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Review Questions Flashcards

1
Q

Where does Congress get its authority to legislate in the area of copyright?

A
  • US Constitution
  • Copyright Clause
  • Article 1, section 8, clause 8
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2
Q

in what way is a copyright a limited monopoly?

A

Copyright is a limited monopoly in that it:

  • preserves certain rights to only the copyright holder
  • protects rights for a certain duration
  • protection is of finite duration
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3
Q

what exclusive rights does the original copyright holder have?

A
  1. right to reproduce the work in copies or phono records
  2. right to prepare derivative works based on the copyrighted work
  3. right to distribute copies or phono records of copyrighted works to public
  4. right to perform publicly (for literary, musical, dramatic, choreography, pantomimes, motion pictures, and other audiovisual works)
  5. right to display publicly (for literary, musical, dramatic, choreography, pantomimes, pictorial, graphic, sculptural works (including images of a motion picture or other audio visual work))
  6. the right to perform the copyright publicly by means of a digital audio transmission (sound recordings only)
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4
Q

what type of works enjoy the protection of the right to publicly perform?

A

literary, musical, dramatic, choreography, pantomimes, motion pictures and other audio visual works

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5
Q

what right applies only to literary, musical, dramatic, choreography, pantomimes, pictorial, graphic, sculptural works (including images of a motion picture or other audio visual work)

A

the right to display publicly

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6
Q

what is the acronym to remember the rights of the copyright holder?

A 
Really (reproduce)
Dirty (derivative works)
Divas (distribute)
Perform (perform publicly)
Dirty (display publicly)
Plays (perform by digital audio transmission)
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7
Q

which rights does a copyright holder have in all types of works?

A
  1. right to reproduce
  2. right to prepare derivative works
  3. right to distribute copies or phono records to public
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8
Q

what is time-shifting?

A
  • recording a show to watch at a later time
  • was not archiving and was not replacing a viewing b/c you couldn’t watch at that time anyways
  • comes from Sony Betamax case
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9
Q

What is the incentive rationale for copyright?

A
  1. benefit to the copyright holder (an incentive to do what they love)
  2. public interest purpose = public has access to new ideas
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10
Q

at what point does the author of a work which includes original expression have statutory copyright protection?

A

when the work is fixed in a tangible medium of expression

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11
Q

common law copyright

A

=the copyright protection that can be afforded to works when they are not covered by statutory copyright (ex. unfixed works); typically refers to state copyright law

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12
Q

does copyright law require novelty for a protected work?

A

no, copyright law requires originality

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13
Q

If an artist sells a painting to buyer, who owns the copyright in the painting?

A

The artist. The copyright rights are separate from the actual ownership of the property. If the artist intended to transfer the copyright also, then we would have to do so in a signed writing.

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14
Q

If you write a letter and send it to your friend, who owns the letter? Who owns the copyright in the letter?

A

The writer/sender of the letter owns the copyright in the letter. The friend just owns the physical letter. The friend is free to destroy the letter but can not publish it unless the letter was intended for publication.

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15
Q

Is a speech, saved on a hard drive but offered orally, protected by copyright? Can listeners who hear the speech transcribe it and distribute copies?

A
  1. Yes, the speech on a hard drive is protected by copyright b/c the version on the hard drive is fixed in a tangible medium of expression. A copy can be fixed in any medium except a phono record.
  2. Listeners who hear the speech can not transcribe it and distribute copies because that would be infringement of the distribution right.
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16
Q

Can a person lawfully record a live musical performance without the consent of the performers?

A

It seems like the answer is yes b/c those works are unfixed. However, the Act provides protection for unfixed live musical performance under the anti-bootlegging provisions. So the answer is no, a person cannot lawfully record a live musical performance w/o the consent of the performers.

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17
Q

what is the one type of unfixed work that still has protection under the Act?

A

live musical performances (anti-boot legging provisions)

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18
Q

What is a copy under the Copyright Act?

A

copies are the material objects that things are fixed in (can be any medium except phono records)

ex. write notes on paper, the copy is the piece of paper

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19
Q

what is a phono record under the Copyright Act?

A

a phonorecord is a tangible object where a sound is fixed

exception: phono records that accompany motion pictures are copies

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20
Q

what is general publication and why is it significant?

A
  • general publication is when a work is made available to the public at large w/out regard to their identity or what they intend to do w/ the work; no restrictions as to how the work should be used or how future copies will be distributed
  • was significant for the 1909 Act b/c publication was required for a work to gain statutory protection
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21
Q

historically, what is the significance of the (c)?

A

historically was one of the requirements in order for a work to have statutory protection

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22
Q

is a copyright notice required on copyrighted works?

A

no

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23
Q

what are the advantages of having a copyright notice today?

A
  • provide notice
  • potential infringer can’t claim they innocently infringed for the purpose of reducing damages
  • gives the person who wants to use the work a better way to find the holder of the copyright
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24
Q

must a copyright claimant register his/her copyright?

A

no, but there are benefits:

  • requirement to bring an infringement action
  • greater remedies if registered at time of infringement (or w/in 3 months; can get attorneys fees and statutory damages)
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25
Q

may a P sue a defendant for copyright infringement if the work does not currently have a copyright protection?

A

no, unless P’s copyright registration has been rejected

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26
Q

May a P sue a D for copyright infringement if the work, at the time of the infringement, was unregistered?

A

yes

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27
Q

what is the rule of doubt?

A

says that the Copyright Office will review applications to make sure the requirements are satisfied for copyright protection; if they’re on the fence, they will issue the copyright and someone can later challenge it in court. The office will only really deny if they think a work is not entitled to protection

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28
Q

are photographs entitled to copyright protection?

A

Yes, because they are original works of authorship. The original elements comes from the way the photographer (deemed an author for purposes of copyright) staged the lighting, clothing, subject, setting etc

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29
Q

what is the originality requirement? where does it come from?

A
  1. The originality requirement is that there must be enough originality in the expression to qualify as an original work.
  2. Such requirement comes from §102(a) of the 1976 Copyright Act.
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30
Q

What is a derivative work?

A

a work derived from a pre-existing source

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31
Q

what works are in the public domain?

A
  1. works the pre-date any copyright protection
  2. works that did not satisfy statutory copyright
  3. works governed by copyright but the term expired
  4. work is of a type that automatically goes to the public domain (fed gov)
  5. non works
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32
Q

Does a close reproduction of a work in a new medium qualify for copyright protection as a derivative work?

A

No, because a change in medium is a mere trivial addition to the work. In order for the work to qualify as a derivative work, the change would have to be a substantial variation (something more than a mere trivial addition)

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33
Q

How does copyright law deal w/ factual compilations?

A

Only the original aspects of compilations are protected. In general, the Copyright Act considers compilations to be collections of facts, and facts are not copyrightable. Arrangement and selection of facts would be protected.

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34
Q

what relevance does the time and effort expended in creation of a work have to do w/ copyright ability? what is the sweat of the brow doctrine?

A
  1. relevance = speaks to originality
  2. sweat of brow doctrine = if the author had put time and energy into the work, then they should get copyright protection.

note: rejected by the court in Feist b/c it doesn’t relate to the statute or legal definition for what type of works are subject to copyright protection

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35
Q

Are judicial opinions subject to copyright protections? Does Westlaw’s parent company have a copyrightable interest in the judicial opinions published on Westlaw or in the West Reporters?

A

No, under common law, judicial opinions do not get copyright protection. West could have a copyright interest in how the opinions were arranged (subject to original elements)

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36
Q

what is the merger doctrine?

A

If the underlying idea (or system, process, or method of operation) can effectively be expressed in only one way, the idea and the expression are said to have merged and there is no copyright protection. (Baker v. Seldon)

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37
Q

What does Baker v. Seldon stand for?

A

-stands for the merger doctrine

Facts: P wrote a book about a particular accounting method. The method used a specific set of forms. D published a book w/ forms achieving the same result w/ a different arrangement of columns and headings on the forms.
Holding: forms were not copyrightable b/c there is no protection for works that serve utilitarian functions (b/c there is no expression, is just idea)
-if you have something like a form that is necessary to implement or express the idea, that is beyond the scope of copyright protection

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38
Q

under copyright law, what type of work is computer code?

A

literary work

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39
Q

when can a useful article have copyright protection?

A

when the useful elements can be separated from expression (separability)

40
Q

do utilitarian features get protection?

A

no

41
Q

what are the 2 types of separability for determining whether useful articles get protection?

A
  1. physical separability = where the expression is physically separable from the useful elements
  2. conceptual = abstract, use the 4 tests to determine
42
Q

what are the 4 tests used to determine conceptual separability?

A
  1. temporal displacement = when you see the item, what do you first think of
  2. primary use = what is the primary use
  3. marketability = could it be sold as one or the other?
  4. Denicola = were the choice made for useful purposes or artistic purposes?
    - if design driven by utilitarian function (they had to design it that way to get it to work) = no separability
43
Q

Is a choreographed dance protected by statutory copyright or otherwise?

A

if the work is fixed, then it is covered by statutory copyright. If it is unfixed, it may still have some protection under CL copyright.

44
Q

what is a work of the United States? May the US Federal government hold copyrights?

A
  1. work of the US Government = a work prepared by an officer or employee of the US Government as part of that person’s official duties
  2. yes, the Federal government may hold copyright
45
Q

is copyright protection available to states for works created by their employees in their official capacities?

A

Yes, b/c §105 that prohibits works of the US Government from having protection is only specific to US (Federal) works

46
Q

what is the abstraction test?

A
  • test used in literary fiction and computer code
  • used to boil down text to just ideas and separate out which ideas are not entitled to copyright protection
  • use to show there was copying even though there may not have been literal copying
  • process:
    1. start w/ literal text and organization, generalize, keep generalized until you get to a basic idea
    2. as you get more abstract, at some point you no longer have expression, you just have ideas
    3. cases aren’t clear when there is/isn’t protection. General ideas are not protectable but if there is a specific pattern, those might get protection.
47
Q

can a D infringe without copying any of the literal text of a work?

A

yes, see abstractions test

48
Q

idea/expression dichotomy

A

if copying idea = no protection

if copying expression = infringement

49
Q

what is the role of substantial similarity in the copyright infringement test?

A
  • is used as a part of circumstantial evidence that D copied P’s work
  • circumstantial evidence = access + substantial similarity
50
Q

According to the 2nd circuit and many courts, what is the role of expert testimony in the infringement analysis?

A
  • can be used to prove copying
  • limited use of an expert to prove copying of protected elements (infringement). Can be used to explain audience’s reaction to music.
51
Q

what is the scenes a faire doctrine?

A

a concept that in a certain genre or work, certain aspects will be expected (ex. stucco on homes in NM)

52
Q

infringement vs. plagiarism

A
  • plagiarism: an act or instance of using or closely imitating the language and thought of another author w/o authorization
  • can have plagiarism w/out infringement (copy work in PD)
  • can have infringement w/out plagiarism (illegally download movie even though you gave credit)
  • plagiarism is not a legal COA, it’s an ethical violation (consequences are not legal consequences)
53
Q

extrinsic/intrinsic tests

A

-used to determine whether 2 works share a similarity of ideas and expression

to ID substantial similarity of ideas, use extrinsic test: measured by external, objective criteria; requires analytic dissection of a work and expert testimony. If substantial similarity is found, look at intrinsic test

to ID substantial similarity of expression (unlawful appropriation), use intrinsic test: no expert testimony, use ordinary reasonable person test - trier of fact must respond to the work as an ordinary observer w/out analytic dissection or use of expert testimony, to determine whether D took enough of what is pleasing to the audience to be held liable.

54
Q

can you have copyright protection in a fictional character?

A

Yes.

  • visual characters are more likely to get protection than literary characters
  • literary characters can get protection if they are well developed and not stock characters
55
Q

is there a copyright problem when one musician “samples” a few notes from a sound recording (incorporating the notes into his now song)

A

Yes.
-Bridgeport case: if you are directly using any part of the sound recording, even if it is not discernible in the new work, it’s per se infringement b/c it’s a physical copy of the sound recording and you’ve violated the reproduction right

56
Q

A small sandwhich shop plays, with a single speaker, a radio station with music for the enjoyment of its employees and customers. The radio station has a license to play the music. The shop does not. Any copyright problem?

A

No.

  • playing station is a performance
  • is a public performance b/c being performed at a place that is open to the public
  • Aiken small business exception applies, so no infringement
57
Q

when a student performs works at a free music recital, open to the public, on a University campus, has the student engaged in a public performance? Does the student need to seek a license from the copyright holder of the works performed?

A
  • student is performing
  • performance is public b/c open to the public
  • however no infringement b/c fits w/in the nonprofit exception
58
Q

when a professor plays a movie clip in class for discussion purposes, is it a public performance? does it infringe a copyright?

A
  • is a performance b/c showing a motion picture
  • is public it is shown in a place where a substantial number of persons outside a normal circle of a family or social acquaintances is gathered
  • no infringement b/c of classroom exception:
  1. by an instructor or pupil
  2. in the course of face-to-face teaching activities
  3. of a nonprofit education institution
  4. in the classroom
  5. from a legitimate copy
59
Q

A school orchestra plays several copyrighted works at a school concert. No fee is charged for the concert. Any copyright problem?

A
  • is a performance
  • is public
  • no infringement b/c non profit exception

Non profit exception requirements:

  1. nondramatic literary or musical work
  2. otherwise than in a transmission to the public
  3. not for the purpose of indirect or direct commercial advantage
  4. no payment of fee or other compensation for the performance to any of the performers, promoters or organizers if:
    - no direct or indirect admission charge OR
    - if there is, the proceeds are used for nonprofit purposes
60
Q

what are ASCAP, BMI, and SESAC?

A

performance rights groups that issue licenses for music

61
Q

what is the first sale doctrine? does it apply to copies made abroad?

A
  1. First sale doctrine (109(a)): once the copyright holder has sold the work or distributed it publicly, that person who lawfully bought it has the right to sale it or transfer it
    - first sale doctrine will also apply to transfers of title (doesn’t require sale)
  2. Does apply to copies made abroad.
    - 602(a) & Kirtsaeng case: first sale doctrine applies to sales outside the US even when the goods are produced in the foreign market. They can be sold in this country and not run afoul of the distribution right in this country.
62
Q

what are the fair use factors?

A
  1. purpose and character of the use by D
  2. nature of the copyrighted work
  3. amount of use
  4. effect upon potential market for or value of the copyrighted work
63
Q

what acronym stands for the fair use factors?

A

PC (purpose and character)
N (natur)
A (amount of use)
P (potential market, effect on or value of the copyright work)

64
Q

what elements should be taken into account when evaluating the first fair use factor of purpose and character of the use by the D?

A
  • commercial vs. non profit
  • criticism, comment, discussion
  • satire/parody
  • transformative use
65
Q

what elements should be taken into account when evaluating the second fair use factor of the nature of the copyrighted work?

A
  • factural/historical vs. fiction/creative
  • published vs. unpublished
  • consumable
  • out of print
66
Q

what elements should be taken into account when evaluating the third fair use factor of the amount of use?

A
  • quantity

- quality

67
Q

what elements should be taken into account when evaluating the fourth fair use factor of the effect on the market for or value of the copyrighted work?

A
  • just the effect or potential for effect

- note: Harper Row said this was the most important element

68
Q

who has the burden to prove fair use?

A

the defendant

69
Q

how does the fact that a work is unpublished factor into the fair use analysis?

A
  • use for the 2nd fair use factor (nature of the work)
  • unpublished works have a high degree of protection b/c there is a lot of value placed on the right of first publication so if it is unpublished, it is likely not fair use
70
Q

what is transformative use? what impact does transformativeness have on the fair use analysis?

A
  • use for 1st fair use factor (purpose and character of the work being used by D)
  • transformative use = when the defendant use of the work changed the work in some way (changed original purpose of the work)
  • if a work is transformative, it is more likely to be fair use
71
Q

what is a parody? how does it factor into fair use?

A
  • parody = comment, criticism, discussion
  • entitled to use at least enough to conjure up the original but not more than is necessary for the purpose of parody
  • have to mimic the original in order to make your point
  • note: just b/c parody, doesn’t mean it’s automatically fair use. Still have to evaluate 4 factors
72
Q

is it permissible to copy materials for distribution to students in a classroom? when is it permissible and when isn’t it?

A
  1. Guidelines
    - single copy for teachers is fair use
    - multiple copies fair use if (1) brevity and (2) spontaneity met
    - cumulative effect test
  2. guidelines indicate the minimum threshold for fair use. . They are like a safe harbor.
  3. If an instance doesn’t fit in the guidelines, still go through the other fair use factors.
73
Q

Can a professor copy a collection of articles and book chapters and distribute them to student instead of a textbook without any copyright permissions?

A
  • yes, if the faculty member did the copying themselves, then it’s OK
  • if taken to for-profit copy center, then not okay b/c then it’s commercial use and copy center is making a profit. If no commercial shops had to get permission, then value of copyright work would decrease and copyright holders would lose revenues.
  • PrincetonUniversity Press v. Michigan document services
74
Q

what is secondary liability for copyright infringement?

A

alternative ways to find liability for copyright infringement

75
Q

what is vicarious infringement?

A

General vicarious liability requirement:

(1) the right and ability to supervise +
(2) direct financial interest in the infringing conduct

Vicarious liability for performances (specific to performance right) requirements:

(1) actively operate or supervise the operation of the place where the performance occurs OR
(2) control the content of the infringing program AND expect either direct or indirect commercial benefit

76
Q

what is contributory infringement?

A

(1) the infringer had knowledge of the infringing activity +
(2) the infringer induced, caused, or materially contributed to the infringing conduct of another (substantial participation)

77
Q

who is protected by the DMCA safe harbors in 512?

A

Internet service providers

78
Q

why was Napster liable for copyright infringement?

A

purpose was to transmit copyrighted material

79
Q

what is the duration of copyright under the original 1909 Act?

A

original term = 28 years

renewal term = 28 years

80
Q

current duration of a copyright under the 1976 act?

A

life of the author + 70 years

81
Q

current duration of a work made for hire?

A

95 years from publication or 120 years from creation (whichever is shorter)

82
Q

works published before what year are now all in the public domain?

A

1923

83
Q

what is the copyright term for works created before 1978, but not published until 2001?

A

life of the author + 70 years OR the end of 2047 (whichever is longer)

84
Q

what is a termination right? how does it work?

A
  • exists only under the 1976 act
  • upon 35 years from the execution of a grant of copyright (license or assignment), the copyright holder has the right to terminate that license or assignment and if it’s exercised, the right return to the copyright holder
  • valid for 5 year period (35-40)
85
Q

who has a termination right?

A

the holder of the copyright

86
Q

what is necessary to transfer copyright ownership?

A

a writing signed by the owner of the copyright

87
Q

how does a copyright license differ from an assignment or transfer of copyright?

A
  • license have to be for a specific use, defined terms

- assignment/transfer - you transfer the whole copyright or specific rights

88
Q

what is the new use problem as it concerns copyright license?

A

new use = the license granted certain rights but D ended up using the works in a new way.

Ex. License gave right to D to use work as a move, but then D later started showing the movie on TV.

89
Q

what was the holding of New York Times vs. Tasini

A

Facts: Ny Times pays authors to write articles. Authors are not employees but are independent contractors that license their works to the Times. Authors give license to Time to reproduce works. Times started sending editions of newspaper to electronic databases. Authors complained that Time didn’t have a license to reproduce the work in the electronic formats that were separable and aside from the newspaper.
Holding: authors are right. These licenses do not include the right to reproduce article in an electronic database.
-debate over K language

90
Q

what is a work made for hire?

A

(1) work is made by employee w/in scope of employment OR
(2) the work is specially ordered or commissioned and falls w/in 9 categories of types of works + document signed by the parties that states the work is intended to be a work for hire
- collective work
- motion picture or audiovisual work
- translation
- supplementary work
- compilation
- instructional test
- test
- answer material for test
- atlas

91
Q

what is a joint work?

A

a work where there are multiple authors coming together

92
Q

what is the duration of a joint work?

A

life of the last surviving author + 70 years

93
Q

how are authors of a joint work treated?

A

as co-owners, TIC

94
Q

what did Eldred v. Ashcroft do?

A

held that the CTEA (current 20 extension in current and future copyrights) was constitutional

95
Q

what is the copyright term for works in their second copyright term on the effective date of the 1976 Act?

A

28 year renewal term + 67 years = 95 years total

Copyrights (10 decks)

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