Public Display Right. - If an image is only displayed in private, no infringement of the "public display right" can occur
Copyright Infringement: Test for Copying
To prove the defendant "copied" the work, the plaintiff must prove EITHER 1) Direct evidence of copying OR 2) Indirect (circumstantial) evidence of copying proved by meeting both elements of the following test: -- A) Access AND -- B) Substantial similarity
Who Owns Original Copyright? Works Made for Hire vs. Other Works
Work Made for Hire: - Employer, not Creator, owns original copyright - § 106 Rights apply EXCEPT Termination Right § 203 (you are not required to learn about the Termination Right for this class) - Free to assign or transfer copyright interests - Duration: shorter of 1) 95 years from publications OR 2) 120 years from creation Other Works: - Creator owns original copyright - All § 106 Rights apply - Free to assign or transfer copyright interests - Duration: Life of last surviving author + 70 years
Duration of Copyright
Works Created On or After Jan 1, 1978 Date of Protection: When expression was Fixed in a tangible medium Length of Term: - Basic Term = Life of Author + 70 Years - Alternative Term: (for anonymous/pseudonymous works AND works made for hire) = Shorter of : a) 95 years from publication OR b) 120 years from creation -- Step 1: complete the calculations required in a) and b) above; -- Step 2: Select the year that arrives first - they copyright for a work made for hire expires in the earlier of the two years
Question: Copyright Infringement Lydia created a beautiful drawing of the Bald Eagle forest in autumn. Lydia sold her drawing in stores downtown. Dylan loved Lydia's drawing, purchased a copy, then made a photocopy of the drawing. He hung the drawing in his bedroom and no one else ever saw the drawing. Has Dylan infringed Lydia's copyright? A.Yes B.No
YES, Dylan infringed Lydia's copyright Note: If on the test it says it is a sound recording then it is NOT infringement, but anything more than a sound recording is copyright infringement
Question: infringement Did Fairey infringe on any copyright interest when he created the poster? - This is a side by side picture of Obama and a edited picture with "Hope" under his face A. Yes B. No
Yes, the artist who made the Obama art of the picture never asked for permission