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TABLE OF CONTENTS

SUBJECT MATTER
Applicable Rule
Originality
Fixation
Idea/Expression
Facts and Compilations
Factual Narratives
Derivative Works
Pictorial, Graphic, and Sculptural Works
Architectural Works
Chararcters
Government Works
Software
Music and Sound Recordings

EXCLUSIVE RIGHTS
In General

The Right to Make Copies
Substantial Similarity
Ordinary Observer
Non-Literal Copying
Focus on Similarities
Works Whose Right to Copy in Non-Exclusive
Musical Works
Sound Recordings
Digital Audio Recording Devices Act
Computer Programs

The Right to Make Derivative Works
Substantial Similarity
Moral Rights

The Right To Distribute
First Sale Doctrine
Exceptions to First Sale Doctrine
Record Rental Agreement
Software Rental Agreement
Droit De Suit

The Right To Public Performance
Definition of Public
Definition of Performance
Performing Rights Societies
Limitations on Exclusive Right
Right in Fixation of Live Performances

The Right to Public Display
Definition of Display
Limitations of Exclusive Right

FAIR USE
Determinative Factors
Parody
Reverse Engineering
Copying For Education and Research Purposes
Library Copying

REMEDIES
Injunctive Relief
Damages
Statutory Damages
Criminal Liability

OWNERSHIP AND DURATION
Works For Hire
Joint Works
Duration
Renewal
Termination
Preemption
International Copyright
Registration
Notice

I. SUBJECT MATTER OF COPYRIGHT

A. IN GENERAL

In order for a work to qualify for copyright protection it must be of a
subject matter that is protected by copyright. Thus, the first question
when addressing a copyright question is “Is the work a type of which
that is protected by copyright?”

B. APPLICABLE RULE

The Copyright Act ¤102(a) defines the categories of works that are
protected by copyright. The categories of protectable works are:

(1) literary works
(2) musical works, including words
(3) dramatic works, including music
(4) pantomimes and choreographic works
(5) pictorial, graphic, and sculptural works
(6) motion pictures and audio visual works
(7) sound recordings
(8) architectural works (added in 1990 amendment)

NOTE: This section does not imply that new forms of expression within
the general area of subject matter would necessarily be unprotected.

C. ORIGINALITY

1. In General

The sine qua non of copyright is originality. In order for a person to
qualify for copyright protection, the work for which the copyright is
sought must be “original”.

2. Applicable Rule – Constitution

The Constitutional requirement for “originality” resides in Article I,
¤8, clause 8. This article authorizes congress “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.”

CASE: In Burrow-Giles Lithograph v. Sarony, an author, with reference
to copyright was defined as he to whom anything owes its origin (i.e.,
the originator).

3. Degree of Originality Required

Originality is not a stringent standard, it does not require that a
large measure of novelty in “authoring” the work.

CASE: In Alfred Bell v. Catalda Fine Arts, the court held that a large
measure of novelty was not required in order to make a work
copyrightable and delineated the “hiccup theory” explained below.

a. Hiccup Theory

A copyist’s bad eyesight or defective musculature, or a shock caused by
a clap of thunder may yield sufficiently distinguishable variations.
Having hit upon such a variation unintentionally, the “author” may adopt
it as his and copyright it.

b. Higher Degree of Originality

In cases concerning derivative works and compilations, a higher degree
of originality may be required. See Derivative Works and Compilations.

NOTE: Batlin v. Synder was a case concerning derivative works, but the
holding was unclear as to whether the higher degree of originality
required was for derivative works or for works in general

4. Independent Authorship of Identical Work

A copyright does not protect an author from an identical work created
completely independently by another author. Thus, Tom Clancy could not
allege that John Doe infringed his copyright of Red Storm Rising by
writing the identical book, if John Doe wrote his book completely
independently from Tom Clancy’s.

HYPO: If Ansel Adams was to take a picture of the Grand Canyon at a
particular time of day, with a particular lens, etc. he could copyright
his picture and prevent other’s from copying his photograph (i.e.,
making unauthorized prints). However, he could not prevent other’s from
taking a similar picture of the Grand Canyon. But see Kisch v. Ammirati
& Puris below where Æ tried to take a near identical picture (lighting,
camera angle, tone and mood, etc.) as the ¹’s.

NOTE: Due the high degree of improbability that two authors would write
the identical book, the fact that John Doe’s book was identical would
probably be damning evidence that he indeed copied Clancy’s book and
infringed his copyright.

5. Originality/Infringement Distinction

There is a important distinction between a work being original and the
work infringing on another’s copyright. A work can be original and thus
copyrightable while simultaneously infringing on another’s copyright.

6. Copyright/Patent Distinction

a. In General

A patent affords protection to the means of reducing an inventive idea
to practice; copyright law protects the means of expressing an idea

b. Originality/Uniqueness

A major distinction between a patent and a copyright is the degree of
originality or uniqueness required.

1. Copyright

For a work to be copyrightable, it must be original. An author need
only contribute something more than a merely trivial variation to the
work.

2. Patent

For an invention to be patentable, it must be something highly unique
and novel (i.e., something the world has never seen before).

CASE: In Alfred Bell v. Catalda Fine Arts, the ¹ made lithographs of
old masters that were in the public domain. Æ copied ¹’s works claiming
that they were not protected by copyright because the degree of
originality required for patents (i.e., a high degree of uniqueness,
ingenuity, and inventiveness) also applied to copyrights. The court
held that the language of Article I, ¤8, clause 8 (author/writing and
inventors/discoveries) recognized the standards for patents and
copyright were different.

c. Identical Works/Inventions

While a copyright does not protect its holder from the creation of an
identical work created independently, a patent does protect its holder
from any identical work. Thus, in order to be granted a patent, an
inventor must be the first inventor.

d. Duration

A patent protects its owner for 14 years; a copyright protects is owner
for the life of the author plus 50 years.

7. Copyright/Trademark Distinction

a. Purpose of Trademark

The purpose of a Trademark is to identify the source of a product.
Thus, the purpose of trademark law is primarily to prevent the unfair
competition. The unauthorized use of a trademark would creates
confusion among a substantial number of people in the market place, it
will be prohibited.

b. Originality/Adoption

A trademark does not require any degree of originality. In fact, the
fact that trademarks are generally the adoption of something already in
existence rather than something original, is the reason why Article II,
¤8, clause 8 does not authorize congress to pass trademark legislation.

c. Constitutional Authority

The constitutional authority for congress to regulate that trademarks
rests in the Article I, ¤8, clause 3 (the commerce clause). This clause
permits congress to regulate trademarks because they are used in
interstate commerce.

NOTE: The Trademark Cases, which held that congress did not have the
authority to regulate trademarks was decided before the Commerce Clause
was given a broader reading to include trademarks.

D. FIXATION

1. Definition

Fixation means that the work must be permanently stable to permit the
work to be perceived, reproduced, or otherwise communicated for a period
of more than transitory duration.

2. Statutory Requirement

Copy Right Act ¤102(a) – Copyright protection subsists, in accordance
with this title, in the original works of authorship fixed in any
tangible medium of expression, now known or later developed from which
they can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device.

3. Fixation Not Generally at Issue

Whether or not a work is fixed is not generally an issue in copyright
litigation. There are several unique instances when novel fixation
issues have arisen.

a. Live Broadcasts

There is authorship of a live broadcasts – the director is picking and
choosing which pictures from different cameras to show. The broadcast
is also fixed if the content of a live broadcast is being recorded
simultaneously with its transmission.

b. Video Games

The audiovisual games are permanently embodied in a material object -
RAM. RAM are tangible objects from which audiovisual works may be
perceived for a period of time more than transitory. The fact that the
works cannot be viewed without a machine does not mean the works are not
fixed

E. IDEA/EXPRESSION

1. In General

The “idea/expression” dichotomy essentially is: An idea cannot be
copyrighted while an expression of the idea can be. A copyright gives
no exclusive right to the art disclosed; protection is given only to the
expression of the idea – not to the idea itself. (Mazer v. Stein
restating Baker v. Selden).

CASE: In Baker v. Selden, the ¹ wrote a book describing a new
simplified system of bookkeeping which included blank forms. The Æ
utilized the ¹’s system including the blank forms and the ¹ claimed
copyright infringement. The court held that there was a clear
distinction between the book (expression) and the system (idea) which it
is intended to illustrate. Thus, the mere copyright of ¹’s book did not
confer upon him the exclusive right to make and use the system
designated by him and described and illustrated in the book.

2. Applicable Statute

Copy Right Act ¤102(b) – In no case does the copyright for an original
work of authorship extend to any idea, procedure, process, system,
method of operation, concept, principle, or discovery, regardless of the
form in which it is described, explained, illustrated, or embodied in
such work.

3. Scope of Copyright

a. Idea Narrow – No Copyright

If the idea being expressed in a work is so narrow that there is only a
few/limited number of ways to express the idea, the expression may not
be copyrightable because to permit copyrighting would mean that a party
by copyrighting the few available ways of expressing the idea could
exhaust all possibilities of future use of the idea.

CASE: In Morrissey v. Procter and Gamble, ¹ claimed that his copyright
to a simple set of rules for a contest was infringed by Æ. Since there
was only a limited number of ways to express the idea of the contest,
the ¹ was found not to have a copyright in the rules (i.e., if ¹ had a
copyright in the rules he would, in effect, have a monopoly on the type
of contest).

CASE: In Apple Computer Inc. v. Franklin Computer Corp., the court in
considering the idea/expression dichotomy focused on whether the idea is
capable of various modes of expression. Since other programs could have
been written or created which performed the same function as ¹’s
operating system, the program was an expression of an idea and thus
copyrightable.

b. Thin Copyright

Even if the idea being expressed in a work is so narrow that there is
only a few/limited number of ways to express the idea, some courts will
still find the work copyrightable, but only the exact rendition and
precise wording will be protected (i.e., a thin copyright).

CASE: In Continental v. Beardsley, the ¹ developed a form of insurance
and corresponding forms which contained explanatory/descriptive
language. The Æ copied the forms but not the language. The Æ was found
not to have infringed the ¹’s copyright – the proper standard of
infringement is one which protects the copyright language and yet allows
free use of the concept.

F. FACTS AND COMPILATIONS

1. In General

The general rule concerning factual compilations is that facts
themselves are not copyrightable because they are not original, however,
the compilation of facts may be copyrightable if the compilation (i.e.,
selection and arrangement of facts meets the originality requirement).

2. Definition

Copyright Act ¤101 defines a compilation as a work formed by the
collection and assembling of preexisting material that are selected,
coordinated, or arranged in such a way that the resulting work as a
whole constitutes and original work of authorship.

3. Scope of Compilation Copyright

Protection of compilations is subject to an important limitation. Not
every element of the work may be protected. Protection may extend only
to those components of a work that are original to the author. Thus, no
matter how original the format of the compilation, the facts themselves
do not become original through association (i.e., there is a thin
copyright).

NOTE: Copyright Act ¤103(b) – The copyright in a compilation …
extends only to the material contributed by the author of such work as
distinguished from the preexisting material employed in the work.

4. Amount of Originality Required

Although the standard of originality for a compilation is low, the
selection and arrangement of facts cannot be so mechanical and routine
that it does not satisfy the minimum originality standard for copyright
protection.

CASE: In Feist Publications v. Rural Telephone, Æ copied the names and
phone numbers from the ¹’s white pages and used them in its own
directory. The court held that the ¹’s white pages were not
copyrightable. The names and phone numbers were facts thus not
protected by copyright. Additionally, the selection (all phone
subscribers) and arrangement (alphabetical order) was so routine and
mechanical that the compilation did not met the minimum originality
required for copyright protection.

NOTE: The opinion in Feist also struck down the “sweat of the brow”
doctrine (i.e., copyright can be extended to a work solely because the
author invested a lot of time and effort in creating the work.

NOTE: The Feist decision is not limited to phone directories but also
rippled throughout the database industry.

HYPO: Would the Dow Jones be copyrightable. Probably they select 30
companies to monitor.

G. FACTUAL NARRATIVES

1. In General

The general rule concerning factual narratives is that the facts
asserted by the author are not copyright protectable. Facts, even facts
hypothesized by the author and held out to be facts, are not originated
but discovered thus not copyrightable.

CASE: In Nash v. CBS, ¹ Nash claimed Æ infringed his copyright of books
he wrote concerning John Dillenger’s death. The ¹ contended that
Dillenger was not shot and lived in Oregon. Æ used these “facts” in a
episode of Simon and Simon. Since the Æ only used the “facts” from the
¹’s books, the ¹’s copyright was not infringed.

NOTE: Nash would have been a much more difficult case to decide if the
¹ had simply written a novel. Æ would then not have been copying facts
not expression.

2. Expression v. Facts

A typical point of contention is whether someone has copied only facts
or copied the author’s expression which would infringe his copyright.

CASE: In Wainwright v. Wall Street Transcript Corp, Æ copied the ¹’s
analytical report verbatim. Although the report contained facts, it
also contained the ¹’s analysis, manner of expression, interpretation of
events, and choice of words. Thus, the Æ copied more than the facts and
infringed on ¹’s copyright.

Expression and facts can be thought of as opposite ends of a spectrum.
While the two poles and extremes can be differentiated, in practice,
there is a vast gray area between them.

H. DERIVATIVE WORKS

1. In General

The general rule concerning derivative works is that they are
copyrightable provided they have sufficient originality.

2. Definition

Copyright Act ¤101 defines a derivative work as a work based upon one or
more preexisting works, such as a translation, musical arrangement,
dramatization, fictionalization, etc.

3. Scope of Derivative Work Copyright

Protection of derivative works is subject to an important limitation.
Protection may extend only to those components of a work that are
original to the author.

NOTE: Copyright Act ¤103(b) – The copyright in a derivative work …
extends only to the material contributed by the author of such work as
distinguished from the preexisting material employed in the work.

4. Amount of Originality Required

Although the standard of originality is theoretically low, the leading
case concerning derivative works Batlin v. Synder described a somewhat
higher standard. The court in Batlin v. Synder held that in order to
obtain a copyright upon a reproduction of a work of art, the
reproduction must contain some substantial, not merely trivial
originality.

CASE: In Batlin v. Synder, Æ made plastic replications of metal Uncle
Sam banks. ¹ also made replications but was not permitted to import his
banks because they infringed the Æ’s copyright. ¹ brought suit to have
the Æ’s copyright void. The court held that the Æ’s bank had
insufficient originality because, although there were variations between
the Æ’s bank and the public domain bank, they were merely trivial.

NOTE: The Batlin v. Synder decision also reflects a policy concern
against harassment suits. If the difference between the ¹’s work and
the original are slight, so might be the differences between Æ’s work
and the original. If Æ had access to ¹’s work, the trier of fact may be
hard pressed to decide whether Æ was copying ¹’s work or the original.

NOTE: Another line of cases involves works that were intended to be
identical to the original (e.g., reproducing the Mona Lisa). Although
there are no variations between the original and the copy, courts have
held that the amount of exactitude required to make the copy is an
indication of originality. These cases, however, were decided before
Feist Publications v. Rural Telephone where the Supreme Court struck
down the “sweat of the brow” doctrine. It is unclear how these cases
would be decided today.

I. PICTORIAL, GRAPHIC & SCULPTURAL WORK

1. In General

Pictorial, graphic, and sculptural (PGS) works are copyrightable subject
matter per ¤102(a)(5) of the Copyright Act. The typical issue
concerning PGS works is whether they are utilitarian (i.e., a useful
article) and thus not copyrightable.

2. Definition

The Copyright Act ¤101 defines pictorial, graphic, and sculptural works
to include two-dimensional and three dimensional works of fine, graphic,
and applied art, photographs, prints and art reproductions … including
architectural plans.

3. Scope of PGS Copyright

The Copyright Act ¤101 limits copyrightability to PGS works, including
works of artistic craftsmanship, insofar as their form but not their
mechanical or utilitarian aspects are concerned.

4. Art Embedded in Useful Article

Copyright Act ¤101 defines a useful article as an article having an
intrinsic utilitarian function that is not merely to portray the
appearance of the article or to covey information. However, just
because art is embedded in a useful article (i.e., applied art) does not
make it uncopyrightable.

CASE: In Mazer v. Stein, ¹ used a Balinese statute as a lamp base and
when the Æ copied the base ¹ brought suit for infringement; Æ contended
that he had not infringed on ¹’s copyright because ¹’s work was a useful
and/or utilitarian article and thus not copyrightable. The court held
that original works of art do not cease to be copyrightable as works of
art when they are embedded in useful articles.

5. Doctrine of Separability

In order for a PGS work to be copyright protected, the article must
contain some element that, physically or conceptually, can be identified
as separable from the utilitarian aspects of the article.

a. Physical Separability

Physical separability is not as abstract as conceptual separability.
Physical separability exists when the artistic or ornamental aspect of
the work can physically be separated from the utilitarian aspect (e.g.,
the sculptured jaguar on the hood of a car; with all the utilitarian
elements of the car physically removed, the artistic creation of the
jaguar would remain).

b. Conceptual Separability

Conceptual separability is much more abstract and difficult to define
that physical separability. There are various “tests” or “concepts”
employed by the courts to determine conceptual separability.

1. Primary/Secondary Test

If the ornamental aspect of the article is primary to the subsidiary
utilitarian aspect than there is conceptual separability (i.e., the work
is both useful and ornamental but more ornamental than useful).

2. Artistically Designed Functional Components

If the article is simply a artistically designed utilitarian article
rather than an ornamental design within a useful object than it is not
copyrightable.

CASE: In Kieselstein v. Accesories by Pearl, ¹ manufactured “designer”
belt buckles. When the Æ made imitations the ¹ sued for copyright
infringement; the Æ contended that there was no infringement because the
articles were not subject matter protected by copyright.

The majority held that the primary ornamental aspects of the buckles
were separable from their subsidiary utilitarian function. In other
words the ornamented surfaces were not required by their utilitarian
function – the artistic features could be conceived as having been added
to an otherwise utilitarian article.

The dissent contended that courts have followed the principle of
permitting copyright to extend only to the ornamental designs contained
within useful objects while denying it to artistically designed
functional components of useful objects. The belt buckles were
utilitarian in nature thus not copyrightable.

3. Usage Test

In short, the usage test suggests that an article used primarily to
serve its utilitarian function should be regarded as lacking conceptual
separability.

4. Market Approach

The market approach suggests that conceptual separability exists where
there is any substantial likelihood that even if the article had no
utilitarian use it would still be marketable to a significant segment of
the community simply because of it aesthetic qualities.

5. Reasonable Observer Test

The reasonable observer test suggests that for a design feature to be
conceptually separate from the utilitarian aspects, the article must
stimulate an the mind of the ordinary, reasonable observer a concept
that is separate from the concept evoked by its utilitarian function.

NOTE: This test employed by the dissent in Barnhart v. Economy Cover is
very metaphysical, very subjective, and thus very unpredictable.

c. Policy Concerns

A policy concern underlying all the tests delineated above is the
potential for a floodgate of copyrights. The looser the separability
test the more copyrights and the greater the possibility of harassment
suits.

J. ARCHITECTURAL WORKS

1. In General

The protectability of an architectural work depends on when the work was
created. Works prior to 1990 are far less protected than works after
1990.

2. Pre-1990 Copyright Protection for Architectural Works

a. Protection Limited

Prior to 1990, architectural works could only be protected, if at all,
as a pictorial, graphic, or sculptural work. Since most architecture
also fell within the definition of useful article (i.e., an article
having an intrinsic utilitarian function) copyright protection would
extend only to features that could be identified separately from, and
were capable of existing independently of, the utilitarian aspects
(e.g., detachable decorative features).

NOTE: Pre-1990 the separability doctrine as used in PGS works (i.e.,
utilitarian verses ornamentation) was applicable.

b. Limitation on Protection of Plans

Prior to 1990, unauthorized copying of the two dimensional plans would
infringe a copyright, but construction of a three-dimensional building
based on the plans would not.

CASE: In Demetrides v. Kaufman, Æ made unauthorized tracings of ¹’s
plans for a “one of a kind” house and starting construction of the
house. The court held that the tracing of the plans was a copyright
infringement but building a house from the plans did not. Relying on
Baker v. Selden, the court held that although copyright protection
extends to the particular explanation of an art or work, it does not
protect use of the art or work described by the copyright document.

NOTE: ¹ did achieve a certain degree of victory. Æ’s plans were seized
and he was prohibited from using the plans in the construction of his
house.

NOTE: Although no ethical architect would do so, there was nothing
prohibiting one from “eyeballing” the building across the street and
building an identical one.

3. Post-1990 Copyright Protection for Architectural Works

a. Protection Extended

In 1990, ¤102 of the Copyright Act was amended to include architectural
works as subject matter that was protectable by copyright.

b. Definition

¤101 of the Copyright Act defines an architectural as the design of a
building as embodied in any tangible medium of expression, including a
building, architectural plans, or drawings. The work includes the
overall form as well as the arrangement and composition of spaces and
elements in the design, but does not include individual standard
features.

c. Scope of Architectural Copyrights

There are several limitations on the scope of architectural copyrights.
Several are delineated in ¤120 of the Copyright Act, and one is
contained in the legislative history of the 1990 amendment.

1. Functionality Not Ignored

The House report concerning the 1990 amendments suggest that
functionality should not be ignored and a two-step test for determining
copyrightability was envisioned. First an architectural work should be
examined to determine whether there are original design elements
present. Second, if there are original design elements, then the work
should be examined as to whether the design elements are functional
required. If the elements are not functionally require, the work is
protectable.

NOTE: The post-1990 test is functional separability. How much this
differs from the PGS utilitarian verses ornamentation separability has
not been determined by case law.

2. Copyright Act ¤120 Limitations

a. Pictorial Representations

The copyright in a architectural work does not prevent the making and
distributing, or public display of pictorial representations of the work
if the building is ordinarily visible from a public place.

NOTE: Theorectically, one’s copyright in architectural works would
include a model of the building.

b. Destruction of Building

The owner of a building embodying an architectural copyright may,
without the consent of the copyright owner, make alterations or destroy
the building.

4. Effective Date of 1990 Amendment

The 1990 amendment to the Copyright Act does not apply to buildings
constructed before the effective date of the legislation, December 1,
1990. For buildings constructed before the 1990 Act, the pre-1990 law
applies.

K. CHARACTERS

1. In General

In general, characters are not copyright protected unless they are part
of the “story being told” or they are delineated extensively.

2. Story Being Told Test

One line of cases holds that if characters are only a vehicle for
telling a story rather than constituting the story being told, they are
not protected by copyright.

CASE: In Warner Bros. v. CBS, ¹ was the copyright owner of the Maltese
Falcon. Subsequently the Æ was granted the copyright to the Sam Spade
character and the ¹ sued for copyright infringement. The court held
that if Congress had intended that the sale of the right to publish a
copyrighted story would foreclose the author’s use of its characters in
subsequent works, it would seem Congress would have made a specific
provision therefor. And while it is conceivable that a character
constitutes the story being told, but if the character is only a
chessman in the game of telling the story he is not within the area of
protection afforded by copyright.

3. Specificity Test

Another line of better reasoned cases, implement L. Hand’s specificity
test and hold that it is possible for two characters to be copyright
protected independent of the work in which they are a part of if the
characters are delineated extensively. The less developed the
character, the less they can be copyrighted.

NOTE: A less developed character is more an “idea” in a play. A
developed character is more an expression thus, more copyrightable.

CASE: In Anderson v. Stallone, the issue was whether the Rocky movie
characters (chiefly Rocky) were copyright protected. The court held
that Rocky was protected because he was a highly delineated character
(i.e., the Rocky character was identified with specific character
traits, speaking mannerisms, and physical characteristics).

4. Literary Character v. Cartoon Character

As a general rule of thumb, cartoon characters are more likely to
receive copyright protection than literary characters. A comic book
character, which has physical as well as conceptual qualities, is more
likely to contain some unique elements of expression.

L. GOVERNMENT WORKS

1. In General

¤105 of the Copyright Act establishes that copyright protection is not
available for any work of the United States Government. The United
States Government, however, is not precluded from receiving and holding
copyrights transferred to it by assignment, bequest, or otherwise.

NOTE: ¤105 of the Copyright Act applies only to the United States
Government not state or local governments.

a. Within Scope of Employment

¤101 of the Copyright Act defines “any work of the United States
Government” as a work prepared by an officer or employee of the United
States Government as part of the person’s official duties.

NOTE: President Clinton’s or Admiral Rickover’s speeches would be
protected by copyright provided that they were not part of their
official duties.

2. Works Created Under Government Contract

The Copyright Act avoids making any outright, unqualified prohibition
against copyright in works prepared under Government contract or grant.
Whether or not a work prepared under a government contract by an
independent contractor is copyrightable, is determined on a case by case
basis through contractual restrictions.

M. SOFTWARE/COMPUTER PROGRAMS

1. In General

There is no direct mention of software or computer programs as
copyrightable subject matter in ¤102 of the Copyright Act. However, in
1980 Congress amended the Copyright Act and the legislative history
suggests that computer programs are considered copyrightable as literary
works. First, a definition of a computer program was added to ¤101.
Second, ¤117 was added that provided an exception to normal prohibition
of copying thus clearly indicating computer programs are copyrightable.

2. Problem With Copyright Protection

There are problems with using copyright laws to protect one’s rights as
an author of computer software. First, copyright law usually protects
human-to-human communication. Second, authorship can be somewhat
mechanical (i.e., the words utilized are limited by the programming
language). For instance, one must use the word “print” rather than
“write”. Third, software is utilitarian in nature and as a general rule
copyright law does not protect utilitarian works. Courts are reluctant
to extend copyright protection for computer programs to far in fear that
they may create a monopoly for the author.

CASE: In Apple v. Franklin, the Æ admitted to coping ¹’s operating
system object code to be “Apple compatible”. One of the Æ’s arguments
was that the operating system was utilitarian in nature and not
copyrightable. The court rejected this argument citing Mazer v. Stein
where the Supreme Court stated that nothing in the copyright statute
supports the argument that the intended use or uses in industry of an
article eligible for copyright bars or invalidates its copyrightability.

3. Definition of Computer Program

¤101 of the Copyright Act defines a computer program as a set of
statements or instructions to be used directly or indirectly in a
computer in order to bring about a certain result.

4. Copying Exceptions

¤117 of the Copyright Act provides that it is not an infringement for
the owner of a copy of a computer program to make or authorize the
making of another copy or adaptation of that computer program provided:

(a) that such a new copy is created as an essential step in the
utilization of the computer program (i.e., installation of the program
that resides on two floppy disks on a hard drive)

(b) that such a new copy is created for archival purposes. Archival
copies must be destroyed if you sell the original.

NOTE: Archival copies are not the same as working copies. Thus, it
would probably be a copyright infringement if you made multiple copies
for use on multiple computers – especially if you used the computers and
software simultaneously

4. Scope of Copyright Protection

a. In General

As a general rule, source code, object code, and even flowcharts are
copyright protected. This applies to operating system software as well
as application programs.

b. Source Code

There is virtually no debate that source code is copyrightable. ¤101
defines a computer program as a set of statements or instructions used
directly or indirectly in a computer…. Source code is used indirectly
by a computer.

c. Object Code

Copyright law makes no distinction between object code and source code.
Both object code and source code are “literary works” within the
definition of ¤101. ¤101 defines literary works as works expressed in
words, numbers, or other verbal or numerical symbols or indicia ….
Additionally, ¤101 defines a computer program as a set of statements or
instructions used directly or indirectly in a computer…. Object code
is used indirectly by a computer.

1. No Requirement For Human Readability

There is no requirement that a computer program needs to be readable by
a human. ¤102(a) provides that copyright protection extends to works in
any tangible means of expression, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid
of a machine or device.

CASE: In Apple v. Franklin, the Æ admitted to coping ¹’s operating
system object code to be “Apple compatible”. One of the Æ’s arguments
was that object code by its very nature was not readable by a human and
therefore not copyrightable. The court rejected this argument holding
that nothing in the Copyright statute required human readability of the
work.

d. Flowcharts

Flowcharts are “literary works” within the definition of ¤101. ¤101
defines literary works as works expressed in words, numbers, or other
verbal or numerical symbols or indicia ….

e. Operating System Software and Application Programs

Both operating system software and application programs are copyright
protectable. Courts have held that there is no distinction between
application programs and operating system programs. Both types of
programs instruct the computer to do something and a process is no more
involved because the instructions are used in an operating system than
an application.

CASE: In Apple v. Franklin, the Æ admitted to coping ¹’s operating
system object code to be “Apple compatible”. One of the Æ’s arguments
was that the operating system was not copyrightable because it was a
process, system, or method of operation. While ¤102(b) does provide
that in no case does copyright protection extend to any idea, procedure,
process, system, method of operation, concept, … embodied in a work,
the court reasoned that the ¹ was not trying to copyright the method
which instructs the computer to perform its operating functions, but
only the instructions themselves.

NOTE: Apple v. Franklin is a rare case were a court has, in essence,
created a monopoly for a software author. It would be extraordinarily
hard if not impossible for the Æ be completely “Apple compatible”
without copying their operating system. The ¹’s operating system had
become a standard and it would be virtually impossible for the Æ to
enter the market since there was vast quantities of “Apple” software
available and it would be unlikely that consumers would buy Æ compatible
software.

CASE: In Lotus v. Borland – 1st Circuit 1995, the Æ included Lotus
compatible commands in its spreadsheet program. The court held that the
¹’s menu command hierarchy is a “method of operation” as defined in ¤102
which provides that in no case does copyright protection extend to any
idea, procedure, process, system, method of operation, concept, …
embodied in a work, and was thus uncopyrightable. The court defined
“method of operation” as the means by which a person operates something.

NOTE: Lotus v. Borland is “heading in the same direction” as the Apple
v. Microsoft decision and the trend seems to be towards limiting
protection of non-literal aspects of software.

f. Structure, Sequence, and Organization

There is some authority that copyright protection in computer programs
extends beyond the program’s literal code to their structure, sequence,
and organization.

CASE: In Whelan v. Jaslow, the Æ rewrote the ¹’s program in BASIC.
Although the Æ did not copy the ¹’s code, he did copy the number and
function of modules, the utilization of data files, and overall
structure of the ¹’s program. The court reasoned that since other
literary works can be infringed even when there is no substantial
similarity between the works’ literal elements (e.g., one can violate
the copyright of a book by copying its plot) by analogy, computer
programs can be infringed even absent copying the literal elements of
the program.

g. Idea/Expression Dichotomy

The “idea/expression” dichotomy (i.e., an idea cannot be copyrighted
while an expression of the idea can be) is perhaps most pronounced in
cases concerning software. The various tests for differentiating idea
from expression are:

1. Various Modes of Expression

CASE: In Apple v. Franklin – 3rd Circuit 1983, the court stated that
the focus in the idea/expression dichotomy should be on whether the idea
is capable of various modes of expression (i.e., there is no merger of
idea and expression which occurs when there are only a few ways of
expressing a certain idea). Therefore, if other programs can be written
or created which perform the same function as ¹’s operating system, then
that program is an expression of the idea and copyrightable.

2. Idea is Purpose or Function of Work

CASE: In Whelan v. Jaslow – 3rd Circuit 1987, the court reasoned that
the purpose or function of a utilitarian work is the works’ idea;
everything that is not necessary to that purpose or function is part of
the expression. The purpose (i.e., the idea) of the utilitarian
Dentalab program was to aid the business operations of a dental
laboratory, and the structure (i.e., the expression) of the program was
not essential to that task.

NOTE: This case provides the most expansive protection for software and
has been widely criticized for two reasons. First, the court stated
that one of its concerns in reaching its decision was the protection of
the significant cost in developing the structure and logic of the
program. This is exposing a “sweat of the brow” doctrine that was
repudiated by the Supreme Court in Feist. Second, while the general
rule (i.e., the purpose of the program is the idea) was supportable, the
application in the case was overreaching. In finding that the purpose
of the program was to aid the business operations of a dental lab, the
court essentially insure that 99% of the time the program at issue would
be considered an expression.

3. Method of Operation Test Before Idea/Expression

CASE: In Lotus v. Borland – 1st Circuit 1995, the Æ included Lotus
compatible commands in its spreadsheet program. The District Court
ruled that the Lotus menu command hierarchy was copyrightable
expression. The Appellate Court reversed the decision but side-stepped
idea/expression dichotomy by reasoning that the first test should be
whether the work was a method of operation (see above).

N. MUSIC AND SOUND RECORDINGS

1. In General

Although music has long been copyrightable subject matter, recordings of
music have had a long history of doubtful copyright status. Under the
initial 1909 Act producers and performers had no copyright protection in
the sound recording. It was not until 1971 that the Copyright statute
was amended to include ¤114 that created rights in sound recordings.

2. Two Copyrightable Subject Matters

¤102(a) of the Copyright Act ¤102(a) defines the categories of works
that are protected by copyright. The categories of protectable works
include:

(2) musical works, including words
(7) sound recordings

NOTE: The underlying musical composition is a separately copyrightable
work of authorship from the sound recording. This provides copyright
protection to the composer. The sound recording is another separately
copyrightable work of authorship. This provides copyright protection
for the producer.

II. EXCLUSIVE RIGHTS AND INFRINGEMENT

A. IN GENERAL

¤106 of the Copyright Act delineates the exclusive rights in copyrighted
works. ¤106 provides that the owner of the copyright has the exclusive
rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords

(2) to prepare derivative works based on the copyrighted work

(3) to distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership’ or by rental, lease, or
lending

(4) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual works, to
perform the copyrighted work publicly

(5) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and pictorial, graphic, or sculptural works,
including the individual images of a motion picture or other audiovisual
work, to display the copyrighted work publicly

B. THE RIGHT TO REPRODUCE (MAKE COPIES)

1. In General

The copyright owner of a work has the exclusive right to make copies of
the work. Whether or not one has infringed the copyright owner’s right
to make copies (i.e., made an unauthorized copy) turns on whether there
is substantial similarity of expression between the two works.

2. Two Part Test Copying/Illicit Copying

In a leading case Arnstein v. Porter, the 2nd Circuit established a
often cited two-part test to determine whether there had been improper
appropriation/illicit copying (i.e., infringement) of another’s work.

a. Copying

The first part of the test is whether there has been any copying at all.
This is usually shown by:

(1) the Æ’s admission that he copied the work or

(2) circumstantial evidence (i.e., evidence of access) from which the
trier of fact may reasonably infer copying.

When copying is inferred from access, the amount of access is weighed
against the amount of similarity to determine if there was copying.

3. Approaches to Substantial Similarity of Expression

There is some lack of uniformity in judicial application of the
substantial similarity test. Courts differ over the subject matter to
which the test is applied. There are two essential approaches to
substantial similarity and the application of one or the other approach
will frequently affect the outcome of the case.

a. Extraction of Copyrighted Elements

Under this view, the fact-finder first removes from consideration the
uncopyrighted elements of the copied material (i.e., facts, ideas, and
scenes a faire). This dissection and disqualification of uncopyrighted
elements from a ¹’s work has gained favor among some courts, especially
when the court is leery of a result that would suggest monopolization of
a common theme, when the work at issue is a nonfiction work, or the work
is utilitarian (e.g., software) in nature.

HYPO: In the case involving Alex Haley’s “Roots” the court held that
most of the alleged similarities between the ¹’s and Æ’s novels
concerned scenes that were commonplace to depictions of slavery in the
old south. Once the scenes were eliminated from consideration, the
works could not be deemed substantially similar.

CASE: In Computer Associates v. Altai, The court stated that a
copyright does not protect an idea, but only the expression of the idea.
The court further stated that the Whelan rule (supra) was flawed as
overly broad, and advised the use of a three part test – abstraction,
filtration, and Comparison.

Step 1: Abstraction – This process begins with the code and ends with
an articulation of the program’s ultimate function. At the lowest level
of abstarction, a computer program may be thought of in its entirety as
a set of individual instructions organized into a hierachy of modules.
At higher levels of abstractions, the instructions in the lowest level
modules may be replaced conceptually by the functions of those modules.
Finally, one is left with nothing nbut the ultimate function of the
program.

Step 2: Filtration – This process entails examining the structural
components at each level of abstraction to determine whether their
particular inclusion at that level was idea or expression. Elements to
be filtered out at each abstraction level include (1) elements dictated
by efficency (i.e., the doctrine of merger – the expression is
inseparable from the expression because there is only one way to express
the idea, (2) elements dictated by external factors (i.e., in many
instances it is virtually impossible to write a program to perform
particular functions in a specific environment without employing
standard techniques Å scenes a faire, and (3) elements taken from the
public domain.

Step 3: Comparison – The third an final step of the test for
substantial similarity for non-literal program components entails a
comparison. What is left after abstraction and filtration is the core
or golden nugget of the protectable expression. If the Æ copied any of
the golden nugget (i.e., tere is substantial simialrity between the Æ’s
and ¹’s works) there has been an infringement.

b. Work View As a Whole

Under this view, the fact-finder judges substantial similarity with
respect to the whole of the copied portions of the ¹’s work, including
portions that viewed in isolation (e.g., something from the public
domain or scenes a faire) might not be eligible for copyright. This
test better protects the “expressive aspect of the combination”. For
example, removing the unprotectible elements prior to the substantial
similarity of expression test would preclude copyright protection for
factual compilations containing an innovative selection or arrangement
of the elements because each element would be eliminated and nothing
would be left for the purposes of determining substantial similarity.

4. Substantial Similarity Has Viewed By Ordinary Observer

Since the ¹’s legally protected interest is the potential financial
returns from his work which derive from the lay public’s approbation of
his efforts, a Æ has wrongfully appropriated something that belonged to
the ¹ if he took so much of what is pleasing to the senses of ordinary
observer who comprise the audience for whom the work was created.

CASE: In Arnstein v. Porter, the court held that the impression made on
the refined ears of musical experts or their views as the musical
excellence of the Æ’s or ¹’s work is immaterial on the issue of
misappropriation

CASE: In Peter Pan Fabrics v. Martin Weiner, the Æ had made a near
identical fabric pattern as the ¹’s. Both designs had the same general
color, and the arches, scrolls, rows of symbols, etc. on one resembled
those on the other, though they are not identical. though there were
some small differences. The court held there was copying because the
ordinary observer unless he set out to detect the disparities, would be
disposed to overlook them and regard their aesthetic appeal to be the
same.

CASE: In Bright Tunes Music v. Harrissongs, the ¹ song consisted of a
melody of motif A, followed by motif B, followed by a grace note. The Æ
was found to have infringed the ¹’s work even though the beat,
instrumentation, and orchestration was different.

5. Non-Literal Copying, Idea/Expression – Abstraction Test

A work can be infringed even though its literal elements (e.g., its
text) are not copied. In other words, a work, such as a play, may be
copied when its plot or characters are copied. When “non-literal”
copying is at issue, the trier of fact must determine whether what was
copied was an idea (not copyright protected) or an expression
(protectable).

CASE: In Nichols v. Universal Pictures, the ¹ was the author of a play
and the Æ was the creator of a movie. Both works contained Jewish and
Irish families, marriage of the children to the dismay of the parents,
and reconciliation after children have grandchild. The court stated
that two works may correspond in plot closely enough for infringement
and the same may be true for characters, but when one copies an
abstraction, the decision as to whether there was an infringement is
difficult. The court held that the general theme of the ¹’s play was to
general an abstraction (i.e., an idea) to be protected and the
characters were to “stock” or prototype to be protected.

NOTE: The substantial similarity comparison occurs at an abstraction
level of expression not at the higher abstraction level of idea. In the
instant case the works were only substantially similar at an idea
abstraction level.

NOTE: In comparing stories, plays, movies, etc. the court generally
compares incident (plot), dialogue, and characters when determining the
substantial similarity question.

CASE: In Computer Associates v. Altai, The court stated that a
copyright does not protect an idea, but only the expression of the idea.
The court further stated that the Whelan rule (supra) was flawed as
overly broad, and advised the use of a three part test – abstraction,
filtration, and Comparison.

Step 1: Abstraction – This process begins with the code and ends with
an articulation of the program’s ultimate function. At the lowest level
of abstarction, a computer program may be thought of in its entirety as
a set of individual instructions organized into a hierachy of modules.
At higher levels of abstractions, the instructions in the lowest level
modules may be replaced conceptually by the functions of those modules.
Finally, one is left with nothing nbut the ultimate function of the
program.

Step 2: Filtration – This process entails examining the structural
components at each level of abstraction to determine whether their
particular inclusion at that level was idea or expression. Elements to
be filtered out at each abstraction level include (1) elements dictated
by efficency (i.e., the doctrine of merger – the expression is
inseparable from the expression because there is only one way to express
the idea, (2) elements dictated by external factors (i.e., in many
instances it is virtually impossible to write a program to perform
particular functions in a specific environment without employing
standard techniques Å scenes a faire, and (3) elements taken from the
public domain.

Step 3: Comparison – The third an final step of the test for
substantial similarity for non-literal program components entails a
comparison. What is left after abstraction and filtration is the core
or golden nugget of the protectable expression. If the Æ copied any of
the golden nugget (i.e., tere is substantial simialrity between the Æ’s
and ¹’s works) there has been an infringement. .

6. Focus Is On Similarities Not Differences

Any good substantial similarity analysis delineates the similarities in
the two works (i.e., the focus is on the individual elements of the
works). It is entirely immaterial that in many respects the ¹’s and the
Æ’s work are dissimilar if in other respects similarity as to a
substantial element of the ¹’s work can be shown. In other words, a
plagiarist cannot justify his copying by pointing out what he did not
copy.

CASE: In Steinberg v. Columbia Pictures, Æ used the ¹’s New Yorker
magazine cover as an “idea” for its Moscow on the Hudson poster. The
court held there was an infringement and delineated the similarities in
the two works: both were perspective drawing, both looked down a major
two way street, both had same horizon, both had nearly identical
fictional building, and the “style” was the same. The fact that there
were dissimilarities (i.e., one faced west the other east was of no
consequence).

CASE: In Kisch v. Ammirati & Puris, ¹ had taken a photograph of a woman
seated in a specific Manhattan nightclub holding a concertina. The Æ’s
allegedly infringing picture showed a man, in the same nightclub,
holding a saxaphone. The court stated that it had been recognized that
where a photographer in choosing subject matter, camera angle, lighting,
etc. attempts to duplicate all such elements as contained in a prior
photograph then even though the second photographer is photographing a
live subject such an act would constitute and infringemenmt. If,
however, the elements of an earlier photogrph are “by chance” duplicated
subsequently by another photographer, the new photograph will not be an
infringement. The court also stated that copying a picture’s tone or
mood alone would not constitute an infringement but these elements would
be pertainent to a substantial similarity analysis.

NOTE: Although courts sometimes list the overall concept, style, or
feel of works amongst the similarities these are more “ideas” and alone
probably would not be enough to constitute infringement. They do
however, when taken with over expression elements, help to prove
copying. If the idea has been copied, then there is a possibility that
the expression has been copied as well.

NOTE: Two elements in the Steinberg case were key in the finding of
infringement. The two way street and a building used in the picture
were fictionalized (i.e., they did not exist or they lacked independent
existence in New York). The Æ must then have copied them from the ¹’s
work and not from the original. In a case concerning the coping of
synthetic zebra head, the Æ was not held to have infringed – his zebra
head was deemed to have been created from copying a zebra head as it
appeared in nature. In other words a zebra head has an independent
existence. In contrast in a case concerning novelty bedroom slippers
that looked like bear paws, the Æ was deemed to have infringed because
his slippers like the ¹’s had five toes – real (independent existence)
bear paws have only four.

7. Authors Reproducing Works In Which They No Longer Own The Copyright

An interesting problem arises when an author creates a subsequent work
that is similar to one that he no longer has the copyright. On one
hand, one should not be allowed to illictly copy another’s copyrighted
work, but on the other hand an artist should not be inhibited to utilize
his “style”.

CASE: In Gross v. Seligman, a photographer posed a nude young woman for
a photograph and sold all the rights to ¹. Two years later he posed the
same woman and created nearly the identical photograph. The court
stressed that where the photographer, model, pose, light, and shade were
the same there was a strong indication that the second photograph was
merely a copy of the first. Accordingly, infringement was found.

CASE: In Franklin Mint Corp. v. National Wildlife Art Exchange, a
nationally recognized wildlife artist was commisioned to paint a
atercolor of cardinals for the ¹. Two years later, the artist created
another watercolor of cardinals from the same source material and some
additional source material. The court held that the pattern of
differences was sufficent to establish that the second painting
represented “diversity of expression rather than an echo”.

8. Works Whose Right to Copy is Non-Exclusive

Copyright owners of certain types of works do not enjoy all the
exclusive rights listed in ¤106. These types of works include musical
compositions, and sound recordings in which the right to reproduce the
copyrighted work in copies or phonorecords is non-exclusive.

NOTE: There is a distinction between a recorded composition (a musical
composition) and the recorded performance of such composition (a sound
recording). The underlying musical composition is a separately
copyrightable work of authorship from the sound recording. The sound
recording is another separately copyrightable work of authorship.

a. Musical Works – Compulsory License – ¤115

1. In General

A musical composition that has been produced in phonorecords with the
permission of the copyright owner may generally be reproduced in
phonorecords by another person, if that person notifies the copyright
owner and pays a specified royalty.

NOTE: The compulsory license applies to nondramatic musical works.
Thus if you want to use someone’s song in your movie, you must negoiate
for it – there is no compulsory license.

NOTE: Under this compulsory license, the copyright owner of the musical
composition cannot refuse the use of his work – the license is
compulsory.

NOTE: A compulsory license becomes available (i.e., is triggered) when
there has been an authorized release of the musical work in
phonorecords.

2. Composition May Be Altered To Fit Style

The compulsory license includes the privelge of making a musical
arrangement of the work to the extent necessary to conform it to the
style or manner of the performer but the arrangement shall not change
the basic melody and fundamental character of the work.

NOTE: The “altered” arrangement is not subject to protection as a
derivative work.

3. Notice

Any person who wishes to obtian a compulsory license under ¤115 must
notify the copyright owner of the musical work before distributing any
phonorecords of the work

4. Royality To Be Paid

The royalty to be paid under a compulsory license shall be payable for
every phonorecord made and distributed. The current rate is 6.6¢ for
each recording of a composition. Thus, if your album contained ten
“covers” you would be paying the copyright owners of the musical
compositions 66¢ total per record.

NOTE: It is generally the composer of the song who is the copyright
owner of the musical composition and who is entitled to the royalty
payment.

HYPO: Can Guns-N-Roses perform “Knockin On Heavens Door” live within
the compulsory license? No, a compulsory license is for the making of a
phonorecord.

NOTE: You can still license independent of the compulsory licensing
scheme of ¤115 (i.e., you can contract out of ¤115). This is typically
done using a licensing company such as Harry Fox.

b. Sound Recordings – ¤114

Owners of copyright in sound recordings do not have all the rights
listed in ¤106. The rights of a copyright owner of a sound recording
are limited to ¤106 clauses (1), (2), and (3). These rights do not
include the right from excluding others from performing the work
publicly.

1. Right Under ¤106(1)

The exlusive right to reproduce the copyrighted work under ¤106 is
limited to the right to duplicate the sound recording in the form of
phonorecords, or of copies of motion pictures and othe audio visual
works, that directly or indirectly recapture the actual sounds fixed in
the recording.

2. Right Under ¤106(2)

The exclusive right to prepare a derivative work is limited to the right
to prepare a derivative work in which the actual sounds fixed in the
recording are rearranged, remixed, or otherwise altered in sequence or
quality.

NOTE: It is not an infringement for one to duplicate the sounds on the
sound recording by an independent fixation of other sounds imitating
those in the copyrighted sound recording.

c. Digital Audio Recording Devices and Media Act

1. In General

In 1992, Congress enacted legislation specifically addressing the
problem of private copying of sound recording. The legislation was
spurred by the development of the DAT which allowed for multiple
generation of copies each with the same sound quality. The legislation
are three main features:

(a) It expressly prohibits infringement actions for home audiotapping
either digital or analog.

(b) In return, it imposes royalty charges upon the sales of digital
audio tape recorders and recording media (i.e., blank tapes).

(c) The law obliges manufacturers and importers to include in all
digital audio machines a serial copy management system.

2. Copying Control – ¤1102

No person shall import, manufacture, or distribute any digital audio
recording device or digital audio interface device that does not conform
to the Serial Copy Management System (or equivalent).

(a) First generation copying (i.e., copying from the original source is
permitted), but you could not copy a copy of the original).

(b) Cannot import, manufacture, or distribute any device that bypasses
Serial Copying Management System

3. Obligation to Make Royalty Payments – ¤1103

No person shall import, manufacture, or distribute any digital audio
recording device or digital audio recording medium unless:

(1) They file notice with the Register of Copyright

(2) Pay royalties

4. Royalty Payments – ¤1104

For each Digital Audio Recording Device imported, manufactured, and
distributed royalties shall be 2% of the transfer price with the minimum
being $1 and the maximum being $8 (integrated units $12 maximum).

For each Digital Audio Recording Media imported and distributed,
royalties shall be 3% of the transfer price with the minimum being $1
and the maximum being $8 (integrated units $12 maximum).

5. Deposit of Royal Payments – ¤1105

Copyright Office shall deposit royalties (less reasonable expenses
incurred) in the Treasury of the United States

6. Entitlement to Royalty Payments – ¤1106

a. Who Is Entitled – Interested Copyright Party

Royalty payments distributed to any interested copyright party whose
musical work or sound recording has been

(a) embodied in a digital musical recording or in an analog recording
that has been distributed and

(b) distributed in the form of a digital musical recording or in an
analog recording or disseminated to the public in transmissions during
the period that such payments pertain

(c) who has filed a claim under ¤1007

b. How Money Is Allocated – Royal Payment Groups

1. Sound Recording Fund

66.66% of the royalties collected are allocated to Sound Recording Fund
and distributed to record producers and performers as follows:

(a) 2.625% distributed to nonfeatured musicians

(b) 1.325% distributed to nonfeatured artists

(c) 40% of remaining to featured recording artists

(d) 60% of remaining to owners of copyright in sound recording

2. Musical Works Fund

33.33% of the royalties are allocated to Musical Works Fund and
distributed to composers and music publishers are follows:

(a) 50% to music publishers

(b) 50% to composers

7. Prohibition on Infringement Actions – ¤1108

No action may be brought alleging infringement of a copyright based on
the manufacture and importation or distribution of a digital audio
recording device (i.e., no contributory infringement cases) or based on
the noncommercial use by a consumer.

d. Copying Exceptions

¤117 of the Copyright Act provides that it is not an infringement for
the owner of a copy of a computer program to make or authorize the
making of another copy or adaptation of that computer program provided:

(a) that such a new copy is created as an essential step in the
utilization of the computer program (i.e., installation of the program
that resides on two floppy disks on a hard drive)

(b) that such a new copy is created for archival purposes. Archival
copies must be destroyed if you sell the original.

NOTE: Archival copies are not the same as working copies. Thus, it
would probably be a copyright infringement if you made multiple copies
for use on multiple computers – especially if you used the computers and
software simultaneously

C. THE RIGHT TO MAKE DERIVATIVE WORKS

1. In General

¤106 provides that the owner of the copyright has the exclusive rights
to do and to authorize any of the following:

(2) to prepare derivative works based on the copyrighted work

The right to prepare derivative works substantially overlaps the scope
of the reproduction right and is considered to be broader. The
reproduction right leaves off and the derivative right begins at the
point which the contribution of independent expression to an existing
work effectively creates a new work for a different market.

NOTE: In most cases the infringing derivative work is also a infringing
reproduction. For example a novel that is “made” into a paperback would
be an infringement for copying as well as for a derivative work. On the
other hand a novel made into a movie would most likely only be an
infringement of the right to prepare derivative works.

NOTE: Reminder – analysis whether there was copying first, then, if
there was no copying, analysis whether there was a derivative right
infringement.

2. Substantial Similarity Test

The test of whether a derivative work has infringed the original is the
same test (i.e., was the “infringing” work substantially similar) as in
determining reproduction rights.

CASE: In Horgan v. MacMillian, Æ took still photo’s of the ¹’s
copyrighted ballet. The court held that the standard for determining
copyright infringement is not whether the original could be recreated
from the allegedly infringing copy, but whether the latter is
substantially similar to the former. The test is whether an ordinary
observer, unless he set out to detect the disparities, would be disposed
to overlook them, and regard their aesthetic appeal as the same.

NOTE: If a substantial similarity test is applied, there may be little
of anything left except the exclusive right to reproduction. The right
to create derivative works is theoretically the right to exploit the
original in secondary (or derivative) markets. The more utilitarian the
original work, the less likely the copyright owner is to prevail in a
derivative right infringement case. For example, software would
probably have limited derivative rights since a court would be concerned
that in granting a copyright to derivative works it would be creating a
monopoly.

CASE: In Mirage Editions v. Albuquerque Art Co., Æ purchased the ¹’s
book, removed individual images from the book and placed them on tiles.
The Æ recast or transformed the images by incorporating them into its
tiles thus there was an unauthorized derivative work. (Note: Not a
utilitarian work, protection of secondary market).

CASE: In National Geographic v. Classified Geographic, the Æ bought the
¹’s magazines, and arranged and compiled articles in book form and sold
them to the public. Although the Æ did not reprint any of the ¹’s
material this was none the less an infringement.

3. Derivative Work Must Be Based Upon Original

According to the House Report to be an infringement, the derivative work
must be based upon the copyrighted work. Thus, to constitute a
violation of ¤106(2), the infringing work must incorporate a portion of
the copyrighted work in some form.

CASE: In Lewis Gallob Toys v. Nintendo, the Æ created a game Genie that
enhanced the performance of the ¹’s game. The Æ game Genie did not
alter the data on the ¹’s cartridge nor could it create video images by
itself. The court held that the altered displays did not incorporate a
portion of the copyrighted work and was thus not an infringement.

NOTE: Although the secondary market of the work may have been
infringed, the primary market may actually be improved.

4. Moral Rights

a. In General

An artist also has a right to have his work attributed to him in the
form in which he created. “Droit moral” or moral right are protected by
a multitude of state, common law, and federal laws.

b. State Laws

The overall “fine arts” subject matter covered by state laws are often
similar; the rationales for and the terms of protection are not always
the same. Generally speaking, the intent of such laws is to protect
both the integrity of the artwork and protect the reputation of the
artist.

In Wojnarowicz v. American Family Associates, the Æ cropped the ¹’s
“offensive” photographs and sent them out in a mailing to congressmen,
TV stations, etc. The ¹ brought suit under the New York Artist’s
Authorship Act which provided:

No person … shall knowingly display … or publish a work of fine art
… or a reproduction thereof in an altered, defaced, mutilated, or
modified form if the work is displayed, published, or reproduced as
being the work of the artist.

The court held that the Æ was liable under the act but also stated that
the Æ was free criticize the ¹’s work and may (1) present incomplete
reproductions labeled as such (2) present incomplete reproductions
without attribution to the ¹.

c. Federal Moral Rights Law

1. In General

In 1990 Congress passed the Visual Rights Act which affected ¤101 and
¤106A of the Copyright Act. The right is very limited and artists and
authors not covered by the statute must utilize other sources of law
(e.g., the Lanham Act and state moral rights laws) to protect their
interests.

2. Definition of Visual Art ¤101

a. What Is Visual Art

Works of visual art include (1) paintings, drawings, prints, or
sculptures existing in a single copy or in limited edition of 200 copies
or fewer consecutively numbered and signed by the artist and (2) a still
photograph produced for exhibition purposes only, existing in a single
copy or in limited edition of 200 copies or fewer consecutively numbered
and signed by the artist.

b. What Is Not Visual Art

Works of visual art do not include any poster, map, globe, chart,
technical drawing, diagram, model, applied art, motion picture or other
audio visual; work, book , magazine, newspaper, electronic publication,
merchandising item, advertising or packaging material, work made for
hire, or work not subject to copyright protection.

3. Rights of Attribution and Integrity ¤106A

a. What Are The Rights

The author of a work of visual art shall have the right to:

(1) claim authorship in the work

(2) prevent the use his name as the author of a work of visual art
that he did not create

(3) prevent the use of his name as the author of a work of visual art
in the event of distortion, mutilation, or modification of the work
which would be prejudicial to his reputation

NOTE: Not every modification would be actionable. Only modifications
that are prejudicial to the artist’s reputation.

(4) prevent any intentional distortion, mutilation, or modification of
the work which would be prejudicial to his reputation

(5) prevent any destruction of a work of recognized structure

NOTE: Recognized stature is not defined. Could be based on what the
work was worth, or whether the artist was well known, etc.

b. Who Has The Rights

Only the author of a work of visual art has the rights conferred in that
work whether or not he is the copyright owner in the work.

c. Exceptions

The modification of a work of visual art which is the result of passage
of time, is inherent by the nature of the materials used, or is the
result of conservation is not a distortion, mutilation, or modification.

d. Transfer and Waiver

The rights of attribution and integrity cannot be transferred by the
author, but those rights may be waived if the author expressly agrees to
such waiver in a written instrument signed by the author.

e. Duration

Since the interest being protected is the artists reputation, the
duration of the right is for the life of the artist.

D. THE RIGHT TO DISTRIBUTE

1. In General

¤106 of the Copyright Act grants the owner of the copyright the
exclusive rights to do and to authorize any of the following:

(3) to distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or
lending

2. First Sale Doctrine

¤109(a) of the Copyright Act provides that notwithstanding the
provisions of ¤106(3), the owner of a particular copy or phonorecord
lawfully made under this title, or any person authorized by such owner,
is entitles, without the authority of the copyright owner, to sell or
otherwise dispose of the possession of that copy or phonorecord. In
other words, the exclusive right to distribute is limited to the first
sale; the right exerts no restriction on the future sale of the copy.

CASE: In Fawcett Publishing v. Elliot Publication, subsequent to ¹’s
publication, Æ Elliot purchased secondhand copies of it, bound it
together with other comics and sold it as “Double Comics”. The court
held that the exclusive right to distribute was limited. It is confined
to the first sale of any one copy and exerts no restriction on the
future sale of that copy.

NOTE: There was no discussion in this case concerning the possibility
of infringement of the right to create a derivative work.

3. Exceptions to First Sale Doctrine

a. Record Rental Amendment – 1984

1. In General

In 1984, Congress targeted the record-rental store with legislation that
prohibited the renting of records. These record-rental stores were
considered to pose a threat to American record companies, publishers,
and performers. The concern was that people would simply rent records
and record them thus greatly diminishing the record market.

2. Sound Recording Rental Prohibited

¤109(b) of the Copyright Act provides that unless authorized by the
owners of copyright in the sound recording and musical works embodied
therein, the owner of a particular phonorecord may not, for purposes of
direct or indirect commercial advantage, dispose of, or authorize the
disposal of, the possession of that phonorecord by rental, lease, or
lending.

b. Software Rental Amendment – 1990

In 1990 Congress again modified the first-sale doctrine, this time by
enacting the COmputer Software Rental Agreement. This amedment grants
authors or producers of software the right to authorize or prohibit the
rental of copies, even after their first sale.

1. Exceptions Provided In Amendment

(a) The 1990 law excepts non-remumerative transfers of programs within
libraries, universities, and schools.

(b) Software copyright owners cannot prohibit the rental of copies
contained within computer hardware when the software is not susceptible
to copying

(c) Software copyright owners cannot prohibit the rental or public
performance of software intended to be used in a computer whose
principle purpose is to permit the user to play video games

(d) Noncommercial libraries can lend computer programs to the public as
long as these copies bear a copyright notice.

c. Droit De Suit

The doctrine of Droit De Suit is another deviation from the first sale
doctrine and allows artists to receive royaltes from subsequent sales of
his work. Theoretically, the law is only applicable in California, but
it is widely ignored even there. The rationale behind the law is to
allow the artist to paticipate in any increase in the value of his work.

E. THE RIGHT TO PUBLIC PERFORMANCE

1. In General

¤106 provides that the owner of the copyright has the exclusive right
… (4) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual works, to
perform the copyrighted work publicly.

2. Historical Backdrop

Under the 1909 act, the owner of copyright in a musical composition was
granted the exclusive right to perform it publically for profit. The
aspects “publically” and “for profit” were the two most debated.

a. For Profit

Initially, courts held that the term “for profit” meant a direct
pecumiary charge to hear the performance (i.e., an admission fee). This
view was resoudly overturned in Herbert v. Shanley.

CASE: In Herbert v. Shanley, the Æ owned a restaurant and used
professional singers and an orchestra to perform songs including those
of ¹ Herbert. The court held that this was an infringement since the
performance was for profit. The very reason the music was provided was
that it attracted customers; the price of the food included the fee for
the entertainment.

b. Publically – The Doctrine of Multiple Performance

So long as a musical rendition took place in a fac-to face setting, with
performers and listeners in the same concert hall, there was little
debate as to whether a performance was taking place. The development of
radio an televsion, however, undermined definitional simplicity, as
performers and listeners became geographically remote and intermediate
transmission agencies became necessary. Thus emerged the doctrine of
multiple performance.

CASE: In Buck v. Jewell-LaSalle, the Æ, a hotel proprietor, provided
radio receivers in each room and this was found to infringement – one
who tunes in on his receiving unit actually performs the work.

CASE: In Fortnightly v. United Artists Television, the retransmission
of copyrighted television programs by a community atenna television
system was held not to perform the program.

CASE: In Twentieth Century v. Aikens, the Æ hooked up his radio to four
speakers and played the radio in his fast food shop. The court
overruled Buck. One who manually or by human agency merely actuates
electrical instrumentalities, whereby inaudible elements that are
omnipresent in the air are made audible to persons within hearing, does
not “perform”.

c. Performing Rights Under the 1976 Act

1. Definition of Perform

¤101 Perform – To perform a work means to recite, render, play, dance,
or act it either directly or by means of any device or process, or in
the case of a motion picture or other audiovisual work, to show its
images in any sequence or to make the sounds accompanying it audible.

NOTE: House Report – Under the definitions of perform, display,
publicly, and transmit in ¤101, the concepts of public performance and
public display cover not only the initial rendition or showing, but also
any further act by which that rendition or showing is transmitted or
communicated to the public.

2. Definition of Public

¤101 Public – To perform or display a work publicly means -

(1) to perform or display it at a place open to the public or at any
place where a substantial number of persons outside of a normal circle
of family and its social acquaintances is gathered OR

(2) to transmit or otherwise communicate a performance or display of
the work to a place specified in (1) or to the public, by means of any
device or process, whether the members of the public capable of
receiving the performance or display receive it in the same place or in
separate places and at the same time or at different times.

NOTE: This clause is commonly referred to as a semi-public place.

CASE: Columbia Pictures v. Aveco Inc., the ¹’s were producers of motion
pictures and brought copyright infringement alleging that Æ infringed on
their exclusive right to perform or authorize the copyrighted work
publicly. The Æ’s operated operated a business which included renting
videos in conjunction with rooms in which they could be viewed. The
customer had complete control over VCR, each video could only be viewed
from within the viewing room, and individual customers and family may
only go into viewing room. The court stated that there was no question
that performances of copyrighted materials took place in the Æ’s stores
and the Æ could be liable as a contributory infringer. A person who
knowingly makes available the requistes of a public performance
authorizes the performance. The court further stated that in order for
Æ Aveco to infringe the ¹’s copyright, the performances must have been
public. The Copyright Act speaks of performances at a place open to the
public. It does not require that the public place be actually crowded
with people. As in Redd Horne, Æ was willing to make a viewing room and
video cassettes available to any member of the public – it is this
avialability that makes the Æ’s store public. In other words publicly
means available to the public (e.g., booths, hotel rooms, etc.).

d. Performing Rights Societies

Prior to ASCAP’s formation in 1914 there was no effective method by
which composers and publishers of music could secure payment for the
performance for profit of their copyrighted works. ASCAP provides its
members with a wide range of services. It maintains a surveillance
system of radio and television broadcats to detect unlicensed uses,
institutes infringement actions, collects revenue from licenses, and
distributes royalties to copyright owners.

CASE: In Ocasek v. Hegglund, ¹’s were members of ASCAP and two ASCAP
investigators visited the Æ’s establishment and noted that five of ¹’s
songs were performed unlicensed. After ASCAP filed suit for the ¹’s,
the Æ tried to depose the ¹’s to discover information about the identity
and/or subsatntial similarity of the music at issue and the nature and
extent of damages. The court held that the ¹’s are entitles to a
protective order pursuant to FRCP, Rule 26(c)(3) where a court may limit
discovery when it is unduly burdensome or expensive. The issue of
substantial similarity is irrelevant. In order to make out their case
for infringement, the ¹’s need only prove that their works were
performed without authority.

e. Performance and Display – Limitation on Exclusive Rights ¤110

Notwithstanding the provisions of ¤106, the following are not
infringements of copyright.

(1) Performance or display of a work by instructors or pupils in the
course of face-to-face teaching activities of a nonprofit educational
institution.

(2) Performance of a nondramatic literary or musical work or display of
a work, by or in the course of transmission if (in general) the
transmission is made primarily for reception in classrooms.

(3) Performance of a nondramatic literary or musical work or of a
dramaticomusical work of a religious nature, or display of a work, in
the course of services at a place of worship.

(4) Performance of a nondramatic literary or musical work otherwise
than in a transimission to the public, without any purpose of direct or
indirect commercial advantage … (i.e., a charitable performance).

(5) Communication of a transmission embodying a performance or display
of a work by the public reception of the transmission on a single
receiving apparatus of a kind commonly used in private homes.

(6) Performance of a nondramatic literary or musical work, by or in the
course of a transmission specifically designed for and directed to blind
or handicapped persons

f. Secondary Transmissions – Limitation on Exclusive Rights ¤111

See appendix (if you’re lucky)

F. THE RIGHT TO PUBLIC DISPLAY

1. In General

The copyright owner of a work has the exclusive right … (5) in the
case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the
individual images of a motion picture or other audiovisual work, to
display the copyrighted work publicly.

2. Definitions

a. Definition of Display

¤101 – To display a work means to show a copy of it, either directly or
by means of a film, slide, television image, or any other device or
process or, in the case of a motion picture or other audio visual work,
to show individual images nonsequentially

Definition of Public

¤101 Public – To perform or display a work publicly means -

(1) to perform or display it at a place open to the public or at any
place where a substantial number of persons outside of a normal circle
of family and its social acquaintances is gathered OR

(2) to transmit or otherwise communicate a performance or display of
the work to a place specified in (1) or to the public, by means of any
device or process, whether the members of the public capable of
receiving the performance or display receive it in the same place or in
separate places and at the same time or at different times.

3. Limitations on Exclusive Right – Effect of Tansfer of Particular
Copy – ¤109

The copyright owner’s exclusive right to display the work is limited by
¤109 which provides:

(c) Notwithstanding the provisions of ¤106(5), the owner of a
particular copy, lawfully made under this title, or any person
authorized by such owner, is entitled, without the authority of the
copyright owner to diosplay that copy publicly, either directly or by
the projection of no more than one image at a time, to viewers present
at the place where the copy is located.

(d) The priveleges prescribed in subsection (c) do not extend to any
person who has acquired possession of the copy from the copyright owner
by rental, lease, or loan without acquiring ownership of it.

III. FAIR USE

A. IN GENERAL

The “fair use” exception to copyright protection constitutes perhaps the
most significant and most venerable limitations on an author’s or
copyright owner’s prerogatives. The traditional concept of fair use
excused reasonable unauthorized appropriations from a first work, when
the use to which the second author put the appropriated material in some
way advanced the public benefit, without substantially impairing the
present or potential economic value of the first work.

NOTE: The two poles of the traditional fair use doctrine are (1) the
economic harm to the first author from allowing borrowing from his work
and (2) the advantages which the public may derive from the borrowing.

B. CONSTITUTIONAL FOUNDATION

The fundamental justification for the fair use privilege lies in the
constitutional purpose in granting copyright protection “to promote the
progress and sciences and the useful arts”. To serve that purpose
courts must occasionally subordinate the copyright owner’s interest in
maximum financial return to the greater public interest in the
development of art, science, and industry.

C. CODIFICATION OF FAIR USE DOCTRINE

Copyright Act ¤107 provides – not withstanding the provisions of ¤106,
the fair use of a copyrighted work, including such use by reproduction
in copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright. In determining whether
the use made of a work in any particular case is a fair use the factors
to be considered shall include:

(1) the purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes

(2) the nature of the copyrighted work

(3) the amount and substantiality of the portion used in relation to
the copyrighted work as a whole

(4) the effect of the use upon the potential market for or value of the
copyrighted work

1. ¤107 Preamble

The preamble to ¤107 lists situations in which fair use is most commonly
recognized (e.g., for scholarship and research) and each are arguably a
productive use (i.e., it results in some benefit to the public). This
preamble is not, however, determinative (i.e., a nominal or
nonproductive use can still constitute fair use and a productive use may
still not constitute a fair use). The preamble merely illustrates the
sorts of uses likely to qualify as fair uses and the four factors listed
in ¤107 shall be considered in each case.

CASE: In Harper & Row v. Nation Enterprises, the court found that the
general purpose of the Æ’s use was news reporting, and news reporting is
one of the examples enumerated in ¤107 to give some idea of the sort of
activities the courts might regard as fair use. The court stated,
however, whether a use referred to in the first sentence of ¤107 is a
fair use in a particular case will depend upon the application of the
determinative factors, including those mentioned in the second sentence.
Thus, the fact that an article is “news” and therefore productive is
simply one factor in a fair use analysis.

2. Determinative Factors

¤107 includes four factors that a court must consider in fair use cases.
Theoretically, none of the factors are dispositive (i.e., one factor
cannot trump all the others). These factors are, however, non-exclusive
(i.e., courts may look at other factors as well when determining a fair
use question). These other factors often influence how a court will
perform it’s fair use analysis (see Other Factors below).

a. Purpose And Character of The Use

When considering the purpose and character of a use, courts will look to
see if the use was for commercial as opposed to nonprofit. A use that
was for nonprofit stands a better chance of being considered a fair use.

CASE: In Harper & Row v. Nation Enterprises, the court stated that
whether a publication was commercial as opposed to nonprofit is a
separate factor that tended to weigh against a finding of fair use. The
court further stated that the crux of the profit/nonprofit distinction
is not whether the sole motive of the use was for monetary gain but
whether the user stands to profit from the exploitation of the
copyrighted material without paying the customary price.

NOTE: Also in Harper, the court stated that the purpose of the Æ’s work
was to “supplant the original without adding anything new and this
weighed against a finding of fair use.

CASE: In Sony v. Universal Studios, the court stated that if a work was
used for commercial or profit making purposes, such use was
presumptively unfair. Conversely, a noncommercial or nonprofit use is
presumptively fair.

CASE: In Campbell v. Acuff-Rose Music, the court stated that Sony
stands for the proposition that the fact that a publication was a
commercial as opposed to nonprofit is a separate factor that tends to
weigh against a finding of fair use, but nothing more. The court
further stated that none of the four factors should be considered
dispositive, however, it then, in essence elevated the significance of
the work as a parody, by stating the more transformative the new work,
the less will be the significance of the other factors like
commercialism, that may weigh against a finding of fair use.

b. Nature of Copyrighted Work

Because of the public benefit that may be obtained by the dissemination
of works such as histories, biographies, and works of science they are
most likely fair use subject matter. Conversely, works of that are not
“factual” in nature (e.g., music, paintings, etc.) are generally more
protected from fair use. However, this is not always the case.

CASE: In Harper & Row v. Nation Enterprises, the court characterized
the ¹’s copyright work as an unpublished historical narrative or
autobiography and noted the fact that it was unpublished was a critical
element in its nature. The court found that the author’s right to
control the first public appearance of his expression outweighed the use
of the work before its release.

CASE: In Sony v. Universal Studios, the court stated that the nature of
the ¹’s copyrighted TV programs were works that the ¹ allowed the viewer
to watch free of charge over the airwaves and ultimately held this
factor to be in favor of the Æ.

CASE: In Campbell v. Acuff-Rose Music, Æ parodied the ¹’s Pretty Woman
song. The court in dicta stated that although the original work fell
within the core of copyright protective purposes, this fact was not much
help in this case, or ever likely to help much in separating the fair
use sheep from the infringing goats since parodies invariably copy
publicly known works.

c. Amount and Substantiality of Portion Used in Relation to the
Copyrighted Work as a Whole

The more that the second work incorporates and depends upon the first
work, the less likely it is to be deemed fair use, either because it
stands in substitute for the first work or because its lack of a
significant independent contribution to the prior work tends to diminish
the credibility of a defense that the second work is adding to the
corpus of art or knowledge. The amount and substantiality of the
portion used in relation to the copyrighted work as a whole can be
measure qualitatively as well as quantitatively.

CASE: In Harper & Row v. Nation Enterprises, the court found that the
Æ’s work used a substantial portion of the ¹’s work because the Æ took
what was essentially the heart of the ¹’s book (i.e., Ford’s pardon of
Nixon) even though the Æ took only 300 words from the ¹’s 20k word book.

NOTE: In Harper, the court also compared the amount of the portion used
in the otherwise infringing work to the otherwise infringing work as a
whole – in this case 13% of the Æ’s work was copied from the ¹’s. This
seems to imply that the greater the percentage of the original work in
the infringing work, the less the possibility of fair use. This would
be consistent with two themes (1) that building on others works is
desirable but one should not be allowed simply to pirate and (2) the
second work should not supplant the first.

d. Effect on Market

The factor most often recognized as the most important is the fourth
factor, the effect of the otherwise infringing use upon an actual or
potential market for the original work.

CASE: In Sony v. Universal, the court stated that the ¹’s had not
demonstrated any likelihood of harm to their markets as a result of
“time-shifting.” The court stated that a challenge to a noncommercial
use of a copyright work requires a showing by a preponderance of the
evidence that some meaningful likelihood of future harm exists, and that
the ¹’s failed to carry their burden of proof.

CASE: In Harper & Row v. Nation Enterprises, the court stated that the
fourth factor “is undoubtedly the single most important element of fair
use” and concluded that the actual harm to the ¹’s derivative market
(i.e., Time refused to pay) tipped the scales against a finding of fair
use.

CASE: In Campbell v. Acuff-Rose Music, Æ parodied the ¹’s Pretty Woman
song. The court in considering the fourth factor (the effect on the
market) stated that there was no effect on the market for Orbison’s
work, since it was unlikely that a person would buy Two Live Crews
version to the exclusion of Orbison’s.

NOTE: In Campbell, the Æ did not qualify for a compulsory license
because they had changed the lyrics of the ¹’s song rather than just
adapting the song to their style. By qualifying as a fair use parody
the Æ’s would not have to pay the ¹ any fee. Arguably, the market that
was effected was the compulsory license market.

e. Other Factors

Other factors other than the four delineated in ¤107 are considered by
courts when considering whether a use constituted fair use. In some
instances these factors act as a filter in which to view the four
delineated factors.

CASE: In Harper & Row v. Nation Enterprises, the court in considering
the purpose and character of the use stated that relevant to the
character of the use is the propriety of the Æ’s conduct; the court
further noted that fair use presupposes good faith and fair dealing and
in the case at bar, the Æ knowingly exploited a purloined manuscript.

CASE: In Campbell v. Acuff-Rose Music, the fact that the Æ’s work was a
parody influenced the spin the court gave the four factors in its fair
use analysis.

D. PARODY

1. In General

In addition of works of history, biography, and the like, the most
fertile ground for fair use is works of satire or parody. There are
several reasons why works of parody receive preferential fair use
treatment.

(a) there is no plagiarism in the sense that the user usually
identifies the borrowed work and writes for an audience that is familiar
with the work

(b) the parody work is not likely to be a substitute for the original
work in the marketplace.

(c) it is unlikely that the copyright owner in the original work will
license or authorize a derivative parody

(d) the parody in order to be affective will, in many instances, have
to reproduce part of the earlier work

2. Conjure Up Test

Whether a otherwise infringing work of parody constitutes fair use, in
some instances, depends on how much the Æ took from the earlier work.
As a general rule, one is entitled only to take so much as to “conjure
up” the original and no more.

E. REVERSE ENGINEERING

CASE: In Sega v. Accolade, the court held that reverse engineering was
not an infringement as long as the copying was done to discover an idea
and the the expression.

F. COPING FOR EDUCATIONAL AND RESEARCH PURPOSES

1. In General

The most perplexing legal issues in the area of photocopying arise in
the institutions that lie between the large commercial enterprise and
the home copyist – the most prominent example being schools and
libraries. On one hand, their nonprofit status contributes to the
plausibility of their reliance on the fair use doctrine. On the other
hand, the volume of photocopying done by such institutions may adversely
economically impact the copyright owner.

2. Guidelines for Classroom Copying

The House and Senate Committee Reports culminating in the Guidelines for
Classroom Copying in Not-For-Profit Education Institutions established
guidelines for educational copying. These guidelines are a reasonable
interpretation of the minimum standards of fair use (i.e., if you stay
within these guidelines you are probably OK).

NOTE: Although these guidelines are not party of the statute they are
quasi statutory in nature because they are part of the legislative
record.

a. Single Copying for Teachers

A single copy of any of the following may be made by a teacher for
research or use in teaching:

(1) a chapter of a book

(2) an article from a periodical or newspaper

(3) a short story, short essay, or short poem

(4) a chart, diagram, or drawing may be made by a teacher for her

b. Multiple Copying for Classroom Use

Multiple copies not exceeding one copy per student may be made for
classroom use provided that (1) the brevity and spontaneity requirements
are meet, (2) the cumulative effect test is meet, and (3) each copy
includes a copyright notice.

1. Brevity Requirement

The brevity requirement limits the amount that can be copied from
different types of works. The amount you can copy varies with the type
of work involved. (e.g., 250 words of poetry and one chart or diagram
per periodical).

2. Spontaneity

The copying must be the inspiration of the individual teacher and the
inspiration and decision to use the work and the moment of its use for
maximum teaching effectiveness must be so close in time that it would be
unreasonable to get permission.

3. Cumulative Effect

The cumulative effect requirement limits the number of times material
can be copied from a given author and the extent in which the copies can
be utilized.

¥ copying of the material must be for only one course

¥ not more than one short poem, article, or story or two exerpts from
the same author

¥ not more than nine instances of multiple copying per course

¥ each copy most include notice of copyright

4. Prohibitions (Things Not Falling Within Guidelines)

Notwithstanding the single copying and multiple copying allowances the
following are prohibited:

¥ copying shall not be used to create or replace or substitute for
anthologies, compilations, or collective works.

¥ copying of works intended to be consumable in the course of study
(e.g., workbooks).

¥ copying shall not substitute for the purchase of books

G. LIBRARY COPYING

1. In General

Congress recognized the unique social and education functions of
libraries perform and set forth a special regime favoring certain acts
of copying by nonprofit libraries in ¤108 of the Copyright Act.

NOTE: The library exemption does not extend to the library patron who
must rely on the ¤107 formulation of fair use.

2. Relationship to ¤107 Fair Use

¤108(f)(4) provides that nothing in ¤108 shall in any way affect the
right of fair use as provided in ¤107. Thus

3. Types of Works Covered

¤108 is most important to books, periodicals, sound recordings, and TV
news programs because ¤108(h) provides that the reproduction and
distribution rights under ¤108 do not apply to musical works, a
pictorial, graphic, or sculptural work, or a motion picture.

IV. REMEDIES

A. IN GENERAL

A copyright owner whose work has been infringed has two primary remedies
available to him which are:

(1) Injunctive Relief (preliminary and permanent)

(2) Damages (actual damages including profits and statutory)

B. INFRINGEMENT OF COPYRIGHT

1. Who Is An Infringer

Copyright Act ¤501(a) provides that anyone who violates the exclusive
rights of the copyright owner as provided in ¤¤106-120 (including ¤106A)
is an infringer of the copyright or the right of the author as the case
may be.

a. Vicarious and Contributory Liability

A well established principle of copyright law is that a person who
violates any of the exclusive rights of the copyright owner is an
infringer – this includes persons who are related or vicarious
infringers. In a typical case this may include the publisher, printer,
and vendor

NOTE: In the case of performing arts, to be held a vicarious infringer,
a Æ must either actively operate or supervise the operation of the place
where the performance occurs, or control the content of the infringing
program and expect commercial (direct or indirect) gain from the
infringing performance.

NOTE: In cases concerning corporations, an individual perpetrating the
infringing acts on behalf of a corporation, a corporate officer, and the
corporation itself are liable.

2. Action By Copyright Owner

Copyright Act ¤501(b) entitles the copyright owner to institute an
action for any infringement.

C. INJUNCTIVE RELIEF

1. In General

Copyright Act ¤502(a) provides that a court may grant temporary and
final injunctions on such terms as it may deem reasonable to prevent or
restrain infringement of a copyright.

2. Preliminary Injunctions

A court may grant a preliminary injunction for the purpose of
maintaining the status quo. A long standing view is that if the ¹
establishes a prima facie case as to the validity of copyright and its
infringement, a temporary injunction will generally be issued.
Additionally, irreparable injury may be presumed once the ¹
satisfactorily proves that he will likely prevail on the merits.

3. Permanent Injunction

Permanent injunctions are routinely issued when copyright validity and
infringement are ultimately found. It is normally assumed that:

(a) compensatory relief will not adequately redress the injury (because
its often difficult to assess)

(b) the infringement will likely continue unless enjoined

D. DAMAGES

1. In General

Copyright Act ¤504 provides that an infringer is liable either for the
copyright owner’s actual damages (including profits of the infringer) or
statutory damages.

2. Actual Damages And Profits

The copyright owner is entitled to recover the actual damages suffered
by him as a result of the infringement and any profits of the infringer
that are attributable to the infringement.

NOTE: The purpose of awarding the infringer’s profits to the copyright
owner is to prevent the infringer from unfairly benefiting from his
wrongful act.

NOTE: In establishing the infringer’s profits, the ¹ is required only
to present the infringer’s gross revenue; the infringer is required to
prove his or her deductible expenses and elements of profit attributable
to other factors other than the copyrighted work.

3. Statutory Damages

a. Regular Measure of Damages

The copyright owner may elect at any time before final judgment to
recover an award of statutory damages for all infringements with respect
to any one work for which any one infringer is individually liable or
for which two or more infringers are liable jointly and severally in the
sum of $500 to $20k as the court considers just in its discretion.

NOTE: If a suit involves infringement of more than one work, minimum
statutory damages for each work are awarded. For example, if a Æ has
infringed three copyrighted works, the copyright owner is entitled to
damages of $1.5k to $60k.

NOTE: If a suit involves infringement by two or more joint tortfeasors,
they are jointly and severally liable for an amount of $500 to $20k.

b. Exceptions to Regular Measure of Damages

If the copyright owner proves that the infringement was committed
willfully, the court in its discretion increase the award of statuary
damages to $100k. Conversely, where the infringer shows that he was not
aware and had no reason to know that his acts constituted an
infringement, the court in its discretion may reduce the award of
statutory damages to not less than $200.

c. Registration Prerequisite For Certain Damages

Copyright Act ¤412 provides that no award of statutory damages or
attorney’s fee shall be made for (1) any infringement of copyright in an
unpublished work commenced before its registration and (2) any
infringement commenced after first publication and before registration
unless registration is made within three months after the first
publication.

4. Statute of Limitations

Copyright Act ¤507 provides that the statute of limitations for both
criminal and civil proceedings is three years. The statute is tolled
during the period when a reasonable person in the ¹’s shoes would not
have discovered the infringement.

6. Criminal Liability

Copyright Act ¤506 provides that any person who infringes a copyright
willfully and for the purposes of commercial advantage or private
financial gain shall be punished by up to five years imprisonment.

NOTE: Although innocent intent is not a defense to civil copyright
liability, in criminal prosecutions the government must prove that the
accused intended to infringe.

NOTE: ¤506 also criminalizes the knowing placement of a false copyright
notice, fraudulent removal of a copyright notice, and false
representations of material fact in applying for copyright registration.

V. OWNERSHIP AND DURATION

A. AUTHORSHIP

1. Works Made For Hire

See attachment

2. Joint Works

See attachment

B. DURATION OF A COPYRIGHT

1. In General

The duration of a copyright in large part depends on when the work was
created. Copyright Act ¤¤ 302, 303, and 304 govern copyright duration’s

2. Works Created After January 1, 1978 – ¤302

a. In General

Copyright in a work subsists from its creation [as soon as the work is
put down on in some tangible medium (e.g., paper, tape, etc.)] and
endures for the life of the author plus 50 years.

b. Joint Works

In the case of joint works prepared by two or more authors who did not
work for hire, the copyright endures for a term consisting of the life
of the last surviving author plus 50 years.

c. Anonymous Works, Pseudonymous Works, and Works for Hire

In the case of an anonymous work, a pseudonymous work, or a works for
hire, the copyright endures for a term of 75 years from the year of its
first publication or a term of 100 years from the year of its first
publication whichever comes first.

NOTE: If the identity of the author becomes known within the 75 or 100
year term then the copyright endures for life plus 50 years.

d. Presumption of Author’s Death

After a period of 75 years from the year of first publication of a work,
or a period of 100 years from the year of its creation, which ever
expires first, any person who obtains from the Copyright Office a
certified report that discloses nothing to indicate that the author of
the work is living, or dies less than 50 years before is entitled to the
presumption that the author has been dead for at least 50 years.
Reliance in good faith upon this presumption is a complete defense to
any action for infringement.

3. Works Created But Not Published or Copyrighted Before January 1,
1978 – ¤303

Prior to the 1976 Copyright Act (effective January 1, 1978), copyright
protection began as soon as the work was published. Works that were not
published prior to January 1, 1978, the copyright subsists from January
1, 1979 and endures for the life of the author plus 50 years. In no
case however, shall the term of copyright expire before December 31,
2002. And, if the work is published before December 31, 2002, the term
of copyright shall not expire until December 31, 2027.

4. Subsisting Copyrights – ¤304

Prior to the 1976 Copyright Act, works were protected from the time they
were published for 28 years plus an additional 28 years with renewal.
The duration of these existing copyrights depends on whether the work
was in its first term or their renewal term.

a. Copyrights in Their First Term on January 1, 1978 – ¤304(a)

1. Works Published Between 1964-1977

Copyright protection for works that were published between 1964 and 1977
starts when the works are published with notice and have a first term of
28 years. Their second 47 year term commences automatically, renewal
registration is optional.

2. Works Published Between 75 Years Ago and 1963

Copyright protection for works that were published from between 75 years
ago and 1963 starts when the works are published with notice and have a
first term of 28 years. A second 47 year term commences only if
renewal was sought, otherwise these works are in the public domain

HYPO: Is a work that was published in 1920 still under copyright
protection? That depends, if copyright protection was not renewed in
1948 then the work is in the public domain. Theoretically, the work,
even if renewed, would have gone into the public domain in 1976, but in
1962 anticipating an extension of copyright duration Congress regularly
granted two years extensions to renewal terms.

NOTE: An important date – 1920 – anything published prior to 1920 is in
the public domain.

b. Copyrights in Their Renewal Term on January 1, 1978 – ¤304(b)

The duration of any copyright in its renewal term is extended to endure
for a term of 75 years from the date copyright was originally secured.

C. RENEWAL AND TERMINATION RIGHTS

1. In General

The courts and commentators have repeatedly characterized a renewal as a
“new estate”. Renewals are said to be separate from and independent of
the original copyright, to be “free and clear of any rights, interests,
or licenses attached to the copyright for the initial term” and to have
“all the attributes of a new work copyrighted at the time the renewal is
effected.” Renewal provisions try to accomplish two things:

(a) If the author is living, to give him an opportunity to benefit from
the success of his work and disadvantageous bargains

(b) If the author were dead, to ensure dependent relatives would
receive the benefits of the renewal regardless of any agreements the
author entered into.

2. Subsitting Works in First or Renewal Term – 304(c)

3. Termination of Transfers and Licenses – Works Made After January 1,
1978 – ¤203

D. PREEMPTION

As a general rule, under ¤301 of the Copyright Act, federal copyright
law pre-empts all state copyright law. For example, a state court in
California cannot grant copyright protection for movies in the public
domain. Any action based on state law that would be in conflict with
federal copyright statutes will only be valid provided that there is an
element of the cause of action different from one under federal
copyright.

E. INTERNATIONAL COPYRIGHT

1. National Treatment

We grant citizens of other countries the same protection we grant our
citizens (e.g., a French citizen would get U.S. copyright act protection
in the U.S. not what he would be entitled to under French law).

2. Revived Foreign Works

¤104(a) provides that foreign works that went into the public domain
because of a failure to provide a copyright notice, etc. but are still
protected in their own country, have restored U.S. copyright protection
provided they are still under protection in their own country.
Additionally, the duration of the copyright is limited to what is left
in their term – the term does not start again.

NOTE: There is a protection for persons who relied on the foreign work
being in the public domain in generating a derivative work. The
derivative work owner can obtain a license by compulsion and continue to
exploit the original work.

G. REGISTRATION

Registration has almost no legal significance. The only substantive
effect of registration is that attorney’s fees and statutory damages are
only recoverable for post-registration infringements.

H. NOTICE

1. Prior to 1988

Prior to the United States ratification of the Berne Convention in 1988,
notice (i.e., placing a “©” on the work) was required in some degree or
the work was considered in the public domain.

2. Post 1988

After the ratification of the Berne Convention in 1988, notice (i.e.,
placing a “©” on the work) is no longer required for copyright
protection.

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