of Operations Justiciability (§ 501 Legal/beneficial owner of exclusive right? “Arising under” jx?) 46 Statute of Limitations Run? 46 Is Π an Author? 14 Is this a Work of Authorship? 14 Is it a Work for Hire? Employee in Scope or Independent Contractor 15 Formalities – Publication, Notice, Registration 18 Formalities – Deposit, Restoration, Duration, Termination 19 Formalities – Cases, Constitutionality of Term Duration 20 (1) Qualifying Work Under § 102(a)? 3 (2) Is the Work Fixed? 4 (3) Is the Work Original? 5 LIMITATION: Do the Idea/Expression Merge? Scenes a Faire? 6 Derivative Work or Compilation? 8 Useful Articles/PGS. LIMITATION: Physical/Conceptual Separability 10 Architectural Works 11 Computer Programs. LIMITATION: Idea/Expression 12 Characters. LIMITATION: Idea/Expression for Series Characters 12 FIRST! – Exclusive Rights, and Elements of Infringement Claim 21 SECOND! – Copying in Fact 21 Right of Reproduction (Generally, Special Test for Computers, Exceptions) 22 of Distribution (Generally, Distro, Import, First Sale) 24 Derivative Works (Substantial Similarity vs. Substantial Incorporation) 26 Rights (Ownership/Attribution, VARA) 28 Public Performance and Public Display 30 Musical Works and Sound Recordings (Covers, Sampling, AHRA) 32 34 35 DMCA 36 (§ 107) 38 Cultural Interchange 38 Technological Interchange 41 Preventing Market Failure 42 44 46 (DMCA) 50 Contracts, Licenses vs. Transfer/Assignment, Copyright Misuse 52 Preemption 53 COPYRIGHTABLE SUBJECT MATTER WORKS INFRINGEMENT DIRECT AND INDIRECT INFRINGEMENT ONLINE SERVICE SAFE HARBOR FAIR USE CONTRACTS LITIGATION PROCEDURE AND REMEDIES PROTECTIONS CONTRACTS AND PREEMPTION TECHNOLOGICAL
Graphic Characters (Mickey Copyrightable only if delineated in sufficient detail (X One X; Air Pirates) Visual Characters: Copyrightable only if they display consistent, widely identifiable visual characteristics (X One X) Policy Concerns Series of copyrighted projects (MGM) – Can result in exceptionally broad protection James Bond and automobile commercial Interaction with right of publicity when people play characters (Titan Sports) Trademark may be more appropriate Cases – Software Apple Computer v. Franklin Computer (3d Cir. 1983) (holding source code/object code and operating systems are protectable) Computer Associates International v. (2d Cir. 1992) (holding “cleanroom” rewrite of Π’s “adapter” module providing cross operating system compatibility for Δ’s competing scheduling program was non-infringing) Softel v. Dragon Medical & Scientific Communications (2d Cir. 1997) (holding that Δ’s program was Π’s program translated into a different language for different hardware may still be infringing based on compilation analysis of the 4 identified software elements in the case) Cases – Characters Warner Bros. v. X One X (8th Cir. 2011) Public domain posters of Π’s copyrighted films depicting characters from the film Δ makes stuff with images from the posters (noninfringing), stuff with images and catch phrases of characters (infringing), 3d models/dolls of characters (infringing) Analysis – The posters release a very thin version of the characters into the public domain – essentially limited to those specific images and nothing more Argument that the movie developed the character much more than the underlying public domain books Warner Bros. v. CBS (9th Cir. 1954) (holding literary characters must constitute the story being told for copyright) Walt Disney v. Air Pirates (9th Cir. 1978) (holding visual characters must be delineated in sufficient detail for copyright) MGM v. American Honda Motor Co. (CD Cal.) (holding that Π’s copyright in the James Bond character, based on stable aspects of the character throughout the movies, covered Δ’s depiction of a similar (though arguably generic) tuxedoed action figure in a car commercial) Criticism: Distilling character across many works rapidly approaches an idea, concerns about monopolizing the “action hero spy” AUTHORSHIP Generally
to assign additional projects Hired party’s discretion Method of payment Role in hiring and paying assistants Regular course of employer’s business Payment of employee benefits, taxes Note: Based on RSA, RTA §7.07(3)(a) – Employee has a principal that controls manner/means of agent’s performance of work Working Within the Scope of Employment (RSA § 228; Roeslin) Kind of work he is employed to perform Occurs substantially within authorized work hours Actuated, at least in part, by a purpose to serve the employer Note: RTA § 7.07(2) – Performing work assigned by employer, or course of conduct subject to employer’s control. Not when acts occur within independent course of conduct not intended to serve any purpose of the employer. Independent Contractor? Specially ordered or commissioned Within an enumerated category: Contribution to collective work, part of a motion picture/AV work, translation, supplementary work (intro/conclusion, illustration, etc.), compilation, test, answer for test, atlas With written agreement signed by both parties IDing it as work for hire Policy Authors that assign rights after creation (rather than work for hire) can terminate the agreement after 35y – can’t if it is a work for hire Length of copyright is different for hire are ineligible for “moral rights” Employee executed employer’s vision, employer costs/risks Employer is in best position to exploit the work Lower transaction costs – employment benefits in exchange for copyright Cir. teach exception – academic publications are not works for hire Lindsay v. The Wrecked & Abandoned Vessel R.M.S. Titanic (SDNY 1999) Documentary on salvage of Titanic – story boards, drawings, camera angles, shooting sequences, design/fabrication of lighting, etc. Held: Δ is not an author for holding the camera, work represents Π’s original intellectual conception/vision/control Erickson v. Trinity Theater (7th Cir. 1994) Δ stopped paying royalties on the plays Π wrote arguing Δ’s actors are Held: Δ is not a co-author without individually copyrightable contribution – more than directions/ideas, crap about discouraging/encouraging collaborations Aalmuhammed v. Lee (9th Cir. 1999) Held: Π, consultant on Malcolm X, who made substantial revisions, and collaborated to create 2 scenes was not a co-author
Focus on superintendent/mastermind of the work and objective intent of authors to combine the work – 9th Cir. rescues Δ for neglecting to K w/ Π Community for Creative Non-Violence v. Reid (1989) CCNV Reid to make nativity scene with homeless people Held: Reid is an IC, not employee, question whether CCNV is co-author – settled Aymes v. Bonelli (2d Cir. 1992) Aymes hired to create computer programs under Bonelli’s direction, no express agreement re copyrights Focus on bold Reid factors above – Held: Not employee – suggests tax/benefits are dispositive, but NOTE this would be a bad paradigm for start-ups Roeslin v. District of Columbia (D.D.C. 1995) Roeslin writes computer program on his spare time, at his own cost, against supervisor’s orders – massively streamlines duties (but duties don’t involve programming) – District adopts program and asserts ownership in it Held: Not work for hire because outside scope of employment (even though made to benefit employer) FORMALITIES Analysis – Publication, Notice, Registration, Deposit, Duration Determine which Act Applies Published before Jan. 1, 1978 1909 Act Published before Mar. 1, 1989 1976 Pre-Berne Published Mar. 1, 1989 1976 Post-Berne Publication 1909 – Publication when copyright owner consents to sale/dissemination of original or tangible copies to the general public, or an authorized offer to do same 1976 – “Publication” is the distribution of copies of a work to the law public by sale or other transfer of ownership, or offer to do same. Public performance does not in and of itself constitute publication If Π claims common law copyright due to no publication, often takes huge publication for court to recognize – if Π claims publication under statute, courts easily find publication (American Visuals (2d Cir. 1956)) Distribution to a select group for a limited purpose is not publication Public performance generally not publication (King – 200k people) Same for distributing architectural plans for a bid Distribution to news media = select group for limited purpose (King) Forfeiture occurs when work is available to the public at without regard to who they are/what they do with it Notice 1909 Act Symbol (©) or “Copyright” Name of the copyright date of first publication