Creative Property / Copyright

Immaterial Property An area of law that deals with

intangible property

Patents Copyright Trademarks

Patents Any person who “invents or discovers any

new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the law.

Patents Patents give the inventor a monopoly on

selling the product for 20 years Three kinds of patents include:

Patents on inventions with utility Patents on designs Patents that protect plants (e.g.,

flowers)

Copyright The law of copyright gives the author, or

the owner of the copyright, the sole and exclusive right to reproduce the copyrighted work in any form for any reason.

Rights under Copyright Law The right of reproduction The right of preparation of derivative works The right of public performance of the work The right of public display of the work The right of public digital performance of a

sound recording (with exceptions)

What Can Be Copyrighted?Expressive and Original Creation

1. Literary works2. Musical works3. Dramatic works, including accompanying

music4. Pantomimes and choreographic works5. Pictorial, graphic and sculptural works6. Motion pictures /audiovisual work7. Sound recordings

What Cannot Be Copyrighted Facts Trivial materials such as titles or slogans

(but some could be “trademarked”) Ideas Utilitarian goods Methods, systems, mathematical principles,

formulas and equations

Originality The work must be original: not a

reproduction

Compilations of factual information: The “sweat of the brow” doctrine A legal proposition that even though facts

are not copyrightable, a person who invests great energy and hard work in amassing these facts deserves some reward for this hard work.

Accepted by courts only if certain originality of the effort can be established.

Compilations of factual information: Business Directories O’Dwyer Co. v. Media Marketing (1991)

O’Dwyer’s listing of PR agencies was a copyrightable compilation.

It was ruled to be original by its research and criteria for inclusion of agencies

Compilations of factual information: Telephone Books and Databases

Feist Publications, Inc. v. Rural Telephone Service Co., Inc. (1991)

While some new compilations of facts may be protected by copyright, the Court said, there was no novelty or originality in the compilation of these materials (a telephone book)

Collective work Collective work, compilations made up of

individual contributions (e.g., an anthology of poetry) is copyrightable.

Derivative work Material based on existing work is

copyrightable as long as the material has a sufficient amount of originality (e.g., condensation, translation)

However, a consent must be obtained from the owner of the copyright to the original work

Tangible Medium The work must be fixed in a tangible medium

(paper, tape, video, disk, etc.)

News Events Copyright law protects the expression of the

story – the way it is told, the style and manner in which the facts are presented

Copyright law does not protect the facts in the story; other journalists may use the facts you have gathered to write their news story

Ownership Acquired at the moment of creation in a tangible

medium No formal requirements

Ownership Copyright ownership begins at the moment a

work that can be protected is created (in a tangible medium).

There is no formal procedure required for copyright protection.

A NOTE: ownership of physical object is not the same as copyright ownership (e.g., letters received from a friend).

Ownership Individual author Joint Authorship Work Made for Hire (was the author an

employee?) Government Works

Joint Authorship A "joint work of authorship" is a work prepared by two or

more authors with the intention that their contributions will be merged into inseparable or interdependent parts of a unitary whole.

"Inseparable" applies when individual contributions are blended (e.g., computer programs)

“Interdependent" refers to works with separable elements (e.g., lyrics and music).

The prevailing view is that a joint author's contribution must be independently copyrightable.

Joint Authorship: contribution The prevailing view is that a joint author's contribution

must be independently copyrightable. The minority view is that a contribution of more than de

minimus authorship should be credited even if not independently copyrightable

The Second and Ninth Circuits have long required that a putative joint author's contribution be "independently copyrightable," while the Seventh Circuit has more recently followed the minority view

Joint Authorship: contribution Joint authors need not make equal contributions. The default rule is that the copyright ownership is equal,

but the default ownership allocation can be varied by written contract.

work made for hire In a work made for hire situation, the "author" of the work

is no longer the individual who created the work. Instead, the "author" is considered to be the entity which hired the actual creators of the work

The Copyright Act limits the work made for hire doctrine to two specific situations:

a work prepared by an employee within the scope of his or her employment; or

a work specially ordered or commissioned for use

work created by an employee The determination of whether an individual is an

employee: the control exerted by the employer over the employee the control exerted by the employer over how and where

the work is done; the supplying of equipment for the employee's use; and the payment of benefits and the withholding of taxes.

work created by an independent contractor In order for the work of an independent contractor to be a

work made for hire, the following facts must exist: the work must be specially ordered or commissioned; there must be a written agreement between the parties

specifying that the work is a work made for hire.

work made for hire? Community for Creative Non-Violence

v. James Reid James Reid, sculptor from Maryland.

Free-Lancing and Copyright Rights a Publisher May Purchase From a Free-Lancer

All rights - ownership of the complete story/photograph First serial rights - the right to use the piece for the first

time in a publication One-time rights - the right to use a piece just one time

New York Times v. Tasini (2001) Tasini sold his work to the New York Times Later the N.Y. Times sold that work to databases

companies (e.g., Lexis/ Nexis). Tasini filed lawsuits arguing that the he has the right to the

original work. The Supreme Court agreed: Although newspapers have

the republication rights, selling content to database companies does not constitute republication

Government works All government work is precluded from copyright

ownership All government work can be copied and published

(or republished) EXCEPTIONS: work produced by private

consultants/contractors

Duration of Copyright Published before 1923: copyright has expired Published 1923-1963: 95 years (if renewed in 28th

year) Works created 1978 and after are protected for the

life of the author plus 70 years Works created 1978 and after as “work for hire” are

protected for 95 years from publication or 120 years from creation, whichever is shorter

See other categories in the book, p. 331

After copyright expiration A work falls into the public domain and may be

copied by any person for any reason without payment of royalty to the original owner

Copyright Protection Formalities ONCE MORE: Copyright ownership begins at

the moment a work that can be protected is created and there is no formal procedure required for copyright protection.

However, a Copyright Notice and/or Registration can be advantageous in case of infringement

Copyright Notice: Copyright © 2013 by….. Under International and American Law the

affixing of the Notice is not required. However, it is recommended to prevent

“innocent infringement.” The “Innocent infringer” is someone who claims

he/she didn’t know that the work was copyrighted because there was no notice (The U.S. Copyright Law protects such persons from liability from infringement).

Registration Registration is not necessary to establish

copyrights, However, it must be done before filing a lawsuit

in case of infringements To register a copyrighted work with the federal

government, see details at http://www.copyright.gov/

Copyright Infringement Anyone who violates the exclusive rights of

the copyright holder is guilty of infringement of copyright.

Exclusive rights: The right of preparation of derivative works The right of public performance of the work The right of public display of the work The right of public digital performance of a sound

recording

Special case of Music and Sound Recording Synchronization Licenses (to reproduce music in

conjunction with video). Performance rights societies for broadcasting

sound frecording: Broadcast Music Inc (BMI) and The American

Society of Composers, Authors and Publishers (ASCAP)

Blanket licenses cost about 2% of the total station revenue

Copyright Infringement The Criteria to Determine Infringement

Is the copyright on the plaintiff’s work valid? Did the defendant have access to the plaintiff’s

work prior to the alleged infringement? Are the two works the same or substantially

similar?

George Harrison vs Bright Tunes Music Corp.

George Harrison accused of plagiarizing ‘My Sweet Lord’ (1971) from a 1962 song “He’s So Fine” recorded by the Chiffons.

George Harrison vs Bright Tunes Music Corp.

George Harrison accused of plagiarizing ‘My Sweet Lord’ (1971) from a 1962 song “He’s So Fine” recorded by the Chiffons.

Michael Bolton vs the Isley Brothers A suit was brought against Michael Bolton

by the Isley Brothers for allegedly lifting parts from their original song Love is a Wonderful Thing

Michael Bolton vs the Isley Brothers The district court found in favor of the Isley

Brothers. The Isley Brothers were awarded

$5.4 million, the calculation based on sixty-six percent of past and future royalties

Similar? Same? Budka Suflera Takie Tango Power Station Drunk Tango

Budka Suflera Bal Lady Gaga

'Happy Birthday to You‘ Is Under Copyright (owned by Warner Music Group)

If you want to sing it at your home at a birthday party you don't have to pay anything, because that is a private performance

But if you want to use it in a television show, a movie, or a television commercial, you'll pay anywhere from $5,000 to $30,000 for those rights.

The song generates approximately $2 million in royalties every year

Enforcing / fighting infringement Demand to cease the unauthorized use (a cease-

and-desist letter) Request a judge to issue an injunction to order the

unauthorized use File a lawsuit for damages

Damages for Infringement A Plaintiff May:

Ask the court to assess the defendant for any damage they have suffered

Ask for the reimbursement of profits made by the infringer from pirating the protected work

Receive statutory damages

Copyright infringement is also a criminal offense (usually prosecuted in a straightforward piracy cases)

“Fair Use” of Copyrighted Material Permits limited use and copying of an original

creation that has been properly copyrighted without the owner’s consent and without paying a royalty

Copyright Act of 1976: Fair Use Factors To Be Considered In Determining Fair

Use The purpose and character of the use The nature of the copyrighted work The amount and substantiality of the portion

used in relation to the copyrighted work as a whole

The effect of the use on the potential market for or value of the copyrighted work

Copyright and the Internet Publishing copyrighted material on the Internet

constitutes public display. Thus, it violates owner’s exclusive right to the

material. ISP companies have immunity from copyright

infringement by users

See also: Playboy v. Frena 1993 (page 357 in your text).

Copyright and the Internet Napster, Inc. Case

In 2001, the 9th Circuit Court of Appeals ordered Napster to stop facilitating the free transfer of recorded music

The court ruled that the music service was abetting copyright infringement by its users

Trademarks Any word, symbol or device (or combination of

the three) that differentiates an individual’s or company’s goods and services from competitors

The function of trademark law is to stop confusion in the marketplace

Brand names, shapes, slogans, telephone numbers and colors can all be trademarked

Trademarks Four Main Functions of Trademarks and Service

Marks

Distinguish one seller’s goods from another’s Signify all goods bearing the trademark or service mark

come from a single source Signify all goods bearing the mark are of an equal

quality level Serve as a prime instrument in advertising and selling

Trademarks Infringement Dilution Unfair competition