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Copyright > General Deck > Flashcards

General Deck Flashcards

1
Q

Impact on Potential Market (FU - 4)

A

Spectrum

  • Harm to work or derivative work that (c) owner seeks to market
  • Market plaintiff likely to develop
  • Traditional, reasonable markets
  • Markets plaintiff would generally develop of license
  • Identified alternative markets
  • Any market Plaintiff would have licensed
  • Any group of people who would pay for acces
  • Value of work even if no market
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2
Q

Amount (FU - 3)

A
  • Quantitative
  • Qualitative
  • Denominator: each copyrighted work
  • Degree of targeting / degree of harm
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3
Q

Nature of Plaintiff’s work (FU - 2)

A
  • Published/Unpublished
  • Creative/Factual
  • Computer software: need for greater latitude in copying to reveal unprotected functional features
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4
Q

Purpose and Character of D’s Activity

A
  • Commercial
  • Transformative
    • Parody [most favored]
    • Critical of P’s work [favored]
    • Physical Modification
    • Socially Valuable
    • Different purpose [favored]
  • Shady (good faith and fair dealing)
  • Customary: Implied consent to customary uses
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5
Q

Fair Use - 107

A

Preferred uses: Criticism, comment, news, reporting, teaching, scholarship, research

1) Purpose and Character of D’s use
2) Nature of P’s Work
3) Amount of copying
4) Impact on Potential Market

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6
Q

VARA (106a)

A

1990 - May be waived, not transferred - FOR LIFE

1) Right a) to claim authorship and b) to prevent use of his/her name as author of work he/she did not create
2) Right to prevent attribution to work in event of distortion / mutilation / modification which would prejudice reputation
3) Right to a) prevent intentional distortion / mutilation / modification that would be prejudicial and b) prevent destruction of a work of RECOGNIZED STATURE

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7
Q

Exceptions to VARA

A
  • Modification due to passage of time not covered
  • Modification due to conservation, presentation not covered
  • VARA does not apply to reproductions / derivative works
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8
Q

Definition of visual art for VARA

A

1) Painting / drawing / print / sculpture in limited edition of 200 copies or fewer signed and consecutively numbered
2) Still photo produced for exhibition in limited edition of 200 copies or fewer signed and consecutively numbered

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9
Q

Lanham Act 43(a)

A
  • Prevents passing of a TM or (c) of one’s own

- Dastar = once work falls into public domain, anyone may do anything they want /w it

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10
Q

Moral Rights

A

-Integrity
-Attribution
-Disclosure (author determines if his work is complete)
-Withdrawal (recall work)
-Droit de suite (fee for resale)
(Right against excessive criticism)

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11
Q

Exceptions to Public Performance and Display

A

FWRD / RNCH

1) Classroom: Face to face nonprofit teaching
2) Distance Learning: Produced primarily for distance learning / nonprofit
3) Religion: in the course of services @ religious establishment
4) Nonprofit: not transmitted to public, not for pay
5) Homestyle: E.G. Personal Radio (private home device)
6) FMLA: bars, restaurants, retailers, (very complicated)
7) Webcasts
8) Real-space displays: Owner of particular copy may display that copy publicly

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12
Q

Public (Display or Performance)

A

1) To perform / display at place open to public or at place where # persons > normal circle of family / friends is gathered
2) To transmit / communicate to place described in (1) or to public by means of any device/process whether public receives in same place or different place and at same time or different time

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13
Q

Perform

A

Recite, render, play, dance, act directly, or through device or process or to show sequentially scenes of motion picture of make sounds available

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14
Q

Display

A

Show a copy either directly or through film, slide, television image, or device or process or in case of motion picture to show nonsequential individual images

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15
Q

Performance and Display

106(4), 106(5), 106(6)

A

106(4): Right to perform work publicly (literary, musical, dramatic, choreographic/pantomimes, motion pictures, AV works)

106(5): Right to display work publicly (literary, musical, dramatic, choreographic/pantomimes, pictorial / graphic / sculptural, individaul images of motion picture

106(6): Right to perform work publicly through digital audio transmission (sound recordings)

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16
Q

Kirtsaeng

A
  • International Exhaustion
  • Limits 602(a) using interpretation of 109(a); 109 taken to mean lawfully made under this title (if it hypothetically applied in the manufacturing country)
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17
Q

Exhaustion

A

1) Round-trip parallel importation: 602(a) limited by 109 [can’t block importation] Quality King
(US - India - US)

2) One-way parallel importation
- Omega: (c) owner may prevent resales of US products produced abroad
- Kirtsaeng: Overturns Omega

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18
Q

First Sale Doctrine

A

Nimmer Says:

a) Physical product lawfully manufactured /w (c) owner authorization
b) copy was transferred under (c) owner’s authority
c) D qualifies as lawful owner of that copy
d) D thereupon disposed of THAT copy

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19
Q

602(a)

A

Importation / exportation w/o authority of owner of (c) UNDER THIS TITLE of copies/phonorecords is an infringement of 106(3) right

Does not apply to: government importation, importation of 1 copy for personal use, scholarly/educational/religious importation for archival purposes (5 copies)

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20
Q

Distribution - 106(3)

A

Exclusive right to sell, give away, rent, lend, trasmit copies (import, and export) - 602(a)

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21
Q

17 USC 109

A
  • Notwithstanding 106(3), owner of particular copy has authority to dispose of possession of that copy
  • However, cannot rent/lease/lend particular copies of phonorecords or computer programs (does not apply to nonprofits/libraries; does not apply to computer program embedded in machine)
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22
Q

Circumstances in which difference in scope between 106(1) and 106(2) matter

A

Note: Derivative work requires modicum of creativity

1) Alteration of a lawfully obtained copy of a (c) work
- Framing - Not 106(1) violation, split on 106(2)
- Expurgation - 106(2) but not 106(1)

2) Absence of Fixation
- Derivative work may be an infringement even if never fixed

3) Statutory provisions may treat derivative works more favorably
- 104(a)(d)(3): reliance party may continue to exploit derivative work + royalty

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23
Q

Reproduction - 106(1)

A

Plaintiff Must Show:

1) Copying

Proof:

 1. Direct Evidence
 2. Access + Similarity
 3. Striking Similarity
 4. Common Errors

What counts as copying:

 1) Mechanical Reproduction
 2) Conscious or subconscious copying
 3) Replicating work in different medium

2) What D created was a “copy”

 1) Tangibility
 2) Fixation
 3) Intelligible

3) Improper appropriation

 1) Comprehensive Copying
 2) Fragmented literal similarity (of expression)
 3) Comprehensive nonliteral similarity
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24
Q

Derivative work

A

17 USC 101

  • Work based on one or more preexisting works such as translation / dramatization / movie version / art reproduction or ay other form in which a work may be a) recast b) transformed or c) adapted
  • Editorial revisions / annotations / elaborations: derivative work
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25
Q

Exceptions to 106(1)

A
  • Essential First Step

- Fair use

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26
Q

Comprehensive Nonliteral Similarity

A

Methods

 - Totality Analysis
 - More discerning Observer
 - Filtration

Formulations

 - Same aesthetic appeal
 - Apparent Appropriation (avg layperson)
 - Total concept and feel
 - Extrinsic / Intrinsic test (objective / subjective)
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27
Q

106 Rights

A

(1) Reproduction
(2) Derivative works
(3) Distribution
(4) Public Performance
(5) Public Display
(6) Digital Audio Transmission

28
Q

Effect of restoration on derivative work

A

Reliance party may continue to exploit derivative work for life of restored copyright subject to royalty

29
Q

Authorship

A

Initial Ownership vests in author / authors of work

17 USC 201(a)

30
Q

Works created in 1978 or later

A

Life + 70 years

2048 at earliest
Anonymous /WFH expire 2073 (120 years from creation or 95 from publication)

31
Q

Works published 1964 - 1977

A

28 + 67 (95)

  • Automatic renewal
  • Will expire beginning 2059
32
Q

Works published before 1923

A

Expired

33
Q

Works published 1923 - 1963

A

28 + 67 (95)

  • Must renew
  • Will expire beginnign 2018 OR already expired for no renewal
34
Q

Created but not published before 1978

A

Life + 70 or 2002, whichever is later

-If published by 2002, will not expire until 2047

35
Q

Contributions to Collective Work

A

Copyright in each separate contribution to a collective work is separated from copyright in a collective work and vests /w author of contribution

-Owner of (c) in collective work may only reproduce / distribute the collective work (can’t isolate contributions)

17 USC 201(c) - Tasini

36
Q

Anticipatory Assignments

A

Author may assign or agree to assign in advance BUT

a) rarely happens
b) work-for-hire issues
c) some rights unwaivable (e.g. termination)

37
Q

Joint Authorship

A

1) 2 or more authors make independently copyrightable contribution - originator / maker / decision-making authority
2) All intend contributions to be merged into unitary whole (and regard one another as co-authors)

Thomson (Rent)
Aalmuhammad (Malcolm X)

38
Q

Work for Hire

A

1) Prepared by employee w/in scope of employment (CCNV test, right to control)

2) 9 types of commissioned works + written agreement
C, A TIT Scam

A)  Collective work
B)  Motion Picture
C)  Translation
D)  Supplementary work (illustration
E)  Compilation
F)  Instructional Test
G)  Test
H)  Answer to Test
I)  Atlas
39
Q

Effects of classification as work for hire

A
  • Ownership to employer
  • No Moral rights
  • 95 publication / 120 from creation duration
  • Employer owns renewal rights for older works
  • No termination provisions
40
Q

Fixation

A

17 USC 101

  • Tangible medium of expression
  • By or under authority of author
  • Sufficiently permanent or stable to be communicated for more than transitory time

-[AV works “fixed” if fixation being made @ same time as transmission]

41
Q

Useful Articles- Conceptual Separability

A

1) Form dictated by function? (Barnhard - mannequin head)
2) Which aspect is primary? (Keiselstein - Cord - belt buckle)
3) Temporal displacement (what do you first think of?0
4) Stand on its own as work of art?
a) Goldstein: art stands alone as traditional art and useful part just as useful w/o art
b) Nimmer: w/o utilitarian aspect, would article still be marketable as art

5) Intent of the creator (Brandir - bike rack)

42
Q

Useful articles - Statutory Separability

A

The design of a useful article shall be considered a pictorial, graphic, or sculptural work ONLY IF such design incorporates pictorial, graphic, or sculptural features that can be IDENTIFIED SEPARATELY FROm and EXIST INDEPENDENTLY of utilitarian aspects of the article

43
Q

Useful Article - Physical Separability

A

Can remove physical (e.g. Jaguar Hood Ornament)

44
Q

Originality

A

Independent Creation

Modicum of Creativity (Feist)

45
Q

Not required for Originality

A
  • Novelty
  • Intent to be original (copyist’s bad eyesight may yield variations)
  • Artistic (Bleistein - advertisement) [aesthetic neutrality]
  • Noncommercial
  • Lawful Content (porn)
46
Q

Idea / Expression

A

Ideas/facts –> Unprotectable

Expression –> Protectable

Merger Doctrine (only one way to express)

Scenes a Faire (Common tropes, generic scenes) [Haley]

47
Q

Requirements for Protection

A

Originality
Expression [17 USC 102(b)]
Subject Matter covered by 17 USC 102
Fixation (17 USC 101)

48
Q

Choreography

A

1) Composition / arrangement of dance moves and patterns
2) Usually intended to be set to music

Pantomime: art of imitating / acting out characters, situations, events

NEED NOT TELL STORY OR PRESENTED TO AUDIENCE

49
Q

Subject Matter

A

DUMP / LAMPS

1) Literary Works (including fictional characters, software)
2) Music works + words (compositions)
3) Dramatic works + music
4) Pantomimes + choreography
5) Pictorial / Graphic / Sculptural
6) Motion picture and AV works
7) Sound Recordings
8) Architectural works
9) Useful Articles

Illustrative, not exhaustive

50
Q

Motion Pictures & AV Works

A

Motion Picture

1) Series of Images
2) Capability of showing images in sequence
3) Impression of motion

AV Works

  • Film strips
  • Set of slides
51
Q

Fictional Characters

A

Sam Spade Test: Character constitutes story being told

Dominant current view: Character is well delineated

52
Q

Useful Articles

A

Article having intrinsic utilitarian function that is not merely to portray appearance of article or to convey info

(article part of useful article is considered a “useful article”)

Statutory Separability
Physical Separability
Conceptual Separability

53
Q

Architecture

A
  • Limited to “buildings” - incl. nonhabitable structures
  • Must be free-standing
  • Author = Architect
54
Q

Software

A

Infringement?

  1. Verbatim copying: Yes
  2. Verbatim reproduction of portions of program (e.g. source code): Yes
  3. Nonliteral copying (Altai) - ???
  4. Copying Menu Hierarchies (Lotus): NO
  5. Reverse engineering for interoperability (Sony): NO
55
Q

Abstraction - Filtration

A

Step 1: Abstraction
-ID structure of program / plot from highest level, to midlevel, to lowest level (literal code)

Step 2: Filter unprotected elements

  • Elements dictated by efficiency
  • Elements dictated by external factors (standard elements / scenes a faire)
  • Elements that did not originate /w author (public domain)

Step 3: Any nugget of original, creative expression

56
Q

Duration

A

Non-perpetual based on “limited times,” language in constitution

57
Q

Eldred Challenges

A

Sources of potential limitations

1) Limited Times in Article 1, §8
2) Preambulary language of copyright clause “promote sciences”
3) 1st Amendment (idea/expression; fair use)
4) Rational basis / constitutional challenge
5) Takings (can go forward, not backward)

58
Q

Eldred

A

Copyright term extension act challenge (Sonny Bono)

59
Q

Golan

A

Berne Convention –> Reinstates (c) protection for foreign works in public domain

60
Q

Licenses and Assignments

A

17 USC 201

  • (c) may be transferred in whole or part
  • any 106 may be transferred separately
  • no involuntary transfer

17 USC 204
-transfer must be in writing and signed

17 USC 501
-Owner may institute infringement action

61
Q

Termination of Assignment Work Created 1978 or Later

A

§203

Authors / spouse / descendants / executor –> nonwaivable

  • May terminate for 5 years (window) after 35 years after assignment
  • 2-10 year notice before close of window
62
Q

Termination of assignment work published 1923 - 1963

A

Assignment made 1978 or later §203 (35 years after assignment)

Assignment made before 1978 §304 (56 years after publication, 75 years)

63
Q

Effect of termination on derivative works

A

May continue to utilize already prepared derivative works, but cannot prepare any more

64
Q

Compulsory Cover Licenses

A

17 USC 115

Cannot change basic melody or fundamental character of work

65
Q

Termination of Assignment Work pub. 1964 - 1977

A

Assignment made 1978 or later §203 (35 years after assignment)

Assignment made before 1978 §304 (56 years after publication, 75 years)

66
Q

Not market harms under fair use

A

1) Loss of fee D would have paid P
2) Ability to charge people interested in making transformative uses
3) Injuries resulting from criticism
4) Impairment of the market for P’s other works

Copyright (1 decks)

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