Copyright Infringement

Question 1

copyright

Answer 1

a property right comprised of a set of legally enforceable privileges; set for a limited term (life + 70 years), established by the Copyright Act (law, 1976); creators of artistic work;

privileges vary depending on type of creation:

1. creator of artistic work the right to reproduce copies
2. distribute for sale
3. create derivative works
4. display the original in printed form

“Life, liberty, and the pursuit of property”: preamble that allows for copyright law.

There are two prerequisites for copyrighting a work:

1. fixed in a tangible medium
2. original to the creator

Question 2

sound recording

Answer 2

entitled to its own special copyright law;
Compilations. a special arrangement of copyrighted and noncopyrighted materials; the arrangement itself is subject to copyright protection. e.g. Kidz Bop, mixtape.

Question 3

compilations

Answer 3

can be copyrighted (e.g. Kidz Bop, mixtapes)

Question 4

notice of intention to use

Answer 4

allows a grace period of use.

Question 5

public domain

Answer 5

simply, uncopyrighted material for public use.

Question 6

caveat imptur

Answer 6

“buyer beware”.

Question 7

patent

Answer 7

protects useful inventions that include processes and mechanisms

Question 8

song

Answer 8

a musical work (not defined under copyright law); generally constitutes song itself, not recording; contributors have a fractional share in the product if there is no prior agreement.

Question 9

Copyright Act

Answer 9

regularly refers to a phonorecord (CD, tape, DVD, etc.). To register a song:

unpublished: need one copy,
published: need two identical copies.

Question 10

impoundment

Answer 10

forcefully removing and limiting access to;
statutory damages: each act of infringement is deemed a value between $750 and $150,000, punitive fees (attorney costs and fees) are also compiled based on willingness of actions on behalf of the infringement (mens rea: requisite mental state for willful action).

Question 11

Fair use

Answer 11

There are certain authorized uses of copyrighted material, including education and parody.

Question 12

Digital Audio Recording Act (DART)

Answer 12

Requires manufacturers and importers of recording devices to the US to pay a set percentage of royalty to licensing divisions of copyright office.

Question 13

Establishment of ownership/interest of copyright

Answer 13

copyright must be recorded in copyright office;
prompt registration is always better (prompt and correct);
establish act of copy;
access (of the infringer to the work of the plaintiff) and substantial similarity needs to be shown to have a case.

Question 14

Access

Answer 14

reasonable probability that the composer of defendant song heard or saw printed version of plaintiff song before writing defendant song..

Question 15

Substantial similarity

Answer 15

Comparison of the lyrics, chorus, melody, etc. of each piece.

Question 16

“independent creation”

Answer 16

Defense that defendant’s song was made separate and distinct from plaintiff’s song. This is true even when access is not there. Some arguments for “independent creation” include:

musical training;
prior success (and thus, no reason to steal);
expert testimony of similarities between many works of the same genre (e.g. Grunge);
expert demonstration of prior writing of this material.

Question 17

Injunctive relief

Answer 17

court order preventing further creation/distribution of infringing work

Question 18

statutory damages

Answer 18

calculated by number of acts of infringement.

Question 19

punitive fees

Answer 19

attorney fees, etc.

Question 20

“striking similarity doctrine”

Answer 20

expert opinion that there must have been access by the defendant to the plaintiff’s song.

Question 21

damages

Answer 21

loss of goodwill, image, product placement (usually challenged by defendant as being “speculative”).

Question 22

sampling

Answer 22

using portions of protected materials in original material, while retaining enough of original material to identify original work.

Question 23

breach of contract

Answer 23

alternative way to make a case.

Question 24

indemnification provision

Answer 24

requires firm, written agreement; covers cost of lawyers, possible suits.

Question 25

unfair competition

Answer 25

alternative way to make a case.