COPYRIGHTS
01
Copyright Theory
Congressional Powers
US Cons’t. Art I § 8
"The Congress shall have the power…
π3: To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
π8: To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writing and discoveries;"
Note:
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Copyright law is exclusive to the federal government and preempts any state law regulating its subject matter.
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Pursuant to Congressional power under the Progress Clause, Congress:
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Enacted the Copyright Act of 1976 (& amendments);
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Established the Copyright Office in 1897;
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Ratified the Berne Convention (1988) and the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) (1994)
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Economic Rationals
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Utilitarian: Copyrights are a grant of a limited duration monopoly designed to incentivize the creation and distribution of expressive works. (U.S.)
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Personality: creation is an extension of the author’s being. Creates moral rights. (E.U.)
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Labor Theory/"sweat of the brow": an artist mixes their mental labors into their creation, creating a property right. Rejected in Feist Publications, Inc. v. Rural Te. Serv. Co., 499 U.S. 340 (1991) ("the 1976 revisions to the Copyright Act leave no doubt that originality, not "sweat of the brow," is the touchstone of copyright protection. . . .").
02
Subject Matter
Copyright Subject Matter
17 U.S.C. 102(a)
Copyright protection 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. . .
02
Fixation
Fixation
17 U.S.C. §101
A work is ”fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.
Rule
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Fixation requires embodiment
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Both physical
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AND non-transatory
Public Policies
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Encourage creation and dissemination of art and culture (by preserving it).
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Compare with:oral traditions/folk lore
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Serves as an evidentiary requirement.
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Demarcate boundaries between ideas and expression.
02
Originality
Originality
"Originality is the sin qua non of copyrights..." Feist Publications, Inc. v. Rural Te. Serv. Co., 499 U.S. 340 (1991)
Note
• Congress intentionally did not defined originality in the Copyright Act.
• Non-humans lack originality under existing law.
• Commerciality is irrelevant.
• Aesthetic considerations are barred under the aesthetic non-discrimination doctrine.
Rule
• A modicum of originality
• OR a “spark” in the mind of its creator
• NOT novelty (patent standard)
Examples
1. A staged photograph of a person. Burrow-Giles
2. Chromolithograph circus advertisements. Bleistein
3. Mezzotint engravings of public domain paintings. Alfred Bell
03
Derivative Works
Derivative Works
17 U.S.C. §101
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”.
Note
• The work must be the original product of the author.
• Slavish or mechanical copying is not authorship.
• Incremental (nontrivial) original expression
• Mere shift in medium insufficient.
• Extends only to the material contributed, as distinguished from the preexisting material employed in the work.
• Results in a thin copyright.
Collective Works
17 U.S.C. §101
A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.
Compilations
§101 A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.
04
Idea/Expression
The Idea/Expression Dichotomy
17 U.S.C. §102(b)
In no case does copyright protection for any 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.
Note
• Copyrights on facts would defraud the public.
• An expressive work describing a useful art is protectable.
• Ornamental/pictorial illustrations are protectable.
• Merger doctrine: a limited number of ways suggests that the expression has merged with the idea.
• Expressive classification schemes can be protected.
• Scenes a faire: cannot protect common genre tropes.
• Historical interpretations: not original (monopoly concerns).
05
Works of Authorship
Works of Authorship
17 U.S.C. §102
Works of authorship include the following categories:
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Literary works
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Musical works, including any accompanying words
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Dramatic works, including any accompanying music
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Pantomimes and choreographic works
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Pictorial, graphic, and sculptural works
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Motion pictures and other audiovisual works
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Sound recordings
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AND Architectural works
Literary Works
17 U.S.C. §101
Works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, phonorecords, film, tapes, disks, or cards, in which they are embodied.
Musical Work
Scores & music composition.
Sound Recordings
17 U.S.C. §101
Works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.
Pictorial, graphic, and sculptural works
17 U.S.C. §101
Two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models and technical drawings, including architectural plans.
Motion Pictures
17 U.S.C. §101
Audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.
Audiovisual works
17 U.S.C. §101
Works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.
Bar on Governmental Works
17 U.S.C. §105
Codifies Government Edicts Doctrine: cannot copyright law or judicial opinions Wheaton
Useful Articles Doctrine
17 U.S.C. §101
An article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article.”
17 U.S.C. §101
Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article
Conceptual Separability Test
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An artistic or conceptual feature incorporated into a useful article is protectable if the feature:
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Can be identified separately from the utilitarian
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AND Is capable of existing independently of the utilitarian aspects of the article.
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06 Computer Software
Computer Software as Writings
H.P. Rep. No. 1476 (1976) to § 101
The term “literary works” does not connote any criterion of literary merit or qualitative value: it includes catalogs, directors, and similar factual, reference, or instructional works and compilations of data. It also includes computer data basses, and computer programs to the extent that they incorporate authorship in the programmer’s expression of original ideas, as distinguished from the ideas themselves.
17 U.S.C. § 101
“Computer Program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.
17 U.S.C. §117(a)
Defense to infringement
(a) Making of Additional Copy or Adaptation by Owner of Copy.—Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, OR
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
08 DMCA & DRM
The DMCA
Technological Protections (i.e. Encryption)
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Physical access codes
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Black-box devices
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Serial Copy Management System
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CSS – Reimerdes
World Intellectual Property Organization Treaty
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Article I
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Protection against “circumvention of effective technological measures. . . [n]ot authorized by the authors concerned or permitted by law.”
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The Digital Millennial Copyright Act of 1998, 17 U.S.C. 1201
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(a)(1) prohibits individual acts of circumvention of access controls;
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(a)(2) prohibits distribution of technologies designed to aid in circumvention of access controls;
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(a)(3) prohibits distribution of technologies designed to aid in circumvention of rights controls; and
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Nothing prohibits individual acts of circumvention of rights controls.
09 Authorship
Authorship
§201(a) initial ownership
Copyright in a work protected under this title vests initially in the author or authors of the work.
The authors of a joint work are co-owners of copyright in the work.
§201(b) works made for hire
In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
1 U.S.C. 8(a)
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words “person”, “human being”, “child”, and “individual”, shall include every infant member of the species homo sapiens who is born alive at any stage of development.
Joint Works
§ 101 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 unitary whole.
Works Made For Hire
§ 101 A “work made for hire” is
(1)A work prepared by an employee in the scope of his or her employment; . . .
(2)A work specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instruction test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. . .
10 Formalities
Notice
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Public Policies
1. It has the effect of placing in the public domain a substantial body of published material that no one is interested in copyrighting;
2. It informs the public as to whether a particular work is copyrighted;
3. It identifies the copyright owner; and
4. It shows the date of publication.
Domestic Manufacture
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The 1909 Copyright Act required domestic manufacture of material objects within the jurisdiction of the United States
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The penalty for failing to comply was forfeiture of the copyright to the public domain
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Domestic Manufacture & Restoration
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Berne Article 18 requires retroactive protection of foreign works that lost protection for failing to comply with U.S. formalities.
§104A restores copyright protection for certain works
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Must not have been in public domain in source country
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Is public domain in the U.S. due to: (1) formality noncompliance; or (2) lack of national eligibility
Restoration
17 U.S.C. 104A
(C) is in the public domain in the United States due to—
(i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements;
(ii) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or
(iii) lack of national eligibility.
11 Duration
§304(a)(1)(c) In the case of any copyright work, including a contribution by an individual author to a periodical or to a cyclopedic or other composite work-
1.Living authors;
2.Dead author’s surviving spouse or children;
3.Author’s executors if no immediate decedents;
4.Author’s next of kin, if no will
Shall be entitled to a renewal and extension of the copyright in such work for a further term of 67 years
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Copyright term has always been split between the original and renewal term.
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Originally the renewal was merely an extension of the first term, but in 1831 Congress made a policy determination.
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Cannot calculate the value prior to exploitation, allows authors to renegotiate.
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Assignment of the renewal is a mere expectancy, not a property interest.
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Assignment of renewal rights by author before the renewal does not defeat the renewal right
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Assignee takes risk that the right never vests
Terminations of Transfer
§203(a) Conditions for Termination-In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or any right under a copyright, executed by the author on or after Jan. 1, 1978, otherwise than by will, is subject to termination under the following conditions:
§203(a)(1)
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1 author: by that author, or if deceased, who owns or exercises more than one half of the termination interest;
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2+ authors: majority of authors, same rules apply for deceased joint authors.
§203(a)(3)
Termination of the grant may be effected:
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At any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant;
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If grant covers right of publication:
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period begins at the end of the thirty-five years from the date of publication of the work under the grant;
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or at the end of forty years from the date of execution of the grant, whichever term ends earlier.
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§203(a)(4) Termination by notice in writing by parties in (a)(1)
(A)Include effective date of termination within the 5 year window; Serve not less than two or more than ten years before that date. Record with Copyright office.
(B)Notice must comply with Register of Copyrights requirements.
12
Infringement
Exclusive Rights
Copyright infringement requires:
1.π owns valid copyrightable work; and
2.∆ infringes that copyright.
Feist; § 501(a)-(b)
Statutory defenses: §107-122
Infringement requires a violation of:
§106 Owner’s exclusive rights to do and authorize:
1.Reproduce the work
2.Prepare derivative works
3.Distribute copies or phonorecords
4.Perform the copyrighted work publicly
5.Display the copyrighted work publicly
6.Performance of sound recordings publicly by means of a digital audio transmission
2. Defendant’s infringement:
A.Copying in fact; and
B.Copying in law
2. Defendant’s infringement:
A.Literal copying or access (provides circumstantial evidence of copying); and
B.Substantial similarity between the works
Substantial similarity
•Can be resolved as a matter of law.
•Does not require identity; duplication or near identity is not necessary to establish infringement.
•Did the average lay observer recognize the alleged copy as having been appropriated from the work?
•Rejects “ordinary observer test”
Substantially similar if the ordinary observer, unless he sets out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.
•Thus, the more refined if the π’s work is not wholly original, but rather incorporated the public domain.
•Must show substantial similarity between those elements that provide copyrightability to the alleged infringe compilation.
Substantial similarity between expression is subtle and complex, apply an intrinsic test.
•No principle can be stated as to when an imitator has gone beyond copying the idea and borrowed its expression.
Substantial similarity has been used to describe both the degree of proof for copying and the similarity needed to establish appropriation.
•Prove copying: need not be extensive and need not involve expressive elements
•Prove misappropriation: must involve protected elements
•Proof of copying is necessary because independent creation is a complete defense.
•Proof of unlawful appropriation is needed because not all copying is forbidden (idea/expression, patents, fair use, etc.)
No definable test for substantial similarity, fact driven inquiry.
The ultimate question is:
•Did the defendant take too much from the heart of the original?
14
Distribution
Distribution Rights
§106(3) Distribute copies or phonorecords of the copyright work to the public by sale or transfer of ownership, or by rental, lease, or lending. . .
The copyright statutes protect the right to sell the production, do not create the right to impose, by notice, such as is disclosed in this case, a limitations at which the book shall be sold a retail by future purchasers, with whom there is no privity of contract.
Once the copyright owner has sold (vended) the copie, their distribution right is extinguished (as to that copie).
17 U.S.C. §109(a) (First Sale Doctrine)
Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. . .
The copyright statutes protect the right to sell the production, do not create the right to impose, by notice, such as is disclosed in this case, a limitations at which the book shall be sold a retail by future purchasers, with whom there is no privity of contract.
Once the copyright owner has sold (vended) the copy, their distribution right is extinguished (as to that copie).
Importation Rights
17 U.S.C. §602
Importation into the United States, without the authority of the owner of copyright under this title, or copies of phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106.
Is importation a separate copyright owner’s right?
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602’s reference to 106(3) incorporates the first sale doctrine into the important right.
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Thus it might seem that the overseas purchaser can import a copie into the United States.
No, 109 does not create or contain a geographic limitation nor extraterritoriality.
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Why would Congress have intended to create a geographic interpretation that threatens scholarship, art, commerce and consumer activities?
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Under means: “in accordance with.”
15
Derivative Works
Derivative Rights
17 U.S.C. §101: 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”.
Qualitative/quantitative test
Qualitative: creative original expression from the books. 2400 entries contain Rowling's fictional facts. Invented facts are creative expression springing from Rowling's mind
Quantitative: how much copied
Note:
Other tests are bad because the works are in two different genres.
Sub. similarity embraces similarities in structure, sequence and similarity in language.
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Derivative rights extend beyond mere protection against unauthorized copying to include the right to make other versions of, perform, or exhibit the work.
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Recasting the work encompasses more than reproduction. By removing the images from the book there is a recasting or transformation.
Nimmer: [A] work will be considered a derivative work only if it would be considered an infringing work if the material which it has derived from a preexisting work had been taken without the consent of a copyright proprietor of such preexisting work
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An alternation that includes or consumes a complete copy of the original lacks economic significance and is not a derivative work.
Derivate work examples in 101 all incorporate the underlying work. Legislative history indicates that it must include a portion of the copyright work in some concrete or permanent form.
Fictional Characters
Test 1: Copyright protection extends to characters—both literary and graphic— that constitute "the story being told" in a work. Warner Bros. v. Columbia
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A character is not copyrightable under this test where “the character is only the chessman in the game of telling the story.”
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This is a high bar, since few characters so dominate the story such that it becomes essentially a character study.
Test 2: A character is entitled to copyright protection if
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The character has physical as well as conceptual qualities;
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The character is sufficiently delineated to be recognizable as the same character whenever it appears and displays consistent, identifiable character traits and attributes; and
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The character is especially distinctive and contains some unique elements of expression.
DC Comics v. Towle (Batmobile)
16
Moral Rights
Moral Rights
Berne §6bis(1)
Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.
No recognition of Moral Rights in the U.S. except:
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Misrepresentation claim under theories of common law libel, defamation, and unfair competition (both state and Lanham Act); or
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VARA
VARA’s limited moral rights:
(1)(A) Claim ownership in a work of visual art;
(1)(B) Prevent use of name as author in a work of visual art;
(2) Prevent use of name as author in the event of distortion, mutilation, or other modification if prejudicial; and. . .
(3) Subject to the limitations in 113(d):
(A) Prevent any intentional distortion, mutilation or other modification; and any intentional distortion mutilation or modification is a violation of that right
(B) Prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction is a violation
§106(A) “Work of Visual Art”
(1)Painting, drawing, print or sculpture
Existing in a single copy; OR
In a limited, signed and numbered run of less than 200 or fewer copies
(2) Still photographic image produced for exhibition
Existing in a single copy; OR
In a limited, signed and numbered run of less than 200 or fewer copies
§106(A) “Work of Visual Art” does not include:
(A)(i) Factual depictions (not including expressive photographs); motion pictures or other audiovisual works; or literary works
(ii) Merchandising or promotional materials
(B) Works made for hire
(C) Works not subject to copyright protection
17
Public Performance & Display
Public Performance and Public Display
§106(4) Literary, musical, dramatic and choreographic works, pantomimes, and motion pictures and other audiovisual works
§106(6) Sound recordings by means of digital audio transmission
Public Performance
§106(4) Literary, musical, dramatic and choreographic works, pantomimes, and motion pictures and other audiovisual works
§106(6) Sound recordings by means of digital audio transmission
Public Display
§106(5) 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
§101 Perform
Recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.
§101 Display
Show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show images nonsequentiality
§101 Publicly
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To perform or display it at a place open to the public or at a place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
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To transmit or otherwise communicated a performance or display of the work to a place [in clause (1)] or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
Limitations on Public Performance and Display:
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§107 Fair Use
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§109(c) Physical Copy Location
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§110(5)(A) “Homestyle” exception
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§110(5)(B) Small commercial establishment
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§110 Misc. exemptions
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§111/119 Compulsory Licensing
§109(c) Physical Copy Location
Owner of a lawful copy. . . is entitled. . . to display that copy publicly, either directly or by the project of no more than one image at a time to viewers present at the place where the copy is located
§110(5)(A) “Homestyle” exception
Communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless
(i)A direct charge is made to see or hear the transmission; or
(ii)The transmission received is further transmitted to the public
§110(5)(B) Small commercial establishments
Nondramatic musical works intended to be received by the general public, originated by a radio or television broadcast station licensed as such by the FCC, or, if an audiovisual transmission, by a cable system or satellite carrier
§110 Misc. Exemptions
(1) Face to face teaching activities of a nonprofit (of lawful copies)
(2) Government or nonprofit distance education
(3) Religious nature or as part of religious services
(4) Nonprofit display or performance
(6) Agricultural or horticultural fair
(8) Blind or handicap persons assistance
(1) Veteran’s organization or nonprofit fraternal org.
Compulsory licenses
§111 Distant, non-network broadcast TV signals
§119 Satellite systems
18
Music
Music
Music composition: sheet music (a literary work)
Sound recordings: fixation in a phonorecord of a specific performance
Infringement requires a violation of:
§106 Owner’s exclusive rights to do and authorize:
1.Reproduce the work
2.Prepare derivative works
3.Distribute copies or phonorecords
4.Perform the copyrighted work publicly
5.Display the copyrighted work publicly
6.Performance of sound recordings publicly by means of a digital audio transmission
§101 ”phonorecords” - 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 machine or device.
Songwriters: initial owner and author
Music publishing company: manage copyright exploitation through copyright assignment
Publishing Administrator: manage copyright exploitation through management
§115 Compulsory License (nondramatic music)
Statutory fee payment permits others to fix their own versions of a musical composition in a mechanical reproduction
1.Cover: recording artist records their own version of a song
2.Existing record is mechanically reproduced in a new medium without agreement
§115 Compulsory License (nondramatic music)
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File notice of intention (NOI) on the owner or the Copyright Office (if unknown)
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Statutory royalty provisions (currently the greater of 9.1 cents per copy or 1.75 cents per minute of playing time)
Note: the §115 procedures are not mandatory. Parties are free to negotiate with one another (Keep this in mind when we look at the Pretty Woman case)
Public Performance Rights
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No compulsory license for public performance
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PROs offer blanket licensing for public performance rights (ASCAP, BMI, SESAC, GMR etc.)
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PROs subject to binding consent decrees from DOJ for price fixing
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Parties can freely negotiate, but if a buyer disagrees with PRO price, they can go to S.D.N.Y. for a binding determination of reasonableness.
Sync Rights
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No compulsory license for synchronization rights (syncing audio to visual)
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Not specifically defined in the Copyright Act, but has emerged through industry practice
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Privately negotiated between parties
Online Streaming
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Ongoing litigation over streaming
Music Modernization Act:
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Compulsory blanket license for digital music
17 U.S.C. § 115(d)(1) as revised by the MWMA, a digital music provider can obtain a compulsory license for “covered activities,” which is defined as “making a digital phonorecord delivery of a musical work, including in the form of a permanent download, limited download, or interactive stream.”
Music Modernization Act:
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Compulsory blanket license for digital music
§ 115(d) as revised, “[a] digital music provider ... may ... obtain a blanket license from copyright owners through the mechanical licensing collective to make and distribute digital phonorecord deliveries of musical works through one or more covered activities.”
Music Modernization Act:
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Compulsory blanket license for digital music
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A digital music provider is immune from claims of infringement under the blanket license
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Failure to obtain the blanket license bars the provider from seeking the license for three years
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Music copyright owners must use commercially reasonable efforts to update the Mechanical Licensing Collective with information about their work
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§ 115(d)(i) covers all musical works ... available for compulsory licensing under this section for purposes of engaging in covered activities,” and “(ii) includes the making and distribution of server, intermediate, archival, and incidental reproductions of musical works that are reasonable and necessary for the digital music provider to engage in covered activities.”
“Sampling” in this context means the actual physical copying of sounds from an existing recording for use in a new recording, even if accomplished with slight modifications
such as changes to pitch or tempo.
“When considering an infringement claim of a copyrighted musical composition, what matters is not how the musicians actually played the notes but, rather, a “generic rendition of the composition.”
Compulsory licenses
§111 Distant, non-network broadcast TV signals
§119 Satellite systems
De minimus Sampling
Some courts: regular de minimus analysis applies (2d Cir.)
Some courts: any reproduction of a sound recording is a slavish copy (6th Cir.)
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Except for nonslavish imitation of the recording
“The Blurred Lines Case was unique, in that the two works at issue did not have similar melodies; the two songs did not even share a single melodic phrase. In fact, the two works did not have a sequence of even two chords played in the same order, for the same duration. They had entirely different song structures (meaning how and where the verse, chorus, etc. are placed in the song) and did not share any lyrics whatsoever.” - McPherson
Just prior to trial, the district court denied Williams and Thicke’s motion for summary judgment based upon the declarations of two musicologists submitted by the Gayes, which were filled with abstract theories, identifying certain remote, seemingly unrelated, factors of alleged similarity. The court dismissed—simply as “issues of fact”—the multitude of dissimilarities in the two works that were identified by Williams and Thicke’s musicologist—including distinct, material differences in the actual melodies of the two songs.”- McPherson
“It appears that the jury in this case was persuaded by a number of factors, including the foregoing similarities that were extraneous to the sheet music, interviews given by Robin Thicke, the number of musicologists that each side had (Gayes: two; Williams and Thicke: one), and the biased lay witness opinion. Not one of these factors had anything to do with any perceived similarity in pitch, rhythm, or chords, and not one of these factors constituted a proper basis for a finding of copyright infringement.” - McPherson
AHRA - ¶1008
No action may be brought under this title alleging infringement of copyright based on . . . the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings
Note: AHRA exempts general purpose computers. (Why?)
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We will return to time-shifting/space-shifting in Fair Use.
§106(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;
§106(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
§114(a) The exclusive rights of the owner of copyright in a sound recording are limited to the rights specified by clauses (1), (2), (3) and (6) of section 106, and do not include any right of performance under section 106(4).
§114
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This includes transmissions via the internet, satellite, and cable.
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The provision also outlines the statutory license for digital performances of sound recordings for non-interactive internet radio services and other eligible non-subscription services.
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The license sets rates and terms for such performances and is administered by SoundExchange, a nonprofit organization designated by the Copyright Royalty Board.
§114
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Applies to noninteractive services. An interactive service is one that:
Enables a member of the public to receive a transmission of a program specially created for the recipient, or on request, a transmission of a particular sound recording, whether or not as part of a program, which is selected by or on behalf of the recipient.
Note: interactive services must negotiate a direct license.
§114 Eligibility is based on:
(1)not cooperating in efforts by the transmission recipient to engage in automated scanning intended to result in the selected of a particular sound recording for transmission to the recipient;
(2)not pre-announcing the schedule on which particular songs will be transmitted; . . .
§114 Eligibility is based on:
(3)including various sorts of information about the sound recordings being transmitted, to the extent technically feasible; and
(4)not violating the “sound recording performance complement.”
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Direct Infringement
Infringement
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Not enumerated in the Copyright Act
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Direct Infringement :
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Ownership of a valid copyright (§102); and
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Copying of protectable expression (violation of §106)
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Secondary Liability :
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Contributory Liability (assisting or encouraging infringement)
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Vicarious Liability (benefit from infringement and have the right or authority to stop it)
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ISPs
The DMCA
§512(k)(1) of the DMCA of 1998
“Service provider” is ”an entity offering the transmission, routing, or providing of connections for digital online communications. . . without modification to the content of the material sent or received.”
§512 of the DMCA of 1998: General OSP Obligations
1.Adopt and reasonably implement a policy for terminating repeat infringers
2.Inform Users of this Policy
3.Not interfere with “standard technical measures”
§512 of the DMCA of 1998: Safe Harbors
1.Transitory digital network communications
2.System Caching
3.Storing information on its system at the direction of users
4.Providing information location tools like hypertext links
§512(a) Transmitting or transiently storing
(1) User Initiation;
(2) Automatic technical process;
(3) Service Provider does not select recipients;
(4) No non-ephemeral copies made; and
(5) No modification of the transmission.
§512(b) System Caching
(1) Made available online by a person other than the OSP;
(2) Transmitted through the OSP system or network to a recipient at the recipient’s direction;
(3) Automated;
(4) For the purpose of making it available to other users;
(5) No modification of materials;
(6) With access controls;
(7) Must disable access upon take down notice or court order striking from originating website.
§512(c) Storing information on its system at user direction
§512(d) Providing information location tools
(1) Infringing material hosted on its servers on behalf of users;
(2) Designate agent for take downs;
(3) ID Agent to Copyright Office; and
(4) Make take down agent’s info publicly available.
§512(c)-(d) Safe Harbor Limitations
(1) Actual knowledge of specific infringing material or awareness of facts and circumstances of infringing activity, unless OSP acts expeditiously to remove or disable access;
(2) OSP obtains direct financial benefit and has the right and ability to control the activity*
§512(c)-(d) Notice and takedown
(1) Specific alleged infringing material;
(2) Information to locate the material;
(3) Based and verified on a “good faith belief” that the material is infringing;
(4) signor must attest under penalties of perjury owner authorization; and
(5) subject to damages if the signor knowingly materially misrepresents that the material or activity is infringing
Affirmative Monitoring
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DMCA does not require affirmative monitoring
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Willful blindness must regard a specific instance of infringement
§ 512(c) safe harbor: “infringement of copyright by reason of the storage [of material] at the direction of a user.”
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ISP must show that the infringing material was stored “at the direction of the user.”
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If it meets that threshold requirement, the service provider must then show that (1) it lacked actual or red flag knowledge of the infringing material; and (2) it did not receive a “financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.”
Copyright holders must consider Fair Use under §107 when submitting §512 Takedown
1.Purpose and character (criticism, comment, news reporting, teaching, scholarship or research)
2.Nature of the copyrighted work
3.Amount and substantiality of the portion used
4.Effect on potential mark or value
§512(c)(3) OSP Obligations on Notice
(1) Respond with reasonable dispatch to notices and take the material down; and
(2) expeditiously remove, or disable access to the material
Provides total immunity to liability for any claims based on the OSP’s good faith takedown
§512(g) Counternotice
(1) Identify the material taken down;
(2) state under penalty of perjury a good faith belief that the take down was a result of mistake or misidentification;
(3) consent to the jurisdiction of the federal dist. ct. of the notifying party’s contact address (or where the OSP is)
Party submitting a counter-notification who knowingly materially misrepresents that the material was removed by mistake is liable for damages, including costs and attorney’s fees §512(f)
§512(g) OSP Obligations on Counternotice
(1) OSP must notify complainant; and
(2) restore the material within 10 days unless it receives notice of a lawsuit
§512(h) Subpoenas
(1) Authorizes subpoenas ordering the ID of individuals who have posted the material; and
(2) requires expeditious disclosure
Note: no OSP shelter from equitable relief. If OSP invoked a defense, they waive their immunity and must defend against a claim of secondary infringement
§512(g) OSP Obligations on Counternotice
(1) OSP must notify complainant; and
(2) restore the material within 10 days unless it receives notice of a lawsuit
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Fair Use
Fair Use
§107 . . . the fair use of a copyrighted work, . . ., for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1)The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2)The nature of the copyrighted work;
(3)The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
(4)The effect of the use upon the potential market for or value of the copyrighted work. . .
(1) Purpose and Character
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News, productive use, one factor
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Every right to seek to publish information first, but cannot exploit the headline value of infringement
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Commerciality ways against fair use
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Every commercial use is presumptively unfair
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Fair use presupposes good faith and fair dealing
(2) Nature
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Unpublished historical narrative (factual work)
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Some quotes convey facts, others take individualized expression
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The work was confidential and the author took steps to protect it
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Nation took clandestine actions to acquire
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Right of first publication protects the choice and form of the publication.
(3) Amount and substantiality
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Nation took “the heart of the work”
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Copied verbatim = strong evidence of infringement and value of the pirated copied material
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13% of the total work infringed
(4) Potential Market
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Rare case of actual harm (canceled k)
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Presumption of market harm for unpublished works
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Normally need only show potential market harm
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Congress has not authorized a compulsory license for unpublished works of public figures
§107 . . .
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.
"I have always felt that with the advent of all of this new technology that allows people to tape the 'Neighborhood' off-the-air ... they then become much more active in the programming of their family’s television life. Very frankly, I am opposed to people being programmed by others. My whole approach in broadcasting has always been ‘You are an important person just the way you are. You can make healthy decisions’ ... I just feel that anything that allows a person to be more active in the control of his or her life, in a healthy way, is important.” – Testimony of Fred Rogers
Parody: mimics another’s work to comment or criticize on the original
Satire: mimics another’s work to comment or criticize on another
Transformativeness: Whether the new work merely supersedes the objects of the original creation or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extend the new work is “transformative”
The heart of any parodist’s claim to quote from existing material is the use of some elements of a prior author’s composition to create a new one that comments on that authors works. Parody needs to mimic to make its point, whereas satire can stand on its own two feet.
(1) Purpose and character
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Sony is not a per se rule that commerciality is per se unfair
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Intent is irrelevant, the fact that they sought permission doesn’t matter to the analysis
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The relevant market is derivative rap parodies, not derivative rap versions of the original
(2) Nature
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Not relevant in parody analysis
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Parody must copy and strike at the heart of the original to succeed
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Whether a parodic character may reasonable perceived or whether parody is in good taste does not and should not matter (Why?)
(3) Amount and Substantiality
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Varies with purpose and character
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Quantity, quality and importance matter
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Merely copying the heart of the work without changing anything is more likely a superseding use
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The parody springs from allusion to its object through distorted imitation
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Must conjure the original to make the object of its wit recognizable
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It is the heart at which parody takes aim
(4) Potential Market
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No presumption or inference of market harm is appropriate for anything beyond mere duplication
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Market harm is a matter of degree. A lethal parody kills demand for the original, but this is not harm under the Copyright Act
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Parody must aim at garroting the original, destroying it commercially as well as artistically
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No protectable derivative market for criticism. Owners cannot claim it to stop critical reviews of their product
The Vice of Circular Reasoning
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“[T]he right to seek payment for a particular use tends to become legally cognizable under the fourth fair use factor when the means for paying for such a use is made easier.
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This notion is not inherently troubling: it is sensible that a particular unauthorized use should be considered “more fair” when there is no ready market or means to pay for the use, while such an unauthorized use should be considered “less fair” when there is a ready market or means to pay for the use.
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Thus, “the vice of circular reasoning arises only if the availability of payment is conclusive against fair use.”
Dissent
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CCC is neither traditional nor reasonable, its development into a real market is subject to substantial impediments
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A market will not crystalize unless courts reject fair use argument that Texaco presents but under the statutory test we cannot declare a use to be an infringement unless there is a market to be harmed.
Criticism – ““traditional, reasonable, or likely to be developed market[]”
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Copyright owners may not preempt exploitation of transformative markets, which they would not in general develop or license others to develop, by actually developing or licensing others to develop those markets. Thus, by developing or licensing a market for parody, news reporting, educational or other transformative uses of its own creative work, a copyright owner plainly cannot prevent others from entering those fair use markets. Castle Rock v. Carol Publ’g