sxsw interactive 2016 proposal- copyright: unleashing or confining creativity?

© Copyright 2015, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved.

Copyright: Copyright: Unleashing or Confining Creativity? Unleashing or Confining Creativity?

Tanya Curcio- Vorys, Sater, Seymour and Pease, LLP

Bobby Facundus- Tongal, Inc.

Christopher Reed- Fox Entertainment Group, Inc.


What is a Copyright?

• Text

• Websites

• Photographs

• Graphic Designs

• Art

• Advertising

• Packaging/Labels

• Software

• Architecture

• Music/Lyrics

• Sound Recordings

• Audio Visual Works

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Protects Original Works of AuthorshipFixed in a Tangible Medium of Expression


What Copyright Does NOT Protect?

• Ideas

• Concepts

• Storylines

• Short Phrases

• Recipes

• Name and Likeness

• Works prepared by Federal Government Employees

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Copyright Basics: Getting Us All on the Same Page

• Ownership vests in author except:

― Work-for-Hire which is:

• Employee within scope of employment

• One of 8 enumerated types of works plus written agreement

• Protection upon creation and fixation of an original work to:

― Reproduce, distribute, make derivatives, display, perform and transmit

• Duration:

― Post-1978 Works: Life plus 70 or for work for hire/anonymous/pseudonym created works- greater of 95 years from publication or 120 years from creation

― Pre-1978 Works: it’s complicated!

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Current Law: Copyright Act of 1976!

“Current” and “1976” – The Conundrum ― Drafting began in 1950s― Enacted in 1976― Effective 1978

What didn’t exist during the process:― color television (when drafting began)― fax ― personal computers ― internet ― cell phones

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Does Copyright Law Unleash Creativity?

• Incentive to Create is the stated purpose

― Builds value and creates assets― Forces creativity to avoid infringement

• Discuss How Copyright Unleashes Creativity

― Creative Commons – Right to freely distribute with stipulations

― New Technology and Business Models• Music sampling and content distribution• 3D printing

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Does Copyright Law Confine Creativity?

• Discuss How Copyright Hinders Creativity

― Permissions― Fair Use – Intended to enable creativity but

now difficult to determine risk• New Business Models

― Napster/Spotify/Kindle ect.― Tongal

• New Technology

― Music sampling and content distribution― 3D printing

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Teaching an Old Law New Tricks

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Legislation― DMCA― 1980 Amendment to add definition of

“computer program”

Litigation ― Photography – Burrow-Giles Lithographic Co.

v. Sarony, 111 U.S. 53 (1884)― Software – Apple Computer, Inc. v. Franklin

Computer Corp., 714 F.2d 1240 (3d Cir. 1983)


A Copyright Disguised as a Trademark

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Protects Words, Phrases, Symbols or Devices Used “in Commerce” in connection with Goods or Services


A Copyright Disguised as a Patent

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Exclusive right for a limited time to exclude others from making, selling, or importing protected item

• Creative design elements― Figurines that are lamps― Watches with design elements

• Software


A Copyright Disguised as a Trade Secret

Not generally known or reasonably ascertained information that gives an economic advantage

•If not protected by Copyright perhaps Trade Secret― Formula― Processes― Methods― Recipes― Customer Lists

•MUST BE KEPT SECRET!MUST BE KEPT SECRET!

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Continuing the Conversation

Questions and Comments

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