Copyright Up through Quiz Flashcards
(128 cards)
1
Q
What does copyright versus patent versus trademark protect?
A
Copyright protects creative and artistic works; patent protects inventions, processes, methods; trademark protects product identifiers (e.g., names, logos, slogans)
2
Q
Is novelty required in copyright?
A
No. If two people write the exact same thing, each may receive copyright protection so long as each independently created it (with creative spark).
A work may be original even though it closely resembles other works (not novel) so long as the similarity is fortuitous, not the result of copying.
Example: Neither poems are novel (someone else wrote same one) but both poems copyrightable.
3
Q
Is Copyright tangible or intangible?
A
Intangible, however, it can be embodied in a physical form
4
Q
What category of subject matter is software categorized under?
A
A literary work
NOTE: Literary works include computer programs in source code and the software in a ROM chip in the computer
5
Q
Why can’t facts be copyright?
A
No originality, because copyright extends only to the “authors” of “writings” and the author did not author the fact
NOTE: If you write non-fiction book, your expression is the protected work. The facts are not protected; this is why courts call it ‘thin’ copyright. Third parties can copy the facts freely.
6
Q
A
7
Q
Where does the Constitutional authority for copyright exist?
A
Article I, Section 8, Clause 8
8
Q
What is the Constitutional Clause regarding Intellectual Property?
A
“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.”
9
Q
What are the four theories of copyright law?
A
Economic Theory
Labor Theory
Personality Theory
Interest Group Theory
10
Q
What is the Economic Theory and what are some counterarguments to it?
A
Copyright is necessary to provide authors with incentives to create works, because without protection, others could copy and sell the work without payment to authors.
However, increased protection reduces access, raises the cost of the work to consumers, and there is limited data regarding how much incentive is optimal
11
Q
What is the Labor Theory and what are some counterarguments to it?
A
Copyright law rewards authors for their creative labor. Based on natural law. However, could result in perpetual copyright.
12
Q
What is the Personality Theory?
A
Copyright law protects artist’s personal connection to the creative work; the work is bound up with the creator’s identity.
However, this theory does not address primarily commercial works.
13
Q
What is the Interest Group Theory?
A
Copyright law protects the interests of the copyright industries. These industries are wealthy, focused, and organized whereas consumers are passive and disorganized.
However, this is a highly descriptive theory and provides little normative guidance.
14
Q
What is the general rule on originality and the two subset requirements on originality?
A
“Copyright protection subsists in original works of authorship fixed in any tangible medium of expression.” (102a)
Originality requires both:
(1) Independent creation (work originated with the author); AND
(2) Minimal creativity (some “creative spark”)
- NOTE: Term “originality” is NOT in the Constitution; HOWEVER, originality IS a Constitutional requirement by use of the word “authors” and “inventors” and “writings” and “discoveries”
15
Q
How are photographs handled under copyright law?
A
Photographs CAN be copyrighted if the photo is original:
(1) Independent creation; AND
(2) Minimal creativity
Works are NOT copyrightable if no expression apart from the raw facts.
- Authors are not limited to books
- As long as a photo has some degree of creativity and independent creation, it can be CW
- A photo may lack originality and are thus not per se CW
- To the extent a photograph reflects the photographer’s decisions regarding pose, positioning, background, lighting, shading, and the like, those elements can be said to “owe their origins” to the photographer, making the photograph copyrightable, at least to that extent
- Example: If just a simple copy of the photo, infringement
- Example: If second artist inserts creativity, CW
NOTE: Same applies to sound recordings; second version must have change in expression
16
Q
How are advertisements treated under copyright law?
A
Advertisements ARE protected by CW so long as originality requirements are satisfied (e.g., circus poster)
17
Q
How is effort treated in copyright law?
A
It is irrelevant. Per Meshworks v. Toyota, where Meshworks created wire frame digital models of Toyota cars, the court held that the wire frame models were NOT original, because the point of the work was to create “a faithful copy” of a Toyota car.
- NOTE: Independent creation satisfied; however, creativity NOT satisfied. Thus, originality not met
- NOTE: The artist (Meshwerk) set out to not be original and instead to copy Toyota
- NOTE: Irrelevant that Meshwerk work required a lot of work and effort
- NOTE: Sometimes the factor of INTENT can help show that there was no creativity (intent to copy original)
18
Q
What is the old theory/law/rule regarding originality?
A
The “sweat of the brow” theory
19
Q
How are Compilations of Facts treated in CW law and what occurred in Feist phone listings case?
A
- Facts are NOT protectable by copyright
- Compilations of facts MAY be protected by copyright
- NOTE definition of compilation of facts that is CW: “Formed by the collection and assembling of preexisting materials of data that are are selected in such a way that the work as a whole constitutes an original work of authorship”
- NOTE: In Feist, Feist copied 4,000 of Rural’s phone numbers in listings and Rural sued for copyright infringement.
However, the Court held Rural’s phone listings did NOT exhibit originality. Rural exhibited NO creative selection (all the phone numbers simply picked out), and NO original arrangement (phone numbers listed alphabetically). Thus, Rural’s compilation of facts was NOT original and therefore no infringement existed. Feist not liable.
20
Q
What are the three requirements for a Compilation of Facts to be copyrightable?
A
Compilation of Facts are copyrightable if:
(1) Collection and assembly of pre-existing material, facts, or data;
(2) Selection, coordination, and arrangement of those materials; AND
(3) Creation, by virtue of the particular section, coordination, or arrangement, of an “original work of authorship”
In shorter terms, Compilation of Facts are copyrightable only if they exhibit creative selection and arraignment.
NOTE: The CW will extend only to the creatively selected and arranged expression. In no event may copyright extend to the facts themselves.
Example:
Compilations of facts are NOT copyrightable if there is:
(1) NO creative selection (e.g., original author simply picks out all the phone numbers); AND
(2) NO original arrangement (e.g., original author simply lists phone numbers alphabetically).
Example: No copyright for calendars, height charts, schedules of events, tables/lists taken from public documents or other common sources)
Examples of non-CW items:
- Product catalogs listing products alphabetically by manufacturer and model number
- Daily stock market prices listed by company name or symbol
- Compilations of real estate sales listed by month and street address
- List of hotels in a city listed alphabetically and showed room rates
21
Q
How would you analyze for and against copyright protection of the Westlaw database (a compilation of facts)?
A
For copyright protection: Westlaw creatively selects and arranges the opinions by adding their own headers.
Against copyright protection: Westlaw did not write the opinions and government opinions (judge’s writing) are not copyrightable because government works are not copyrightable.
22
Q
How are “created” facts treated in copyright (e.g., survey lists on restaurants, blue book car prices, US News lists)?
A
- Can go either way but probably protectable as a compilation
- To extent the created facts reflect creativity and opinions, yes, copyrightable
23
Q
How are Fictional Works of History treated (e.g., fiction book that contains history)? Briefly summarize the Nash v. CBS case.
A
The fictional idea on how history really occurred is NOT copyrighted.
Nash asserting part of his book was fact causes him to lose some CW protection (whereas Harry Potter is total fiction so receives total CW).
In Nash v. CBS, where CBS used in its TV show Nash’s idea from his fictional book about how John Dillinger really died, the court held CBS did not infringe on Nash’s copyright because CBS only used facts and ideas from Nash’s book. “The first person to conclude Dillinger survived does not [own] history.”
Example: Book containing true revelations from God could be treated as fact and thus no CW exists.
24
Q
Define sound recordings in copyright law.
A
“Works that result in the fixation of a series of sounds but not including the sounds accompanying a motion picture or other audio visual”
NOTE: Sound recording includes bird calls, spoken words, whale calls, etc. (not just limited to music)
NOTE: Sound recording of music creates TWO kinds of copyrighted work (1) musical work, and (2) sound recording.
Example: Song performed by artist creates musical CW, then variation of song by different artist creates sound recording
NOTE: Sound recording contains variations in production (echo, effects, equalization) so creates separate CW
Example: Author doing audio version of book (2 CWs): Literary work and sound recording. Same person likely does not own both copyrights.
25
What are the six exclusive copyright ownership rights?
(1) Reproduce the copyrighted work in copies or phonorecords;
(2) Prepare derivative works;
(3) Distribute copies for sale;
(4) In the case of all works except sound recordings, Perform the work publicly
(5) In the case of all works except sound recordings, Display the work publicly; AND
(6) For sound recordings only, Perform the work publicly via digital transmission.
NOTE on Infringement Examples:
- Distributing copies to public w/o permission from owner
- Publicly perform or display a song w/o permission from owner
26
Define the public performance exception for sound recordings.
XXX
27
Define phonorecord.
A copy (physical form) of a sound recording.
28
What is the difference between an idea and an expression in copyright law?
An idea can never be protected. An expression CAN be protected.
29
How does the law treat a book that describes inside the book a system or method? Also, briefly summarize Baker v. Sheldon.
The book is CW; however, the system/templates/forms inside the book are NOT CW (would require patent protection).
Baker v. Sheldon
Sheldon wrote book describing double-entry bookkeeping and included forms and templates inside book. Baker copies forms/templates only (no explanatory text) and Sheldon's estate sues Baker for copyright infringement.
Issue: Does CW protection for a book explaining a system on bookkeeping prevent others from using the system or the forms incidentally used?
Rule: A book does NOT give its author right to exclude others from practicing what is described in the book. Note that the explanatory text/expression WAS CW but the actual empty forms/templates had no protection.
30
What important dichotomy was introduced via Baker v. Sheldon?
The idea-expression dichotomy where an idea (e.g., bookkeeping) cannot be copyright; however, the explanatory expression CAN be protected. Exclusive rights to a "useful art" described in a book is only available by patent.
Baker copied only the SYSTEM of accounting, which is not subject matter available for copyright protection.
NOTE: If student copies ideas from a paper, there is no CW infringement because CW does not protect ideas but there would be a plagiarism charge.
31
What are two defenses available to defendants in a copyright infringement lawsuit?
(1) Blank Forms Doctrine
(2) Merger Doctrine
32
Define the Blank Forms Doctrine.
Blank Forms with no original elements are NOT subject to copyright.
Examples of Blank Forms
- Time cards, account books, bank checks, scorecards, address books, report forms, order forms
- TEST: Anything that is designed to simply RECORD information cannot be protected.
- NOTE: This is a DEFENSE to copyright infringement.
33
Define the Merger Doctrine (which is an exception to the rule that expression can be copyrighted).
The merger doctrine in copyright states that if an idea and the expression of the idea are so tied together that the idea and its expression are one - there is only one conceivable way or a drastically limited number of ways to express and embody the idea in a work - then the expression of the idea is uncopyrightable because ideas may not be copyrighted.
In other words, if there is only one expression available of something, the expression cannot be copyright.
- NOTE: This is a DEFENSE to copyright infringement.
34
What is the test for the Merger Doctrine?
Would protection of the work monopolize all the available expressions (only one) of the idea?
Example: The phrase "Cain slew Abel" is an expression however there is only one way to say it, it should not receive protection otherwise the the protection would monopolize all available expressions of the idea.
Example: Kissing of spinx image. Same as above. No protection. Only one way to express it.
NOTE: In Morrissey vs. P&G, Morrissey owned CW on a set of sweepstake rules/contest collecting customer data. P&G used same sweepstake form. Morrissey sues. Court holds no infringement, expression and idea have merged and only one way to express the sweepstakes form. Cannot monopolize sweepstakes. Blank forms doctrine would have also applied.
NOTE: In Herbert Jewelry v. Kalapakian, suit Jewelry store sues K for infringing CW of a pin in the shape gold bee encrusted with jewels. Court rules no infringement due to merger doctrine; idea and expression are inseparable.
35
Do recipes receive copyright protection?
A barebones recipe does NOT receive copyright protection whereas those that convey more than simple directions for making a dish may receive protection, but the recipe should be tested.
36
Does the list of ingredients in a recipe provide copyright protection?
No. Ingredients are a fact or a system or method, which do not receive CW protection.
37
Does a description of steps in a recipe receive CW protection?
No. A description of steps is a process, and processes do not receive CW protection.
38
Do pictures of cooking techniques or of final dishes in a cookbook receive protection?
Yes, so long as the picture fulfills originality requirements.
39
Does the description of a history of the dish receive protection?
The description is expression and is protectable. The actual history is facts and is not protectable.
40
In what context is the Abstraction Test used?
Courts use the Abstraction Test to determine the similarity between two works.
NOTE: Helps identify the distance between the idea and expression. How similar does it have to be constitute infringement?
NOTE: The abstraction test is most frequently used to detect copyright infringement of software.
41
Define the Abstraction Test
1. Upon any work, .... a great number of patterns of increasing generality will fit equally well, as more and more of the details are left out
2. The last may perhaps be no more than the most general statement of what the play is about...there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas’ to which, apart from their expression, his property is never extended.
3. Nobody has ever been able to fix that boundary, and nobody ever can
(Nichols v. Universal Pictures where court held no infringement existed because Universal Pictures only used the same general plot idea which cannot be protected)
- If the similarities are only abstract ideas, no infringement.
- NOTE:
1. General plot ideas cannot be copyrighted (e.g., an idea that some families don’t get along after kids fall in love)
2. Infringement would require more similarities than at just an abstract level. Can’t state the barebones plot in five words and then sue the person who writes similar plot.
NOTE:
- Just break down the components and compare them. Farther up you go in logic the more abstract the less likely infringement exists.
- In Nichols v. Universal Pictures, Nichols makes play about two Irish families.
- Universal Pictures makes movie about two Irish families.
- Nichols sues Universal.
- However, Universal's movie had substantial differences from Nichols' play.
- Issue: Did movie infringe on play due to similarities in plot and high level characters?
- Holding. No. Though in some cases, can be infringement.
- Here, ONLY the general plot idea was copyrighted.
- NOTE: There is NO predetermined formula for when plots are too similar. Very fact specific inquiry.
- For example: Texts (protected). Specific scenes (protected). Subplots, characters (less protection). Plot outline (highest level of abstraction)(not protected, merely an idea).
42
What is the general rule regarding copyright protection of characters?
Characters do not receive copyright protection unless they are fully fleshed out (distinctive look) and carefully delineated.
NOTE: Everyone must know what character looks like and may be able to predict character responses.
Note on Policy Rationale: Do not want to stifle creativity by giving out to much character protection.
NOTE: Hard to receive protection in literary since readers form their own mental image of what characters look like. Much easier to receive protection for movie characters (e.g., James Bond) or cartoon characters (Batman).
Example: Mickey Mouse is drawn consistently; character has CW protection
43
What four steps would you take to analyze whether one form infringes on another form?
Step One: Compare two forms and look at differences between them.
Step Two: First form is only copyrightable if it satisfies originality (independent creation plus creative spark)
Step Three: If satisfies originality, apply both the Merger Doctrine defense.
NOTE: P who is suing for infringement will say there are multiple ways of expression and that there was no merger and there should thus be protection. For instance, the gardening template is very vague, it is not super specific to where they monopolized all forms of expression. D who is being sued for using the form will say that P used the only type of form/expression available, P monopolized, thus, merger applies and D is covered and they are not liable.
The narrower the concept, the more likely court will find merger doctrine applies.
Step Four: If it satisfies originality, D will also try the Blank Forms defense, arguing P merely provided a blank form, there was no expression, and systems (e.g., bookkeeping template) cannot be protected under copyright law.
NOTE: On exam, argue both sides.
44
What are the two types of legal documents up for discussion in copyright law?
1. Transactional documents
2. Litigation documents
45
Between transactional and litigation documents, which are more likely to receive copyright protection and why?
Litigation documents because litigation documents exhibit more creativity than transactional documents. Transactional documents are 'rights-creating machines' that are less creative. For instance, language in mortgage docs is not creative and copied from doc to doc. Also, transactional docs are using the same case law/rules so no creativity. Mortgage docs use the use vs. expression dichotomy, you may copy the mortgage doc for use
46
Is software protected?
Yes, as a literary work.
47
Can an operating system be protected?
Yes, absolutely, operating system is software and is CW.
Note: User instructions not CW.
Note: Court does not recognize a distinction between source code and object code.
Note: Fixation is fixed in the ROM drive.
48
Is a computer menu command hierarchy copyrightable?
No. A computer menu is not copyrightable because it a method of operation. Copying the words and structure of a command hierarchy is not CW (because menu is a system or method of operation)
49
What is the general rule on the utilitarian aspect of useful articles?
“Design of a useful article....shall be considered a PGS work... only if....features can be identified separately... and are capable of existing independently of, the utilitarian aspects of the article.”
A useful article on its own--its utilitarian aspect--CANNOT be protected by copyright.
NOTE: In the past, Copyright Office used to prohibit protection of any useful articles.
Example: Plastic pig nose is NOT a useful article because it was only designed for an appearance. Pig nose has CW from the start.
Example: Halloween costume IS a useful article because it has the use of clothing. Thus, it can only be CW IF there is a showing of separable authorship.
Example: Toy airplane IS a useful article.
50
When does separability exist?
Separability exists when the object has features that can be identified separately... and are capable of existing independently of, the utilitarian aspects of the article.
[Separate from any underlying utilitarian function]
51
What is the two step approach in useful articles and PSG?
1. Is it useful? If so, no CW unless
2. Does design incorporate PGS features that can exist on their own? If so, CW.
Example: Mannequins
(1) Yes, useful articles.
(2) No, mannequins are not sculptures with aesthetically separable features or those that can exist independently from its function as a mannequin.
Answer: No CW.
52
How does intent factor into the useful article and separability analysis?
If no intent for separability up front, it cannot exist later by a court decision. In other words, if creator only intended to build functional object, weighs against separability (and CW).
53
A feature incorporated into the design of a useful article is eligible for copyright protection only if the feature satisfies what two elements?
i. (1) Can be perceived as a two- or three-dimensional work of art separate from the useful article; AND
ii. (2) Would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.
QUIMBEE RULE
Under the conceptual-separability test, a design feature of a useful article is copyrightable if (1) the feature is capable of being perceived as a two- or three-dimensional work of art, separate from the useful article, and (2) when so perceived, the feature independently qualifies as an original work, fixed in a tangible medium of expression.
NOTE: Professor says on exam, that second item is harder to satisfy. Argue both sides.
NOTE: “If the sole intrinsic function of an article is its utility, the fact that the article is unique and attractively shaped will not qualify it as a work of art."
NOTE: A useful article does NOT have to remain after the artistic feature has been imaginatively separated from the article.
54
What is the five factor balancing test to decide if a useful article should receive CW protection?
a. Look to the work itself
b. Look at how it is used (customers wear buckles as jewelry so must be separable)
c. Look at how it is marketed (marketed as high end jewelry so high aesthetic mark)
d. Look at the creator’s intent
e. Look at the creator’s design process (did creator look at both aesthetic and usefulness?)
55
Does copyright protect fashion?
No, CW does not protect clothing because provides utilitarian functions (warmth, safety, modesty). However, fabric or textile design may receive protection if contains a sufficient amount of creative expression.
56
What is a requirement for copyright other than the originality requirement?
Fixation
57
What are justifications for and against the fixation requirement?
i. Justifications for Fixation
- Constitutionally required
- Solves an evidentiary problem (defines what the work is)
- Makes public benefit more likely / allows for progress by science
ii. Justifications Against Fixation
- Music played at nightclub might not be protected
- Indigenous art might not be fixed
58
What is the overall statutory fixation rule (two parts)?
The writing must be fixed for a period of more than transitory duration.
NOTE: Transitory not defined.
Example: A pianist playing the piano with no recording--> no fixation
NOTE: Photos in a photographer’s personal possession that have not been shared with others are still copyrightable.
59
What is Congress' role in fixation (two roles)?
a. Determines whether the provisions of the statute apply
b. Represents a dividing line between common law and statutory protection
60
What are the five initial requirements for fixation per 102a?
i. A tangible medium of expression;
ii. Now known or later developed;
iii. From which the work can be perceived, reproduced, or otherwise communicated;
iv. Either directly or with the aid of a machine or device;
v. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with this transmission.
1. E.g., TV station works are protected (record while broadcasted) (even live TV is first being recorded then transmitted)
61
When is a work considered "fixed" per 101?
i. Its embodiment in a copy or phonorecord, by or under the authority of the author,
ii. Is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
iii. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission (e.g., live TV broadcast).
62
Are images in video games fixed?
Yes.
Though ‘new’ images are being generated each time the game is played, images are all based on the contents of the game’s read only memory (ROM) chips, which generate the images. Thus, images are ‘fixed’ in the chips
The AV work is permanently embodied in a material object (the memory devices) from which it can be perceived (thus satisfying fixation requirement).
As far as changes caused by the player, courts reject this argument. There is still a repetitive sequence of a substantial portion of the sights and sounds of the game; “a substantial portion” of the game remains the same no matter what the player does.
NOTE: Same outcome applies to multiplayer video games. Fixed.
63
What is the general rule on whether ROM chips are fixed?
They are fixed. Every time you load a program, even if the doc isn't saved to drive, there is CW b/c there is fixation (one week later the doc is still there).
- Example: Band jamming and improvising. No recording.
Answer: No fixation. Work has not been transmitted. Recording itself is not enough; must be transmitted.
- Example: Lecture in classroom but not recorded.
Answer: No fixation. Slides still protected.
- Example: Student records professor without permission.
Answer: No fixation. Must be done under the authority of the author. Same applies to recording concerts without consent.
- Example: Professor asks student to scribe in class.
Answer: Fixation. Under authority of professor.
64
Does the Copyright Act apply to state or local governments?
No.
65
What is the general rule for government works?
CW protection is not available to a work of the U.S. government but the U.S. government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.
Examples of Common Federal Works
i. Statutes
ii. Judicial opinions
iii. Regulations
iv. Reports
v. Manuals
66
How is a "work of the United States government" defined?
A work prepared by an officer or employee of the United States Government as part of that person’s official duties.
67
What are the two exceptions to the government works rule?
i. A government employee may secure CW for a work created outside of her duties. This can include subject matter involving Government work or her professional field
AND
2. Government officials (or private parties) who lack the authority to make or interpret the law, such as court reporters, may obtain CW.
68
Define the Government Edicts Doctrine
Certain state works such as statutes, judicial opinions, are excluded from CW protection because:
1. Such works are so fundamental, and
2. People need to know the law in order to comply with it.
Example: model building code developed by private entity loses CW protection once the code becomes the law.
Example: Annotations in Georgia’s Official Code fall within the government edicts doctrine and are NOT eligible for CW protection. That which binds citizens should be free for everyone, except for force of law doctrine.
NOTE: Today, States CANNOT obtain CWs in state judicial opinions or in state codes, with annotations or without.
Examples:
- “No reporter has or can have any CW in the written opinions delivered by the Supreme Court.”
- State court judges do not hold CW in their opinions or their non-binding explanation
- A reporter has CW in explanatory material created by the reporter and added to case text
- NOTE: Copyright Act states that the works of the federal government are not copyrightable. 17 U.S.C. § 101. The Copyright Act does not exempt state government works from copyrightability. Instead, the judicially created government-edicts doctrine holds the state court’s judicial opinions here uncopyrightable. Use Government Edicts doctrine for State court and Copyright Act for federal courts.
69
What is the general rule on government works said differently?
Copyright does not vest in works that are (1) created by judges and legislators (2) in the course of their judicial and legislative duties.
Force of law does not apply.
70
What are the two definitions of author?
1) The author is the person who creates the work
or
2) The author is the person who pays another to create the work (reflected in work for hire doctrine)
71
What are the four categories of work involving more than one author?
1) Collective work
2) Work made for hire
3) Joint work
4) Derivative work
72
What is the definition of a collective work?
A work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole
73
What are the legal implications for a collective work?
The individual contributor has CW to his individual part.
The owner of the collective work owns CW to the collective whole.
NOTE: If author transfers rights to publisher of collective work, then collective owner owns both whole and individual parts.
NOTE: The copyright in the volume as a whole does not give the publisher rights in the individual short stories themselves beyond the license that each individual author granted.
74
What are the two prongs of the Work for Hire doctrine?
A work for hire exists when either:
(1) A work prepared by an employee within the scope of his or her employment; OR
(2) A work specially ordered or commissioned for use as a contribution to [certain types of works] IF the parties expressly agree in a written instrument signed by them that the work shall be considered a work from hire.
- NOTE: Two mutually exclusive ways for works to acquire work for hire status
i. One for employees
ii. One for independent contractors
75
What are the 8 categories included in commissioned works within the work for hire doctrine?
i. (1) Collective work
ii. (2) Motion picture or other audio visual work
iii. (3) Translation
iv. (4) Supplementary work
v. (5) Compilation
vi. (6) Instructional text
vii. (7) Test or answer material for a test
viii. (8) Atlas
- NOTE: Commissioned works do NOT include book
- NOTE: Commissioned works do NOT include a sculpture
- NOTE: Under the second type of work made for hire, works not expressly listed in the statute cannot be works made for hire, even if the parties sign a writing to that effect.
76
What are the legal implications of a work for hire agreement?
i. Commissioning party (party A) is the sole author by operation of law
ii. Party B who did the work has no ownership rights
iii. Work’s CW lasts for 95 years from first publication or 120 years from creation, whichever expires first.
NOTE: If a work is made for hire, the author is not the person who actually created the work; rather, the author of a work made for hire is the person or entity for whom the work was prepared.
77
What are the 4 possible ways to identify whether someone is an employee?
(1) Hiring party retains right to control
(2) Hiring party actually exercises control
(3) Common law agency definition (per Restatement)
(4) Formal, salaried employee
78
What definition of employee does Copyright Law use for purposes of the work for hire doctrine?
Agency-law (from common law, Restatement)
79
What are the agency law factors to decide whether someone is an employee?
a. Right to control means of accomplishing the work
b. Right to assign additional projects
c. Skill required
d. Hired party’s discretion over hours worked
e. Source of instrumentalities and tools
f. Payment method
g. Payment of employee benefits, taxes
h. Location of work
i. Hired party’s role in hiring and paying assistants
j. Duration of relationship
k. Whether work is part of regular business of hiring party
NOTE: Nonexhaustive list of factors; use totality of circumstances test
NOTE: Common law agency approach requires a lot more to make someone an employee, which gives more deference to individuals over companies.
80
What is the overall approach to the work for hire doctrine?
(1) If an Employee (per Agency Law totality of circumstances test), employer wins, is author, owns all CW rights
(2) However, if Independent Contractor, must have signed agreement AND fall within one of eight enumerated categories, otherwise individual wins.
81
How does an assignment relate to the work for hire doctrine?
If no work for hire doctrine, then the only way for company to get CW is through an assignment.
Note from Quimbee: To ensure that it owns any copyright in the design, the manufacturer should negotiate a written agreement with the scientist assigning any copyrights to the manufacturer (when employee does the job outside of normal course of employment)
82
What is the difference between the copyright term in a work for hire versus an assignment?
For a work for hire, the copyright term is 120 years from creation or 95 years from publication, whichever is shorter. For an assignment, the copyright term is the life of the author plus 70 years.
For a work for hire, the individual has no right to terminate anything/no termination rights. For an assignment, the individual may terminate the assignment after 35 years.
NOTE: This is why publishers prefer work for hire over assignments.
83
How is scope of employment defined for the work for hire doctrine (not on exam)?
Courts consider the following factors:
(1) Conduct is of a kind employee is hired to perform
(2)Conduct occurs substantially within authorized time and space limits
(3) Conduct is actuated at least in part by purpose to serve employer
NOTE: Incidental acts perhaps in scope.
84
What is the rule on the legal implications of joint authorship?
Joint authors are co-owners of copyright in the work and each has an undivided half interest in the whole unless there is a written instrument to the contrary.
NOTE on Duration per Quimbee
If a work is jointly authored, the copyright term is measured by the life of the last surviving author plus 70 years.
85
How is Joint Work defined?
Joint Work Defined: “A work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”
NOTE: Each author as co-owner has the right to use or to license the use of the work, subject to an accounting to the other co-owners for any profits. Thus, even a person whose contribution is relatively minor, if accorded joint authorship status, enjoys a significant benefit. In other words, joint authors hold undivided interests in a work. This means that each author can exploit the work as she sees fit so long as she shares any profits equally with her co-authors.
NOTE from Quimbee: Each joint author is entitled to use the work solely and to license third parties. However, each joint author must also account to other joint authors for any profits earned from his sole use of the work. Here, the singer and the guitarist are joint authors of each song. When they wrote the songs, each intended that their separate contributions be merged into inseparable or interdependent parts of a unitary whole. As a joint author, the guitarist is entitled to use and license the songs for his own sole benefit. The guitarist does not need the singer's permission to license the songs. However, the guitarist must account to the singer for any profits he earns from licensing the second band.
86
What are the requirements for a joint work/joint authorship (Erickson rule)?
1. Two or more “authors”
2. Contribution of separately copyrightable content
3. Authors’ intention to create a joint work at the time work created
However, valuable and copyrightable contribution (like a creative contribution) to a work does NOT necessarily constitute authorship.
NOTE per Quimbee on Intent: The best objective indicator of the parties' intent is a written agreement. Absent a written agreement, courts examine the contributor's decision-making authority or level of control over the work, how the parties billed themselves on the work, and other evidence, such as any written agreements with third parties.
87
When assessing "author" for purposes of joint authorship, what does one assess (per Lee case)?
To distinguish between a contributor and an author of the work as a whole, assess:
(1) Who had control of the work as a whole? [very important, such as, did one person reject most of other person's ideas?]
(2) Were there objective manifestations of intent to be co-authors?
(3) Whose contributions are responsible for the “audience appeal” of the work?
88
What is the Gaiman exception to the requirements for joint authorship?
If two or more authors make uncopyrightable contributions to a work, then each author can be a joint author of the work IF the necessary intent to contribute to a joint work is present
Example: Four authors each contribute non-CW work to a CW work. Under Gaiman, each has authorship.
NOTE: Issue with Gaiman
- Four persons each make uncopyrightable contributions to a copyrightable work, the Gaiman exception applies. However, if one of the four persons made a copyrightable contribution, the other three persons lose their status as others.
89
At what time is the author's intention to create a joint work measured?
a. Intent to merge contributions must exist at the time each author prepares their respective contributions
Example: 10 years ago I write poem. Then someone makes song with my permission. Are we joint authors w/ undivided rights to profits?
No: We have a derivative work. No intent to merge at the time each of us prepared our contribution. Thus, we need an agreement on how to do profits.
90
What are the two differences between a joint work and derivative work?
Differences between intent and differences in legal implications.
- To create a joint work, authors must have intent to merge their contributions at time of creation but in derivative work, the underlying work was created first, without intent to merge.
- In a joint work, each author owns undivided rights in the whole regardless of any differences in each author's contribution. In a derivative work, each author owns her own contribution and NOT the whole.
91
What are the key differences between a joint work and a collective work?
In a collective work, there is no intent to merge contributions into one.
Also, the owner of a collective work acquires only the rights related to that particular collective work (and any revisions), and the individual contributors retain rights to individual contribution but do not receive interests in the whole.
92
What are the two tests to determine whether joint authorship exists?
1. Nimmer's de minimus test (uncommon)
2. Goldstein's "copyrightability" test (current law)
93
What is Nimmer's de minimus test?
Joint authorship exists when the combined result of joint works is copyrightable so long as each author contributed more than a de minimis amount.
94
What is the Goldstein "copyrightability" test?
Joint authorship exists when:
(1) Intention by each author to contribute to a joint work; AND
(2) Authorship of a separately copyrightable contribution (in order to make someone an author).
NOTE: The de minimis and copyrightability tests differ in one fundamental respect. De minimis test requires that only the combined product of joint efforts must be copyrightable. By contrast, Professor Goldstein’s copyrightability test requires that each author’s contribution be copyrightable.
95
What is the policy rationale for one's ability to transfer copyright?
Authors, painters, playwrights, and other creators are not usually in the best position to market and distribute their own works.
96
Define the concept of divisibility in copyright law.
Copyright is not monolithic; copyright consists of a “bundle of rights” laid out in Section 106. Each of the rights in the bundle of rights can be transferred. Each right in the bundle of rights can be further divided.
NOTE: “Any of the exclusive rights in CW, including any subdivision of the specified rights in 106, may be transferred and owned separately. The owner of any particular right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title."
97
Define the Statute of Frauds provision as related to transfer of copyright.
A transfer of CW ownership, other than by operation of law, is NOT valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.
98
Define transfer of copyright.
A “transfer of copyright ownership” is an assignment, mortgage, exclusive license, or any other conveyance … of a copyright or any of the exclusive rights … , whether or not it is limited in time or place of effect, but not including a nonexclusive license.
- NOTE: A transfer does not include a non-exclusive license
- NOTE: An exclusive license (even if limited to time and space) is a transfer.
99
What are the two types of transfers?
Assignments and licenses.
100
Define assignment.
A transfer of the entire copyright (100% of rights).
- Implication: Original owner no longer retains any rights in the CW.
- NOTE: Anything other than an assignment is a license.
- NOTE: Requires writing signed by owner of rights conveyed
101
Define a license.
A transfer of less than the full copyright.
102
Define an exclusive license.
An exclusive license is one in which the original owner can no longer license that same right to anyone else or exercise the right themselves.
NOTE: If a license is exclusive, it qualifies as a transfer of CW and must be in writing
- Can be limited by many dimensions
- E.g., duration, geographic scope
103
Define a non-exclusive license.
A non-exclusive license is where the original owner remains free to license the right to another third party or exercise the right themselves
NOTE: If a license is non-exclusive, it does not qualify as a transfer and thus there is no need for writing.
104
What is the policy rationale for the writing requirement in transfers?
1. Ensures copyright owner does not accidentally give away its copyrights; forces parties to negotiate about specific rights.
2. Forces parties to clarify their wishes in defined terms and to anticipate solutions to potential issues.
3. Enhances predictability and certainty
105
When calculating duration, how is the calendar year treated?
In general, copyrights last until the end of the calendar year in which they expire, regardless of the precise date upon which protection was first obtained.The best objective indicator of the parties' intent is a written agreement. Absent a written agreement, courts examine the contributor's decision-making authority or level of control over the work, how the parties billed themselves on the work, and other evidence, such as any written agreements with third parties.
106
What are formalities?
Technical requirements with which copyright owners must comply in order to receive protection for their works under the Copyright Act.
107
What are two significant benefits to compliance?
1) Statutory damages
2) Damages for willful infringement
108
From 1989 to present, what are the formality requirements?
- Publication is not required for CW
- Notice is not required but beneficial
- Deposit is required to file a lawsuit (fines for not depositing and publishing)
- Registration required for lawsuit in U.S.
109
How is publication defined?
Occurs on the earliest date on which copies of first authorized edition are placed on sale.
NOTE: 1909 Act did not define it.
110
What is the doctrine the courts came up with to avoid someone forfeiting their copyright?
Limited publication (versus general publication)
111
What is general publication?
A work made available to the public
112
What are the two types of general publication?
Investive or divestive
113
What is investive publication?
Publication with proper notice. Invests CW owner with federal copyright protection.
114
What is divestive publication?
Publication without notice. Federal copyright in the work is prohibited.
115
What is the implication of limited publications (e.g., MLK's speech where copies were given to the press) but court said it was not in the public domain?
A limited publication neither invested the author with copyright NOR divested author with copyright.
NOTE: Making a speech is NOT publication and performance is NOT publication. Distribution to the press for publicity is NOT publication.
NOTES on MLK Speech
- The public performance of his speech did not constitute "general publication" and thus by giving this speech in public he did not forfeit his copyright in its text.
- Thus, King's estate is able to require a license fee for redistribution of the speech's text, whether in a television program, a history book, a dramatic re-enactment, or otherwise.
116
What are the three requirements for notice?
(1) C sign, Copyright, or Copr.
(2) Year of creation or publication; AND
(3) Name of copyright owner (or abbreviation)
117
What are the benefits of notice from 1989 to the present?
Notice is NOT required but in the U.S., notice eliminates the "innocent infringer" defense.
NOTE: Before 1978, notice WAS required or you could forfeit copyright.
118
What is the difference in deposit requirements before and after 1978?
Before 1978, deposit was required; after office made demand for deposit, if you did not comply, you could forfeit copyright.
After 1978, deposit is no longer required, but you might pay a fine (no forfeiture)
119
What is the difference in registration requirements before and after 1978?
Before 1978, registration was required for renewing copyright and registration was required for filing an infringement case
After 1978, registration is NOT required
120
What are the three benefits of registration with the Copyright Office?
- Required for filing an
infringement case
- Statutory damages
and atty fees for
post-registration
infringement
- Prima facie evidence
of validity if
registered w/in 5
years of publication
121
What was the implication of the CTEA (Copyright Term Extension Act of 1998)?
Extended copyright durations for all works by 20 years
(effectively froze public domain for 20 years)
122
What change occurred to pre-1972 sound recordings?
Pre-1972 recordings were only subject to state common law protections (meaning perpetual copyright). But after 1972, those recordings fell under federal copyright protection so no more perpetual copyright.
123
Who are the four groups that may take a renewal interest?
(1) the author of such work, if the author is still living,
(2) the widow, widower, or children of the author, if the author is not living,
(3) the author’s executors, if such author, widow, widower, or children are not living, or
(4) the author’s next of kin, in the absence of a will of the author
124
How is a renewal defined?
A renewal is a new estate which cuts off prior contractual assignments and breaks the continuity of title.
NOTE: An assignment of CW in the first term conveys no interest in the renewal term.
125
What is the Fred Fisher rule on renewals?
An author may transfer his renewal interest so long as he is alive when it vests.
NOTE: If the author dies, then the renewal term goes to author's spouse/children.
NOTE: Often, publishers required author to transfer both the original CW and the renewal term as a condition of publication.
126
What is the rule on derivative works based on exercise of a renewal interest?
Once an author (or heirs) renews
a copyright, the owner of a
derivative work based on the
CW work can NO longer
exploit the derivative work
without re-obtaining permission
from the owner of copyright.
In other words, if a renewal interest is registered, the right to exploit derivative works is terminated.
127
During what time period did renewals only apply?
Works first published between 1928 and 1977.
128
Termination Rights
Need to study off notes; can record notes.
