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IP > Copywright > Flashcards

Copywright Flashcards

1
Q

Definition of Copyright

A

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.

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2
Q

Original under copyright definition

A

Any modicum of originality
“facts” in book are not original
Compiled facts with other elements can be copywrighted
Think telephone book case

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3
Q

Authorship under copyright definition

A
  • So far, the jurisprudence has held that it must be a human author, not a machine (or animal)
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4
Q

Formalities under ‘76 Act

A
  • Notice
  • Publication
  • Registration
  • Deposit
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5
Q

Is registration of a copywright required?

A

No, but there are many protections that come with copywright registration

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6
Q

What is copyrightable?

A
  • Literary
  • Music
  • Dramatic
  • Pantamime and choreographic
  • Pictoral/graphic/sculptural
  • Motion picture, other audiovisual
  • Sound recording
  • architecture
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7
Q

Idea/Expresison Dichotomy

A

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

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8
Q
A
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9
Q

Joint Works

A
  • 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
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10
Q

Collective work

A
  • Each author is putting their name on their work
  • Presumption - each author maintains copywright in their work, publisher has copyw to whole work
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11
Q

Can be copywright protections be transferred?

A

Yes
* Transfer completely
* Transfer for a period of time
* Any single right can be transferred

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12
Q

Can a transfer be reclaimed?

A

Yes
anything from the 35-40th year after transfer can be reclaimed

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13
Q

Does the owner of a copywright have the exclusive right to reproduce?

A

Yes

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14
Q

2 steps to prove infringement

A
  1. Did defendant copy
  2. Did defendant improperly misappropriate?
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15
Q

Improper Misappropriation

A

Copying to a sufficient extent, look at levels of abstraction

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16
Q

Are character sketches protectable?

A

No

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17
Q

Are fully fleshed out characters protectable?

A

Yes

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18
Q

What rights come with a copywright?

A
  • Copy
  • Prepare deriviative works
  • Control distrobution
  • Public performance and display
  • Moral rights
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19
Q

Derivitive Works

A

Sequels, merchandise, etc.
Even if the work is completely original
Pretty strong right, even against fan sent in scripts (Rocky)

20
Q

Distrobution

A
  • Sale or other transfer
  • Rental, lease, lending
21
Q

First Sale doctrine copyright

A

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

22
Q

Public performance/display

A

The right to perform the work publicly

23
Q

What is fair use derived from?

A

Free expression rights of the First Amendment

24
Q

What are the types of fair use for copywright?

A
  • Criticism
  • Comment
  • News reporting
  • Teaching
  • Scholarship
  • Research
25
Q
A
26
Q
A
27
Q

Four elements of fair use

A
  1. Purpose and character of use
  2. Nature of original work
  3. quantity and substantive quality of copied portion
  4. Market effects
    • the most important factor
28
Q

PGS

A

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)

29
Q

What remedies are available for copyright infringment?

A

Injunctions
Money damages

30
Q

Is there an automatic presumption of irreparable harm for copyright infringment?

A

No

31
Q

What types of money damages are available for copyright infringment?

A
  • actual
  • statutory
32
Q

What constitutes actual losses in copyright infringment?

A
  • Any losses for copyright owner
  • Infringer’s profits
33
Q

Who bears the burden of apportioning out infringer’s profits in a claim for copyright infringment?

A

The infringer. It is their job to show how much (or how little) the infringing contributed to the profits

34
Q

When are statutory damages available/be pursued?

A

When damages or profits cannot be proved

35
Q

Must a copyright be registered to cile a claim for infringment?

A

Yes, register either prior to infringment or within 3 months of work’s publication

36
Q

What is the range of statutory damages available for copyright infringment?

A
  • $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
37
Q

Can attorney’s fees and/or costs be recovered in a copyright infringment case?

A

Yes, the prevailing party may recover attorneys fees and costs, regardless of if plaintiff or defendant

38
Q

Useful article doctrine

A

Useful articles cannot be copyrighted, such as an article of clothing

39
Q

Useful article/PGS

A
  • Useful article cannot be copyrighted
  • PGS that is separable from useful article may be copyrighted
40
Q

2 Part test for PGS on a useful article

A
  1. can the PGS be separated from the useful article/ perceived as 2D or 3D art apart from the article
  2. If separated, does the PGS independently qualify as an original work
41
Q

What is the effect of a work for hire?

A

If a work is a work for hire, than the employer/company owns the copyright to the work, instead of the author

42
Q

A work can be a work for hire in 2 ways:

A
  1. made by an employee within the scope of their work
  2. Specially ordered and designated as a work for hire in a written agreement
43
Q

What factors can be considered to determine an employee relationship for a work for hire?

A
  • 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.
44
Q

Joint Work

A

Multiple authors creating inseparable/interdependent parts of a unitary work

45
Q

What kind of rights do joint authors retain?

A

Both/all have tenancy in common rights, duty to split profits

46
Q

Registration

A

Not required for a copyright, but needed to sue for infringment

47
Q

Process of registration

A
  1. Form
  2. Fee
  3. Deposit

IP (4 decks)

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