Copyright Flashcards
Where does Congress’ CR power come from
Const. Art. 1, § 8
“Promote the progress of sciences and useful arts, by securing for limited times to authors and inventors the exclusive right tot he repsoctive writings and discoveries”
What CAN be CR?
- Anything that is fixed in a tangible medium of expression
- sufficiently perminent for a period of more than a tansitory duration
CR must be a(n) ____ work.
Original work
CR: Creative Element
A CR must have some sort of creative element
- the threshold of creativity if very low.
What CAN be CR: Examples
1) literary works
2) Musical works
3) dance/choreography
4) pictorial, graphic, and sculptural works
5) sounds recourdings and audio/visual works
6) letters
7) Lectures and speeches
What CANT be CR?
1) Ideas, themes, bare plots
2) non-creative titles, slogans, words, etc.
3) methods, systems, formulas, equations
4) Scenes A faire
5) facts/news events
6) research (Sweat of Brow)
Scenes a Faire definition
A scene in a book or film which is almost obligatory for a genre of its type
Ex: Spy movies will all have gadgets and Westernns will all have outlaws
CR: Characters Test
Total Concept and Feel:
-Assess the total concept and feel of the work (plot sequence, pace, characters), not just the differences
2 components of a CR case
1) the CR work
2) the allegedly infringing work
Is research protected by CR?
NO!
Derivative works definition
A work based on or derived from one or more alreadyexisting works
CR: Character Test
1) Sam Spade Test
2) Chracter Delineation Test
Sam Spade Test
Look at what the story being told is
Character delinetion Test
Fictional chacter is CR is it contains the same characteristics
Who owns the CR: General Rule
The creator of the work is the original owner of the CR
Work made for Hire Definition
1) Works created by an employee within the scope of employement;
OR
2) Specially ordered or comision works that fall into one of 9 categories AND the parties agree in writing that the work is one made for hire
Who owns a Work made for hire?
The Employer
9 Categories of work made for hire
1) contribution to a collective work
2) part of a motion puctyre or other audiovisual work
3) translation
4) supplementary work
5) compilation
6) instruciton text
7) test
8) answers material to test
9) atlas
CR: Joint Works definition
a work prepared by two or more individuals, with the intention that their separate contributions be merged into a single work.
Joint Work elements
1) intent to merge contributions
2) two things either inseperable or interdependent
3) both works must be individually CR
CR Joint Work: Inseperable definition
Parts have little or no independent meaning standing alone
CR Joint Work: interdependent definition
Parts achieved their primary significance because of combined effect
Duration of CR Protection DATE
on or after 1/1/1978
Duration of CR Protection: Individual
- life of author + 70 years
Duration of CR Protection: Joint authors
Whoever dies last + 70 years
Duration of CR Protection: Works made for hire OR No identifiable author
95 years after first publication OR 120 years after creation
- Whever date expires first!
When is a CR created?
CR exisst from the time of the works creation
- no registration is needed to have a CR
Work made for Hire: How to determine whether an individual is an employee?
Common Law of Agency
Exclusive Rights of CR holder
1) Reproduce the work
2) Prepare derivative works
3) Distribute copies to the public by sale or other transfer of ownership, or by rental, lease, or lending
4) perform or display the work publicly
5) digitally transmit sound recordings
What constitutes a public performance
1) performance/display in a public place OR substantial number of people
2) transmits or otherwise communicates a display
Exclusive rights of collective Works
1) reproduce ENTIRE collevetive work
2) any revision of collective work
3) any later collective work in the series
Can exclusive rights be given away?
YES
Methods to protect a given work
1) Copyright notice: Copyright (c) by J. young
2) Register the work with the U.S. Copyright Office
3) Do nothing (CR vest upon creation)
Transfer of CR ownership must be in ______.
writing
WHEN may a work by registered?
A work can be registered at any time
In order to recover statutory damages and/or attorney’s fees, when must a work be registered
1) before infringement
OR
2) within 3 months of first publication
Non-exclusive license definition
grants to the licensee the right to use the intellectual property, but means that the licensor remains free to exploit the same intellectual property and to allow any number of other licensees to also exploit the same intellectual property.
Exclusive License
means that no person or company other than the named licensee can exploit the relevant intellectual property rights.
How must a license be recorded?
Non-exlusive: not in writing
exclusive: Writing
CR Infringement Elements
1) is the work or its components CR?
2) is the CR still valid?
3) did the ∆ have access to the work?
4) Are the two works the same or substnatially simliar?
CR Infringement: Inverse Ratio Rule
More access to a CR work can show infringement, even if there is not a substantial simliarity, and vice versa
CR Infringement: Substiantial simliarity
What is the general idea or theme of each work?
- plot
- mood
- characterization
- pace
- setting
- sequence of events
Contributory Infringement definition
Causing or materially contributing to infringing conduct of another, with knowledge of the infringing activity
Contributory infringement elements
1) knowledge of ingringement (constuctive or actual)
2) materially contributing to infringing act of another
Vicarious Infringment Definition
Infringement by one over whom ∆ has a right and ability to superivse, along with ∆ direct financial interest in the infringement
CR is a ______ _______ claim
Strict liability
Fair Use definition
any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner.
Fair Use balances…
Balances the authors right to money with the publics interest in its use
Fair Use (4) Factors
1) purpose and character of use
2) the Nature of the CR work
3) the amound and substantiality of the portion used in relation to the work as a whole
4) the effect of the use on the potential market for or value of the CR work
Fair Use: Prupose and Character of use
More likely to be fair use if its non-commerical or non-profit
Fair Use: Nature of CR work analysis
1) is the work informational or creative?
2) Is the work published or unpublished?
3) is the work still commerically available?
Fair Use: Effect of use on market
Looks to harm to π
- Shoul dshow tha tif the challenged use should become widespread, it would adversly affect the potential market for the CR work
Fair use is a(n) ______ ________.
Affirmative Defense
What determines commerical use
Repeated and exploitative copying of CR work, even if the copies are not offered for sale, may constitute a commerical use
- A direct economic benefit is not required.
Preemption Definiton
CR Act preempts all legal or rquitable rights that are equivalent to any of the exclusive rights of CR law
Preemption: What type of suit can be brought for CR infringement?
CANNOT bring state law claim that are equivalent to what is protected by CR law
- either subject matter or exclusive rights
Preemption 2 step analysis
1) does teh work at issue fall within the subject matter of CR law? (answer nearly always yes)
2) Are the rights available under state law equivalent to whats protected by CR law?
- Is there an EXTRA element in the state law case
Preemption: How can you bring a state law claim
the state law has to have an extra element that is not covered by CR law
Damages available for CR Infringment
1) injunctive relief
2) Actual Damages
3) Statutory Damges
4) Attorney’s fees
types of Injunctive relief
1) order STOPPING a certain action (more common)
2) Order to PERFORM a certain action
Injunctive relief elements
1) a substnatial likelihood of success on the merits
2) a substantial threat of irreparable injury if the injunction were not granted
3) that the threatened injury to the π outweighs the harm an injucntion may cause the ∆
4) that granting the injucntion would not deserve the public interest
Actual damages
- Determined by the fact finder
- lost royalties
- lost profits
- the profits made by the infringer
Statutory damges availibility
- only available if the work is timely registered
- $750-$30,000 per work infringed
Attorney’s Fees availibility
only available if timely registered
Protection of Ideas
- Generally not protected by CR
- BUT, one can protect ideas through contract (express/implied) or other state law causes of action
