Test 3 (9-12) Flashcards
Copyright Office
Copyright protection NO LONGER holds requirements- copyright registration, deposit, and notice
(Registration and notice are optional)
1870
- copyright ownership were recorded by clerks of the US District Courts
- library of Congress now has the responsibility of handling copyright registrations
1879
the US Copyright Office was formed as a department of the Library of Congress
-also deals with wills, mortgages, assignments, and security interests
The office
- Advises Congress on anticipated changes in the US copyright law and compliance with international treaties
- Analyzes and assists in drafting copyright legislation
- Conducts studies for Congress on copyright matters
- Provides assistance to foreign countries in developing their CL
Section 701(a)
person responsible for the overall direction of the Copyright Office is the Register of Copyrights, appointed by Library of Congress
Divisions of Copyright Office
- Receipt Analysis and Control Division
- Registration Program
- Information and Records Division
- Licensing Division
- Copyright Acquisitions Division
Receipt Analysis and Control
responsible for receiving materials such as registration applications and transfer documents for recordation.
Registration Program
Consists of 3 divisions- Literary, Performing Arts, and Visual Arts- examines registration and renewal applications and any accompanying materials such as deposit copies
Information and Records Division
responsible for educating the office staff and public-prepares search reports upon request- prepares certifications-processes recordation of transfer documents
Licensing Division
responsible for carrying out compulsory license provisions of the copyright act such as the compulsory license for making and distributing
Copyright Acquisitions Division
administers the mandatory deposit provisions and issues demands for published works that have not been deposited
Copyright Office Records
The Copyright Card Catalog consists of over 40 million individual cards (1870-1977)
1978-present
Prior to 1978- located in the reading room
Also can search the Assignment and Related Documents Index
What is copyright registration?
You DO NOT have to register the work in order to own a copyright to a work.
Section 408 of the CA provides for an optional registration system.
Just because someone registers, as the owner doesn’t mean they are
Why should I register?
Cheap form of insurance
- Registration creates a public record of your claim of copyright ownership
- Registration provides what is legally known as prima facie (at first sight) evidence of ownership
- Registration gives the copyright owner the ability to file suit
- Early registration entitles the copyright owner to attorney’s fees and statutory damages
- Registration allows copyright owners to collect mechanical license royalties
- Registration allows copyright owners to block importation of illegal copies
Who can register?
Anyone who owns all or part of the exclusive rights to a copyrighted work
Any of the work’s authors
Any party that acquires ownership of any of the exclusive rights
ONLY one registration is needed to protect all owners
Why should I register?
A work can be registered at any time during its term of copyright
Register within 3 months after the works publication in order to receive statutory damages and attorney’s fees
Fee- $35-$65
How to register?
File an application with the Electronic Copyright Office online system
Submit a paper application form to the CLO
App must include:
-A completed app form
-Submission of deposit
-App fee
ECO
Fastest-least expensive 80% are processed this way Processing time-3 months Paper- 11 months Only $35
Form CO
Fill-in form 2-D barcode scanning CANNOT be used for group registrations Complete online and print Cannot be saved and reused
Paper Forms
TX, VA, SR, PA, SE
Some works can ONLY be registered this way
$65
PA- performing arts, prepared to be performed directly in front of an audience-musical works, dramatic works, choreographic works, motion pictures, audiovisual works
SR- sound recordings- on or after February 15, 1972- before this are not protected
Does NOT protect any musical, literary, or dramatic works on the recording
TX- nondramatic musical works-written works, song lyrics
VA- works of the visual arts-pictorial, graphic, sculpture, and album cover
Short forms-only
used if there is ONLY one author and owner of the work, the work is not a work made for hire, the work is completely new, form is signed by the works author
Forms
-can be obtained at the CLO by phone, mail, or online
-Lies on an app form is subject to a fine of $2500
-Work has more than 3 authors use Continuation Sheet
-Authors DOB is not required, but the date of death is, unless anonymous
Nationality or domicile is MANDATORY
-App MUST be signed by any of these people:
-Author, copyright claimant other than an author, owner of exclusive rights, authorized agent
-Check payable to Register of Copyrights
Creation Date
Year in which the work was first fixed in tangible form
Limitation of Claim
If any part of the work has been registered
Expedite
5 days- only if registration is needed for litigation, to meet a contractual or publishing deadline, or some other urgent reason
$760 plus app fee
CLO
does NOT resolve disputes over ownership of work-response within 6 months
Date of registration
the date when CLO receives all the required materials
Request for correction
within 120 days- failure to sign, failure to enclose, failure to provide, failure to adequately describe the authorship of work, checking work for hire box, failure to specify how ownership was transferred, failure to describe new material in derivative
Denying Registration
Rarely happens, will grant registration even if CLO has reasonable doubt of the copyright ability of the work
When can you correct or supplement info in a previous registration?
using Form CA
Change of address, claimants name, and title of work, author or claimant omitted from original
-NO valid alternatives to registration
Myth of the poor mans copyright
Involves putting a copy or phonorecord of your work in an envelope, sealing it, and sending it to yourself by certified mail- proving that you created the work no later than the date of the postmark stamped on the envelope
NOT a substitute for reg.
Songwriter’s Guild of America
Allow authors to register their claims to copyright ownership with the organization
Pre-registration
MUST take place within 1 month after the copyright owner learns of an infringement and no later than 3 months after publication
-Instituted pursuant to the Artist’s Rights and Theft Prevention Act of 2005
What’s preregistration for?
motion pictures, sounds recordings, musical compositions, literary works, and computer programs, advertising and marketing
Work must NOT have been commercially released
Deposit
- NOT complete until giving the -CLO a copy of the work to be registered – a “deposit”
- Deposit is only mandatory in the US
- NOT applicable for unpublished works
- Deposit requirement MANDATORY- but no consequences if you do not
What must be deposited?
A deposit must mountain 2 copies or phonorecords of the best edition of the work
-Sound recordings must also include a text or pictorial
Best edition of work
the edition published in the US at any time before the date of deposit that the library of congress determines most suitable
Exemptions
Works that are published in the US but are published in electronic form only, are available only online, and are not available in physical form
Serials
Newspapers and periodicals
Copyright Notice
A way of informing people that a work is protected by copyright and who owns it
- Notice was omitted or improperly placed on a work-automatically entered public domain
- Foreign countries DO NOT require copyright notice
March 1st 1989
Placing a notice of copyright on published copies of work became required
Berne Convention 1988
notice is NO longer required for copyright protection
Notice Contents
The word “copyright”, abbreviation, or symbol-sound recording use a p
The year of initial publication- unpublished- year of creation
Copyright owners name
-should be place on every reproduction of a copyrighted work
Infringement of Copyright
- The equivalent of stealing physical property
- Arises from the unauthorized exercise of a copyright owners exclusive rights and is NOT dependent on any exchange of money or profit motive
- The copying must result to an improper appropriation of the copyrighted work
What if you believe your work has been infringed?
- Notify the infringer and ask them to stop infringing
- Send a cease and desist letter
Who can sue for infringement?
- Only the copyright owner or the exclusive licensee of a work can sue anyone who infringes
- Exclusive licensee can only sure for the right that he owns
- If you want to sue someone for infringement, suit may be brought in any federal district where defendant can be found
Divisibility of Copyright
a copyright can be split up, and any of the exclusive rights can be owned separately
Can infringement law suits be files?
Yes, in one of the federal district courts in the US
-Disputes over copyright ownership or the right to receive royalties would have to be filed with the state
How to prove infringement?
Must prove 2 things:
Ownership of a valid copyright
Copying of a copyrighted work
-Copying is established by proving access to the copyright work by alleged infringer and substantial similarity
What is the best way to prove ownership?
To present a copyright registration form in court
Copying
Can be direct or indirect
- without access copying is not possible
- if defendant admits access, that does not mean they admit to copying the plaintiffs work
Circumstantial evidence of access
- Showing that the plaintiffs work was very well known and widely available to the public
- Even plausible coincidences may not give rise to an inference of access
- Jones v. Blige- requiring too much of a “quantum leap”
Similarity
- NO set number of notes or words that must be taken from a work in order to constitute substantial similarity
- Determined by “ordinary observer test” or expert testimony (musicologist)
- Experts are hired witnesses, NOT neutral third parties
Improper Appropriation
- Defendant must appropriate elements of the work that are protected by copyright
- Often permissible to copy a musical phrase from a copyrighted work
- No universally accepted minimum amount of music that may be freely copied
Bridgeport Music Inc. v. UMG Recordings
fragmented similarity test was applied
-A court may conclude that a defendant copied a work even if the plaintiff cannot prove the defendant had access to the work because the similarities between the works are so striking
Can a presumption of copying be countered or rebutted by the defendant?
YES
Cartier v. Jackson
- sued MJ for $40 million
- She couldn’t find an entertainment attorney willing to represent her
- She was obsessed with MJ
- Didn’t even have a copy of her demo
- Her attorney was a construction worker
Selletti v. Carey
appropriated a poem in 1989
Complete fabrication
Bright Tunes v. Harrisongs Music
Harrison subconsciously copied “He’s So Fine”
-CAN be liable for infringement even if you are unaware of it
Three Boys Music Copr v. Michael Bolton
Subconcious infringement
Cottrill v. Spears
Could not prove that spears had an opportunity to view or copy the work-case dismissed
Toliver v. Sony Music
Most of the alleged similarities involved uncopyrightable material
Satriani v. Christopher Martin
Filed a joint stipulation for dismissal of the lawsuit
Pyatt v. Raymond
Songs shared a common theme, but had no other similarities
Liability for Infringement
A person who actually commits an infringement will always be liable, and that type of liability is referred to as direct infringement
-third parties can also be held liable
4 types of infringement
- direct infringement
- contributory infringement -vicarious infringement
- inducement infringement
3 doctrines of secondary liability
Contributory
Vicarious
Inducement
Contributory
- occurs when a party has knowledge of the infringing activity and induces, causes, or materially contributes to the infringing conduct of another
- Requirements: defendant must have knowledge of the infringing activity
- Defendant must substantially participate in the infringing activity
Vicarious
- When a defendant has the right and ability to control an infringer’s activity and receives a direct financial benefit from the infringement
- Can be imposed regardless of defendant’s knowledge or intention
Inducement
Can subject a defendant to contributory liability
Joint and Several Liability
-If a copyright owner wins an infringement suit, all infringing parties will be jointly and severally liable for the infringement
Defense
A defendant’s assertion of a legal reason why the plaintiffs claim is not valid
Statute of limitations
A law that specifies a maximum time period during which a claim can be made
How long do you have to recover the damages or profits gayer winning a suit for copyright infringement?
You can only recover damages and profits that were earned within 3 years before the suit
-sometimes the courts will decide to toll or delay the application of the statute of limitations
Abandonment of Copyright
Can be done by committing some act that clearly indicates intent to surrender rights in the copyrighted work and to allow the public to copy it
-owner must intend to abandon their rights through an overt act in writing
Is it possible for a copyright to be abandoned without any written document of copyright owners actions clearly stating abandonment?
YES
If a formerly published work becomes unpublished…..
this is NOT considered abandonment
Fair Use
- broad
- Means that although certain uses of copyrighted works would otherwise be infringements of copyright these uses should be allowed due to some public benefit derived from them
What is fair use?
- A privilege that allows someone other than the copyright owner to use a copyrighted work in a reasonable manner without the owners consent
- provides wide access to creative works
- allows certain uses of copyrighted works that encourage advancement of learning and knowledge
- LEGAL DEFENSE not AFFIRMATIVE RIGHT
Does copyright act define fair use?
NO
Fair Use Test Act
- The purpose and character of use-purpose for which the use is being made-a commercial or a nonprofit purpose-character of a use may be incidental
- The nature of the copyrighted work-concerned with the copyrighted work itself rather than the use made of the copyrighted work- (least important)
- The amount and substantiality of the portion used- the greater amount of a copyrighted work used, the less likely that a use will be fair-no absolute rules as to how much of a work can be copied and still be considered fair use
- The effect of the use upon the potential market for or value of the copyrighted work-an analysis must be made of how the defendants use will affect the value of the copyrighted work- (most important)
Why does every fair use harm the owner?
Because they are not licensed and do not produce income
Parody of Fair Use
Work copied must be the subject of the parody
Must comment upon or criticize the original work
One type of party fair use that will often qualify as fair
a literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule
Satire
Use of a work in order to comment on or make fun of something other than the copyrighted work, such as society in general
Campbell v. Acuff-Rose
- Amount copied must balance against the amount of original material contributed
- Courts ruling can be misinterpreted as setting forth a strict rule that all parodies are fair use
De Minimis Copying
When the amount copied from a copyrighted work is insubstantial and inconsequential, or de minimis
Innocent Intent
The fact that a person does not realize that his actions constitute copyright infringement is not a defense to copyright infringement
Coercive Remedies
- To prevent infringement from continuing
- Injunction
- Impoundment
- Destruction
Injunction
A court order telling someone to do or stop doing something
Maybe temporary or final
Impoundment
all infringing goods, as well as equipment and materials used to make such goods, are collected and held until the court makes a final judgment on the infringement claim
-plaintiff files an affidavit identifying a number, value, and location of the alleged infringing copies or devices and a bond
Destruction
May order the destruction of infringing articles-can order they be sold, given away, or delivered to the plaintiff
Compensatory Remedies
You cannot just pick an amount of money to sue for out of thin air
CL does not allow you to recover for the emotional distress or mental anguish
Actual Damages and Profits
Intended to compensate the copyright owner for the losses incurred as a result of infringement
- Damages will be equal to the fair market value of the use made by the infringer
- A copyright owner is allowed to recover the profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages
Statutory Damages
- When actual damages are hard to determine
- Receives monetary damages within a specified range
- Work must have been registered before the infringement began or within 3 months after the publication
High rates when:
- A defendant continues the infringing after a copyright owners objection and request of a license
- A defendant continues selling allegedly infringing goods
- A defendant fails to cooperate with the plaintiff’s discovery efforts to determine actual damages
- A defendant is a repeat offender
Who may a court award reasonable attorney fees to?
To the prevailing party as well as the costs or expenses incurred in connection with an infringement suit
-Courts are not required to do so
No Electronic Theft Act
Expanded the applicability of criminal penalties for copyright infringement to situations where an infringer acts without direct financial motivation
Family Entertainment and Copyright Act of 2005
Makes it a criminal offense to make copyrighted works available to the public before they are officially released
Digital Millennium Copyright Act
Provides criminal penalties for circumventing copyright protection systems and tampering with copyright management information
