Copyright – Fall 2007 – Rosenberg § 102. Subject Matter of Copyright: In General (a) Copyright protections subsists, in accordance with this title, in 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. (b) In no case does copyright protection 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. § 106. Exclusive Rights in Copyrighted Works Subject to sections 107 through 122, the owner of copyright under this title 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 upon 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; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. § 107. Limitations on Exclusive Rights: Fair Use Notwithstanding the provisions of sections 106 and 106A, 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; and (4) the effect of the use upon the potential market for or value of the copyrighted work The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 1 § 302. Duration of Copyright: Works Created on or After January 1, 1978 (a) In General. – Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author‘s death (b) Joint Works. – In the case of a joint work 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 and 70 years after such last surviving author‘s death (c) Anonymous Works, Pseudonymous Works, and Works Made for Hire. – In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. § 501. Infringement of Copyright (a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provide in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. § 502. Remedies for Infringement: Injunctions (a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright. (b) Any such injunction may be served anywhere in the United States on the person enjoined; it shall be operative throughout the United States and shall be enforceable, by proceedings in contempt or otherwise, by any United States court having jurisdiction of the person. The clerk of the court granting the injunction shall, when requested by any other court in which enforcement of the injunction is sought, transmit promptly to the other court a certified copy of all the papers in the case on file in such clerk‘s office. § 503. Remedies for Infringement: Impounding and Disposition of Infringing Articles (a) At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable, of all copies or phonorecords claimed to have been made or used in violation of the copyright owner‘s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced. (b) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been 2 made or used in violation of the copyright owner‘s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced. § 504. Remedies for Infringement: Damages and Profits (a) In General. – Except as otherwise provided by this title, an infringer of copyright is liable for either – (1) the copyright owner‘s actual damages and any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c). (b) Actual Damages and Profits. – The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer‘s profits, the copyrights owner is required to present proof only of the infringer‘s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work. (c) Statutory Damages. – (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work. (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published 3 nondramatic literary work or by reproducing a transmission program embodying a performance of such a work. (3) (A) In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement. (B) Nothing in this paragraph limits what may be considered willful infringement under this subsection (C) For purposes of this paragraph, the term ―domain name‖ has the meaning given that term in section 45 of the Act entitled ―An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes‖ approved July 5, 1946. Introduction Copyright is based on Statute (Copyright Act)  Constitutionally authorized o Art I sec 8: Congress have power to promote progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries  Copyright came from this  Trademark did not  1906 – 1st Copyright Act  1976 – Revised  What is copyright? See § 102(a). o Originality is a very low standard – SC said arrangement of names in alphabetical order is not original (phonebook)  Collections of data – not sufficient for copyright  What is an author? o Can be a corporation o Not defined in Constitution, so not defined in statute  Categories: o Literary o Music o Drama o Pantomime o Pictorial, graphic, sculpture o Motion pictures o Sound recordings o Architectural works  § 106 Exclusive rights in copyrighted works o Reproduce 4         o Derivative works o Distribute copies o Perform o Display publicly o Perform by digital audio transmission § 107 limits on exclusive rights ―Fair Use‖ o Criticism, comment, news, teaching, scholarship, or research §§ 106 and 107 = Yin and Yang Fair use is thought to be mandated by the Constitution ―promote progress of science and useful arts‖ § 302 Duration o (a) created on or after Jan 1, 1978 – life of author + 70 years after death o (b) joint works – last surviving author + 70 years o (c) Anonymous and works made for hire – 95 years from first publication or 120 years after creation, whichever is first  If it was created 1950 or after, it gets above if it lasted through ‘78. So What? o Don‘t have to copyright or register w/ copyright office. Berne Int Copyright Commission did away. Copyright arises at the time the work is fixed. But you have to register before suing.  2 benefits to registering before infringement:  Legal Fees  Statutory damages  Don‘t until after infringement:  You lose, you pay legal fees  In Europe – ―Author‘s Moral Rights‖ § 106(a) defines very narrowly for admission to Berne‘s. § 501 Infringement o (a) Violate exclusive rights = infringement. Fair Use = affirmative defense o (b) Entitled to institute an action (sue) – exclusive jurisdiction of federal courts § 502 Remedies – Injunctions o (a) Injunctions – win this, win the case (usually) and D‘s will settle § 504 Remedies – damages o Actual or statutory  Actual – profits we lost, profits you gained  Owner has to show revenue, infringer has to deduct from that.  Statutory - $750 – 30,000  Willfully up to $150,000 History Of Copyright  No need until Printing Press; ownership meant owning the physical work.  England, 17th Century 5        o Stationery companies gave licenses to printing presses, authors sold works to printing presses o Stationers Cos chartered by the Crown 1710 – Statute of Ann – England 1790 – US Copyright – same 1831 – Acts 1980s – Berne‘s Convention 1990s – Tripps Round Intellectual Property World Trade DMCA – Digital Millennium Copyright Act – it‘s a crime to try to crack an encryption. No fair use provision Info about copyright: copyright.gov o Nimmer on copyright o Goldstein on copyright Copyright v. Patent v. Trademark v. Trade Secrets Difficult Copyright Patent Trademark Easy Very Hard Moderately Original Not Very Very Medium x Term Complicated Protection Long Simple 20+ Hard Thin—no ideas Robust—ideas! Word or Mark Secret Forev Medium x x Trade Secret x  Paul Revere‘s Bowls o ―Infringed his trademark‖ person sees same item and thinks it is Paul Revere‘s. Injures Paul Revere‘s name. o Cannot copyright TM, Names, phrases, etc. o Reverse Passing off – putting your name on Paul Revere‘s bowls – still TM violation o Consumer Confusion – TM  Copyright law doesn‘t care!!! THE SUBJECT MATTER OF COPYRIGHT Original Works of Authorship  What‘s included: o 1790 – Copyright act  Map, chart, book or books o 1802 – added prints o 1831 – musical o 1990 – architectural works  1787 o Congress shall have the power to promote the progress of science and useful arts by securing 6 o Authors and Inventors o The exclusive rights to their respective writings and discoveries Technology Drives Copyright!! Burrow-Giles Lithographic Co. v. Sarony US 1884 Photograph taken of Oscar Wilde. Is it an original work of the author? Lith Co copied it. Photographer sued. Court said it is copyright protected. Constitutional argument about what the grant says. (photos were added in ‘65). Court looked back to the constitution and said map and chart isn‘t writing, neither are etchings and founding fathers said they are. Bleistein v. Donaldson Lithographing Co US 1903 Circus advertised – purchased from one company. Ran out – purchased from other company. Co that designed lithographs sued second company. Is advertisement art? Should it be copyrighted? Yes – should be copyrighted not for us to decide if it is art – the fact that it could be and that people were reproducing it shows worth. Alfred Bell & Co v. Catalda Fine Arts, Inc. 2d Cir. 1951 Copy of work of art sued other copier. ―All that is needed to satisfy both the Constitution and the statute is that the ‗author‘ contributed more than a ‗merely trivial‘ variation, something recognizably ‗his own.‘‖ Could be mistakes, D copied mezzotints, and are infringers.    Patent law – novel (non-obvious) o Only human being can file Copyright – original o Corporation can file Copyright is obsessed with COPYING o Get a copyright – 2 things you can do with it:  Let someone else copy/prevent  Exploit it yourself o Some people are involved in licensing copyrights (all or some) o Copyright work – I‘m the work o Infringing work – They copied my work o Have to show:  Work is subject to copyright or copyrighted  Person who authored infringing work had access to copyright work  Copied the copyright work  Substantial similarity b/t infringing and copyrighted work. Public Domain o How do things get to the public domain?  Expired copyrights  Not able to be copyrighted  Data, facts, gov, ideas  No proper notice (bad formalities)  7 Italian Book Co v. Rossi SDNY 1928 Rossi sang his rendition of an old folk Sicilian song. People copied his song and changed it. Court said you can go back to original and copy and change, but can‘t copy and change a copy. Baitlin and Son v. Snyder 2d Cir. 1976 Uncle Sam mechanical banks. Dude copied original by making it simpler and cheaper. Dude copied the copy. Court held no infringement. Bridgeman Art Lib. V. Corel SDNY 1999 Library made copies of art and placed it in a CD. Corel had same pics on sample CD. Court held no infringement b/c you can‘t copyright public domain work, then copies are not original and copies of copies are fair game. Gracen v. Bradford Exchange 7th Cir. 1983 Bradford is going to make plates of Wizard of Oz. Chose one of their employees (Gracen). Had a dispute over terms. Company hired someone else to do it. Gracen sued. G lost, counterclaim said G‘s painting not subject to copyright as it was not original. Court said if she had painted Judy Garland in real life, it is copyrightable. Copyright derivative work, must be substantially original. Give us a break case Who’s the rat? Feist Publications v. Rural Telephone US 1991 Rural publishes telephone directory. Feist offered to pay little telephone companies in the area. Rural refused. Feist copied anyway. Rural wins in trial, reversed in appellate, affirmed in SC. SC said misreading of statute caused courts to let directories be copyrighted. Unfair competition, maybe, but not copyright. Not constitutional to give copyrights to ―sweat of the brow.‖ Bell South Advertising v. Donnelley 11th Cir. 1993 BAPCO compiled phonebook. Donnelly used phonebook to compile list of businesses to sell classified ads to. BAPCO said they did headings so they‘re original. Appellate court said not enough—same categories of other phonebooks  Protection of Data o What is data o Can‘t copyright data itself, but can copyright clever arrangement of data o What can you do?  Common law trespass  Keep it secret  Sui generis data protection  EU has one o You can own a database in Europe and people can‘t mine it 8  Been proposed for US The Limits of Statutory Subject Matter Morrissey v. Procter and Gamble 1st Cir. 1967 D copied P‘s Rule 1. D said not copyrightable – DC said not copyrightable. App said doesn‘t matter if deliberately copied—subject matter not copyright protected  Doctrine of Merger o You can copy an idea, but not eh expression of an idea. When there is a limited # of ways to write – can‘t be copyrighted. Herbert Rosenthal Jewelry v. Kaplan 9th Cir. 1971 Jewel encrusted bee. A bee is a bee. Difference between idea and expression of idea. Apple v. Franklin 3d Cir. 1983 Franklin copied Apple source code. DC denied Apple prelim injunction. App reversed, saying copyright extends to any tangible means of expression which can be perceived. Object codes subject to copyright. ROM is still fixed. O/S copyright protected.   Ask – is there really a difference (b/t my case and the previous case law) Difference in Patents and Copyrights: o Patents  Stronger than copyright (the rights)  Keep them from making, importing, selling anything made from it  Much more difficult to get one  More expensive  Shorter time (like 20 years) Diamond v. Diehr US 1981 Process for curing rubber patent. Sensors in a mold continually take temp and send to computer. Program on computer sends message that causes mold to open. Is software a machine or writing? Machine made up of text. Denied patent b/c it contained an algorithm, and software wasn‘t patentable (relied on 100 year old mathematical formula). Later was granted b/c everything else was patentable. State Street Bank v. Signature Financial Group Fed Cir 1998 Signature came up with a hub and spoke thing –mutual fund = spoke. Pooled assets into portfolio fund = hub. Computers were used to ascertain worth almost instantly. Wanted to license it. License negotiation broke down. Resulting declaratory relief action. DC said patent invalid – can‘t patent 1)biz method and 2)algorithm. Fed Cir calls it a machine. Transforms input into a final product that is useful. Algorithm not patentable until it is applied in a useful way. 9 Mazer v. Stein US 1954 Dude made sculpture, mold, made a lot, made some into lamps and sold a lot. Got a copyright on statue, but not lamp. Copied by another company. Court said first made original work of art – then adapted into lamp. Copyrightable.  Original work of art v. something tangible o §101: useful article: how do you tell the difference? Nalbandian App 1981 Lighted tweezer – non obvious for ordinary designer instead of non obvious for ordinary person. Court found obvious. Concurring asked for competent designer. Kieselstein-Cord v. Accessories by Pearl, Inc. 2d Cir. 1980 Belt buckles. One was a designer; the other was a knock off. Designer brought lawsuit for copyright infringement. DC said valid copyright. Appellate court said artistic element of belt buckle can be separated from the utilitarian element of the belt buckle. Carol Barnhart Inc. v. Economy Cover Corp 2d Cir. 1985 Barnhart made busts to display shirts. E copied. B sued, DC granted SJ of E. App affirmed, saying aesthetic can‘t be separated from form/utilitarian aspect – not copyrightable. ―I‘ll know it when I see it‖ – Dissent Brandir Int‘l Inc. v. Cascade Pac. Lumber 2d Cir. 1987 Bike rack. Artist claimed it was inspired by wire art. Utility or artistic? Court said not copyrightable – aesthetic elements cannot be said to be conceptually separable from the utilitarian elements. Where have we been, and where are we going?  Client asks copyright lawyer o Is this copyrightable? (yes) o What do I have to do? (nothing) o Will you register it? (no – malpractice) o Can I license this? (sure if someone will pay) o Can I copy this? (no) o Can I license it from the owner? (maybe) o Should I bother asking? o Am I going to infringe by doing this? o They infringed my work!!! o I‘ve been sued for infringement!!  You ask: o Is the work subject to copyright? o Under the statute? o Research Case Law SCOPE OF PROTECTION: INFRINGEMENT 10 Ideas and Expressions in Works of Fiction Nichols v. Universal Pictures 2d Cir. 1930 P wrote play D produced a motion picture play. Similar? (Irish and Jews). Right can‘t be limited to the text, but what is substantially similar? Characters who share similar characteristics are mere ideas not subject to copyright. Theme of P‘s play was an idea, novelty not copyright. No copyright infringement. Reyher v. Children‘s Television Workshop 2d Cir. 1976 Book retells folktale. Sesame street does story. Judge says question was ―whether Ds utilized idea in book or descended so far into the concrete as to invade expression‖ – No infringement. Sheldon v. Metro-Goldwyn Pictures Corp 2d Cir. 1936 Sequence, phrasing, characters, etc. Soooo arbitrary. No plagiarist can excuse the wrong by showing how much is not pirated. Picture play ―Letty Lynton‖ infringement of copyrighted play ―dishonored lady‖? Yes Substantial Similarity in Visual Works Steinberg v. Columbia Pictures Industries, Inc. SDNY 1987 Dude was directed to use NY cover. That‘s probably the most important aspect of case, though ordinary observer would say copyrighted. Cover of NY is used by Moscow on the Hudson movie poster. Way substantially similar. Copyright in Characters King Features v. Fleischer 2d Cir. 1924 Spark Plug comic character copyrighted. Sues company that made a spark plug figurine. Duplicating horse copy of copyrighted ―idea‖? Yes. Court said took the copyrighted form. ―We think it cannot be copied, by manufacturing a toy or doll as the appellees did, without taking the copyrightable form of that concept, and without at the same time taking the commercial value – the fruits of the cartoonist‘s genius which consisted in his capacity to entertain and amuse.‖  Placing copyright in different medium is still infringement. o Test the 9th Circuit Laid out:  Extrinsic Analysis: factual analysis  Intrinsic Analysis: ordinary person  Key difference: Ex = judge; In. = Jury Key is, how delineated is the character? o Much easier to infringe a visual character than literary character o ALWAYS REMEMBER THAT INTENT IS NOT IN ELEMENTS OF INFRINGEMENT!!!!!!!  11 Copyrightable (Copyrighted) Access Copying Sub. Sim. Damages Detective Comics v. Bruns Pub. 2d Cir 1940 Owner of ―action comics‖ sued Bruns for infringing with wonderman DC said they infringed. Superman in one, wonderman in the other. Bruns tried to argue idea came from mythological heroes. Infringed affirmed. Sid and Marty TV v. McDonald‘s 9th Cir. 1977 HR Pufnstuf infringed by McD‘s McDonaldland cartoon. McD‘s had been approached by Needham for advertising. N told S & M that it was trying to get account. Later told S&M that they didn‘t get it. N used character for ads itself. McD‘s pushed S&M out of the market with its infringed characters. Lower court found for S&M. 9th Cir says must be ownership and access. But also substantial similarity – not only of the general ideas but of the expressions of those ideas as well. Affirmed. Warner Bros v. ABC 2d Cir 1983 WB sued ABC for their ―Greatest American Hero‖ character, claiming it infringed on superman. Denied prelim injunction and affirmed. Back on appeal. ABC had sought a license for ―superboy‖ and was denied. ABC then made a hero show with average dude. Show made many references to Superman character. Main question is if Sup and Hero are substantially similar. Must consider visual resemblance and totality of character‘s attributes and traits. Applied to case – Summary Judgment for D proper Nonfiction Works Hoeling v. Universal City Studios 2d Cir 1980 Hindenburg story. H published ―Who destroyed the Hindenburg?‖ Lots of research. Accused Eric Spehl. 10 years later Mooney published ―The Hindenburg‖. More literary. Spehl is a character. Mooney acknowledges he relied on H‘s book for some details. Universal bought movie rights to Mooney‘s book. Because it is a factual story, the elements copied were not copyrightable, even though H‘s book is copyrighted. No infringing.    Can‘t copyright facts – can‘t copyright research Nonfiction work – requirement is more stringent Fictional – not as stringent Distribution, Display, and Derivative Rights  Right to distribute copies – §106(3)  First Sale doctrine – §109 Independent News Co v. Williams 3d Cir. 1961 P (News) distributor of comics. D distributor of second-hand books and magazines. P has agreement with wholesales to return covers of unsold comics. Can dispose or sell rest as wastepaper only. Also – must get written commitment form peep 12 that they won‘t resell comics. P never got this from wastepaper dealers. P claims infringement, as they got the right to ―vend‖ copyrighted work. Claim D made ―first sale‖ of the copyrighted work. ―Right to restrain sale gone when owner of copyright and that copy has parted with all his title to it. Right to reprint still with copyright owner.‖ Here wastepaper dealer purchased full title.    §109(a) and 1976 act limit only distribution right of copyright holder. o Also ―lawfully made copies‖ §109(d) – when lease or land = exclusive distribution rights §602(a) – reference to exclusive right to distribute under §106 – does this incorporate into the §602 importation restriction the § 109 first sale limits on the § 106 distribution rights? Quality King Distributors v. L‘anza Research US 1998 First sale doctrine endorsed in § 109(a) applicable to imported copies? L‘anza (―L‖) copyright owners of labels affixed to bottles of their hair care products. Sells exclusively to domestic distributors who agree to resell within areas and to authorized retailers. Also to foreign markets at lower prices. Some foreign market products made their way back to CA and sold by Quality. DC gave SJ to L. App affirmed. L argues § 602(a) is superfluous unless it covers non-piratical (―lawfully made‖) copies sold by copyright owner. SC says even if § 602(a) did apply to piratical copies, copyright owner would still have a remedy, and b/c § 109(a) is only to ―owner‖; first sale doctrine would not provide a defense to § 602(a) actions against non-owner; and §602(a) applies to a category of copies neither piratical nor lawfully made – categories lawfully made under alw of some other country. Rev‘d – not for this court to decide – copyright laws are only for within America‘s borders. Big Difference if manufactured in another country!!! First sale doctrine does not apply – ***check this ***  Right to prepare derivative works o §106(2) – owner of copyright enjoys exclusive right to prepare derivative works based upon the copyrighted work.  Overlaps exclusive right of reproduction to some extent  Broader – may not be fixed in a tangible medium and still infringe  Must incorporate portion of copyrighted work in come form to infringe  To prove infringement – must show substantial similarity Lee v. A.R.T. Co. 7th Cir 1997 Lee sold art to outlet chain, who sold to A.R.T., who mounted works on ceramic tiles. Lee says tiles are derivative works. First sale doctrine – no problem. Derivative work – Lee says affixing art to tile is ―preparation.‖ Card-on-a-tile derivative work? Definition of derivative work: 13 A ―derivative work‖ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ―derivative work.‖ DC said not original work of authorship – like placing in a frame. App says wording of § 106(2) alone does not let tile be transformed, recast, or adapted. If Lee were right, then huge deal for every little modification, like framing. No infringement.  Replica paintings (Peker v. Masters) on posters. Court said replicas did not possess sufficient originality to be independently copyrightable, hence were not ―derivative works‖ Lewis Galoob Toys v. Nintendo 9th Cir 1992 Game Genie. DC says did not violate copyright of Nintendo. App affirms. Derivative work? GG did not modify games – enhanced audiovisual displays. Also not fixed or embodied in the GG. Fair Use? – even if derivative, b/c displays are fair use SCOPE OF PROTECTION: THE LIMITS OF LIABILITY Fair Use Folsom v. Marsh CCDMA 1841 Dude wrote book about Washington – most of it containing letters already in published book. DC enjoined Dude from selling his book. Time v. Bernard Geis Ass‘n SDNY 1968 Zapruder filmed Kennedy assassination. Life bought film and reproduced pics in magazine. D produced book about assassination with sketches of images obviously from film. D Thompson worked for Life and asked Life to use film pics. Life said no. D Thompson hired an artist to make charcoal sketches of pics. Fair Use presupposes ―good faith and fair dealing‖. D Thompson kinda shady. However – D and Life not competitors, Life not hurt, balance seems to be in favor of D. No Infringement. Sony v. Universal City Studios US 1984 Sony tape recorders used by consumers to record TV. DC held for Sony, 9th rev‘d, SCOTUS rev‘d, finding for Sony (no infringement). If there aremillions of VTR owners that copy educational programs, then the VTR manufacturer shouldn‘t be liable for those VTR owners that make unauthorized copies of Universal‘s works. Fair Use? Yes. No Infringement.    Studios really wanted fee on each blank tape and on each VCR. They also wanted to sell tapes of shows too. 6 years after copyright act, first time to be able to address fair use Defense had lots of actual evidence and studios did not –Grokster made stupid arguments like Shakespeare 14    §107 Factors What did they have to prove? o Individuals used VTRs o People were using them to copy copyrighted works o Infringed Vicarious infringement v. Contributory Infringement o Distinction between the two: V = gave money to dude to buy getaway car o C = print this out – okay! o Where‘s the line b/t this and no liability? Sony II Even unauthorized uses of copyrighted work are not necessarily infringing. Must conflict with one of the exclusive rights. Fair Use – uses an ―equitable rule of reason‖ courts weigh factors to see if balance results in ―fair use‖. Dissent – when proposed use is unproductive, copyright owner need only prove potential for harm to the market for or value of copyrighted work. Harper & Row v. Nation Enterprises US 1985 Nation used stolen unpublished manuscript to write a piece for their magazine. Time had agreed to purchase rights to manuscript from Harper & Row for their own piece, and cancelled b/c of Nation. H & R sued for infringement. DC found for H & R. App rev‘d. SCOTUS rev‘d App. Fair use analysis should always by tailored to the individual case. Unpublished nature of work is a big, but not necessarily determinative factor. Benefit to author and public outweighs news value (in protection of unpub). Fair Use factors: 1) purpose and character of use; 2)Nature of copyrighted work; 3)substantiality of the portion used in relation to copyrighted work as a whole; 4) effect on potential market for or value of copyrighted work. Not Fair Use – Infringement. Grokster One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.  1990 – US entered into TRIPPS o US and other countries entered into Intellectual Property Treaties required Nations to enact statutes – make crime to decrypt and traffic decryption devices. o US called it Digital Millennium Copyright Act  DMCA  §107? If you can‘t decrypt, how can you make fair use?  Many say DMCA is the anti-sony act. Parody v. Satire o Satire – use work to comment on larger subject o Parody – fn 14 Campbell ―A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose  15 wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives, it is more incumbent on one claiming fair use to establish the extent of transformation and the parody‘s critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work‘s distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.‖ o Parody – Snoop dog Charlie‘s Angels – no – you‘re saying, ―Remember Charlie‘s Angels? Look at me, I‘m making fun, buy my CD!‖ o Fact – almost everything is commercial. o Peanuts Cartoon  Political Commentary = satire  Market not affected re: politics = okay  Might have a license  Not hard to get a license to satire a character – usually promotes the character! Benny v. Loew‘s Inc. 9th Cir. 1956 Benny parodied w/ permission Loew‘s film ―Gas Light.‖ Did it again on TV w/out permission. DC found infringement b/c substantially similar. Affirmed – just b/c you took play and used grotesque characters does not get you out of infringement. Columbia Pictures v. NBC SDCal 1955 Parody of ―From Here to Eternity‖ entitled ―From Here to Obscurity‖. Diff in episode, spirit, and manner. Same DC judge – commented on principles: More strict when serious – serious instead of serious  farce, limited taking permitted to bring up original, locale, theme, setting, situation, and bare plots okay. Can go far but can‘t have substantial taking. Elsmere Music v. NBC SDNY 1980 SNL skit ―I love New York‖ parody ―I love Sodom.‖ Fair Use. Sang line 3x – just enough to conjure up original. Campbell v. Acuff-Rose Music US 1994 Acuff had rights to Oh, Pretty Woman. 2 Live Crew wrote parody and sent lyrics to Acuff. Acuff denied permission. 2 Live Crew made album anyway. Lower court held commercial character and excessive borrowing – SC said that is one element to be weighted in fair use inquiry. 1)Commerciality; 2)Nature of copyrighted work; 3)Substantial portion; 4)Effect on market for value of copyrighted work Being denied permission to use a work does not weight against a finding of fair use 16 American Geophysical Union v. Texaco 2d Cir 1994 Scientists at Texaco photocopy journals and Journals sue. Texaco claims fair use. Apply analysis like in Sony. 1) Purpose and character of use – archiving? Against Texaco Commerical Use, Tranformative Use, Rx and Customary Practice. 2) Nature of Copyrighted Work – Favors Texaco. 3) Amount and Substantiality of Portion Used – Against Texaco. 4) Effect on market – against Texaco. Texaco – 1, Publisher – 3. Not Fair Use. 17