Exam 3 Flashcards
What kind of property can you sell or do whatever you want with it?
Tangible
What kind of property can’t you sell or duplicate words or images?
Intellectual
What does the US Constitution say about copyright law? What does it mean?
The congress shall have power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
-Means Congress CAN enact a law. Not that they HAVE to
What are the three kinds of intellectual property rights?
copyright, trademark and patent
What kind of intellectual property law regulates the ability of a company to control use of marks of their trade?
trademarks
What does a trademark say? What does it do?
It says a symbol has value. Trademarks limit the ability to use someone else’s mark in a commercially competitive way that is likely to create confusion among an audience
Is there limitations on using a company’s mark for news or information purposes?
No
Is plagiarism a legal standard?
No. It is frequently about a lack of attribution and is an ethical standard. However it can overlap with copyright infringement
What does copyright law prohibit?
Using someone else’s original wok without obtaining the copyright owner’s permission
Why does copyright law exist?
- Money plays a key component
- Gives people the ability to control works by allowing people to control and profit from them
What is eligible for copyright protection?
All original works of authorship fixed in a tangible medium of expression
-The work must be original, creative (at least minimally), and fixed
What are some examples of things that can be protected by copyrights?
photos, stories, illustrations, cartoons, advertisements, videos, dramatic works and sound recordings
What are 5 things a copyright owner’s rights include?
reproduction, adaptation, distribution, public performance, public display
What are examples of things not protected by copyright?
Trivial materials: title, slogans, short phrases, names, familiar symbols, basic instructions, simple blank forms
What are 5 other things not protected by copyright?
- ideas (expression of ideas is)
- facts (source quotes are generally considered facts)
- utilitarian goods
- formulas/equations
- federal government created records
Does copyright protection last forever? What are the statutes?
No.
-For works created after 1978, protection lasts for life of creator plus 70 years (or 95 years after publication for “work for hire”)
=For works created before 1978, protection lasts for 95 years
What is thought of as the reason to extend copyright protection?
Extended by 20 years for Mickey Mouse
How is a work copyrighted?
Copyright exists from the moment a work is created
-copyright notice is not required, nor is copyright registration
Does notice of copyright give you additional protection?
Yes. And you don’t have to have permission to put the symbol on your works
What is the general rule of copyright law?
If you didn’t create it and/or you don’t own the copyright to it, you must get permission to use it
Does including a credit line protect you from copyright infringement?
No. Including a credit line or giving attribution is NOT enough. The law requires permission
What is the big exception to copyright limitations on journalists?
Fair use
Why does fair use exist?
Because in some contexts, using the copyrighted works of others without permission is permissable because the public benefits more from the use
What 4 factors must be balanced in order to determine fair use?
1: Purpose and character of the use
2: The nature of the copyrighted work being used
3: The amount and substantiality of the portion used in relations to the copyrighted work as a while
4: The effect of the use on the potential market for or value of the copyrighted work
What questions should you ask when determining the purpose and character of the use when dealing with fair use?
Non-commercial or non-profit?
Criticism or commentary?
Teaching/educational use?
Scholarship or research?
What questions should you ask when determining the nature of the copyrighted work being used when dealing with fair use?
Work still available?
Is it a consumable work?
Is it more an informational or a creative work?
What questions should you ask when determining the amount and substantiality of the portion used in relations to the copyrighted work as a while when dealing with fair use?
% of the work used is more important than the number of words used
No % amounts written into the law
Parody might justify some greater among than a non-parody use
What questions should you ask when determining the effect of the use on the potential market for or value of the copyrighted work when dealing with fair use?
Will the owner lose money—or the opportunity to lose money—from the use?
What is it called when you mail yourself a copy of your work in a sealed envelope? (Postmark to show date of creation)
A Poor Man’s Copyright
Does a poor man’s copyright protect you?
Probably not. No evidence courts have ever relied on this. Tampering would still be possible
How do you register your copyright?
Form, fee, submit copies
- gives some added benefits
- downside is it is expensive if you do a lot of work
Does one fair use factor determine anything?
No. It must be a balance of all four factors
What has the complexity if copyright and fair use done?
Has resulted in the concern that people are ignoring the law because it is too confusing
What did the case Harper and Row v. Nation state?
- Gerald Ford wrote an autobiography called “A Time to Heal” that was published by Harper and Row
- The company licensed Time to publish exclusive excerpts
- The Nation magazine got a copy and wrote their own story before the TIme excerpts appeared
- Time backed out of the contract
- Work hadn’t been published-more likely a infringement of fair use, SC said ti wasn’t fair use
- Even though Nation didn’t use a huge amount of text, they took the most important part
- Author’s right to be first to publish her work is seen as very important
What did the case Campbell v. Acuff-Rose Music Inc state?
- Dealing with the song “Pretty Woman”
- 2 LIve Crew did a parody version
- didn’t sample just a small part, didn’t get a license
- Key issue was whether 2 Live Crew had taken too much of the original work
- There is some added protection in fair use for parody and satire
- SC said in context of parody you can use a larger amount of the work
Which factor of fair use is the most important?
Factor 4. Copyright is largely about protecting possible profit of copyright owner
How can you make use of celebrity photos?
If engaging in a news or commentary about a copyright owner of the work, you can use it to illustrate a story about him through Fair Use
What is an organization that encourages and assists copyright owners in designating how they will allow others to use their work on or in the work itself?
CreativeCommons.org
What can you do if you want to use a work?
You can ALWAYS ask permission from the copyright owner
What are three questions to ask when making a copyright infringement claim?
- Is the copyright on the original work valid?
- Did the alleged infringer have access to the copyrighted work before the infringement?
- Are the two works the same or substantially similar?
What are the consequences of infringement?
- Money damages: Compensation for injury suffered, benefits made by infringer, automatic statutory damages, attorney’s fees
- Criminal penalties for willful action or commercial gain (one year in jail)
- Prior restraint censorship (law is on par with the first amendment)
- Destruction of every copy of the infringing work
What has the internet done when it comes to catching infringer’s online?
Made it easier. There are tools to search the internet for the users of others’ works
What should you do if you find someone using your work?
Contact them in a way that can be documented. Say it is your copyright, that they infringed,
Say they are using work without permission with a clear violation, cease and desist
Why will attorneys help with copyright case?
Because attorney fees are often included in the settlement and and they know they will get paid
Why does most copyright infringement occur?
A lack of education
What does the work for hire doctrine state?
Work is owned by an employer. Formal employer/employee relationship required.
Who owns independent contractors’ work?
The creator owns the work she creates
When it comes to ownership of a work, what will supersede everything else?
A written agreement
What did the case Tassini vs. New York Times state?
- Agreement NYT had with freelancers who created work for publication
- said they had right to republish in the paper, didn’t say they could put it on the web
- Freelancers said they should get paid another fee
- SC decided in favor of the freelancers (A written agreement determines it)
What do most contracts for freelancers today state?
Most contracts today specify use in original context and other media now in existence or not yet imagined
What did the case CCNV v. Reid state?
- Community for Creative Non-Violence
- Reid, a sculptor hired by CCNV to create art that sits in front of the CCNV shelter (metal statue concrete base, family that is homeless on steam grate)
- Creates reference to holy family, Created a moral implication
- CCNV-took photo of statue and used it on xmas cards they would sell to the public
- Reid said he owns copyright to statue (The intellectual property behind it)
- said they couldn’t use it without additional payment
- led SC to determine factors in determining copyright ownership
What are the 7 factors in determining copyright ownership?
- Amount of skill required to perform work
- Source of supplies and tools (who supplied them)
- Location of the work (where completed)
- Duration of the relationship ( longer, more likely owned)
- Hiring party’s ability to assign additional projects to the creator
- The creator’s discretion regarding when and how long to work
- The tax treatment of the creator
When should written agreements be made?
Before content is created or shared