Copyright Flashcards
rule and test for joint works
o joint work: when the authors collaborate, or if each of the authors prepared his contribution with the knowledge and intention that it would be merged with the contributions of other authors as inseparable or interdependent parts of a unitary whole
look to the intention at the time the work was done that the parts be absorbed/combined into an integrated unit (Erikson)
Goldstein test: a collaborative contribution will not produce a joint work, and a contributor will not obtain a coownership interest, unless the contribution represents original expression that could stand on its own as the subject matter of copyright
• i.e. must supply more than mere direction or ideas
o ex) giving editorial suggestions to a book – not a co-owner
o ex) an actor giving staging suggestions to a playwright during rehearsals – not a co-owner
• this is the majority, and the minority (Nimmer test) simply says that each author must make a “non de minimis contribution”
in the case of a joint work, the coauthors of the work are likewise co-owners of the copyright
co-owners will be treated as tenants in common – each has an independent right to use/license the use of a work, subject to a duty of accounting to the other co-owners for any profits
• i.e. need not get consent from the co-owner(s)
even if the ptys contractually agree to be written down as co-authors, that can still be challenged in court
collective works
o collective works: here, the elements of merger and unity are lacking, and the authors are simply assembling separate and independent works into a collective whole
the individual authors own their individual parts
the arranger only obtains copyright in the collection as a whole and not in any preexisting material employed in the work
**contrast with joint works
works made for hire
o works made for hire
includes:
• (1) works prepared by employees in the scope of their employment, and
o **independent contractors are not employees
o to distinguish employee from IC, look to the nonexclusive factors of the general common law of agency:
hiring pty’s right to control the manner and means by which the product is accomplished
the skill required
the source of the instrumentalities and tools
the location of the work
the duration of the relationship between the parties
whether the hiring pty has the right to assign additional projects to the hired pty
the extent of the hired pty’s discretion over when and how long to work
the method of payment
the hired pty’s role in hiring and paying assistants
whether the work is part of the regular business of the hired pty
whether the employee gets benefits/special tax treatment
• (2) works specially ordered or commissioned for use as a contribution to a collective work
o so a freelancer’s work only belongs to the publisher/broadcaster when:
(1) it was specially ordered/commissioned,
(2) it was created as a contribution to one of the types of work described in the statute (audiovisual work/ compilation/ instructional text/etc.), and
(3) the parties agreed in writing that it was to be considered a work for hire
**publishers/broadcasters who use the work of freelancers without meeting these conditions hold only rights they have contractually obtained, explicitly or implicitly, from the circumstances of the freelancer’s submission
in works made for hire, the employer is considered the author of the work, and is regarded as the initial owner of copyright unless there has been an express agreement otherwise (i.e. the author is an indep contractor and the agreement is in writing)
• **thus, a media org normally is the initial owner of copyright in publications/broadcasts created by its EEs
note: simply signing a “work for hire” agreement does not make it a “work made for hire” – it must meet the requirements of the statute
copyrights (6)
o rule: the owner of copyright under this title has the exclusive right to do and to authorize any of the following:
pneumonic: Really Don’t Dig Present Day Dinosaurs
(1) reproduce the copyrighted work in copies,
(2) prepare derivative works based on the copyrighted work,
(3) distribute copies of the copyrighted work to the public by sale or other transfer of ownership (leasing, renting, lending),
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures/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/other audiovisual works, 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
**exception: fair use
fair use governing rule
o governing rule: the fair use of a copyrighted work, including such use by reproduction in copies or sound recordings or by any other means outlined in §106, for purposes such as criticism, comment, news reporting, teaching (including multiple copies or classroom use), scholarship, or research is not an infringement of copyright
first two fair use factors
o factors for determining fair use includes:
(1) the purpose and character of the use (including whether such use is of a commercial nature or is for nonprofit educational purposes);
• commercial use weighs against FU - **the crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price (Harper & Row)
• transformative use: one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge (Author’s Guild)
o **will weigh in favor of fair use!
o ex) google book search transforms the use of the books themselves
• **a commercial motivation should not outweigh a convincing transformative purpose and absence of significant substitutive competition with the original (Author’s Guild)
o the more transformative, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use
(2) the nature of the copyrighted work;
• facts are more protected under FU than opinions (Harper & Row)
• the fact that a work is unpublished works against FU
o however, this fact shall not itself bar a finding of fair use if such finding is made upon consideration of all the FU factors
second two factors for fair use
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
• ** must be more than a de minimis use
• no plagiarist can excuse the wrong by showing how much of his work he did not pirate – even if you only took an insubstantial portion of the copyrighted work, if it is the heart of the work, that works against a finding of FU (Harper & Row)
• **what matters is not so much the amount and substantiality of the portion used in making a copy, but rather the amount and substantiality of what is thereby made accessible to a public for which it may serve as a competing substitute (Author’s Guild)
(4) the effect of the use upon the potential market for or value of the copyrighted work
• **most important factor – once the copyright holder establishes with reasonable probability the existence of a causal connection btw the infringement and a loss of revenue, the burden shifts to the infringer to show that this damage would have occurred regardless of the infringement (Harper & Row)
civil remedies for infringement
o (1) injunction
o (2) impoundment/destruction of infringing items
o (3) damages
actual damages + profit of the infringer OR
statutory damages (per infringed work)
• generally $750 - $30k
• can be as low as $200 for innocent
• can be as high as $150k for willful (check cause I thought Mulraine said $250k)
o (4) court costs and attny’s fees
o rule: can ask for all 4, with these exceptions:
you can only ask for actual OR statutory damages
in order to get statutory damages or court costs + attny’s fees, you must have registered the work prior to infringement
