Copywright

Question 1

Definition of Copyright

Answer 1

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.

Question 2

Original under copyright definition

Answer 2

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

Question 3

Authorship under copyright definition

Answer 3

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

Question 4

Formalities under ‘76 Act

Answer 4

• Notice
• Publication
• Registration
• Deposit

Question 5

Is registration of a copywright required?

Answer 5

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

Question 6

What is copyrightable?

Answer 6

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

Question 7

Idea/Expresison Dichotomy

Answer 7

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

Question 9

Joint Works

Answer 9

• 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

Question 10

Collective work

Answer 10

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

Question 11

Can be copywright protections be transferred?

Answer 11

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

Question 12

Can a transfer be reclaimed?

Answer 12

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

Question 13

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

Answer 13

Yes

Question 14

2 steps to prove infringement

Answer 14

1. Did defendant copy
2. Did defendant improperly misappropriate?

Question 15

Improper Misappropriation

Answer 15

Copying to a sufficient extent, look at levels of abstraction

Question 16

Are character sketches protectable?

Answer 16

No

Question 17

Are fully fleshed out characters protectable?

Answer 17

Yes

Question 18

What rights come with a copywright?

Answer 18

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

Question 19

Derivitive Works

Answer 19

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

Question 20

Distrobution

Answer 20

• Sale or other transfer
• Rental, lease, lending

Question 21

First Sale doctrine copyright

Answer 21

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

Question 22

Public performance/display

Answer 22

The right to perform the work publicly

Question 23

What is fair use derived from?

Answer 23

Free expression rights of the First Amendment

Question 24

What are the types of fair use for copywright?

Answer 24

• Criticism
• Comment
• News reporting
• Teaching
• Scholarship
• Research

Question 27

Four elements of fair use

Answer 27

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

Question 28

PGS

Answer 28

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)

Question 29

What remedies are available for copyright infringment?

Answer 29

Injunctions Money damages

Question 30

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

Answer 30

No

Question 31

What types of money damages are available for copyright infringment?

Answer 31

* actual * statutory

Question 32

What constitutes actual losses in copyright infringment?

Answer 32

* Any losses for copyright owner * Infringer's profits

Question 33

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

Answer 33

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

Question 34

When are statutory damages available/be pursued?

Answer 34

When damages or profits cannot be proved

Question 35

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

Answer 35

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

Question 36

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

Answer 36

* $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

Question 37

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

Answer 37

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

Question 38

Useful article doctrine

Answer 38

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

Question 39

Useful article/PGS

Answer 39

* Useful article cannot be copyrighted * PGS that is separable from useful article may be copyrighted

Question 40

2 Part test for PGS on a useful article

Answer 40

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

Question 41

What is the effect of a work for hire?

Answer 41

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

Question 42

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

Answer 42

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

Question 43

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

Answer 43

* 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.

Question 44

Joint Work

Answer 44

Multiple authors creating inseparable/interdependent parts of a unitary work

Question 45

What kind of rights do joint authors retain?

Answer 45

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

Question 46

Registration

Answer 46

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

Question 47

Process of registration

Answer 47

1. Form 2. Fee 3. Deposit