Copywright Flashcards
Definition of Copyright
Copywright 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 devise.
Original under copyright definition
Any modicum of originality
“facts” in book are not original
Compiled facts with other elements can be copywrighted
Think telephone book case
Authorship under copyright definition
- So far, the jurisprudence has held that it must be a human author, not a machine (or animal)
Formalities under ‘76 Act
- Notice
- Publication
- Registration
- Deposit
Is registration of a copywright required?
No, but there are many protections that come with copywright registration
What is copyrightable?
- Literary
- Music
- Dramatic
- Pantamime and choreographic
- Pictoral/graphic/sculptural
- Motion picture, other audiovisual
- Sound recording
- architecture
Idea/Expresison Dichotomy
Think book about bookmaking, cannot patent idea, only the expression of the idea. Cannot copywright bookmaking itself, buit can copywright the expression of the idea - the instructional book
Joint Works
- Each author must contribute something independently copywrightable
- Must also be intent to be joint authors
- Parties intentions at time of drafting
- Rights in tenancy in common
Collective work
- Each author is putting their name on their work
- Presumption - each author maintains copywright in their work, publisher has copyw to whole work
Can be copywright protections be transferred?
Yes
* Transfer completely
* Transfer for a period of time
* Any single right can be transferred
Can a transfer be reclaimed?
Yes
anything from the 35-40th year after transfer can be reclaimed
Does the owner of a copywright have the exclusive right to reproduce?
Yes
2 steps to prove infringement
- Did defendant copy
- Did defendant improperly misappropriate?
Improper Misappropriation
Copying to a sufficient extent, look at levels of abstraction
Are character sketches protectable?
No
Are fully fleshed out characters protectable?
Yes
What rights come with a copywright?
- Copy
- Prepare deriviative works
- Control distrobution
- Public performance and display
- Moral rights
Derivitive Works
Sequels, merchandise, etc.
Even if the work is completely original
Pretty strong right, even against fan sent in scripts (Rocky)
Distrobution
- Sale or other transfer
- Rental, lease, lending
First Sale doctrine copyright
Once you buy a copywrighted work you can do what you want with it
Parallels exhaustion in patent
Has to be an authorized sale/transfer
Public performance/display
The right to perform the work publicly
What is fair use derived from?
Free expression rights of the First Amendment
What are the types of fair use for copywright?
- Criticism
- Comment
- News reporting
- Teaching
- Scholarship
- Research
Four elements of fair use
- Purpose and character of use
- Nature of original work
- quantity and substantive quality of copied portion
- Market effects
- the most important factor
PGS
Pictorial, graphic, sculptural
The art that is etched into a cup, for example. The art is copywrightable, but the cup is not. Think Star Athletica
Questions are can the work be separated from the physical object, and once removed, does it create a copywrightable work (independent existence)
What remedies are available for copyright infringment?
Injunctions
Money damages
Is there an automatic presumption of irreparable harm for copyright infringment?
No
What types of money damages are available for copyright infringment?
- actual
- statutory
What constitutes actual losses in copyright infringment?
- Any losses for copyright owner
- Infringer’s profits
Who bears the burden of apportioning out infringer’s profits in a claim for copyright infringment?
The infringer. It is their job to show how much (or how little) the infringing contributed to the profits
When are statutory damages available/be pursued?
When damages or profits cannot be proved
Must a copyright be registered to cile a claim for infringment?
Yes, register either prior to infringment or within 3 months of work’s publication
What is the range of statutory damages available for copyright infringment?
- $750-$30k per infringment
- Can be raised to $150k per infringment if proved infringer acted willfully
- Can be reduced to $200 if shown infringment was an honest mistake
Can attorney’s fees and/or costs be recovered in a copyright infringment case?
Yes, the prevailing party may recover attorneys fees and costs, regardless of if plaintiff or defendant
Useful article doctrine
Useful articles cannot be copyrighted, such as an article of clothing
Useful article/PGS
- Useful article cannot be copyrighted
- PGS that is separable from useful article may be copyrighted
2 Part test for PGS on a useful article
- can the PGS be separated from the useful article/ perceived as 2D or 3D art apart from the article
- If separated, does the PGS independently qualify as an original work
What is the effect of a work for hire?
If a work is a work for hire, than the employer/company owns the copyright to the work, instead of the author
A work can be a work for hire in 2 ways:
- made by an employee within the scope of their work
- Specially ordered and designated as a work for hire in a written agreement
What factors can be considered to determine an employee relationship for a work for hire?
- Supplies/tools used and where they came from
- Location of work
- Authority to dictate work
- Ability to add more work after original work done
- Payment situation
- Etc.
Joint Work
Multiple authors creating inseparable/interdependent parts of a unitary work
What kind of rights do joint authors retain?
Both/all have tenancy in common rights, duty to split profits
Registration
Not required for a copyright, but needed to sue for infringment
Process of registration
- Form
- Fee
- Deposit
