Copyrights

Question 1

5 Types of protections

Answer 1

1. Copyright
2. Patent
3. Trademark
4. Trade Secret
5. Private Contract

Question 2

What are the rightst of the copyright owner?

Answer 2

1. Make copies
2. Derivative works- Based on original work. IF court finds derivative work then plaintiff will win. Think of sequels
3. Exploitation, sell it, license it (a sync license is very specifi - Take sound recording and sync it to the track - copying it over to sync but you also need a public performance to display it theatrically) so need a sync license and a performance license.
4. Right to create
5. The right to perform the work

MDECP

Question 3

Does a copyright create a monopoly

Answer 3

NO

Question 4

Direct Copyright InfringementTest

Answer 4

2 elements to prove copyright infringement:

Substantial similarity

• Substantial similarity is determined by a general comparison of the two works
  
  • A work is substantially similar to a preceding work when it captures the total concept and feel of the first work
  • ordinary observer would view the aesthetic appeal as the same and would recognize the alleged copy as having been appropriated form the original work
• Access (accessibility: is it possible to have access to the copyrighted work?)
  
  • Ex. film released in US = automatic access
  • Access may be shown indirectly by evidence that plaintiff’s work has been widely disseminated
  • Do not necessarily have to show contact between the two.
• More access less similarity and vice versa

Question 5

What are the 2 types of secondary liability for copyright

Answer 5

1. Vicarious Liability
2. Contributory Infringement

Question 6

Vicarious liability Elements for copyright

Answer 6

1. Plaintiff must show that direct infringment occured
2. Defendant has right / ability to control infringing activity; and
3. That there was a direct financial benefit to defendant from copying

Question 7

Contributory Infringement for copyright

Answer 7

Establish claim for infringement:

1. Defendant had knowledge of infringing activity; and
2. Induced, caused, or materially contributed to that infringing activity

Question 8

Does Copyright infringement have to be done intentionally

Answer 8

No it can be done unintentionally or subconsciously

Question 9

Defenses to copyright (List)

Answer 9

1. Lack of access or substantial similarity
2. Claimant has an invalid copyright or failed to file for registration before he sues
3. Materials were in public domain
4. Allegedly infringed materials were subject to fair use
5. Allegedly infringed materials were scenes a faire
6. There was misuse of the subject copyright
7. The claim is federally PREEMPTED. No state claims if they fall within Section 106
8. The claim is within scope of staturoy Safe Harbor Provisions

AI PFS MPH

Question 10

Copyright is exclusive to what jurisdiction

Answer 10

Federal

Question 11

What is a valid copyright

Answer 11

A copyright is an original work of authorship (something creative – write, poet, etc.) fixed in a tangible medium of expression

Question 12

Fixation component of copyright

Answer 12

The fixation requirement is met if the work is sufficiently permanent or stable to permit it to be reproduced for more than a transitory period

Like dancing is not copyrighttable, but the choreagraphy is.,

Question 13

Originality requirement for copyright

Answer 13

Is a very low bar. Any creative spark will satisfy this requirement. Minimal level of origninality.

Question 14

For Copyright originality, must the the thing be novel

Answer 14

NO

Question 15

Are ideas protected for copyright?

What can protect ideas?

Answer 15

No, but the expression of the idea is protected. Ideas can be protected by contract through a non-disclosure agreement.

Question 16

Are facts/research copyrightable

Answer 16

No

Question 17

When does copyright attach

Answer 17

The moment the ink is dry. the moment it is put in tangible form.

Question 18

The author is the owner of the copyrighted work UNLESS

Answer 18

1. Work made for hire: The work is specially ordered or commissiioned for use of a as a contribution to elective work (must have a writtent signed instrument) made for hire -hirign party owns copyright); or 2. The person is an employee acting within the course / scope of employment (employer owns copyright)

Question 19

An employee’s conduct falls within the scope of employment if:

Answer 19

1. It is of the kind the employee is employed to perform/ (is it within job description?) 2. Occurs substantially within authorized time and space limits / (performed during work hours or not?)

Question 20

Factors to determie wheter a hired party is an employee under general common law of agnecy

Answer 20

1. Hiring party’s right to control the manner and menas by which product is accomplished
2. Skill required
3. Souurce of instrumentalities or tools
4. Location of the work
5. Duration of realtinship btw teh parties
6. Whether the hiring party has righ to assign add’l project ot hired party
7. extent of hired party’s discretion over when and how long to work
8. Metho of Payment
9. Hired party’s role in hiring and paying assistants;
10. Wheter the work is part of the regular business of the hiring party
11. The provision of employee benefits
12. Tax treatment

Question 21

Joint ownership of copyright rules

Answer 21

1. authors intented that individual contributions be merged into a unitarty whole
2. Authors of joint wrork are co-owners of copyright in work
3. Must have intented to be coauthors at time work was created
4. An assistant is not a joitn author. Must provide more that mere direction or ideas.

Question 22

Can you protect functional aspects for a copyright

Answer 22

No

Question 23

How long does a copyright last (author)

Answer 23

Life of author + 70 years

Question 24

Copyright protection for works made for hire (lenght)

Answer 24

• 95 years from publication
• 120 years from creation
• Whichever ends first

Question 25

How long does copyright last for a corporation

Answer 25

95 years

Question 26

Doctrine of Fair use defense for Copyright

Answer 26

PCNCASEM

• purpose / character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
  
  • purpose is to make money = NOT fair use
  • Parody = criticism (protected by 1st Amdt)
  • criticism
  • Educational can also be purpose & can work in favor of defendant
  • news
  • Copying could be fair use if to gain access to un-protectable ideas
• nature of the copyrighted work
  
  • Reality (history and is not copyrightable) versus fantasy/whimsical (The more whimsical, the more protection)
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole
  
  • How much did you take?
• effect on the market of the taking
  
  • How much did I hurt or help the original copyright owners? (There’s no magic “too much” number)

Question 27

Parody/satire defense to copyright

Answer 27

Parody/satitre is criticism which equals first amendment defense

Question 28

Public domain defense for Copyright

Answer 28

Items that exist in public domain may be claimed by anyone. There are two categories of items that exist in public domain:

(1) Works that automatically enter the public domain upon creation, because they are not copyrightableTitles, names, short phrases and slogans, familiar symbols, numbers Ideas and facts (e.g., the date of the Gettysburg Address) Processes and systems Government works and documents
(2) items whose copyrights have expired.
(3) Works prior to 1923 are in the public domain

Also authors can put it in the public domain

Question 29

Scenes A Faire Defense for copyright:

Answer 29

Scenes-A-Faire: elements of a work that are standard, stock or commonn for the genre . These are not copyrightable.

Question 30

Safe Harbor Provisions Copyright Defense

Answer 30

1. when there is a product that is capable of BOTH infringing and substantial non-infringing uses
2. there is no liability as the manufacturer of that product, so long as the manufacturer has no knowledge that this infringement is actually taking place (like promoting to infringe or inducing infringement)

Question 31

VARA

and read Berne Convention

Answer 31

The Berne Convention - International copyright (and related) treaty - that established right

1988 - modified US copyright laws to comply with the Berne Convention.

We now have some moral rights protections in the US

One cannot alter a work without permission

Right of integrity - CO law’s Derivative Rights Doctrine

• VARA 1990 - specifically grants artists and inalienable right to the integrity of their work and the right of attribution - however, it is very limited in its scope
  
  • Only artists of known repute
  • Only applies to visual artists (includes anything movie-related)
  • Only applies to those types of work that exist uniquely or only in a limited edition of 200 or fewer copies
  • Only applies to works created after 1990
  • Excludes works made-for-hire

RVU2001990W

Question 32

Moral Rights

Right of integirty

vs. Right of Attribution

Answer 32

Right of Name Attribution (or Authorship) entitles authors

(a) to be recognized as creators of their work,
(b) to anonymously or pseudonymously publish works,
(c) to prevent works from being attributed to others, and
(d) to stop their names from being used on works they did not create or that later became distorted;

Right of Integrity allows authors to prevent alterations, distortions or destructions of their work;

RAPS ADD