The Copyright Act
In the United States, most of the rules of the road for copyright can be found in one location: the Copyright Act. While some of the Act's provisions are elegantly simple (e.g., section 107 -- fair use) others are complicated enough to make a grown lawyer cry. Some of the key provisions of the Act that we cover in class are:
Section 101 -- Definitions: This section contains the important definitions for understanding what is and what is not covered by copyright law. Among the important definitions in this section are "copies," "collective work," "derivative work," "display," "fixed," "joint work," "perform," "pictorial, graphic, and sculptural works," "publication," "publicly," "useful article," and "work made for hire."
Section 102 -- Subject Matter of Copyright: Lists eight categories of works of authorship, specifies that copyright protection requires originality and fixation, and excludes ideas, proceduress, processes, methods, and discoveries.
Section 106 -- Exclusive Rights in Copyrighted Works: Lists the rights held by copyright owners, including the right to reproduce, to prepare derivative works, to distribute copies of work, to perform the work publicly, and to display the work publicly.
Section 106A -- Rights of Certain Authors to Attribution and Integrity: Sets out the moral rights protections for particular visual works of recognized stature under the Visual Artists Rights Act.
Section 107 --Limitations on Exclusive Rights/Fair Use: Codifies the four factor fair use test from the common law.
Section 109 -- Limitations on Exclusive Rights/Exemption of Certain Performances and Displays: Provides several specific safe harbors for the performance and display of copyrighted works.
Section 117 -- Limitations on Exclusive rights/Computer Programs: Creates certain exceptions that allow users of computer software without infringing on the software copyright.
Section 201 -- Ownership of Copyright: Assigns copyright ownership to "authors."
Section 203 -- Termination of Transfers and Licenses Granted by the Author: Governs termination of transfers of copyright for transfers executed after January 1, 1978.
Sections 302, 303, and 304 -- Duration of Copyright: Sets the length of copyright protection. Incorporates the 20 year extension of copyright under the Copyright Term Extension Act.
All of these sections of the Act and others can be downloaded at http://www.copyright.gov/title17/
Copyright in the News
Copyright keeps changing, from legislative proposals to amend the Coypright Act to new technologies offering both greater and less copyright protection. I'll post examples of copyright in the news here from time to time, particularly newsworthy items that are too recent to have made into our casebook.
- Can a monkey be an author? A lawsuit from PETA says so, contending monkeys own the copyright to their own selfies.
- One of my favorite anecdotes to pass along in this class is that the song "Happy Birthday" is under copyright and that you are technically infringing this copyright when you sing it in a public place. That is why when you celebrate your birthday at a restaurant, the restaurant workers will only serenade you with an alternative birthday song, not the original, so that they cannot be accused of copyright infrignement. It turns out that some new historical evidence suggests that the happy birthday song has an older date of creation that once thought, and may be in the public domain.
- Right now there is a sharp divide between hard copy books and e-books. E-books typically come with licensing terms attached that prevent you from reselling them to others. Some contend that this violates copyright's "first sale" doctrine. New initiatives by Apple and Amazon suggest that the courts will have to resolve this question.
- A new phenomenon getting some attention in the IP world is "copyright trolls"--those who engage in multiple copyright infringement lawsuits for works they own but did not create or even intend to license to others. Is it a bad thing to have entities like these using the legal system or are these "trolls" just has helpful in creating innovation in the copyright legal system and incentivizing creation as any other copyright litigant. Here's an article on the practice.
- Digital technology is posing challenges for longstanding copyright principles like the first sale doctrine. Copyright holders are turning to self-help to prevent subsequent uses of their copyrighted works, even when those uses might have been considered acceptable under the old physical model. Here's an article talking about anti-piracy measures now being built into video games to prevent unauthorized uses. Are such measures a problem?
- One thing I talk about on the first day of class is the ethical choices we make in our use of copyrighted material. Here is a cartoon that represents the moral choice we make when we want access to a copyrighted work, but the only access point we have seems inconvenient or exorbitant in cost. Is it immoral to violate copyright law in order to experience a creative work if there is no other way to experience the work without breaking the law?
- We cover termination of transfers in class #7. At least according to one law professor, it's his vote for the worst provision in all of copyright law. Is he right? Does it really rest on a view that authors are too irresponsible to adequately make long-term deals for themselves?
The exam for this course is worth 80 percent of your grade. You will have 3.5 hours to complete the exam. The exam is an open book, open note test. You should answer the questions based on the readings for the course, my lectures, and the materials in the final exam. You must not conduct any independent research. You are allowed to and may want to bring a calculator. Approximately half of the exam will be made up of an issue spotting/essay question. You will be asked to identify legal issues and then apply the facts provided in the essay question to those issues. The other half of the exam will be made up of multiple choice questions. A sample multiple choice question is provided below:
Goneril is an artist who makes digital artwork. She posts all of this artwork for sale on her website, Goneril.com. The website lists a price for digital copies of each individual artwork. If a viewer uses their credit card to pay that price, Goneril emails them a copy. Code within each digital copy purchased prevents the user from making further copies of the artwork. Regan purchases several of Goneril’s artworks off of the website. She talks to her friend, Cordelia, an expert computer programmer, who writes and gives her a computer program that overrides the protective code embedded within Goneril’s artworks. Cordelia also posts the program for download on a technology website. As a result, shortly thereafter hundreds of unauthorized copies are made of Goneril’s artwork. Which of the following statements regarding liability under the DMCA is correct?
(A) Only Cordelia is liable under the DMCA.
(B) Only Regan is liable under the DMCA.
(C) Both Cordelia and Regan are liable under the DMCA.
(D) Neither Cordelia nor Regan are liable under the DMCA
Some Good Study Aids for Copyright
So here are some supplementary material you might be interested in to aid your understanding of copyright. Some of them are available in the Law Library and some are not. First and foremost, however, you should focus on your casebook, the assigned sections of the Copyright Act, and my lectures. And I am always available for discussions outside of class about the things we are learning in class.
Mary LaFrance, Copyright Law in a Nutshell (West Publishing, 2008). This hornbook provides thorough and pretty easy to understand discussions of copyright law. You can find this book in the Law Library's collection of study aids, which is located on the bookcase on your right as you enter the library. Call number: KF2994. L43 2008
Marshall Leaffer, Understanding Copyright, 5th ed. (LexisNexis, 2010). This is a new detailed study aid going above and beyond what you find in the Nutshell. You can find this book in the Law Library's collection of study aids, which is located on the bookcase on your right as you enter the library. Call number: KF2994. L43 2010
Roger E. Schechter & John R. Thomas, Principles of Copyright Law (West 2010). This is a new, very detailed hornbook for copyright. It's probably not something you would want to read straight through. Instead, it can be a good resources if there is one particular concept or subject area of copyright that you are having some difficulty with and want some more information on.
Stephen Fishman, Copyright and the Public Domain (Law Journal Seminars Press 2008). This book focuses on what is covered by copyright and what is not. It is a good resource if you are trying to figure out whether a particular item is covered by copyright or if you are doing research for a paper in this area. The book can be found at call number KF 3022. F57 2008. Also, an updated version is available online. Contact Beth Adelman in the library to get the password for the online version.
Sample Jury Instructions
Here are some sample jury instructions that might be distributed in a typical copyright case on the issue of infringement. Note how difficult the concepts of probative and substantial similarity are to explain to a jury as you look as sample instructions 7-10:
Proposed Instruction No. 7
establish that some copying took place, the plaintiff must show by a
preponderance of the evidence both that:
1. The defendants had access to the plaintiff's copyrighted bears; and
2. There is substantial similarity between the works when compared in their entirety including both protectable and unprotectable expression.
Defendants' Proposed Instruction No. 8
Defendants admit only to having access to the plaintiff's New Teddy, Valent, Prince, Cub bears, but not the plaintiff's other bears.
In order to prove that the defendants had access to the plaintiff's other bears, the plaintiff must prove by a preponderance of the evidence either that the defendants actually viewed plaintiff's bears or had a reasonable opportunity for such a viewing.
However, access is not enough to find copyright infringement.
Defendants' Proposed Instruction No. 9
SUBSTANTIAL SIMILARITY FOR PROVING COPYING
If you find that the defendants had access to the plaintiff's bears, then you must also consider whether, there is substantial similarity between the overall appearance of the plaintiff's and defendants' bears. The plaintiff must prove by a preponderance of the evidence that an ordinary observer would find the defendants' bears and the plaintiff's bears to be substantially similar.
There is no exact yardstick for measuring when two works are substantially similar for proving copying. Nevertheless, here are some guidelines that should help you: Substantial similarity for proving copying can be shown where an ordinary observer observing the two works would conclude that the likeness between them is great enough to give rise to an inference that the defendants copied from the plaintiff's work.
In considering the bears from the viewpoint of the ordinary observer, you must consider who is the bears' intended audience. If you find that the intended audience for the plaintiff's bears is one that is particularly perceptive in distinguishing the differences between the plaintiff's bears and defendants' bears -- such as might be the case with collectors if the plaintiff's bears are directed to collectors -- then you must evaluate whether the two bears are substantially similar from the viewpoint of that audience.
If you determine that an ordinary reasonable person would find substantial similarity for proving copying and you determine that defendants had access to plaintiff's work, then you may conclude that some amount of copying of the plaintiff's work took place. That does not mean that any copyright infringement has occurred, however.
If you determine that there was no access or no substantial similarity for proving copying, then you must conclude that the defendants did not infringe the plaintiff's copyrights. If this is your conclusion, then you will have no further need to consider the question of copyright infringement.
Your determination of whether or not the defendants engaged in copyright infringement must be made for each of the plaintiff's nine copyrighted bears based on a comparison with each of the styles of the defendants' bears.
Defendants' Proposed Instruction No. 10
INFRINGEMENT INVOLVES COPYING OF ORIGINAL ELEMENTS
If you find that, as to any of the defendants' bears, the defendants copied any of the plaintiff's copyrighted bears -- by finding both access and substantial similarity in the overall appearance of the bears -- then you must consider whether that defendants' bear infringes the copyright of the plaintiff's bear that was copied. In order to prove copyright infringement, the plaintiff must prove by a preponderance of the evidence that the defendants copied elements of original and protectable expression in the plaintiff's bears. This is referred to as substantial similarity for proving infringement.
Substantial similarity for proving infringement is not the same as substantial similarity for proving copying that I explained to you earlier. The difference is this; substantial similarity for proving infringement requires you to compare only those elements of plaintiff's work that you find original. You must not consider the elements of the work that are not plaintiff's original work or are not protectable.
Substantial similarity for proving infringement can be shown where an ordinary observer observing the two works would conclude that the original elements of plaintiff's works and the corresponding elements of defendants' works evoke a substantially similar total concept and feel that arises from a common creative arrangement and interaction of the original elements.
However, it is important to remember that, even if the defendants took ideas from the plaintiff's work, that does not prove copyright infringement. Copyright protection extends only to the expression of the ideas in the author's work, but never to the ideas themselves. In this case, the idea of a soft sculptured plush bean-filled bear that can be posed cannot be afforded copyright protection. Only those elements of the plaintiff's bears that involve original expression of such a bear can be copyrighted.
Copyright protection does not extend to elements of expression that are common to a soft sculptured plush bear that can be posed. Elements such as legs, arms, and a torso are necessary to the expression of a plush bear and cannot be protected by copyright. An author can only copyright the combination of these elements and only when the combination is an original expression of the author. If you find that plaintiff has not imparted an original expression to any or all of these elements in view of other bears, or the plaintiff's contribution is only a trivial variation of a prior bear, then those elements into which the plaintiff has not imparted an original expression or which represent only a trivial variation of a prior bear cannot be considered in determining the extent of plaintiff's copyright.
Copyright protection does not extend to elements of expression that existed in the public domain prior to the creation of plaintiff's work that the plaintiff had access to. That is, if you determine that, before the plaintiff made its bears, the plaintiff had access to another author's bear having torso, arms, and legs substantially similar to those claimed by the plaintiff, then the plaintiff cannot claim copyright protection over the torso, arms, and legs. If you find that plaintiff's bears draw heavily from the public domain, then unless the defendants' bears are virtual or identical copies of plaintiff's bears you cannot find copyright infringement.
Plaintiff is entitled to copyright protection only for those elements of the bears that are original and protectable. If you find that plaintiff's New Teddy is a pre-existing work upon which plaintiff's other bears were developed, then, for those bears, only those elements, such as the symbols embroidered on their chest, that are not found in New Teddy are original works entitled to copyright protection. Similarly, if you find that Old Teddy is a pre-existing work upon which New Teddy was developed, then, for New Teddy, only the elements of New Teddy that are original and not found in Old Teddy -- such as facial features -- are entitled to copyright protection.
You must decide what, if any, elements of plaintiff's bears are original and protectable expressions. Only if you find by a preponderance of the evidence that the defendants' bears are copies of those elements of the plaintiff's bears that you find are original and protectable expression, may you find that the defendants' bears infringed the plaintiff's copyright.