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Copyright Basics Cohen 2013

Fixation

Copyright Protection 102(a): To be copyrightable a work must be fixed in a

tangible medium of expression. Fixed when:
1. Embodied in a copy or phonorecord
2. By or under the authority of an author
3. Sufficiently permanent or stable to permit it to be perceived,
reproduced or otherwise communicated for a period of more
than transitory duration
o

The word "fixed" comes up in both establishing rights and in protection for several
reasons:
- Written evidence is required easier to prove, i.e. SoF for contracts, etc
- Fixation aids dissemination and preservation, promotes the progress of science
to the public
- Lets authors know if a license is needed
- Constitutional writing demands fixation
- Pre-1976 needed to be published to get a copyright, thus necessarily fixed.

o Copies 101: are material objects other than phonorecords in which a work is fixed by any method not
known or later developed, from which the work can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device
o Phonorecords 101: are material objects in which sounds, other than those accompanying a motion
picture or other audiovisual work, are fixed by any method now known or later developed, and from
which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with
the aid of a machine or device.

o Live Broadcasts 101: Live broadcasts are "fixed" if a fixation of the work is occurring
simultaneously with its transmission
DEFENSE: IF DEFENDANT DIDN'T MAKE A COPY BY FIXING IT, NO INFRINGEMENT
o words spoken aloud at a seminar can be copied and independently copyrighted by all,
if they not previously fixed
o See Cartoon Network v. CSC Holdings (buffering fixed bc 1.2 seconds is too
"transitory" and thus did NOT violate plaintiffs' exclusive right of production)
o But see MAI Systems Corp. v. Peak Computer (loading copyrighted software into RAM
qualifies as fixation because the program is written into the RAM until the computer
is turned off)
Counterargument is that loading software into RAM is equal to skywriting, or
writing a poem in sand or on frost of a windowpane
The Digital Millennium Copyright Act of 1998 overrules MAI
o See Williams Electronics v. Artic International the work does not have to be written
down exactly as the eye perceived it. Can be perceived or communicated without
being reproducible where there is code.
All that is necessary is that the work is capable of being perceived with the
aid of a machine
or device
Live Musical Performances:

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o
o
o

civil and criminal remedies to combat bootleg copies of live performances

17 USC 1101: provides a civil cause of action for a performer whose performance was
recorded without her consent
18 USC 2319A: provides criminal remedies to the government

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ORIGINALITY
Original works of Authorship in Feist, the two "sine qua non of copyright"
requirements of originality are:
1. Independent creation:
Independently created work is original (even if strongly resembling another), as
long not copied from another
"Authorship" implies that a human must have created the work (i.e. a video from a
security camera or design pattern produced by a mechanical process are not
copyrightable)
2. Minimal degree of creativity:
The work must also have a de minimis amount of creative authorship, see Bleistein
v. Donaldson
Lithographing Co. (courts will not make aesthetic decisions in deciding
what has artistic merit)
-Cases with too little creativity: usually cases where the plaintiff strained to
Originality Using a Device / Photographs: An author may use a device in a
creative way to produce an original work, BurrowGiles Lithographic; the three
elements for judging originality of a photograph:
[1] rendition, [2] timing, [3] creation of subject
See Mannion v. Coors Brewing Company (copyright protects only the image but
not idea others can photographing the same object or scene BUT if the
photographer creates the subject, then copyrightable
Sweat of the Brow Not Sufficient
But see L. Batlin & Son, Inc. v. Snyder (the plastic copy of the Uncle Sam Bank, which
was in public domain, NOT copyrightable b/c only trivial differences minor changes
in size, and material original)

No copyright on the medium of expression (plastic derivative work of a

metal thing)

Great technical skill does not make up for lack of creativity

Meshwerks Toyota model An accurate digital portrayal of an unadorned

object- NoGo

Exclusions to Copyright 102(b):

o In no case does copyright protection for an 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.
Four distinct categories of non-copyrightable works:
1. Facts and Discoveries: are not created, only discovered by the author
o Feist (factual information, i.e., phone numbers, addresses, and names listed in
alphabetical order, lacked the requisite originality)
o Historical Facts are NOT original works of authorship b/c the facts are not
created, only discovered and recorded
o See A.A. Hoehling v. Universal City Studios, Inc. (historical interpretation of
facts NOT copyrightable)
o See also Nash v. CBS (totally fictional story of Dillinger NOT copyrightable b/c
the author portrayed his work as real history fact)

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2. Function Uses: of language, graphics are NOT copyrightable versus expressive

uses
o Functional Works carry out specific tasks and are not copyrightable because
102(b) precludes copyright protection for "systems, process, and methods
of operation"(i.e. architectural plans and standard legal forms)
o See Baker v. Seldon (system of bookkeeping NOT copyrightable, should get
a patent)
Merger Doctrine: but if the underlying idea (or system, process, or method
of operation) can effectively be expressed in only one way, the idea and
expression are said to have "merged" and the work is NOT copyrightable
o Useful Articles: works embodied in useful objects can be granted copyright to
their form, but NOT the mechanical or utilitarian features
See Mazer v. Stein (using statuettes as lamp base is OK for copyright
protection)
Seperability: if the art can be physically or conceptually identified as
separate from the utilitarian aspects of the article, the design is
copyrightable
Conceptual separability in art is when [1] an original pictorial,
graphic, or sculptural element is incorporated physically into an
useful article but [2] the element is not dictated by the function
of the useful article
3. Abstract Ideas: to prove infringement, the copyright owner must show the
alleged infringer took more than an abstract idea from his work, but copied the
expression of that idea
Scene a faire / Characters
o See Nichols v. Universal Pictures Corp. (NO infringement on common theme of
family and marriage struggle in Jewish family)
J. Learned Hand: 2step test concerning fictional characters in literature: has
the infringer taken the [1] expressive details of [2] an adequately delineated
character rather than the general abstract idea of a character?
o See Also MetroGoldwynMayer, Inc. v. American Honda Motor Co. (James
Bond protected by copyright because the car commercial rendered the two
visual works substantially similar)
Does the character "constitute the story being told?" (collapses
protection of character into protection of plot
o

Computer Programs: [1] copyright can exist in a computer program

expressed in object code; [2] copyright can exist in a computer program
embedded in a ROM; and [3] copyright can exist in a operating system
program basically regardless of form or expressive content, computer
programs are copyrightable
See Apple Computer v. Franklin Computer established
copyright for computer programs, even though Franklin
argued that under Baker v. Seldon, there was only one way to
write the program so it fell under the merger doctrine
-

o Architectural Works:
Constructed Before 1990:
A. For a standing structure, infringement does not occur unless the copier has
reproduced the building's "separable" pictorial, graphic, or sculptural features
that are capable of existing independently of its utilitarian aspects

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B. For architectural plans, not subject to the separability limitation and

copyrightable, but the copyright did not convey a right to control the use of the
plans
Constructed After 1990: Buildings are no longer auto subject to the
separability test:
A. Examine the work to determine if there are original design elements, including
overall shape and interior
B. If the design elements are present, identify which elements are functionally
required if not required, work is protected regardless of any separability test
-

4. Words/short phrases and their meanings are not copyrightable (lack creativity)

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PUBLICATION AND FORMALITIES

WORKS PUBLISHED
BEFORE
1/1/78
Federal protection began on
publication with proper
notice. Publication without
proper notice forfeited work
to public domain

WORKS PUBLISHED
BETWEEN
1/1/78 AND 3/1/89
Notice required for all
published works. If work
published without copyright,
copyright must comply with
cure provisions within 5
years or work forfeited o
public domain

WORKS PUBLISHED
AFTER 3/1/89
Notice is optional.
401 404. Lack of notice still
may allow the innocent
infringer defense.
401(d), 402(d).
-

Publication Under the 1909 Act: Before 1978, federal copyright protection applied
only to published works and was secured at the time the author published a work
with proper copyright notice.
o Forfeiture: forfeiture required a "general publication", which mean the work
was available to members of the public without regard to their identity or what
they intended to do with the work; no forfeiture for "limited publications" where
the work was only available for selected persons and for limited purposes
I.e. if a person sold the story without a copyright notice it would be forfeited but
not if he just
gave it to select members for criticism or journalists

Compare Academy of Motion Pictures and Sciences v. Creative House

Promotions, Inc
(distributing 158 Oscars was a limited publication
because restrictions were implied)
No Oscar had ever offered to transfer an Oscar to the public
Each Oscar was personalized
No permission to sell, distribute, or copy from the Academy
With Penguin Books v. New Christian Church (copyright was invalid b/c
material published without notice prior to copyright date)
Distributed uncopyrighted material to a lot of people, even
unknown people
No limitations on the distribution of the uncopyrighted course
manuscript
Performance Publication BUT Public Display = Publication
Compare Nutt v. National Institute Inc. For The Improvement of
Memory (a private
performance before getting copyright did NOT
dedicate the material to the public)
With Letter Edged in Black Press v. Public Bldg Commission (a
public display of art
before copyright)
The 1909 Act excused the copyright owner if he tried to comply with the notice
requirement but by accident or mistake did not provide notice on particular copies
Must have attempted to comply, no excuse if the author didn't know
Excuses only a small number of copies
But cannot recover damages from an innocent infringer without notice
Publication Under the 1976 Act: For works published between Jan. 1, 1978 to Feb.
28, 1989, copyright was expanded to [1] include unpublished works,and [2] began
as soon as it was fixed in a tangible medium of expression.

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Notice on publications still required but omission did not invalidate the
copyright if:
Notice only omitted from a small number of copies, OR
Work was registered within 5 years of publication and there was a
reasonable effort to add notice to exiting copies, OR
Notice was omitted by a licensee despite an express contract to do so
See Hardwick Airmasters, Inc. v. Lennox Industries, Inc. (copyright invalid even
when 3rd party omitted copyright b/c author did not try to fix the problem)
Performance or Public Display Publication
Copyright owner cannot recover damages from an innocent infringer without
notice
After March 1, 1989: US removed the copyright formalities to fit the Berne
Convention; a copyright holder "may" use a copyright notice
If there is notice, a D cannot raise innocent infringement defense
Form of Notice 401(b) (and 1909 Act) requires a copyright notice to have: [1]
either the copyright symbol , the word "copyright," or the abbreviation "copr."; [2]
the year of first publication of the work; and [3] the name of the owner of the
copyright.
But see Goodis v. United Artists Television (when a magazine publishes individual
author's work, the copyright notice in the name of the magazine is OK to secure
copyright for author)
Deposit 407: [1]two copies of the best edition of every copyrightable work
published in the [2] United States be sent to the Copyright Office [3] within 3 months
of publication, [4] to be made automatically.
o NOT a condition of copyright only a fine if not deposited
o Function is to provide the Library of Congress via the Copyright Office with copies
and phonorecords of all published works within the United States.
o Deposit may be accomplished without registration
Registration 408412: A copyright does not need to be registered before it may
be infringed, but the owner of that copyright must register the copyright before a
federal court can hear an infringement suit for works originating from U.S.
o But works originating from Berne countries do not have to be registered for an
infringement suit
o Registration requires deposit
o Registration provides prima facie evidence of valid copyright 410(c)
BUT only if registration was within 5 years of publication
o Work must be registered to recover statutory damages and attorney's fees
412
o Derivative works that are not registered do not get subject matter jurisdiction
from the registered work it was derived from
See BrewerGiorgio v. Producers Video, Inc. (could not add claim of
infringement on an unregistered script that was a derivative work of a
registered book)
Copyright on a script is an entirely new and different than the infringement
of the copyright of a book, and it does not arise out of the same conduct,
transaction, or occurrence
Works Published
Works published between
Works published
Before 1978
1/1/78 and 3/1/89
after 3/1/89

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Requireme
nt

Prerequisit
e to
Bringing
Infringeme
nt Suit?
Other
Incentives

Optional until last

year of first term,
but now
mandatory for
works published
before 1964
Yes, during both
terms of copyright

Optional 408

Optional 408

Yes 411

Yes for U.S. Works,

except actions
brought under
106(A)(a). 411. No
for non-US Berne
works. 411
Same as left for both
U.S. and non-U.S.
works. 412.

Except for actions under

106(A) or 411(b), statutory
damages and attorneys fees
only available if work is
registered before infringement
began, or work was infringed
within 3 months of publication
and registration made within 3
months of publication. 412

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OWNERSHIP

Initial Ownership 201(a): copyright vests initially in the author or authors of the
work; authors of a joint work are coowners of copyright in the work
Sole Authorship 101: the author is the party who actually creates the work (the
person who translates an idea into a fixed, tangible expression entitled to copyright
protection)
See e.g. Andrien v. Southern Ocean County Chamber of Commerce (copy shop
working under author's authority so NOT an author)
Fixed when: "its embodiment in a copy . . . by or under the authority of the
author, is sufficiently permanent . . . to permit it to be . . . reproduced."
Joint Owners 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.
[1] 2nd and 7th Circuits also require each author must have the further intent to
acknowledge the other authors as coauthors
9th Circuit (Aalmuhammed): authors must have [1] intent (same as 2nd and 7th
Cir.), but also
[2] in a movie the author must have artistic control,"superintendence,"
or"inventive mastermind"
[3] Each author must contribute more than a de minimis amount of copyrightable
material to the work
Each joint owner has an undivided interest in the work, each can use or license
the entire work, with only obligation to share profits and cannot give, sell, or
grant an exclusive license to the entire work
If a person makes independent copyrightable contribution but denied status as
coauthor, person is given an nonexclusive license and compensation by
quantum meruit (reasonable)
Ownership of Works Made for Hire 201(b): In the case of a work made for hire, the
employer or other person for whom the work was prepared is considered the author.
Definition of Works Made for Hire 101: [1] a work prepared by an
employee within the [2] scope of his or her employment; OR [3] a work
specially ordered or commissioned foruse asa 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 instructional text, as a test, as answer
material for a test, as an atlas, IF the parties expressly agree in writing and
signed by them that the work shall be considered a work made for hire.
[1] Prepared as an Employee: Limited definition of employee means a master
servant relationship, examined based on five criteria, see Community for
Creative NonViolence v. Reid (sculpture was NOT a work of hire b/c the sculptor
was NOT an employee but an independent contractor, thus a coowner)
(A) Control of manner and means of work: sculptor had all the control
- Hiring of assistants: sculptor hired his own assistants
(B) Skill required: only on part of the sculptor
- Source of tools required to make: sculptor supplied his own tools in his
own studio
(C) Method of payment: paid a flat sum instead of regular employee
benefits
(D)Tax treatment: sculptor paid his own taxes

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(E) Duration and scope of relationship: worked for only a limited time
on a single project
- Not part of master's regular business
[2] The Scope of Employment: examine three criteria to see if
work was prepared in the scope of employment, see Avtec Systems,
Inc. Peiffer (computer program made by employee was NOT in scope of
employment)
(a) Type of work the employee was hired to do?: even though
software programming was what the employee was hired to do
(b)Work created during the time and space of employee's job?: the
employee created the work afterhours and in his own house

(c) Employee was motivated by a purpose to serve the

employer?: and the employee was not motivated to further the corporate
goals
[3] Commissioned Works: A commission for hire must [A] fall into one of the
101 categories, and [B] must be expressly agreed to in writing
See Gaiman v. MacFarlane (P was not an employee and the work was not a
commissioned work, so P was an independent contributor)
- ** not sure Cohen assigned this case. Come back to it.

Governments and Legal Works:

U.S. Government 105: The U.S. federal government cannot own copyright in
works prepared by federal government employees in the course of their official
duties
Ok to own copyright obtained by transfer, unless one of its employees
could have done the work (cannot use independent contractors to
circumvent the law)
State Government: 105 does not apply to state governments but statutes,
ordinances, regulations, and judicial opinions are inherently noncopyrightable
Legally Binding and Privately Drafted Works: privately drafted codes enter
the public domain when enacted into law see Veeck v. Southern Building Code
Congress (privately drafted model building codes enter the public domain when
enacted into law)
Public policy and long tradition that people own the law b/c public must
be able to access and use freely
Also the merger doctrine applied b/c the building codes could only
be expressed in one way

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TRANSACTIONS

Divisibility 201(d)(2): any of the rights specified in 106 may be transferred and
owned separately
BUT 1909 Act the bundle of sticks was indivisible, but you can give licenses
Transfer 204(a): Under the 1976 Act, exclusive copyright transfers need to be
in writing and signed by owner of rights, including assignments, mortgages,
exclusive license, BUT nonexclusive licenses can be transferred orally
See e.g. Effects Associates v. Cohen (industry practices of Hollywood allowed
for an implied nonexclusive license)
BUT 1909 Act (all grants executed before 1978) only required the total transfer
(sale or assignment) to be in writing, but no requirement for exclusive or nonexclusive
licenses
Recording 205: For a cause of action that arose before 3/1/89: recordation is
a prerequisite to an infringement suit; but after 3/1/89: recordation NOT
required to bring an infringement suit

205(
d)

Priority
Between:
- Any
conflicting
transfers,
including
assignments
and exclusive
licenses

Who Prevails:

Other Reqs:

- first transferee if he records within 1

-must be registered
month of agreement, after 1 month
in addition to
its a race to record
recorded
-BUT must be in good faith (i.e. has
constructive notice or actual notice of
prior transfer) and cannot be transfer
without consideration (i.e. gift or
bequest)
205(
-transfer
-nonexclusive licensee over a
e)
between
transferee (assignee or exclusive
transferee and
licensee) only when : [1]
nonexclusive
nonexclusive license in writing and
licensee
licensed before transfer, OR [2] after
transfer but before recording of
transfer and license in writing, good
faith, and had no notice of transfer
Interpreting Copyright Agreements: No set form, but most agreements contain: (1)
royalties, (2) duration, (3) geographic scope, (4) manner in which work can be exploited,
(5) termination circumstances, (6) name on copyright, (7) who is responsible for bringing
infringement suit if needed
Scope of Media: usually based on language of the contract, intent of parties, and
use of the media in the particular industry
New Media Technologies: some courts use a strict literal reading of contract
terms, others place the burden on the licensor to show the terms of the license do
not extend to the new medium
Compare Cohen v. Paramount Pictures (distribution by means of TV
does not include a VCR) with Bartsch v. Metro Goldwyn Mayer, Inc.
(transmission by cinematography analogous to live telecast
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Open Source Software Licensing: open source software licenses are copyright
licenses
See Jacobsen v. Katzer (open source software is copyrightable so the open source
license can specify the extent to which "copying" is permitted and under
what terms and conditions)

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DURATION OF COPYRIGHT
Works:

Date of
Protectio
n
Fixation

Natur
e of
Term
Unitary
term

Created but
not
published
before
1/1/78
Created
before
1/1/78 but
published
before
1/1/2003
Works
published
between
1964 and
1977

1/1/1978

Unitary
term

1/1/1978

Unitary
term

When
published
with
notice

dual
term =
95
total

28 year first term

Published
between
1923 and
1963
Published
before 1923

When
published
with
notice
n/a

dual
term=
95
total
n/a

28 year first term

Created on
or after
1/1/78

Length of Term

Renewal

Basic Term: authors life

Alt term: for anonymous
or pseudonymous or
works made for hire: 95
years from publication or
120 years from creation
Same as above but at
least 10/31/2002 if the
work remained
unpublished as of
12/31/2002
12/31/2047

Automatic renewal
term of 67 years
(renewal registration
is optional but
incentives attach to
renewal registration)
Renewal term of 67
years. But only if
renewal was properly
obtained

Now public domain

Renewal Right Owner:

o Works that came up to their renewal term BEFORE 1964 had to be actively renewed by
author
Author could properly transfer his renewal right to another during the 1 st term if he
used clear, concise,
unambiguous language, Fred Fisher Music
But if author dies before renewal term vests, goes to successors instead of transferee
Spouse or kids
Executor of estate if there is a will
Owner's next of kin if no will or spouse/kids
Work for hire stays w/ owner, does not revert
Statutory heirs can assign away their interest in renewal
Works that came up to their renewal term BETWEEN 19641978 were renewed
automatically w/1 year of original term expiration, with incentives to voluntary
renewal:

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Presumption of validity and ownership

Ownership of the renewal interest based on who is alive as of the date of
the filing
If author assigns renewal right and dies, the interest will go to the transferee if
voluntary renewed, NOT revert to author's statutory heirs
If the author dies w/out voluntarily renewing (renewed automatically), renewal
interest vests at the end of the original period w/his statutory heirs
Transferred derivative rights works end and derivative work owner cannot
further exploit
If not voluntary and auto renewed, derivative work can be exploited during the
renewed term, but no new derivative work can be made

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EXCLUSIVE RIGHTS AND LIMITATIONS

Exclusive Rights 106 and Exceptions 107121: Copyright protection provides

the owner of a copyright with 6 exclusive rights under 106: reproduction,
adaptation, distribution, performance, display, and digital sound recording
transmission, with limitations set out in 107121.
Exclusive Right
106(2) Right to
prepare derivative
works

Limitations
114 (b)
Sound
recordings

112 Ephemeral Recordings

115
Compulsory
license
for
making
and
108 Reproductions distributing
1008 Noncommercial use by
by libraries
and phonorecords
a consumer of digital or
archives

121
recording
device
to
analog
109(a),
(b) Effect
of
Reproduction for the 117
transfer of copy or
blind and disabled
Computer
phonorecord
116 Public performances
109 (e) Effect of
by jukeboxes
transfer of copy or
phonorecord
113 Pictures or
photographs of useful
articles

106(1) Right
of
reproduction
106(3) Right
of distribution
106(4) Right of
public performance

118 public
broadcastin
g
compulsory
license

107 Fair
Use

110 Exemption of
certain
performances and
displays
111 Secondary
transmissions
(cable compulsory
license) 119,122
satellite

106(5) Right of
public display

109(c) Effect of transfer

of copy or phonorecord

106(6) Right of
public performance
by digital audio
transmission

114(d)(j)
public
performance
of
sound
recordings by means of
digital audio transmissions:
limitations and licenses

Reproduction, Distribution, Derivative Rights

Reproduction Right 106(1): Exclusive right to reproduce a copyrighted work in copies

of phonorecords means to fix it in a tangible and relatively permanent form in a
material object.
o Distinguish from general term copying which does not need fixation, i.e.
performance or display
o Compare MAI Systems (youtube videos transmission copies are fixed on server)
with Cartoon Network (youtube videos transmission does not mean copies are
fixed on server
Distribution Right 106(3): Exclusive right to distribute copies or phonorecords of the
copyrighted work to the public by sale or other transfer of ownership or rental, lease,
lending
o Distinguish from general term "copying", distribution only concerns the right to
transfer physical copies or phonorecords of the work
o Distribution to the Public: circuits split, some hold simply by making an
unauthorized copy available to the public (at the library or on the internet)
violates distribution right, others require "actual dissemination", (Capitol Records
Inc. v. Thomas)
o First Sale Doctrine 109(a): The owner of a copy or phonorecord is entitled to

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sell or otherwise dispose of that copy or phonorecord, as long as: [1] copy was
lawfully made with authorization of copyright owner; [2] copyright owner
transferred title of the copy; [3] D is rightful owner of copy; [4] D disposed
of but did not reproduce the copy
See UMG Recordings v. Augusto (first sale defense OK)
[2] must be through sale or gift only, not a license, rental, or
loan: mailing the CDs to
music industry insiders was characterized as a gift
or sale, not a license
-Indication of gift: did not have intent to get CD back (like a
license)
See C.M. Paula Co. v. Logan (first sale OK defense against buying softcover
books, putting them in hard covers, then reselling)
[2][3] lawfully purchased
-Cannot use first sale defense when you buy and use a pirated
copy, even if you didn't
know it was pirated
[4] disposing physically: ok to put hard covers on them and resell
o Rental Exception to First Sale Doctrine 109(b): prohibits owner of [1] a
musical sound recording phonorecord (copy) or computer programs from [2]
renting it to the public [3] for commercial gain (public library OK)
See Brilliance Audio, Inc. v. Haights Cross Communications, Inc. (not
infringing b/c first sale defense applies and the exception did not)
[1] exception is for musical recordings, NOT recordings of literary works
(audiobooks)
o Importation 602(a): bars unauthorized importation of copies or
phonorecords into the U.S. which were made and procured outside the U.S.
(copies made in U.S. protected by the first sale doctrine)
See Quality King Distributors, Inc. v. LAnza Research if a product is [1]
lawfully made in the U.S. and [2] subject to a valid first sale, the
subsequent importation into the U.S. is not prohibited by 602(a)
Right to Prepare Derivative Works 106(2): The adaptation right is infringed when a
3rd party makes an unauthorized [1] derivative work (i.e. a translation, musical, movie)
that: [2] must at least transform, recast, or adapt [3] a portion of the copyrighted
work in some form
See Lee v. A.R.T. Company (buying P's postcards and gluing them on ceramic tiles
did NOT violate derivative right)
[1] the tiles was not a derivative work b/c no intellectual effort or
creativity was required to
glue the postcard to the tile
See Game Genie (altering the performance of a Nintendo game did NOT violate
derivative right)
[2] Nintendo game itself was not recast, transformed, or adapted
[3] Game Genie did not use any part of the game
REDUNDANT: infringing the adaptation right also infringes reproduction right,
performance right, or both (i.e. a play that substantially embodies a copyrighted
book violates both reproduction and adaptation right; if play was performed, also
performance right)
Limits to the First Three Exclusive Rights
o Limits on Musical Works and Compulsory Licenses for Covers 115: Limits
reproduction, adaptation, and distribution rights of musical works copyright
owners by allowing compulsory license for [1] making and distribution of

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phonorecords of [2] non-dramatic musical works that have been [3] lawfully
distributed to the public in the United States; and [4] the licensees primary
purpose must be to distribute the work to the public for private use
- The cover must be faithful to the original work or might infringe the
adaptation right
Limits on Sound Recordings 114(b): Limits reproduction, adaptation, and
performance rights in sound recordings; infringement of a copyright in a sound
recording occurs by: [1] reproducing, rearranging, remixing, or altering it by
mechanical means; but [2] independent fixation is NOT infringement (the world
is free to imitate the work as long as an actual copy of the sound recording is not
made)
Distinguish between the two kinds of copyrightable subject matter that

could be embodied on the same phonorecord: musical work and sound

recording
See Newton v. Diamond (performers were authorized to use the sound
recording, so they were liable only if composition was infringed - and no, b/c
copying 3 notes from the composition was de minimis)

Public Performance and Display Rights

Public Performance Right 106(4): Owner of a copyright in a literary, musical,

dramatic, and choreographic works, pantomimes, and other audiovisual works has the
exclusive right to [1] perform the work [2] in public
o [1] Perform 101: to recite, render, play, dance, or act, either directly or by
means of any device or process (so performing covers initial rendition plus
further transmissions)
Device or process covers transmissions, i.e. radio, television even if reaching
a single person at different times (hotel)
See David v. Showtime/The Movie Channel, Inc. (transmission of signal to local
cable company = public performance, even if D =/= distribute signal directly to the
public)
o [2] Publicly 101: (a) to perform it at a place open to the public, OR (b) a place
where there are substantial number of people gathered outside a normal circle of
friends and family
If Public (clubs, summer camp, office): size and composition of people don't matter
If Private (your bathtub, inviting friends over to watch a movie): look at size and
composition of audience to determine if the performance was public
See Fermata International Melodies, Inc. v. Champions Golf Club (performance was
PUBLIC b/c 21 people gathered at a private golf club was still a substantial
gathering of people)
See Columbia Pictures Industries, Inc. v. Redd Horne, Inc. (PUBLIC performance to
transmit movie to private screening rooms, but not if each room had a VCR, such
as an hotel room)
Public Display Right 106(5): Owner of copyright has exclusive right to [1] display
the work [2] in public, applies to all works except for sound recordings, and architectural
works
o [1] Display: to show a copy of it, either (a) directly, OR (b) by means
of film, slide, TV image, or any
other device or process
See Perfect 10, Inc. v. Amazon.com, Inc. (thumbnails on Google's server violates
display right, but only linking to the image does not)

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[2] Publicly: same meaning as performing right (see above)

Exception 109(c): Notwithstanding the provisions of section 106(5), the owner of
a particular copy lawfully made, or any person authorized by such owner, is
entitled, without the authority of the copyright owner, to display that copy publicly,
either directly or by the projection of no more than one image at a time, to viewers
present at the place where the copy is located
o RESULT: 106(5) IS MAINLY ABOUT TRANSMISSIONS
The Digital Performance Right for Sound Recordings 106(6): gives the exclusive
right to publicly perform sound recordings by means of a digital audio transmission
o Addresses problem of internet transmissions
o Exemptions 114(d)(i):
- Noninteractive, nonsubscription broadcast digital audio transmissions
(i.e. internet radio) and says no license needed at all
-But see Bonneville International Corp. v. Peters ("broadcast" does NOT
cover simulcast
internet audio) so still need to get statutory license
- Digital satellite subscription ONLY IF you get a statutory license AND shit in
114(d)(2)
- Transmissions within business establishments for commercial use as
background music
Limits on the Public Performance and Display Rights 110: (1) facetoface
teaching; (2) instructional broadcast, (3) religious services, (4) certain public
receptions of transmission
o "Homestyle" exemption 110(5): covers all types of works, when performance
is by reception of a transmission on a single receiving apparatus of a kind
commonly used in private homes
- See Cartoon Network LP, LLLP v. CSC Holdings, Inc. (playback of DVR copies
did not infringe plaintiffs' exclusive right of public performance under 106(4)
because each DVR playback was made to a single subscriber using a single
unique copy produced by that subscriber, thus a playback public
performance )
o "Business" exemption 110(5): covers nondramatic musical works, with
limitations on square feet of establishment (640 sq. ft.), number of loudspeakers
and video screens
- See Broadcast Music, Inc. v. Claires Boutiques, Inc. (each individual store must
use a single homestyle piece of equipment
o
o

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INFRINGEMENT ANALYSIS

Infringement: [A party] violated [the copyright owner's] exclusive right [to reproduce,
adapt, distribute, publicly perform, or publicly display] in 106
De Minimis Copying: But there is no liability for de minimis copying, copying so trivial
and insignificant as judged by the ears of the jurors (no bright line rule)
I.e. sampling a 3 note sequence qualifies as a de minimis copying, but using
three words and some
music from a song was infringement
Proving Infringement: to prove infringement, there must be: [1] proof of ownership;
[2] copying in fact by the D; and [3] improper appropriation.
1.
Ownership : To prove ownership, plaintiff must show: (1) originality, (2)
copyrightable subject matter,
(3) compliance with statutory formalities, and (4) the necessary citizenship status
Copyright registration is prima facie evidence of ownership
2. Copying in Fact by the Defendant: The plaintiff must prove actual copying . . .
that D's allegedly infringing work would not exist but for D's exposure to P's work
(absence of independent creation), using evidence of: (a) access and (b) probative
similarity
(a) Access: P can prove access by showing that D had a reasonable opportunity
to view or copy the
work
- The evidence must show a reasonable probability of access, not mere
possibility of access
based on speculation, examples:
Work was available to employees of D
Work was in possession of a 3rd party that had did business with both P
and D
o See also Bright Tunes Music Corp (song had been played so extensively, even
though D may have subconsciously copied the tune, unintentional copying is
still copying)
(b) Probative Similarity (similarity as to mistakes and defects that are
otherwise unlikely)
- I.e. fake phone listings in Feist; Mara's double hairline in Pivot Point
- But copying from a 3rd party's work or natural objects =/= copying in fact
- Access may be presumed when complex works are virtually identical, but
even really similar
commonplace works do not prove access without
additional evidence
3. Improper Appropriation: infringement does not occur unless the D's copying was an
improper appropriation, which means D took a sufficient amount of the copyright
owner's original expression in creating a "substantial similar" work
i.e. copying a purely functional aspect of a useful article is not improper
appropriation
Prove substantially similar work in two ways: (a) verbatim copying and/or (b)
pattern similarity
(a) Verbatim Copying: is easy to show infringement on wholly creative works
such as original poetry or a novel, but harder to distinguish compilations or
historical facts
(b) Substantial Similarity: an infringement is not confined to literal and exact
repetition or reproduction; it includes also the various modes in which the matter of
any work may be adopted, imitated, transferred or reproduced
Difficulty = did D appropriated the author's copyrightable expression or

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the just the abstract

ideas behind the work
Substantial Similarity Analysis (Arnstein v. Porter): did D take from P's
work so much of what
is pleasing to the lay public about it that it will
provide a partial substitute for the original,
thus reducing potential
financial returns for P?
Similarity in Computer Programs (Computer Asso. v. Altai, Inc.):
substantially similar for
compute programs is analyzed using a 3 part
test:
- Abstract the program into various layers of generality, dissecting the
program's structure and isolating each level of abstraction
- (ii) Use merger doctrine to filter out elements of the program that
are dictated by efficiency or external factors such as mechanical
specifications, compatibility requirements (information in the public
domain)
- (iii) Compare remaining elements in two programs

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FAIR USE DEFENSE

Fair Use, generally: Fair use is a defense to copyright infringement, defined as a

"privilege in others than the owner of a copyright to use the copyrighted material in a
reasonable manner without consent"
17 USC 107 Preamble: "The fair use of a copyrighted work, including such use by
reproduction in copies or phonocords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright"
Use falling in one of the 107 categories is favored, but NOT determinate of fair use
Fair use can be defense against unpublished work, Harper & Row
Courts also consider other factors as well, such as lack of good faith, industry custom
or practice
Determining Fair Use: Courts shall use 4 factors in determining if a use qualifies as
fair use: [1] the purpose and character of the use, including whether the use is
commercial nature or is for nonprofit educational purposes; [2] the nature of the
copyrighted work; [3] the amount and substantiality of copyrighted work used; [4]
the effect of the use upon the market or value of the copyrighted work
o See Sony v. Universal Studios (recording TV programs at home for watching later
OK fair use)
[1] noncommercial, nonprofit, and for private viewing of work that was
[2] was broadcast for free
[4] no effect broadcast for free
Emphasized if [1] purpose is commercial use, burden shifts to Dto rebut
presumption [4] effect of the use adversely affect copyrighted original
Dissent says we should favor productive uses that either: (1) benefit
society or (2)create derivative works
o See Harper & Row v. Nation Enterprises (stealing and publishing parts of an
unpublished book NOT fair use)
[1] even though news reporting was a favored use, it was commercial
purposes
[2] protected creative expression (vs. just facts)
[3] large and substantial amount when it could have easily copied
unprotected facts
[4] specific harm (lost profits) was shown
Story was unpublished didn't matter
o See Campbell v. AcuffRose Music, Inc. (2 live crew's parody of Pretty Woman OK
fair use)
[1] commercial BUT
[2] parody or transformative use added independent creative
material
[4] no market harm to the original
o See Princeton University Press v. Michigan Doc. Services (compiling textbooks
NOT fair use)
[1] commercial driven by motive for profit
[2] textbooks clearly creative expression that narrowed scope of fair use
[3] copied large amount and valuable info
[4] harmed book sales and licensing
o See Perfect 10 v. Amazon.com (Google search engine thumbnails OK fair use)

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[1] picture search engine was anew and highly beneficial function
[3] "highly transformative" use
[4] potential harm was hypothetical
See Sega Enterprises Ltd. v. Accolade, Inc. (Accolade disassembled a Sega game
cartridge to reverse engineer a noninfringing program OK fair use)
[1] commercial BUT Accolade's use was intermediate only and productive
in nature
[2] software unique b/c contained unprotected features that could not be
examined without copying the intermediate
[4] did not usurp market, just made noninfringing products to compete
(goal of copyright)
But to be a fair use, it must be necessary (no other way) to disassemble
and copy the intermediate code in order to access the program's
unprotected ideas

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SECONDARY LIABILITY

Vicarious Liability: When the D has: [1] the right and ability to supervise the
infringing activity, and[2] a direct financial interest in such activity (look at how
closely the D's income varies with amount of infringement)
o Knowledge NOT required
o See Fonovisa v. Cherry Auction (flee market owners were vicarious liable)
- [1] Control over direct infringing bootleg CD sellers
- [2] Had a direct financial interest in the infringing activity
Contributory Infringement: When the D: [1] with knowledge of the infringing
activity, [2] causes or materially contributes to the infringing conduct of another
o See Fonovisa v. Cherry Auction (flee market owner contributory liable too)
- The D [1] knowingly [2] contributed to the infringement by providing the
site for the activity
o But see Sony v. Universal (VHS maker not contributory infringer just by providing
equipment that was used to infringe when the equipment was a staple article
of commerce suitable for other substantial noninfringing uses)
o Inducement of Infringement: "One who distributes a device with the object
[intent] of promoting its use to infringe copyright, as shown by clear
expression or other affirmative steps taken to foster infringement, is liable for the
resulting acts of infringement."
- See MetroGoldwynMayer Studios Inc. v. Grokster, Ltd. (liable for copyright
infringement b/c they encouraged consumers to illegally swap copyrighted
works)
Probative evidence of intent:
- Grokster marketed towards previous Napster users a known source
of demand for
copyright infringement
- Advertising income increases as traffic (which is mostly infringing)
increases
- Failure to develop filtering tools to diminish infringing activity
J. Ginsburg: to qualify under Sony, must show "a reasonable prospect
that substantial or
commercially significant noninfringing uses were likely to
develop over time"
J. Breyer: 10% lawful downloading would be adequate for a substantial
noninfringing use
where there is a prospect of expanded legitimate uses over
time
DMCA Safe Harbors 512: limits liability for 4 express types of online service
providers
1. "transitory digital network communications" (i.e. transmission services)
2. "system caching" automatic copying to provide continued access e.g. when
network is clogged
3. "information residing on systems at direction of users" (i.e. web hosting)
4. "information location tools" (i.e. search engines)
o Companies that comply with 512 are protected from contributory infringement
and vicarious liability but not complying doesn't mean they are automatically liable
o To comply with 512(i)(1): a online service provider must:
- [1] reasonably implement a policy of terminating subscribers and account
holders who are repeat infringers
BUT 512(c): a service provider shall not be liable for monetary relief if it:
Had no knowledge of infringement

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Acts expeditiously to remove, or disable access to, the material when it

(a) gets actual knowledge, or (b) is aware of facts or circumstances
that make infringement apparent, or (c) has received notification of
infringement
-[2] accommodate and not interfere with standard technical measures (i.e.
watermarking, encryption)
DMCA device liability 1201(a)(2), 1201(b): Cannot make or offer devices that are:
[1] primarily designed or produced for the purpose of circumvention; [2] has only
limited commercially significant purpose or use other than circumvention; or [3] is
marketed for circumvention
See United States v. Reimerdes (D's program that unscrambled the CSS code which
encrypted DVDs was primarily intended to circumvent the DVD protection does
not violate the 1st Amendment b/c 1201(a) was a contentneutral law and
whatever burdens it put on free speech were proportionate to the government's
legitimate interests)
1201 Exceptions:
No exception for circumvention in order to make fair use (or other exceptions
to exclusive rights in copyright)
Reverse engineering exception 1201(f): can circumvent access control
measure to computer program to "identify and analyze those elements of the
program that are necessary to achieve interoperability of an independently
created computer program with other programs." (i.e. Sega v. Accolade)
Other minor exceptions: nonprofit libraries, archives, educational institutions
for acquisition purposes; law enforcement; encryption research
New specific exceptions added in 2009:
Audiovisual works on DVDs, to incorporate short excerpts for educational
use, documentaries, noncommercial films
"Jailbreaking" phones to enable them to run apps not authorized by phone
maker
Cell phone computer programs, for the purpose of switching service
providers
Video games, for purposes of testing security vulnerabilities
Computer programs protected by obsolete dongles

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REMEDIES
Damages 504: a copyright infringer is liable for either the copyright owner's actual
damages AND any additional profit the infringer made, OR statutory damages
o Actual Damages 504(b): A plaintiff can "recover the actual damages
suffered by her as a result of the infringement," generally equal to the profits she
would have accrued but for D's infringement
- See Banff Ltd. v. Express, Inc. (actual damages was not proven b/c P offered
little probative evidence suggesting Express would have actually bought
sweaters)
P's products sold at significantly higher prices, thus a different market
P could not have supplied the 40,000 knockoffs D bought
No business relationship between P and D
o Infringers Profits 504(b): An infringer's profits are calculated as [1] the gross
sales of infringing goods (P's burden), [2] minus the costs (D's burden)
attributable to the production
- See e.g. Caffey v. Cook (infringement nonwillful, so D can deduct her cost
from the damages amount, including income tax from profit)
- Apportionment: can reduce the percentage of recoverable profits by
showing the success of the infringing product was due to other factors
(i.e. infringing movie that is successful b/c plot changes, famous actors,
good marketing)
- Indirect profits: require a reasonably sufficient causal link between the
infringing acts and indirect profits (i.e. profits a hotel made by showing an
infringing play OK, but an infringing advertisement for a product does not
allow recovery of profit from sale of product)
Statutory Damages 504(c): A prevailing P who complies with copyright registration
may recover statutory damages instead of actual damages and profits in the amounts
of:
1. Default: $750 $30,000
2. Willfulness: up to $150,000
Depends on state of mind, courts have found willfulness when Ds know,
have reason to know
or recklessly disregarded the fact a work was
copyrighted
3. Innocent infringement: as low as $200
Not available if D had access to copies that have a copyright notice on
them
4. Nonprofit with reasonable belief of fair use: no statutory damages
o "Per work" hard to determine (i.e. individual TV episodes can be individual works)
But see Bryant v. Media Right Productions, Inc. (statutory damages are for each
album, not each
song b/c 504(c)(1) says all the parts of a compilation count as
one work)
o New under 1976 Act 1909 Act did not require registration to recover statutory
damages
Attorneys Fees: Attorney's fess are available equally to prevailing plaintiffs and
prevailing defendants (Fogerty v. Fantasy), provided the copyrighted work is registered
o Awarded using "equitable discretion" not as a matter of course
o See Matthew Bender & Company, Inc. v. West Publishing Co. (abuse of discretion to
award attorney's fees without specific evidence of bad faith and litigation
misconduct)

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Injunctions 502(a): allows courts to grant either preliminary or permanent injunctions

as a remedy to copyright infringement
o General test for injunctions (Salinger):
1. Likelihood of success on the merits (for a preliminary injunction)
2. Irreparable harm if injunction is not granted
Preliminary show that delay would deprive P of relief (i.e.
short commercial life)
Permanent MUST show [1] damages alone would be inadequate,
AND [2] threat of
further infringement
- Difficulty in measuring proof of loss of sales
- Irreparable in light of possible market confusion
- A loss that one should not be expected to suffer
3. Public interest
4. Balance of hardships tips in plaintiff's favor