Issue Checklist
• • •
Which Exclusive Right Infringed? 106( 106(1) 1) reproduction 106( 106(2) 2) derivative 106(3) distribution First Sale Doctrine ○ Rental Expectation Importation resold, Lee Lee v. ART ○ Bought, relabeled, resold, 106(4) public performance ○ Homestyle exception ○ Business exception 106(5) public display ○ Homestyle exception ○ Business exception 106( 106(6) 6) digital audio transmission
Copyrightable material? • Excluded: Facts and discoveries ○ Compilations , Feist Feist (telephone (telephone book) Historical interpretation of facts, of facts, A.A. Hoehling Portrayed as fact, Nash fact, Nash v. CBS • ○ Abstract ideas Common themes, Nichols v. Universa Universall (Jewish family) Characters, MGM v. Honda Honda (James (James Bond) • Functional works ○ Systems, processes, methods, Baker v. Seldon (system of bookkeeping) of bookkeeping) • Merger Doctrine OK ○ Useful articles Proving Infringement: Mechanical or utilitarian, Mazer v. Stein Stein (lamp) (lamp) • Owners Ownership hip Separable OK OK,, Pivot Point Point (mannequin) (mannequin) • Copying in fact ○ Words and short phrases ○ Access ○ Probative similarity Valid copyright? • Improper appropriation • Not fixed b/c: ○ Verbatim copying ○ Spoken words at seminar, Fritz v. Arthur D. Little ○ Substantial similarity ○ Copied in buffer, Cartoon Network MAI overruled overruled by DMCA ○ Loaded in RAM, MAI Fair Use Defense? OK,, 17 USC 1101 1101;; 18 USC 2319A ○ Live performance OK • Purpose and character of use of use OK,, Williams Electronics ○ Video game's changing screen OK ○ Commercial use • Not original b/c: ○ Parody or transformative use Not independent creation ○ ○ Productive use Author not human ○ • Nature of copyrighted of copyrighted work Use of of device device (i.e. camera) OK ○ Copying software necessary to access No creativity b/c: ○ unprotected features De minimis, Donaldson Litho • Amou Amount nt copied Only trivial size & material changes, L. Batlin & Son • Effe Effect ct on market (Uncle Sam Bank)
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Complies with Formalities? No notice before 1/1/78: ○ General or limited publication ○ Performance or public display No notice 1/1/78 to 3/1/89: ○ Not cured within 5 years ○ Performance or public display Noti Notice ce missing ©, year, owner name No registration = no standing in fed. court, statutory damages, attorney's fees ○ Registered but forgot deposit Who Owns the Copyright? Join Jointt owner Work for hire ○ Employee ○ Commissioned Govern Governme ment nt work Transf Transfers ers Dura Durati tion on Rene Renewa wall
Secondary Liability? • No direct, thus no secondary • Vicarious ○ Supervising or control over ○ Financial interest • Contributory ○ Knowledge ○ Causes or contributes or induces • DMCA safe harbors for online service providers • DMCA device liability ○ Purpose to circumvent No other commercial use ○ ○ Marketed to circumvent ○ Reverse engineering exception Remedies? • Injun Injuncti ction on • Damages ○ Actual losses ○ Infringer's profits ○ Statutory ○ Attorney's fees
Outline FIXATION • Copyright Protection § 102(a): To be copyrightable, a work must be fixed § 102 in a tangible medium of expression of expression , and this embodiment in a copy or phonorecord is a relatively stable and permanent embodiment made by the author or someone under her authorization ○ The word "fixed" comes up in both establishing rights and in protection for several reasons: 1. Written evidence is required ‐ easier to prove, i.e. SoF for contracts, etc 2. Fixation aids dissemination and preservation, promotes the progress of of science science to the public 3. Lets authors know if if a a license is needed ○ Copies § 101: are material objects other than phonorecords in which a work is fixed by any method not known or later developed, from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a of a machine or device ○ Phonorecords § 101: are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a of a machine or device. ○ if simultaneously transmitted to a place Live Broadcasts § 101: Live broadcasts are "fixed" if simultaneously beyond where they are being recorded • DEFENSE: IF DEFENDANT DIDN'T MAKE A COPY BY FIXING IT, NO INFRINGEMENT See Fritz v. Arthur D. Little ○ Little ("original" ("original" words spoken aloud at a seminar can be copied and independently copyrighted by all, if they if they not previously fixed) See Cartoon Network v. CSC Holdings ○ Holdings (buffering (buffering =/= fixed b/c 1.2 seconds is embodied only for a of production) "transitory" period, and thus did NOT violate plaintiffs' exclusive right of production) But see But see MAI Systems Corp. v. Peak Computer ○ Computer (loading (loading copyrighted software into RAM qualifies as fixation because the program is written into the RAM until the computer is turned off) Counterargument is is that loading software into RAM is equal to skywriting, or writing a poem in sand or on frost of a of a windowpane The Digital Millennium Copyright Act of 1998 of 1998 overrules MAI • Live Musical Performances: ○ Fixation requirement of federal of federal copyright was a problem until the Uruguay Round Agreements Act provided civil and criminal remedies to combat bootleg copies of live of live performances 17 USC § 1101: provides a civil cause of action of action for a performer whose performance was ○ recorded without her consent ○ 18 USC § 2319A: provides criminal remedies to the government See US v. Martignon Martignon (18 (18 USC 2319A did not violate the Copyright Clause and was a valid exercise of Congress' of Congress' power under the Commerce Clause) • Video Games: See Williams Electronics v. Artic International ○ International player player changing output to screen does not prevent fixation b/c the work does not have to be written down exactly as the eye perceived it of being being perceived with the aid of of a a All that is necessary is that the work is capable of machine or device
ORIGINALITY • Originality: According to the Supreme Court in Feist Publications Publications,, the two "sine qua non of copyright" of copyright" requirements of originality are: 1. Independent creation: Independently created work is original (even if strongly if strongly resembling another), as long not copied from another "Authorship" implies that a human must have created the work (i.e. a video from a security camera or design pattern produced by a mechanical process are not copyrightable) 2. Modest quantum of creativity: of creativity: The work must also have a de minimis amount of creative of creative authorship, see Bleistein v. Donaldson Lithographing Co Co.. (courts will not make aesthetic decisions in deciding what has artistic merit) But see But see L. Batlin & Son, Inc. v. Snyder Snyder (the (the plastic copy of the of the Uncle Sam Bank, which was in public domain, NOT copyrightable b/c only trivial differences ‐minor changes in size, and material =/= original) No copyright on the medium of expression of expression (plastic derivative work of a of a metal thing) □ of creativity □ Great technical skill does not make up for lack of creativity But see But see also Prunte v. Universal Music Group, Inc. Inc. (no (no copyright on slogans and shorts phrases b/c no creativity) • Originality Using a Device / Photographs: An author may use a device in a creative way to produce an original work, Burrow‐Giles Lithographic Lithographic;; the three elements for judging for judging originality of a of a photograph: [1] rendition, [1] rendition, [2] [2] timing, timing, [3] [3] creation creation of subject of subject See Mannion v. Coors Brewing Company ○ Company (copyright (copyright protects only the image but not idea ‐ others can photographing the same object or scene) Go ahead and try to get a picture of the of the fish in bear's mouth □ But if the if the photographer creates the subject, then copyrightable
SUBJECT MATTER EXCLUDED FROM COPYRIGHT • Exclusions to Copyright 102(b): ○ In no case does copyright protection for an original work of authorship of authorship extend to any idea, procedure, process, system, method of operation, of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. of non non‐copyrightable works: • Four distinct categories of 1. Facts and Discoveries: are not created, only discovered by the author Compare Feist ○ Feist (factual (factual information, i.e., phone numbers, addresses, and names listed in alphabetical order, lacked the requisite originality) Compilations copyrightable only if the if the author adds creativity in the selection, coordination, and arrangement of the of the data With CCC Info. Servs. v. MacLean Hunter Mkt. Reports ○ Reports (copyright (copyright OK b/c the "Redbook" contained more than just than just compilations of data, of data, b/c it contained predictions based on professional judgment professional judgment) ○ Inc. ( (historical interpretation of facts See also A.A. Hoehling v. Universal City Studios, Inc. of facts NOT copyrightable) Historical Facts are NOT original works of authorship of authorship b/c the facts are not created, only discovered and recorded See Nash v. CBS CBS (totally (totally fictional story of Dillinger of Dillinger NOT copyrightable b/c the author portrayed his work as real history fact) 2. Abstract Ideas: to prove infringement, the copyright owner must show the alleged infringer took more than an abstract idea from his work, but copied the expression of that of that idea ○ of family and See Nichols v. Universal Pictures Corp. (NO infringement on common theme of family
marriage struggle in Jewish family) J. Learned Hand: Hand: 2 2‐step test concerning fictional characters in literature: has the infringer taken the [1] [1] expressive expressive details of [2] an adequately delineated character rather than the general abstract idea of a of a character? ○ Co. ( (James Bond protected by See also Metro‐Goldwyn‐Mayer, Inc. v. American Honda Motor Co. copyright because the car commercial rendered the two visual works substantially similar) Does the character "constitute the story being told?" (collapses protection of character of character into protection of plot) of plot) of language, graphics are NOT copyrightable versus expressive uses 3. Function Uses: of language, ○ Functional Works carry out specific tasks and are not copyrightable because 102(b) precludes copyright protection for "systems, process, and methods of operation of operation" (i.e. architectural plans and standard legal forms ) See Baker v. Seldon of bookkeeping NOT copyrightable, should get a patent) ○ Seldon ( (system of bookkeeping Merger Doctrine: but if the if the underlying idea (or system, process, or method of operation) of operation) can effectively be expressed in only one way, the idea and expression are said to have "merged" and the work is NOT copyrightable ○ Useful Articles: works embodied in useful objects can be granted copyright to their form, but NOT the mechanical or utilitarian features Stein (using (using statuettes as lamp bases is OK for copyright protection) See Mazer v. Stein if the art can be physically or conceptually identified as separate from the Separability: if the utilitarian aspects of the of the article, the design is copyrightable Conceptual separability in art is when [1] an original pictorial, graphic, or sculptural □ element is incorporated physically into an useful article but [2] the element is not dictated by the function of the of the useful article. See Pivot Point Int. v. Charlene Products Products (mannequin (mannequin copyrightable) □ [1] Sculptural features also identified and capable of existing of existing independently of □ its utilitarian aspects [2] Design was the product of a of a creative process unfettered by functional □ concerns ○ Computer Programs: [1] copyright can exist in a computer program expressed in object code; [2] copyright can exist in a computer program embedded in a ROM; and [3] copyright can exist in a operating system program ‐ basically regardless of form of form or expressive content, computer programs are copyrightable See Apple Computer v. Franklin Computer established copyright for computer programs, even though Franklin argued that under Baker v. Seldon Seldon,, there was only one way to write the program so it fell under the merger doctrine ○ Architectural Works: Constructed Before 1990: A. For a standing structure, infringement does not occur unless the copier has reproduced the building's "separable" pictorial, graphic, or sculptural features that are capable of existing of existing independently of its of its utilitarian aspects B. For architectural plans, not subject to the separability limitation and copyrightable, but the copyright did not convey a right to control the use of the of the plans Constructed After 1990: Buildings are no longer auto subject to the separability test: A. Examine the work to determine if there if there are original design elements, including overall shape and interior B. If the If the design elements are present, identify which elements are functionally required ‐ if not if not required, work is protected regardless of any of any separability test 4. Words/short phrases and their meanings are not copyrightable (lack creativity)
PUBLICATION AND FORMALITIES WORKS PUBLISHED BEFORE 1/1/78
WORKS PUBLISHED BETWEEN 1/1/78 AND 3/1/89
WORKS PUBLISHED AFTER 3/1/89
Federal protection began on publication with proper notice. Publication without proper notice forfeited work to public domain
Notice required for all published works. If work If work published without copyright, copyright must comply with cure provisions within 5 years or work forfeited o public domain
Notice is optional. §§ 401‐404. Lack of notice of notice still may allow the innocent infringer defense. §§ 401(d), 402(d).
• Publication Under the 1909 Act: Before 1978, federal copyright protection applied only to published works and was secured at the time the author published a work with proper copyright notice. ○ Forfeiture: forfeiture required a "general publication", which mean the work was available to members of the of the public without regard to their identity or what they intended to do with the work; no forfeiture for "limited publications" where the work was only available for selected persons and for limited purposes I.e. if a if a person sold the story without a copyright notice it would be forfeited but not if he if he or journalists just gave it to select members for criticism or journalists Compare Academy of of Motion Motion Pictures and Sciences v. Creative House Promotions, Inc (distributing 158 Oscars was a limited publication because restrictions were implied) No Oscar had ever offered to transfer an Oscar to the public □ Each Oscar was personalized □ No permission to sell, distribute, or copy from the Academy □ With Penguin Books v. New Christian Church Church (copyright (copyright was invalid b/c material published without notice prior to copyright date) of people , even unknown people Distributed uncopyrighted material to a lot of people □ No limitations on the distribution of the of the uncopyrighted course manuscript □ Performance =/= Publication BUT Public Display = Publication Compare Nutt v. National Institute Inc. For The Improvement of of Memory Memory (a (a private □ performance before getting copyright did NOT dedicate the material to the public) With Letter Edged in Black Press v. Public Bldg Commission Commission (a (a public display of art of art □ before copyright) ○ The 1909 Act excused the copyright owner if he if he tried to comply with the notice requirement but by accident or mistake did not provide notice on particular copies Must have attempted to comply, no excuse if the if the author didn't know of copies Excuses only a small number of copies But cannot recover damages from an innocent infringer without notice • Publication Under the 1976 Act: For works published between Jan. 1, 1978 to Feb. 28, 1989, copyright was expanded to [1] [1] include include unpublished works, and [2] [2] began began as soon as it was fixed in a tangible medium of expression. of expression. ○ Notice on publications still required but omission did not invalidate the copyright if: Notice only omitted from a small number of copies, of copies, OR Work was registered within 5 years of publication of publication and there was a reasonable effort to add notice to exiting copies, OR Notice was omitted by a licensee despite an express contract to do so See Hardwick Airmasters, Inc. v. Lennox Industries, Inc. ○ Inc. (copyright (copyright invalid even when 3rd party omitted copyright b/c author did not try to fix the problem) ○ Performance or Public Display =/= Publication ○ Copyright owner cannot recover damages from an innocent infringer without notice • After March 1, 1989: US removed the copyright formalities to fit the Berne Convention; a copyright holder "may" use a copyright notice ○ If there If there is notice, a D cannot raise innocent infringement defense
of Notice § 401(b) (and 1909 Act) requires a copyright notice to have: [1] either the copyright • Form of Notice symbol ©, the word "copyright," or the abbreviation "copr."; [2] the year of first of first publication of the of the work; and [3] the name of the of the owner of the of the copyright. ○ Television (when (when a magazine publishes individual author's work, But see But see Goodis v. United Artists Television the copyright notice in the name of the of the magazine is OK to secure copyright for author) • Deposit § 407: [1] of the best edition of every of every copyrightable work published in the [2] 407: [1]two copies of the of publication, [4] to be made United States be sent to the Copyright Office [3] within 3 months of publication automatically. ○ if not deposited NOT a condition of of copyright copyright ‐ only a fine if not ○ Function is to provide the Library of Congress of Congress via the Copyright Office with copies and phonorecords of all published works within the United States. ○ Deposit may be accomplished without registration • Registration §§ 408‐412: A copyright does not need to be registered before it may be infringed, but the owner of that of that copyright must register the copyright before a federal court can hear an infringement suit for works originating from U.S. ○ But works originating from Berne countries do not have to be registered for an infringement suit Registration requires deposit ○ ○ Registration provides prima facie evidence of of valid valid copyright ‐ § 410(c) BUT only if registration if registration was within 5 years of publication of publication ○ Work must be registered to recover statutory damages and attorney's fees ‐ § 412 ○ matter jurisdiction from the Derivative works that are not registered do not get subject matter jurisdiction registered work it was derived from See Brewer‐Giorgio v. Producers Video, Inc. Inc. (could (could not add claim of infringement of infringement on an unregistered script that was a derivative work of a of a registered book) Copyright on a script is an entirely new and different than the infringement of the of the copyright of a of a book, and it does not arise out of the of the same conduct, transaction, or occurrence
Works published before 1978
Works published between 1/1/78 and 3/1/89
Works published after 3/1/89
Requirement Requirement Optional Optional until last year Optional § 408. of first of first term, but now mandatory for works published before 1964
Optional § 408.
Prerequisite Yes, during both terms Yes § 411. to Bringing of copyright of copyright Infringement Suit?
Yes for U.S. works, except actions brought under § 106(A)(a). § 411. No for non‐U.S. Berne works. § 411.
Other Incentives
Same as left for both U.S. and non‐U.S. Berne works. § 412.
Except for actions under §§ 106(A) or 411(b), statutory damages and attorney's fees only available if work if work is registered before infringement began, or work was infringed within 3 months of publication of publication and registration made within 3 months of publication. of publication. § 412.
OWNERSHIP • Initial Ownership § 201(a): copyright vests initially in the author or authors of the of the work; authors of a of a joint work are co‐owners of copyright of copyright in the work • Sole Authorship § 101: the author is the party who actually creates the work (the person who translates an idea into a fixed, tangible expression entitled to copyright protection) ○ of Commerce Commerce (copy (copy shop working under See e.g. Andrien v. Southern Ocean County Chamber of author's authority so NOT an author) ○ Fixed when: "its embodiment in a copy . . . by or under the authority of the of the author, is sufficiently permanent . . . to permit it to be . . . reproduced." • Joint Owners § 101: A joint A joint work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a of a unitary whole. [1] 2nd and 7th Circuits also require each author must have the further intent to acknowledge ○ the other authors as coauthors [1] intent intent (same as 2nd and 7th Cir.), but also ○ 9th Circuit (Aalmuhammed Aalmuhammed): ): authors must have [1] [2] in a movie the author must have artistic control, "superintendence," or "inventive mastermind " [3] Each author must contribute more than a de minimis amount of copyrightable ○ of copyrightable material to the work ○ Each joint Each joint owner has an undivided interest in the work, each can use or license the entire work, with only obligation to share profits and cannot give, sell, or grant an exclusive license to the entire work ○ If a If a person makes independent copyrightable contribution but denied status as co‐author, person is given an non‐exclusive license and compensation by quantum meruit (reasonable) • Ownership of Works of a work made for hire, the employer or of Works Made for Hire § 201(b): In the case of a other person for whom the work was prepared is considered the author. ○ Definition of Works of Works Made for Hire § 101: [1] 101: [1] a work prepared by an employee within the [2] scope of his of his or her employment ; OR [3] a work specially ordered or commissioned for use as a contribution to a collective work, as part of a of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, as an atlas, IF the parties expressly agree in writing and signed by them that the work shall be considered a work made for hire. [1] Prepared as an Employee: Limited definition of employee ○ of employee means a master‐servant relationship, examined based on five criteria criteria,, see Community for Creative Non‐Violence v. Reid (sculpture was NOT a work of hire of hire b/c the sculptor was NOT an employee but an independent contractor, thus a co‐owner) (a) Control of manner of manner and means of work: of work: sculptor had all the control Hiring of assistants of assistants: sculptor hired his own assistants □ (b) Skill required: only on part of the of the sculptor Source of tools of tools required to make: sculptor supplied his own tools in his own studio □ (c) Method of payment: of payment: paid a flat sum instead of regular of regular employee benefits (d) Tax treatment: sculptor paid his own taxes (e) Duration and scope of relationship of relationship: worked for only a limited time on a single project □ Not part of master's of master's regular business ○ [2] The [2] The Scope of Employment: of Employment: examine three criteria to see if work if work was prepared in the scope of employment, of employment, see Avtec Systems, Inc. Peiffer Peiffer (computer (computer program made by employee was NOT in scope of employment) of employment) (a) Type of work of work the employee was hired to do?: even though software programming was what the employee was hired to do (b)Work created during the time and space of employee's of employee's job?: job?: the employee created the work afterhours and in his own house (c) Employee was motivated by a purpose to serve the employer?: and the employee was not motivated to further the corporate goals
[3] Commissioned Works: A commissioned work for hire must: [A] fall into one of the [3] Commissioned of the § 101 categories, and [B] must be expressly agreed to in writing MacFarlane (P (P was not an employee and the work was not a commissioned See Gaiman v. MacFarlane work, so P was a independent contributor) Medieval Spawn character was not an abstract idea (thus copyrightable), Court □ follows MGM v. American Honda Motors Motors (James (James Bond) b/c Gaiman wrote the than just suggesting "you should have a essential characteristics ‐ which is more than just Medieval Spawn" Cogliostro character not a "scenes a faire" b/c even though Gaiman's verbal □ description of Cogliostro of Cogliostro maybe was of stock of stock character, without his contribution the character Cogliostro would not have been copyrightable at all (as a character) • Governments and Legal Works: U.S. Government § 105: The U.S. federal government cannot own copyright in works prepared ○ by federal government employees in the course of their of their official duties Ok to own copyright obtained by transfer, unless one of its of its employees could have done the work (cannot use independent contractors to circumvent the law) State Government: § 105 does not apply to state governments but statutes, ordinances, ○ regulations, and judicial and judicial opinions are inherently noncopyrightable Legally Binding Privately Drafted Works: privately drafted codes enter the public domain when ○ enacted into law, see Veeck v. Southern Building Code Congress Congress (privately (privately drafted model building codes enter the public domain when enacted into law) Public policy and long tradition that people own the law b/c public must be able to access and use freely Also the merger doctrine applied b/c the building codes could only be expressed in one way ○
TRANSACTIONS • Divisibility § 201(d)(2): any of the of the rights specified in 106 may be transferred and owned separately ○ of sticks was indivisible, but you can give licenses BUT 1909 BUT 1909 Act the bundle of sticks • Transfer § 204(a): Under the 1976 Act, exclusive copyright transfers need to be in writing and signed BUT nonexclusive nonexclusive licenses can by owner of rights, of rights, including assignments, mortgages, exclusive license, BUT be transferred orally See e.g. Effects Associates v. Cohen ○ Cohen ( (industry practices of Hollywood of Hollywood allowed for an implied nonexclusive license) BUT 1909 BUT 1909 Act (all grants executed before 1978) only required the total transfer (sale or ○ assignment) to be in writing, but no requirement for exclusive or nonexclusive licenses • Recording § 205: For a cause of action of action that arose before 3/1/89: recordation is a prerequisite to an infringement suit; but after 3/1/89: recordation NOT required to bring an infringement suit Priority Betw Betwee een n:
Who Who Prevails:
§ 205(d) (d) • any conflicting • first transferee if he if he records within 1 month of transfers, agreement, after 1 month its a race to record including • BUT must be in good faith (i.e. has constructive assignments and notice/actual knowledge of prior of prior transfer) and cannot be a transfer without consideration (i.e. gift exclusive licenses or bequest) § 205(e) • conflict between transferee and nonexclusive licensee
Other Req's:
• must be registered in addition to recorded
• nonexclusive licensee over a transferee (assignee or exclusive licensee) only when: [1] nonexclusive license in writing and licensed before transfer, OR [2] after transfer but before recording of transfer of transfer and license in writing, good faith, and had no notice of transfer of transfer
• Interpreting Copyright Agreements: No set form, but most agreements contain: (1) royalties, (2) duration, (3) geographic scope, (4) manner in which work can be exploited, (5) termination circumstances, (6) name on copyright, (7) who is responsible for bringing infringement suit if needed if needed ○ of the contract, intent of parties, of parties, and use of the of the Scope of Media: of Media: usually based on language of the media in the particular industry New Media Technologies: some courts use a strict literal reading of contract ○ of contract terms, others place the burden on the licensor to show the terms of the of the license do not extend to the new medium Pictures (distribution (distribution "by means of TV" of TV" does not include a Compare Cohen v. Paramount Pictures VCR ) with Bartsch v. Metro‐Goldwyn‐Mayer, Inc. Inc. (transmission (transmission "by cinematography" analogous to "by live telecast") • Open Source Software Licensing: open source software licenses are copyright licenses See Jacobsen v. Katzer ○ Katzer (open (open source software is copyrightable so the open source license can specify the extent to which "copying" is permitted and under what terms and conditions)
DURATION OF COPYRIGHT Works:
Date of Nature Length of Term of Term Protection of Term of Term
created on or after 1/1/78
Fixa Fixati tion on
unit unitar aryy term
BASIC TERM: author's life + 70 ALT TERM: for anonymous or pseudonymous or works made for hire: 95 years from publication or 120 years from creation, whichever is shorter
created but not published before 1/1/78
1/1/ 1/1/19 1978 78
unit unitar aryy term
same as above but at least 12/31/2002 if the if the work remained unpublished as of 12/31/2002 of 12/31/2002
created before 1/1/ 1/1/19 1978 78 1/1/78 but published before 1/1/2003
unit unitar aryy 12/31/2047 term
Works published between 1964 and 1977
when dual 28 year first term published term = with notice 95 total
automatic renewal term of 67 of 67 years (renewal registration is optional but incentives attach to renewal registration)
published between 1923 and 1963
when dual 28 year first term published term = with notice 95 total
renewal term of 67 of 67 years. But only if renewal was properly obtained
published before 1923
n/a
n/a
now in public domain
• Renewal Right Owner: ○ Works that came up to their renewal term BEFORE 1964 had to be actively renewed by author Author could properly transfer his renewal right to another during the 1st term if he if he used clear, concise, unambiguous language, Fred Fisher Music But if author if author dies before renewal term vests, goes to successors instead of transferee of transferee □ Spouse or kids of estate if there if there is a will □ Executor of estate of kin if no if no will or spouse/kids □ Owner's next of kin Work for hire © stays w/© owner, does not revert Statutory heirs can assign away their interest in renewal ○ Works that came up to their renewal term BETWEEN 1964‐1978 were renewed automatically w/1 year of original of original term expiration, with incentives to voluntary renewal: Presumption of validity of validity and ownership of the date of the of the filing Ownership of the of the renewal interest based on who is alive as of the If author If author assigns renewal right and dies, the interest will go to the transferee if □ voluntary renewed, NOT revert to author's statutory heirs If the If the author dies w/out voluntarily renewing (renewed automatically), renewal □ interest vests at the end of the of the original period w/his statutory heirs Transferred derivative rights works end and derivative work owner cannot further exploit If not If not voluntary and auto renewed, derivative work can be exploited during the □ renewed term, but no new derivative work can be made
EXCLUSIVE RIGHTS AND LIMITATIONS • Exclusive Rights § 106 and Exceptions §§ 107‐121: Copyright protection provides the owner of a of a copyright with 6 exclusive rights under § 106: reproduction, adaptation, distribution, performance, display, and digital sound recording transmission, with limitations set out in §§ 107‐121. Exclusive Right § 106(2) Right to prepare
Limitations
derivative works
§ 114 114 (b) Sound
§ 112 112 Ephemeral Recordings
recordings
§ 113 113 Pictures or photographs
§ 115 115 Compulsory
of useful of useful articles
license for making
§ 1008 Noncommercial use by a
and distributing
consumer of digital of digital or analog
phonorecords
§ 106(1) Right of reproduction § 106(3) Right of
recording device to make
§ 108 108 Reproductions by
musical recordings
libraries and archives
§ 109(a), (b) Effect of transfer of transfer
§ 121 121 Reproduction for
distribution § 106(4) Right of public of public performance
of co of copy py or phonorecord
the blind and disabled
broadcasting
§ 116 116 Public performances by
§ 109 109 (e) Effect of
compulsory
jukebox es
transfer of copy of copy or
license
phonorecord § 110 110 Exemption of
§ 117 117 Computer programs
§ 118 118 public
§ 107 107 Fair Use
certain performances and displays § 111 111 Secondary transmissions (cable compulsory license)
§ 106(5) Right of public of public
§ 109(c) Effect of transfer of transfer of
§§ 119, 122 122 satellite
display
copy or phonorecord
compulsory licenses
§114(d) –(j) §114(d) –(j) public performance
§ 106(6) Right of public of public performance by digital
of sound of sound recordings by means
audio transmission
limitations and licenses
of digital of digital audio transmissions:
Reproduction, Distribution, Derivative Rights • Reproduction Right § 106(1): Exclusive right to reproduce a copyrighted work in copies or phonorecords means to fix it in a tangible and relatively permanent form in a material object. ○ Distinguish from general term "copying" which does not need fixation, i.e. performance or display Compare MAI Systems ○ Systems (youtube (youtube videos transmission copies are fixed on server) with Cartoon Network (youtube Network (youtube videos transmission does not mean copies are fixed on server) • Distribution Right § 106(3): Exclusive right to distribute copies or phonorecords of the of the copyrighted work to the public by sale or other transfer of ownership of ownership or rental, lease, lending ○ Distinguish from general term "copying", distribution only concerns the right to transfer physical copies or phonorecords of the of the work Distribution to the Public: circuits split, some hold simply by making an unauthorized copy ○ available to the public (at the library or on the internet) violates distribution right, others require "actual dissemination", (Capitol Records Inc. v. Thomas Thomas)) ○ of a copy or phonorecord is entitled to sell or otherwise First Sale Doctrine § 109(a): The owner of a of that copy or phonorecord, as long as: [1] copy was lawfully made with authorization dispose of that of copyright of copyright owner; [2] copyright owner transferred title of the of the copy; [3] D is rightful owner of copy; [4] D disposed of but but did not reproduce the copy See UMG Recordings v. Augusto Augusto (first (first sale defense OK) [2] must [2] must be through sale or gift only, not a license, rental, or loan: mailing the CDs □ to music industry insiders was characterized as a gift or sale, not a license Indication of gift: of gift: did not have intent to get CD back (like a license) See C.M. Paula Co. v. Logan Logan (first (first sale OK defense against buying soft‐cover books, putting them in hard covers, then reselling)
[2][3] lawfully [2][3] lawfully purchased Cannot use first sale defense when you buy and use a pirated copy, even if you didn't know it was pirated □ [4] disposing physically: ok to put hard covers on them and resell Rental Exception to First Sale Doctrine § 109(b): prohibits owner of [1] a musical sound recording phonorecord (copy) or computer programs from [2] [2] renting renting it to the public [3] for commercial gain (public library OK) See Brilliance Audio, Inc. v. Haights Cross Communications, Inc. Inc. (not (not infringing b/c □ first sale defense applies and the exception did not) □ [1] exception is for musical recordings, NOT recordings of literary of literary works (audiobooks) Importation § 602(a): bars unauthorized importation of copies of copies or phonorecords into the U.S. which were made and procured outside the U.S. (copies made in U.S. protected by the first sale doctrine) See Quality King Distributors, Inc. v. L’Anza Research [1] lawfully lawfully Research if if a a product is [1] □ made in the U.S. and [2] subject to a valid first sale, the subsequent importation into the U.S. is not prohibited by § 602(a) • Right to Prepare Derivative Works § 106(2): The adaptation right is infringed when a 3rd party makes [1] derivative derivative work (i.e. a translation, musical, movie) that: [2] must at least an unauthorized [1] of the copyrighted work in some form transform, recast, or adapt [3] adapt [3] a a portion of the ○ Company (buying (buying P's postcards and gluing them on ceramic tiles did NOT See Lee v. A.R.T. Company violate derivative right) [1] the tiles was not a derivative work b/c no intellectual effort or creativity was required to glue the postcard to the tile ○ See Game Genie Genie (altering (altering the performance of a of a Nintendo game did NOT violate derivative right) [2] Nintendo game itself was itself was not recast, transformed, or adapted [3] Game Genie did not use any part of the of the game REDUNDANT: infringing the adaptation right also ○ right also infringes reproduction right, performance right, or both both ( (i.e. a play that substantially embodies a copyrighted book violates both reproduction and adaptation right; if play if play was performed, also performance right) • Limits to the First Three Exclusive Rights Limits on Musical Works & Compulsory Licenses for "Covers" § 115: Limits reproduction, ○ adaptation, and distribution rights of musical musical works copyright owners by allowing a compulsory license for: [1] [1] making making and distribution of phonorecords of phonorecords of [2] [2] non non‐dramatic musical works that have been [3] [3] lawfully lawfully distributed to the public in the United States; and [4] the licensee's primary purpose must be to distribute the work to the public for private use The "cover" must be faithful to original work or might infringe on adaptation right ○ Limits on Sound Recordings § 114(b): Limits reproduction, adaptation, and performance rights in sound recordings; infringement of a of a copyright in a sound recording occurs by: [1] reproducing, rearranging, remixing, or altering it by mechanical means; but [2] [2] independent independent fixation is NOT infringement (the world is free to imitate the work as long as an actual copy of the sound recording is not made) Distinguish between the two kinds of copyrightable of copyrightable subject matter that could be embodied on the same phonorecord: musical work and sound recording See Newton v. Diamond Diamond (performers (performers were authorized to use the sound recording, so they if composition was infringed ‐ and no, b/c copying 3 notes from the were liable only if composition composition was de minimis) See Bridgeport Music, Inc. v. Dimension Films Levies, Mandated Technical Measures, and the Audio Home Recording Act ○ If tested, If tested, see textbook excerpt □
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Public Performance and Display Rights Public Performance Right § 106(4): Owner of a of a copyright in a literary, musical, dramatic, and [1] perform perform choreographic works, pantomimes, and other audiovisual works has the exclusive right to [1] the work [2] [2] in in public [1] Perform [1] Perform § 101: to recite, render, play, dance, or act, either directly or by means of any of any ○ device or process (so performing covers initial rendition plus further transmissions) if reaching a single Device or process covers transmissions, i.e. radio, television ‐ even if reaching person at different times (hotel) Inc. (transmission (transmission of signal of signal to local cable See David v. Showtime/The Movie Channel, Inc. company = public performance, even if D if D =/= distribute signal directly to the public) ○ [2] Publicly [2] Publicly § 101: (a) to perform it at a place open to the public, OR OR (b) (b) a place where there are substantial number of people of people gathered outside a normal circle of friends of friends and family of people don't matter If Public If Public (clubs, summer camp, office): size and composition of people If Private If Private (your bathtub, inviting friends over to watch a movie): look at size and composition of audience of audience to determine if the if the performance was public See Fermata International Melodies, Inc. v. Champions Golf Golf Club Club (performance (performance was PUBLIC b/c 21 people gathered at a private golf club of people) golf club was still a substantial gathering of people) See Columbia Pictures Industries, Inc. v. Redd Horne, Inc. Inc. (PUBLIC (PUBLIC performance to transmit movie to private screening rooms, but not if each if each room had a VCR, such as an hotel room) Public Display Right § 106(5): Owner of copyright [1] display display the work [2] in of copyright has exclusive right to [1] public, applies to all works except for sound recordings, and architectural works [1] Display: to show a copy of of it it, either (a) directly, OR OR (b) (b) by means of film, of film, slide, TV image, or ○ any other device or process See Perfect 10, Inc. v. Amazon.com, Inc. Inc. ( (thumbnails on Google's server violates display right, but only linking to the image does not) [2] Publicly: [2] Publicly: same meaning as performing right (see above) ○ ○ of section 106(5), the owner of a Exception § 109(c): Notwithstanding the provisions of section of a particular copy lawfully copy lawfully made, or any person authorized by such owner, is entitled, without the authority of the of the copyright owner, to display that copy publicly, either directly or by the projection of no of no more than one image at a time, to viewers present at the place where the copy is located RESULT: § 106(5) IS MAINLY ABOUT TRANSMISSIONS ○ The Digital Performance Right for Sound Recordings § 106(6): gives the exclusive right to publicly perform sound recordings by means of a of a digital audio transmission ○ Addresses problem of internet transmissions Exemptions § 114(d)‐(i): ○ Non‐interactive, non‐subscription broadcast digital audio transmissions (i.e. internet radio) and says no license needed at all But see But see Bonneville International Corp. v. Peters Peters ("broadcast" ("broadcast" does NOT cover □ simulcast internet audio) ‐ so still need to get statutory license Digital satellite subscription ONLY IF you get a statutory license AND shit in 114(d)(2) Transmissions within business establishments for commercial use as background music Limits on the Public Performance and Display Rights § 110: (1) face‐to‐face teaching; (2) instructional of transmission broadcast, (3) religious services, (4) certain public receptions of transmission "Homestyle" exemption § 110(5): covers all types of works, ○ of works, when performance is by reception of a of a transmission on a single receiving apparatus of a of a kind commonly used in private homes See Cartoon Network LP, LLLP v. CSC Holdings, Inc. Inc. ( (playback of DVR of DVR copies did not infringe plaintiffs' exclusive right of public of public performance under § 106(4) because each DVR playback was made to a single subscriber using a single unique copy produced by that subscriber, thus a playback =/= public performance ) "Business" exemption§ 110(5): covers non‐dramatic musical works, with limitations on square ○ feet of establishment of establishment (640 sq. ft.), number of loudspeakers of loudspeakers and video screens See Broadcast Music, Inc. v. Claire’s Boutiques, Inc. Inc. (each (each individual store must use a single homestyle piece of equipment of equipment)
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INFRINGEMENT ANALYSIS • Infringement: [A party] violated [the copyright owner's] exclusive right [to reproduce, adapt, distribute, publicly perform, or publicly display] in § 106 • De Minimis Copying: But there is no liability for de minimis copying, copying so trivial and insignificant as judged as judged by the ears of the of the jurors jurors (no bright line rule) I.e. sampling a 3 note sequence qualifies as a de minimis copying, but using three words and ○ some music from a song was infringement • Proving Infringement: to prove infringement, there must be: [1] [1] proof proof of of ownership ownership ; [2] [2] copying copying in fact by the D; and [3] [3] improper improper appropriation. plaintiff must show: (1) originality, (2) copyrightable subject matter, 1. Ownership : To prove ownership, plaintiff must (3) compliance with statutory formalities, and (4) the necessary citizenship status prima facie facie evidence of ○ of ownership ownership Copyright registration is prima 2. Copying in Fact by the Defendant: The plaintiff must plaintiff must prove actual copying . . . that D's allegedly infringing work would not exist but for D's exposure to P's work (absence of independent of independent creation), using evidence of: (a) (a) access access and (b) (b) probative probative similarity ○ (a) Access: (a) Access: P can prove access by showing that D had a reasonable opportunity to view or copy the work The evidence must show a reasonable probability of access, of access, not mere possibility of access of access based on speculation, examples: □ Work was available to employees of D of D Work was in possession of a □ of a 3rd party that had did business with both P and D See also Bright Tunes Music Corp Corp (song (song had been played so extensively, even though D may have subconsciously subconsciously copied the tune, unintentional copying is still copying) ○ (b) Probative (b) Probative Similarity (similarity as to mistakes and defects that are otherwise unlikely) I.e. fake phone listings in Feist Feist;; Mara's double hairline in Pivot Point But copying from a 3rd party's work or natural objects =/= copying in fact Access may be presumed when complex works are virtually identical, but even really similar commonplace works do not prove access without additional evidence 3. Improper Appropriation: infringement does not occur unless the D's copying was an improper appropriation, which means D took a sufficient amount of the of the copyright owner's original expression in creating a "substantial similar" work of a useful article is not improper appropriation i.e. copying a purely functional aspect of a (a) verbatim verbatim copying and/or (b) (b) pattern pattern similarity ○ Prove substantially similar work in two ways: (a) (a) Verbatim (a) Verbatim Copying: is easy to show infringement on wholly creative works such as original poetry or a novel, but harder to distinguish compilations or historical facts (b) Substantial (b) Substantial Similarity: an infringement is not confined to literal and exact repetition or reproduction; it includes also the various modes in which the matter of any of any work may be adopted, imitated, transferred or reproduced Difficulty = did D appropriated the author's copyrightable expression or the just the just the □ abstract ideas behind the work Substantial Similarity Analysis (Arnstein (Arnstein v. Porter Porter): ): did D take from P's work so □ much of what is pleasing to the lay public about it that it will provide a partial substitute for the original, thus reducing potential financial returns for P? Similarity in Computer Programs (Computer (Computer Asso. v. Altai, Inc. Inc.): ): substantially similar □ for compute programs is analyzed using a 3 part test: of generality, dissecting the (i) Abstract (i) Abstract the program into various layers of generality, program's structure and isolating each level of abstraction of abstraction (ii) Use merger doctrine to filter out elements of the of the program that are dictated by efficiency or external factors such as mechanical specifications, compatibility requirements (information in the public domain) (iii) Compare (iii) Compare remaining elements in two programs
FAIR USE DEFENSE • Fair Use, generally: Fair use is a defense to copyright infringement, defined as a "privilege in others than the owner of a of a copyright to use the copyrighted material in a reasonable manner without consent" • 17 USC 107 Preamble: "The fair use of a of a copyrighted work, including such use by reproduction in copies or phonocords 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 of copyright" research, is not an infringement of copyright" ○ Use falling in one of the of the 107 categories is favored, but NOT determinate of fair of fair use ○ Fair use can be defense against unpublished work, Harper & Row ○ Courts also consider other factors as well, such as lack of good of good faith, industry custom or practice • Determining Fair Use: Courts shall use 4 factors in determining if a if a use qualifies as fair use: [1] the purpose and character of the of the use, including whether the use is commercial nature or is for nonprofit educational purposes; [2] the nature of the of the copyrighted work; [3] the amount and substantiality of copyrighted work used; [4] the effect of the of the copyrighted work of the use upon the market or value of the ○ See Sony v. Universal Studios Studios ( (recording TV programs at home for watching later OK fair use) of work that was [1] noncommercial noncommercial, nonprofit, and for private viewing of work [2] was [2] was broadcast for free [4] no [4] no effect ‐ broadcast for free [1] purpose purpose is commercial use, burden shifts Emphasized if [1] shifts to to D to rebut presumption [4] effect of the of the use adversely affect copyrighted original Dissent says we should favor productive uses that either: (1) benefit society or (2)create derivative works See Harper & Row v. Nation Enterprises ○ Enterprises (stealing (stealing and publishing parts of an of an unpublished book NOT fair use) [1] even though news reporting was a favored use, it was commercial purposes [2] protected [2] protected creative expression (vs. just (vs. just facts) [3] large [3] large and substantial amount when it could have easily copied unprotected facts [4] specific [4] specific harm (lost profits) was shown Story was unpublished didn't matter ○ Inc. (2 (2 live crew's parody of Pretty of Pretty Woman OK fair use) See Campbell v. Acuff ‐Rose Music, Inc. [1] commercial [1] commercial BUT [2] parody [2] parody or transformative use added independent creative material [4] no [4] no market harm to the original See Princeton University Press v. Michigan Doc. Services ○ Services (compiling (compiling textbooks NOT fair use) [1] commercial [1] commercial driven by motive for profit [2] textbooks [2] textbooks clearly creative expression that narrowed scope of fair of fair use [3] copied large amount and valuable info [4] harmed [4] harmed book sales and licensing See Perfect 10 v. Amazon.com ○ Amazon.com ( (Google search engine thumbnails OK fair use) [1] picture search engine was a new and highly beneficial function [3] "highly transformative" use [4] potential harm was hypothetical See Sega Enterprises Ltd. v. Accolade, Inc. ○ Inc. (Accolade (Accolade disassembled a Sega game cartridge to reverse engineer a noninfringing program OK fair use) [1] commercial [1] commercial BUT Accolade's use was intermediate only and productive in nature [2] software [2] software unique b/c contained unprotected features that could not be examined without copying the intermediate market, just made noninfringing products to compete (goal of copyright) of copyright) [4] did not usurp market, just But to be a fair use, it must be necessary (no other way) to disassemble and copy the intermediate code in order to access the program's unprotected ideas
SECONDARY LIABILITY • Vicarious Liability: When the D has: [1] the right and ability to supervise the infringing activity, and[2] a direct financial interest in such activity (look at how closely the D's income varies with amount of infringement) ○ Knowledge NOT required See Fonovisa v. Cherry Auction ○ Auction (flee (flee market owners were vicarious liable) ○ [1] Control [1] Control over direct infringing bootleg CD sellers [2] Had a direct financial interest in the infringing activity ○ • Contributory Infringement: When the D: [1] with knowledge of the of the infringing activity, [2] causes or of another materially contributes to the infringing conduct of another ○ Auction (flee (flee market owner contributory liable too) See Fonovisa v. Cherry Auction [1] knowingly knowingly [2] [2] contributed contributed to the infringement by providing the site for the The D [1] activity But see But see Sony v. Universal ○ Universal (VHS (VHS maker not contributory infringer just infringer just by providing equipment of commerce suitable for that was used to infringe when the equipment was a staple article of commerce other substantial non‐infringing uses) Inducement of Infringement: of Infringement: "One who distributes a device with the object [intent intent]] 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." of infringement." See Metro‐Goldwyn‐Mayer Studios Inc. v. Grokster, Ltd. Ltd. ( (liable for copyright infringement b/c they encouraged consumers to illegally swap copyrighted works) Probative evidence of intent: of intent: □ Grokster marketed towards previous Napster users ‐ a known source of demand for copyright infringement Advertising income increases as traffic (which is mostly infringing) increases Failure to develop filtering tools to diminish infringing activity Sony,, must show "a reasonable prospect that □ J. Ginsburg: to qualify under Sony substantial or commercially significant noninfringing uses were likely to develop over time" □ J. Breyer: 10% lawful downloading would be adequate for a substantial noninfringing use where there is a prospect of expanded of expanded legitimate uses over time • DMCA Safe Harbors § 512: limits liability for 4 express types of online service providers 1. "transitory digital network communications" (i.e. transmission services) 2. "system caching" ‐ automatic copying to provide continued access e.g. when network is clogged 3. "information residing on systems at direction of users" of users" (i.e. web hosting) 4. "information location tools" (i.e. search engines) ○ Companies that comply with § 512 are protected from contributory infringement and vicarious liability ‐ but not complying doesn't mean they are automatically liable To comply with § 512(i)(1): a online service provider must: ○ of terminating subscribers and account holders who [1] reasonably [1] reasonably implement a policy of terminating are repeat infringers BUT § 512(c): a service provider shall not be liable for monetary relief if relief if it: it: □ Had no knowledge of infringement of infringement Acts expeditiously to remove, or disable access to, the material when it (a) gets actual knowledge, or (b) is aware of facts of facts or circumstances that make infringement apparent, or (c) has received notification of infringement of infringement [2] accommodate and not interfere with standard technical measures (i.e. watermarking, encryption)
• DMCA device liability §§ 1201(a)(2), 1201(b): Cannot make or offer devices that are: [1] primarily designed or produced for the purpose of circumvention of circumvention; [2] has only limited commercially significant purpose or use other than circumvention; or [3] is marketed for circumvention ○ Reimerdes (D's (D's program that unscrambled the CSS code which encrypted See United States v. Reimerdes DVDs was primarily intended to circumvent the DVD protection ‐ does not violate the 1st Amendment b/c 1201(a) was a content‐neutral law and whatever burdens it put on free speech were proportionate to the government's legitimate interests) ○ § 1201 Exceptions: No exception for circumvention in order to make fair use (or other exceptions to exclusive rights in copyright) Reverse engineering exception § 1201(f): can circumvent access control measure to computer program to "identify and analyze those elements of the of the program that are necessary to achieve interoperability of an of an independently created computer program with other programs." (i.e. Sega v. Accolade Accolade)) Other minor exceptions: nonprofit libraries, archives, educational institutions for acquisition purposes; law enforcement; encryption research New specific exceptions added in 2009: Audiovisual works on DVDs, to incorporate short excerpts for educational use, □ documentaries, noncommercial films "Jailbreaking" phones to enable them to run apps not authorized by phone maker □ Cell phone computer programs, for the purpose of switching of switching service providers □ Video games, for purposes of testing of testing security vulnerabilities □ Computer programs protected by obsolete dongles □
REMEDIES • Damages § 504: a copyright infringer is liable for either the copyright owner's actual damages AND damages AND any additional profit the infringer made, OR statutory damages Actual Damages § 504(b): A plaintiff can ○ plaintiff can "recover the actual damages suffered by her as a result for D's D's of the of the infringement," generally equal to the profits she would have accrued but for infringement. See Banff Banff Ltd. Ltd. v. Express, Inc. Inc. (actual (actual damages was not proven b/c P offered little probative evidence suggesting Express would have actually bought sweaters) P's products sold at significantly higher prices, thus a different market □ P could not have supplied the 40,000 knockoffs D bought □ No business relationship between P and D □ Infringer's Profits § 504(b): An infringer's profits are calculated as [1] the gross sales of ○ [2] minus minus the costs (D's burden) attributable to the production infringing goods (P's burden), [2] and sale of those of those goods See e.g. Caffey v. Cook Cook (infringement (infringement non‐willful, so D can deduct her cost from the damages amount, including income tax from profit) Apportionment: can reduce the percentage of recoverable of recoverable profits by showing the success of the of the infringing product was due to other factors (i.e. infringing movie that is successful b/c plot changes, famous actors, good marketing) Indirect profits: require a reasonably sufficient causal link between the infringing acts and indirect profits (i.e. profits a hotel made by showing an infringing play OK, but an infringing advertisement for a product does not allow recovery of profit of profit from sale of product) of product) • Statutory Damages § 504(c): A prevailing P who complies with copyright registration may recover statutory damages instead of actual actual damages and profits in the amounts of: 1. Default: $750 ‐ $30,000 2. Willfulness: up to $150,000 Depends on state of mind, of mind, courts have found willfulness when Ds know, have reason □ to know or recklessly disregarded the fact a work was copyrighted 3. Innocent infringement: as low as $200 Not available if D if D had access to copies that have a copyright notice on them □ 4. Nonprofit with reasonable belief of belief of fair fair use: no statutory damages ○ "Per work" hard to determine (i.e. individual TV episodes can be individual works) But see Bryant v. Media Right Productions, Inc. • But see Inc. (statutory (statutory damages are for each album, not each song b/c 504(c)(1) says all the parts of a of a compilation count as one work) ○ New under 1976 Act ‐ 1909 Act did not require registration to recover statutory damages • Attorney's Fees: Attorney's fess are available equally to prevailing plaintiffs and prevailing defendants (Fogerty v. Fantasy Fantasy), ), provided the copyrighted work is registered ○ Awarded using "equitable discretion" not as a matter of course of course See Matthew Bender & Company, Inc. v. West Publishing Co. ○ Co. (abuse (abuse of discretion of discretion to award attorney's fees without specific evidence of bad of bad faith and litigation misconduct) • Injunctions § 502(a): allows courts to grant either preliminary or permanent injunctions as a remedy to copyright infringement General test for injunctions (Salinger ○ ( Salinger)): 1. Likelihood of success of success on the merits (for a preliminary injunction) 2. Irreparable harm if injunction if injunction is not granted (i.e. short commercial life) □ Preliminary ‐ show that delay would deprive P of relief of relief ( □ Permanent ‐ MUST show [1] damages alone would be inadequate, AND AND [2] [2] threat of further of further infringement Difficulty in measuring proof of proof of loss loss of sales of sales Irreparable in light of possible of possible market confusion A loss that one should not be expected to suffer 3. Public interest 4. Balance of hardships hardships tips in plaintiff's favor
