1.Copyright
(CR) protects original works of authorship including literary, dramatic,
musical, and artistic works such as poetry, novels, movies, songs, computer
software and architecture.
2.CR
does NOT protect facts, ideas, systems, or methods of operation
3.CR
may protect the way things are expressed.
4.Copies
of all works under CR protection that have been published in the U.S. are
required to be deposited in the Copyright Office within three months of the
date of first publication.
5.Reasons
to Register CR
a.
To
have facts on public record and certificate of registration.
b.Eligible
for statutory damages and attorney’s fees.
c.
Prima
facie evidence if registered w/in 5 years of publication.
6.Registering
CR
a.
Application
Form
b.$30
fee
7.Deposit
a.
Unpublished
– one copy
b.Published
– two copies
c.
Photographs
for visual works
8.Works
created after January 1, 1978 are not subject to renewal.
9.Architectural
works became subject to CR protection on December 1, 1990.
10.Only the
transferee (by will, by inheritance) can register CR in a diary.CR is the right of the author of the
work or the author’s heirs or assignees, not the one who owns the physical
work itself.
11.The creator of
an original expression in a work is the author.The author is also the owner of CR unless there is a
written agreement by which the author assigns the CR to another person or
entity, such as a publisher.In
cases of works made for hire the employer or commissioning party is
considered to be the author.
12.Publication
a.
The
distribution of copies or phonorecords of a work to the public by sale or
other transfer of ownership, or by rental, lease, or lending.The offering to distribute copies or
phonorecords to a group of persons for purposes of further distribution,
public performance, or public display constitutes publication.A public performance or display of a
works does not itself constitute a publication.
b.Publication
occurs on the date on which copies of the work are first made available to
the public.
c.
Publication
is not necessary for CR protection.
d.Publication
occurs at the discretion and initiative of the CR owner.
13.The owner may
transfer all or part of the rights in a CR work to another.
14.Not
copyrightable:
a.
Names
b.Titles
c.
Slogans
d.Short
phrases
e.
Ideas
f.Concepts
g.
Systems
h.
Methods
15.Fair Use for
commentary, criticism, news reporting, and scholarly reports.
16.Change in own
work to make a new claim of copyright:
a.
Substantial
and creative
b.More
than just editorial or minor changes
c.
New
derivative work
17.You cannot claim
CR to another’s work unless you have the owner’s consent.
18.CR notice is now
optional.
19.Royalties
a.
Private
arrangement between author and publisher
b.Copyright
licensing organizations
c.
Publications
rights clearinghouses
20.CR protects the
original photograph, not the subject of the photo.
Copyright
Duration
1.Works
created after January 1, 1978
a.
Life
+ 70 years
b.Joint
work – 70 years after life of last surviving author
c.
Anonymous,
Pseudonymous, Works for Hire
i.95 years from year of 1st publication; or
ii.120 years from year of creation; whichever expires 1st
2.Created
but not published before January 1, 1978
a.
Life
+ 70 years
b.No
expiration earlier than December 31, 2002
c.
If
published before December 31, 2002, the term will not expire before December
31, 2047.
3.Pre
1978 works in original or renewal term, total term extended for 95 years from
date of original CR.
CR
Basics
1.Bundle
of rights
a.
Exclusive
Rights
b.Distribution
c.
Display
d.Reproduction
2.Right
to create and distribute
3.Sect.
106 – Exclusive Rights
a.
Public
Performance
b.Recordings
c.
Separate
Right of Performance
4.Exclusive
v. Non-Exclusive Transfers
5.Limited
duration, then falls to public domain
6.Constitution,
Article I, Section 8
7.Trends
a.
Increase
in CR duration
b.Increase
in CR extensions
c.
New
technologies forcing CR to adapt
Amendments
to the 1976 Act
1.Visual
Rights Recording Act (1990) – Moral Rights
2.Architectural
Works Protection Act (1990) – Buildings
a.
Applies
to buildings created on or after December 1, 1990
b.Also
applies to unconstructed works as of 12/1/90 up to 12/31/02 (must be under
construction by 12/31/02)
c.
Complies
with Berne Convention
d.Standard
features (windows, doors…) are not CR
e.
2
Step Test – See House Report
i.Original Design Elements
1.Shape
2.Interior
Elements
ii.Functional Requirements – If not functionally required, then
CR
3.Is
a church CR?
a.
Post
& beams are not CR – Purely functional
b.Cruciform
shape of cross not CR
c.
Shape
of Steeple?
4.Is
a bridge CR?
a.
Pedestrian
walkways not CR
b.Houses
& office buildings CR
c.
Individual
units inside malls are not CR
d.Habitable
structures, garden structures, churches, garden pavilions generally CR
e.
Intersections,
bridges, canals, dams not CR
5.Limits
a.
Sect
120
b.Owner
of a house may modify/add features to a house
c.
May
distribute pictures of buildings without permission
Copyright
of Characters
1.Characters
can be Trademarked
2.Nichols
Test
a.
J.
Learned Hand
b.Detailed
Characters can be CR
c.
But
not all chars. Can be CR
d.Stock
chars. Can be CR
e.
Can’t
protect ideas
f.Need Expression
g.
Idea-Expression
Dichotomy
h.
Vague,
sliding scale
3.9th
Circuit Sam Spade Test
a.
Warner
Bros. V. CBS
b.Is
there CR outside of story in Maltese Falcon?
c.
Char.
must be constructive of story being told; not just a chess piece in a plot
d.“Story
being told” Test
e.
Much
more restrictive test – perhaps over restrictive
f.Protects chars less than 2nd Circuit
g.
No
char CR unless vehicle of story being told
h.
May
CR Sam Spade
i.May not CR idea of any detective story being told
4.Walt
Disney v. Air Pirates (1978)
a.
Clearly
more CR protection
b.Distinguish
from Sam Spade Test
c.
Comic
book characters easier to protect
d.Drawn
chars easier to protect
5.Anderson
v. Stallone
a.
Derivative
work
b.Sequel
to Rocky III
c.
Are
Chars independent of movie?
d.CT
– Passes 2nd and 9th Circuit Tests
e.
Chars
are so developed and central to story, they are central to “story being told”
6.Conclusion
a.
Characters
per se are entitled to CR protection outside of the story in which they
appear
b.2
Major Tests
i.Nichols Test – Specificity Test
ii.Warner Test – Story Being Told Test
1.Does
not apply to pictured characters
2.Only
applies to characters in words
c.
Easier
to CR cartoon char than literary character
d.KEY:Apply both tests
7.James
Bond MGM v. American Honda
a.
CT
– Character is CR
b.Visually
depicted character
c.
Both
Nichols and Warner Tests applied and satisfied
d.CR
based on movie character, not literary character
e.
Film,
TV, cartoon chars easier to protect
f.Realm of Protecting idea
g.
Shows
broadness of protection
8.King
Features v. Fleischar (1924)
a.
Barney
Google & Spark Plug – Cartoon Chars
b.Protects
chars
c.
Goes
from expression to idea zone
9.Detective
Comics v. Burns Publications Inc (1940)
a.
Superman
v. Wonderman
b.CT
– CR infringement
c.
Protects
expression
d.Also
protects idea of superhero
e.
Key:Protectable expression
f.Ideas can’t be CR, but judge tends to lean towards idea at
times
Government
Works
1.Any
work of U.S. Government prohibited from CR
2.Fed.
Gov’t employees may hold CR if created on own time
3.Gov’t
may own CR by assignment
4.West
Case – Order and arrangement CR
5.Contracted
work by Gov’t may be CR; depends on public interest
Mitchell
Bros v. Cinema Adult Theaters
1.AV
works CR
2.Producers
claim theater illegally showed movie
3.D
claims obscene materials not CR
a.
Unclean
Hands
b.Equitable
Defense
4.DC
– Accepts Equitable Defense
5.5th
Circuit Appeals Court – Not judge of taste; overturns
6.Obscenity
standards based on local standards
7.CR
is federal
8.See
also Devil Films v. Nectar Video – Different outcome
Authorship
1.Conception
– Whoever comes up with idea of work
2.Execution
– Whoever made work
3.Financing
– Whoever funded work
4.Adrien
v. Southern Ocean County CC (1991)
a.
Concept
v. Execution
b.Adien
Conceives idea of map
c.
Carolyn
Haines contracted to create the work
d.Issue:Is Adrien the author?Who is the author of the map?
e.
Concept
is author
f.Haines is only tool to the expression
g.
Maps
CR based on 1790 Act
h.
Cartography
is an art form, selection and arrangement
i.Thin CR protection – Facts/Data
Works
Made for Hire
1.See
H.R. 5107
2.EXAM
a.
Made
by employee within scope of employment; OR
b.Specifically
commissioned works with numerous requirements; AND Express written Instrument
(Works made for hire agreement)
3.Work
for hire – Original Own
4.Assignment
– Transfer of Work
5.See
Sections 201, 201(b) – Unless previously written agreement “not for hire”
then generally considered “work for hire”
6.CCNV
v. Reid – EXAM
a.
Dispute
over material of sculpture
b.No
written agreement
c.
Authorship
– Original owner
d.Ownership
– May be transferred
e.
Agency
Law basis
f.Tests
i.Right to Control
ii.Actual Control
iii.Agency Law – SC application
iv.Formal Salaried employee test
g.
Factors
i.Control – Limited
ii.Block payment
iii.Ability to select own assignments
iv.Used own tools/instrumentalities
7.Carter
v. Helmsley-Spear
a.
Was
sculpture work made for hire? Yes
b.Visual
Artists Rights Act (VARA)
i.Authors protected from altering, defacing,…
ii.But lose rights under work for hire
c.
Seems
to deny VARA
d.Factors
most persuasive to CT
i.Benefits
ii.Taxes
iii.Control of Means
iv.Skill
v.Additional Projects
8.Aymes
v. Bonelli
a.
Swimming
Pool Inventory Software
b.TC
– Work for Hire
c.
AC
– Independent Contractor
9.Avtec
v. Peiffer – Independent Contractor
10.Cramer v.
Crestar – Work for Hire
11.Fine line between
Independent Contract v. Work for Hire
12.Teacher
Exception
a.
Exception
to the Work for Hire Doctrine
b.May
or May not exist under the 1976 Copyright Act
c.
Academic
writings may be teacher’s own CR
d.Argument
over whether exception exists
13.Specially
Ordered/Commissioned Works – Lulirama v. Axcess
14.Work for Hire
Agreements
a.
Sect
101(2) – Timing
i.Commissioning Timing
ii.Commissioning party pays creator
iii.When work created
b.Schiller
– Precedes Creation
c.
Playboy
– Meeting of the Minds; Looser requirement
Joint
Works
1.Sect.
101 Definition – Each joint author has an equal and undivided interest in the
work either can license, but must split the revenues accordingly.Prepared by two or more authors.
2.Thompson
v. Larson
a.
No
Joint Authorship
b.Stringent
Test – Childress v. Taylor
c.
Should
have written agreement to prove joint authorship
d.Percentage
of authorship not discussed
e.
Test
– Co-Owner must establish
i.Each joint author contributed to the work
ii.Each fully intended joint authorship
3.Rights
a.
Right
to use.
b.Right
to license.
c.
Equal
and undivided interest.
d.Obligation
to account for profits to other author(s).
4.Intention
– Difficult test to meet
a.
If
there is no written agreement, the use 2 Prong Test
i.Each co-author made individual copyrightable contribution;
and
ii.Each co-author fully intended to be co-author.
b.See
Childress v. Taylor – Old but valid test
c.
Thompson
v. Larson upholds Childress
d.Not
just subjective
e.
Must
look at overall relationship
i.Billing
ii.Credit
iii.Decision making
iv.Right to enter into Contract
f.Intent is incumbent upon dominant party to prove
Transfer
of Copyright Ownership
1.Sect.
101, 201, 204
2.Copyright
is treated as a bundle of rights
3.Rights
can be transferred separately, divisible
4.Sect.
106 – Bundle of Rights
5.Principle
of Divisibility
6.Intangible
Property Rights
7.Definitions
a.
Sect
101 – Transfer of CR ownership; does not include a non-exemplary license.
b.Sect
201 – Transfer of ownership – how you transfer CR – 201(d)
c.
Sect
204 – Execution of Transfer of CR ownership
i.Requires writing – memo, note,…)
ii.Effective Negotiation such that owner will not accidentally
give away rights
Copyright
Transfer by Operation of Law
1.Community
Property
a.
Is
a spouse entitled to Joint Ownership in CR?
b.In
re Marriage of Susan and Fred Worth (1987) Cal. - Federal Copyright does not
preempt State Community property laws
c.
Rodrigue
v. Rodrigue (1999) Louisiana – National uniformity trumps state community
property laws
2.Hypo
a.
N
gives T exclusive license to translate into Italian.
b.Is
this valid?No
c.
Writing
- Note or memo required to validate transfer
3.Benefits
for Exclusive License
a.
Permits
standing to sue for infringement
b.See
BMI v. CBS
4.Effects
Associates v. Cohen
a.
Movie:The Stuff
b.Ownership
of special effects footage license issue
c.
Issue:Has there been a transfer of CR
ownership/license?
d.CT
– Written note required for transfer
e.
Right
to use footage in movie
f.Implied license – Non Exclusive
g.
Implied
by conduct of parties
h.
Cohen
does not infringe; but is liable for breach of contract
i.Keys
i.Can have implied non-exclusive license
ii.May not have implied exclusive license
Recordation
of Transfers
1.Recorded
at CR Office
2.Providing
Notice
3.Includes
Sect 101 licenses and assignments
4.Lends
certainty and predictability to law
5.Enclose
Transfer
a.
Original
or sworn signed copy
b.Send
to CR Office
c.
Pay
Fee
d.CR
Office records and enters
e.
Sect
205(c)
6.Grants
priority over conflict transfers as long as property is recorded
7.National
Peregrine, Inc. v . Capitol Federal Savings and Loan
a.
Must
record with CR Office
b.Preempts
state laws – can’t file at state level
Scope
of Transfer
1.Transfer
Ownership or Right to Use
2.Right
to do one of exclusive rights of owner
3.What
is being transferred?
4.What
is the scope of transfer
5.Construe
contract to identical items included in transfer
6.Cohen
v. Paramount Pictures
a.
Licensing
Issue
b.Worldwide
Television broadcast
c.
Synchronization
License
d.Way
to use music to film
e.
Synchs
music to frames in film
f.Chain of Title
i.Cohen
ii.“Merry Go Round” Composition
iii.H&J Pictures Synchronization License
iv.Paramount Pictures “Medium Cool” film
g.
Interpret
scope of license
h.
What
has been transferred to Paramount Pictures?
i.P Cohen claims no right to distribute video included in
license
j.CT – Agrees with Cohen & reverses DC decision
i.Not in the meeting of the minds
ii.NO new technology transfer
7.Boosey
& Hawkes v. Disney
a.
Fantasia
– Movie
b.Stravinsky
CR in foreign countries held by Boosey & Hawkes
c.
1939
Agreement
i.$6,000
ii.Non-exclusive
iii.Manner, medium, rule
d.Issue:Does license cover distribution
abroad?
e.
License
Para 7:Licensor reserves all
non-expressly granted rights
f.Moves into area of contract law – Reservation Clause
g.
CT
not impressed
h.
ASCAP
Condition
i.D – Limits preference to ASCAP licensed theaters
ii.CT – Boilerplate; no real applied meaning
i.Contract – Assignment v. License
8.Contrasted:Cohen and Boosey
a.
Different
Contracts – Scope of Grants
b.9th
Circuit gives more weight to reservation clause in Cohen
c.
2nd
Circuit gives less deference to reservation clause
Duration
of Copyright Ownership
1.Duration
– How long can Copyright Last?
2.Constitution
– “Limited times”
3.1976
Act – Life + 50 years
4.Sonny
Bono Term Extension Act – Life + 70 years – Only applies to works created
after 1978
5.Debate
a.
Protection
is too long
b.Keeps
work out of public domain
c.
Can’t
benefit other authors
d.Deters
creativity
6.Policy
– Constitutional Question
a.
How
long should CR last?
b.Protect
authors v. encourage creativity
7.Renewal
a.
Paternalistic
Rationale
b.Permits
authors to renegotiate Contracts and Bad Bargains
c.
Protects
Authors, heirs, and statutory beneficiaries
8.1909
Act Renewal
a.
File
renewal registration with CR office
b.Technicality
– if not filed, then not renewed
c.
Issue:Can author assign renewal expectancy
before term vested?
i.Fred Fisher v. Witmark (1943)
ii.Yes, Author can validly assign interest in CR
d.Death
prior to vesting – renewal right goes to statutory beneficiaries
e.
Corcovado
Music v. Hollis Music
i.CT narrows in construction purports to assign renewal terms
ii.May assign renewal term, but must make CLEAR assignment
iii.“Perpetual Right”
iv.Scope of License Argument
f.Saroyan Case - Estranged wife/children inherit rights over
other assignments
g.
Vesting
Term – Applies to works published before 1964
i.Marascalco – Survive through 1st Term
ii.Frederick Music – Author or Assignee alive to renew term
Duration
Wrap Up
1.1976
Act drops 2-term renewal process
2.Picks
up life + term
3.Fairness
to Authors
4.Entry
to Berne Convention
5.1998
Sonny Bono Term Extension Act
a.
Adds
20 Years to term
b.Total
20 + 47 = 67 Years
6.Works
published prior to 1964 had to file renewal registration in the 28th
year of CR, or else work fell into PD
7.1992
Amendment to the 1976 Act
a.
Automatic
renewal amendment
b.January
1, 1964 – December 31, 1977
c.
Does
not apply to pre 1964 works
d.Automatic
CR
e.
No
rights lost
8.Today
– Fewer ways to lose CR
9.Author
can assign rights in renewal term before rights vest
10.Limit on
author’s right to assign – must survive until renewal term to vest
11.Case law –
unclear about 28th year renewal term
12.Automatic
Renewal Provisions - Renewal vests on either of 2 dates
a.
When
registered/filed; or
b.At
beginning of renewal term
13.1976 Act does
not resurrect works that have fallen into PD
14.95 Years
a.
28
Years for 1st Term
b.28
Years for Renewal Term
c.
19
Years Extension
d.20
Years Sonny Bono Term Extension Act
Duration
Review
1.Duration
Issue Spotting
a.
Copyright
Protection
b.Term
c.
Expiration
2.Public
Domain
3.4
Categories of work
a.
Pure
1909 Works – Not on EXAM
i.Publication with CR Notice
ii.Does not extend to 1976 Act
iii.28 year Initial Term +
iv.28 year Renewal Term – Not Automatic; must Validly renew
v.56 Years Total
vi.Survival – In last year of initial term and renewal filed
b.1909
– 1976 Works
i.28 Year Initial Term +
ii.47 Year Renewal Term – Pre Sonny Bono Act
iii.75 Year Total
iv.OR
v.28 Year Initial Term +
vi.67 Year Renewal (47 + 20 Sonny Bono Act)
vii.95 Year Total
viii.1992 Amendment
1.Some
works have automatic/voluntary renewal – 1964-77
2.Some
works have voluntary renewal – Prior 1964
3.Preferable
to Voluntarily Renew
ix.Vesting at time of voluntary renewal – 1964-77
x.Types of works benefiting from automatic renewal – 1964-77
xi.Works published before 1964 – No Automatic Renewal
xii.1909 Act – Unclear on Survival requirement – 28 or 29 years
c.
1976
– 1/1/1978
i.No 2 Term issues
ii.No Renewal issues
iii.Life + 70 Years
iv.Sect 302(a)
v.Wrinkles – EXAM
1.Sole
Author
2.Joint
Author
3.Work
for Hire
vi.Joint Work – Sect 302(b) – 70 Years + Life of longest lived
author
vii.302(e) – Presumption of Author’s death
1.95
years after publication date; or
2.120
years after creation date
d.Created
and NOT published/CR before 1/1/78
i.Sect 303 – Life of Author + 70 years
ii.Ex) Lincoln’s papers found in 2001
1.Life
+ 70; but
2.Sect
303 protection extends to 12/1/02
3.If
published before 2002, CR extends to 12/1/47
Renewal
for Works Made for Hire
1.Employer
or proprietor gets renewal rights
2.Paternalistic
laws don’t apply to employers
3.Renewals
& Derivative Works Example
a.
A
– Author of underlying work conveys Initial term of CR & Movie/Derivative
Work to B
b.B
– Creates movie and owns movie Copyright
c.
C
– Statutory beneficiary renews CR – either A or C can renew
4.“New
Estate Theory” for Renewal
5.Stewart
v. Abend
a.
Rear
Window Case
b.Author
granted movie right assignments to Hitchcock & Producer
c.
Author
agrees to assign renewal rights; but dies before vesting
d.Executors
gain rights; assigns rights to Abend
e.
Property
of derivative works limited rights if there has been a reversion of the
underlying work to author/heirs
f.Creates problem with person who obtains rights to works.
g.
Limitations
i.Subject to CR prior to 1/1/1978
ii.Written outside work for hire
iii.Renewal term not effectively conveyed – ex) author dies
prior to vesting term
iv.Renewal claimant must file timely
6.Russell
v. Price
a.
Public
Policy Issue
b.Derivative
Work – Film called Pygmalion
c.
License
granted to create film – Valid license
d.Problem:Derivative film CR falls into
PD.Author licensed distribution
rights to another.
e.
Underlying
work is not yet in PD
f.Only owner of underlying work can use derivative work
a.
Applies
to transfer or license of CR on or after any right under CR on or after
1/1/1978
b.By
Author
c.
Of
Any CR right
d.Does
NOT Apply to
i.Transfer/license in works made for hire; and
ii.Dispositions made by will
4.Who
can Terminate
a.
Author
b.Joint
Work – Majority of authors who execute grant
c.
Dead
Author – Majority of statutory owners
d.If
one of many authors is dead, then term interest of that author is exercised as
a unity by statutory owners of term right
Ownership
of Shares
1.Assuming
Author is Dead
2.Widower
with no children – Widow owns 100%
3.Widow
with Children
a.
Widow
owns 50%
b.Children
split remaining 50% - Per Stirpes
c.
Children
and Grandchildren exercise Per Stirpes
d.Widow
must get beyond 50% to terminate grant
When
Termination Takes Place
1.At
any time for period of 5 years starting at the end of 35 years from date of
execution of grant; or
2.If
grant covers publication right, period starts either 35 years from
publication, or 40 years from grant.See Sect 203
How
to Terminate – Sect 203(a)(4)
1.Serve
written notice
2.Between
2 – 10 years before effective term
3.Must
state effective date of termination
4.Must
comply with CR Office regulations
5.Must
record in CR Office before effective date of termination
Effects
of Termination of Transfer
1.All
rights granted are terminated
2.Rights
revert to those owning
3.Statutorily
changes Pygmalion Case
Further
Grants
1.If
author alive – Author makes further grants
2.If
author dead – Author’s widow or beneficiaries make further grants
3.Multiple
beneficiaries – Per Stirpes
Transfer
of Renewal Interests
1.Not
for renewal rights
2.To
get back extended renewal term rights
3.Additional
19 years of renewal term
4.Given
to 1909 works prior to 1976 and/or 20 years additional – Sonny Bono Act
5.Not
Automatic – Author and/or statutory beneficiaries must take necessary steps
within statutory time limits; or transfer will continue with original grant.
6.Example
a.
Arnie
publishes a novel in 1935; assigns rights in 1936 – “Expectancy”
b.Will
the renewal term vest?
c.
Arnie
must survive until 1963 – (28+35) so renewal term vests
d.Arnie
has no rights in the renewal term; given away, vested
7.Sonny
Bono Term Extension Act
a.
1st
bite - If term under Sect 304(c) then may reclaim extra 19 + 20 years
b.2nd
bite – If no term under Sect 304(c) then may recover 20 years
Valid
Notice Termination, Sect 304(c)(4)
1.Formalities
2.Window
3.Filing
4.Notice
5.Sect
304(c) – Author can terminate
Per
Stirpes Termination Rights Examples
1.Husband,
Wife, Child
a.
Husband
dies
b.Wife
owns 50%; Child owns 50%
c.
Both
must agree to terminate (51% ownership must agree)
2.Husband,
Wife, Son, Daughter
a.
Wife
Dies
b.Husband
owns 50%; Son owns 25%; Daughter owns 25%
c.
Termination
right requires Husband + [Son or Daughter]
3.Husband,
Wife, Son, Daughter, D1, D2, D3
a.
Husband,
Wife, Daughter die
b.Son
owns 50%; D1, D2, D3 split remaining 50%
c.
Per
Stirpes requires a Majority
d.Termination
right requires Son + [2 of 3 grandchildren]
4.Statutory
Wrinkle in Sect 304(c)(1) – If someone else owns copyright through another,
then it eliminates the per stirpes process
Timing
1.1935
– Work Published
2.1963
– Copyright renewed
3.1991
– Term Ends; 19 year 1st term begins
4.2010
– 20 Year 2nd term begins; Sect 304(d)
5.2030
– Copyright ends – work falls into Public Domain
Summary
1.Sect
304(c)
a.
For
CR coming into being prior to 1978, one can reclaim extended renewal period
given by the 1976 Act
b.Only
a qualified person can terminate by giving notice 2-10 years prior to the
date within the windows that generally opens at the start of 39 years –
extended renewal date
2.Sect
203
a.
On
or after 1/1/78
b.May
be terminated by a qualified person at any time within 5 year termination
window open 35 years after transaction executed
c.
2-10
year notice prior to date within window
d.See
Table, p. 376
Formalities
1.Publication
2.Notice
3.Deposit
4.Registration
5.Formalities
have decreased over the years from 1909 to the Berne Convention
Publication
and Notice
1.1909
– Strict compliance
2.Publication
central to 1909 Act
3.Focused
on publication
4.Failure
to comply with publication rules à
work falls into Public Domain
5.Divestive
Publication à
Public Domain
6.1976
Act liberalizes notice
7.Berne
Convention – March 1, 1989; Notice no longer required
8.After
1976 Act, C/L CR gone; limited C/L protection available
What
is Publication?
1.Not
defined in 1909 Act
2.Ferris
v. Fishman (1912) – Public performance of spoken drama not publication.
3.La
Cienega (1995)
a.
Sale
of records of song is a publication
b.Impact
– songs recorded and sold without CR no longer protected
c.
Result
– Congressional Amendment overruling La Cienega
4.Does
publication of a derivative work a publication?Probably
Limited
Publication
1.Limited
to a small group of people
2.See
Church of Scientology
3.Not
distributed to the general public
4.Does
not divest under 1909 Act
5.Public
Affairs v. Rickover
a.
Issue:Was this a general publication?
b.Performed
speech
c.
Distributed
to press and others
d.Holding:General Publication
6.Estate
of MLK v. CBS
a.
Publication
w/o CR symbol
b.Estate
argues limited publication
c.
Elements
i.Available to Press
ii.Broadcast on Radio & Television
iii.Excerpts in print, newspaper
d.Examples
of formalities getting in the way
e.
District
Court
i.Clearly general publication
ii.Wide distribution
iii.Unlimited
iv.MSJ à CBS
f.11th Circuit – J. Anderson, See Supplement
i.Limited publication
ii.Only distributed to press
iii.Distinguished from Rickover case
iv.Distributed to a large number of people equivalent to
display in art exhibit
v.Publication Test – KEY – See Supplement p. 26
1.Distribution
to General Public; OR
2.Exhibit
or Display to General Public
vi.J. Cook – Concurring in Part/ Dissenting in Part –
Performance can’t be public
vii.J. Rarely – Dissenting – District Court correct
g.
Seminal
case on limited publication
h.
CR
law is paternalistic – wants to protect the family
7.AMPAS
v. Creative House Promo (1991)
a.
Limited
publication
b.No
divestiture of C/L protection
c.
Picture
published in magazines
1976
Act on Publication
1.Definition
– p. 397; Sect 101
2.Phonorecords
– 1 or more copies distributed in public à
Publication
3.Pre
Berne Convention – p. 402
a.
Sect
405 1976 Act
b.Sufficient
CR
i.Regular work within 5 years
ii.Then reasonable effort to add notice
c.
See
Hasbro v. Sparkle Toys case
i.Deliberate omission of CR
ii.Cured with liberal interpretation of CR
d.Innocent
infringers – Good faith protection, Sect 405, 406
Berne
Convention – March 1, 1989
1.Notice
after Berne – Sect 401(b)(1-3)
a.Ó
b.Year
c.
Name
of Owner
2.Phonorecords
– Sect 402(b)
a.
P
– Circled
b.Eliminates
innocent infringers defense
3.Deposit
after Act
a.
Deposit
original work with LOC, Sect 407
b.Registration
required in Sect 408
c.
Best
edition requirement
General
Public – Limited Occurrences, only 2 situations
1.Tangible
copies of work distributed to general public in way to exercise dominion and
control over work
2.Exhibit
or display so as to permit unrestricted copying by general public
Notice
1.Prior
to 1978
2.Notice
Requirements – If notice failed, CR Lost, divests to PD
a.
1909
Act
b.1976
Pre Berne
c.
Post
Berne
Deposit
Requirement
1.For
LOC Record – Sect 407
2.For
registration – Sect 408
3.Different
registration for S/W, Trade Secrets
4.407
Sanctions
a.
Failure
to deposit within 3 months
b.$250
penalty for each late work
c.
Otherwise,
normal cost - $30 to CR
5.Reasonable
retail price to purchase
Registration
1.Author
2.Exclusive
right in book
3.Published
or unpublished
4.One
deposit serves both purposes
5.Form
– differs depending on work
6.Can’t
sue for infringement until work registered
7.No
damages (statutory, attorney,…) prior to registration
