Copyright

Concept Checklist Writing o Qualify on non-exhaustive list Author o Human, not nature or animals Originality o Constitutional Requirement o Independent Creation + Some minimal degree of creativity Capturing Pure Reality or Creativity Personal reaction on nature Original Work of Authorship Fixed in Any Tangible Medium of Expression o Independently created with some minimal degree of creativity Short words of phrases o Needs to be highly creative Concept art o Must be humanly creative on its face Fixation o Tangible medium of expression + more than a transitory duration o Fixation must occur before infringement. o Infringers give up their copyright claim thouh. Merger Doctrine o The expression cannot merge with the idea o Only where data is hard, not soft (CCC v. Maclean) Blank Form Rule Method of Operation o Things integral to it are unprotectable Feist o Modicum of Creativity o No sweat of the brow o Independent judgment in selection OR arrangement Graphic Work as Compilation o Unprotectable elements IF numerous enough AND selection AND arrangement are original enough. Thin or Thick Protection Sweat of the Mind o Hypothesis about fact treated as expression, even if held to be fact, not opinion. o Theory of fact treated as fact; expression reqd to yield fact is necessary o Copyright estoppel Derivative o Cannot infringe anothers copyright AND must be original o Non-infringing additional expression can get copyright once filtered from original o If infringing elements tend to pervade derivative work, no copyright. o Fair Use not a defense (Sobhani) NN thinks this is wrong. o Originality: More than a trivial variation 10th: process is not enough no matter how creative 2nd/9th/Israeli: process is enough even if final product isnt 1

o Creativity: 9th: More than a trivial variation, not just modicum of creativity. 10th: No special standard, just modicum of creativity in independent contribution 7th: No higher standard, enough expressive variation from public-domain or other existing works to enable the new work to be readily distinguished from its predecessors. Posner/Baitlin: Substantial variation. Useful Article o Article has an intrinsic utilitarian function other than appearance or conveying info o Are there nonetheless elements eligible for copyright protection? Pictorial, graphic or sculptural features identifiable separately + capable of independent existence from the utilitarian aspects. Physical OR Conceptual seperability is fine 6 Standards, pg 33. Artistic design (process!) was not significantly influenced by functional considerations (Brandir (2nd) + Pivot Point (7th)) o Some element of the shape driven by aesthetic considerations o Sculpture: Is it too close to reality + does it merge with nature? Character o Two Tests: Story-Being-Told + Specificity Test o Can use both, but typically favor specificity Sound Recording o Sound Recording + Phonorecord + Musical Work o De Minimus: Avg. audience would not recognize where copied portion was taken from. Will not be de minimus to musical composition without sound recording license o Clearance: Need rights for Musical Composition + Sound Recording Government Works o No protection created by FED gov officer/employee AS PART OF their official duties Only within the US o Similarly applicable to STATE gov, but not under 105. o Choice: No OR stays with contractor OR assigned to gov OR contractor keeps but assigns a non-exclusive license to gov o Once laws, categorically public domain as semi-merger doctrine; degree of access is irrelevant (5th) Content Based Restrictions o Not courts job to determine legal obsecenity for copyright. Just do regular analysis. o Court will not assist purveyor of obscenity. o Human body not a tangible medium of expression. Authorship Status o Vests initially in author(s) o Creator of the work; who translates an idea into fixed, tangible expression. o Mere transcribers have no claim. Work for Hire o Employment: Employee + Scope of employment (no need for writing) o Commissioned: Writing + One of 9 Types in 101(2) 2

Whether sound recording qualifies as a collective work is still contested Tighten with agreement o Outcome: Employer is author + first holder (authorship cant be waived, can be transferred) o If WFH: no transfer provision / 95 yrs from pub or 120 yrs from creation, whichever comes first. o If not WFH: can transfer or assign, with 35 yr termination / Life + 70. o Tests for WFH: Right of Control / Actual Control / Salaray / Agency Employee benefits, tax treatment, right of control, right to assign, actual control, location, duration, method of pay, regular business. o Teacher Exception Joint Authorship: o Each has undivided equal interest in , regardless of equal contributions o Each may exploit without consent as long as pro rata based on # of authors o Duration: life of last surviving author + 70 CANNOT be varied by K (others can) o 101: 1. Contribution 2nd / 9th: prefer each authorial contribution to be copyrightable 7th: if neither bring copyrightable expression, still copyright in whole 2. Intention to merge 2nd: Mutual intention that each would have the status of JA 9th: Agrees, but focuses on each must exercise creative control 3. Inseperable or interdependent parts 4. Unitary whole Right to Make Copies o Fixation: Embodied in a medium of expression + > transitory duration Buffer Copies: Embody (yes), duration (no; too short) Server Copies: Embody (yes), duration (yes), BUT no volitional conduct o Websites: Fixed = sufficiently permanent/stable copy + > transitory duration o RAM: Can infringe in commercial/CL cases, but policy favors no infringement How to Prove Copyright Infringement o Process: 1. You own the 2. I made a copy 3. I copied from you 4. I copied copyrightable expression 5. My copying is improper (eg. subsim, thin/thick, de minimus) o How: Direct evidence + Circumstantial (Access [Actual or Reasonable Opportunity] + Probative Sim + Other) o Requires: 1. Probative Similarity (Copying in fact; expert objectivity) 2. Improper Appropriation (Sub Sim; global impression) NOTE: This is 2nd: 9th doesnt distinguish between the two o Dont have to prove knowing infringement/elements are significant part of Ds work/D was not a fair use o Exact copy (Striking Sim) creates a rebuttable presumption if D proves no access. o Subconscious copying is enough to be infringing 3

Non-Infringing Copying o De Minimus = trivial OR below quantitative threshold 9th: Average audience would not recognize the appropriation 6th: No de minimus defense to copying from sound recording. o Intermediate Copying: Protection really only if using facts to create something new o Background Shot: 2nd: Sufficient style and quantity to express + selected content related to scene 2nd: Blocking poor focus, fits with background, obscure, fleeting. o Idea/Expression: Note the background application of the Merger Doctrine + Scenes a Faire Literary Works: Use Pattern Test Fragmented Literal Similarity: prima facie, unless super de minimus Comprehensive Nonliteral Similarity: Level of abstraction Graphic Works: Ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as same Photography: No copyright in subject, but in expression, including tone and mood (dangerous inquiry) Substantial Similarity: o What we should do: 1. Filter out unprotectable 2. Determine scope (thin/thick) How much of Ps work is protectable? How many ways are there to express the idea? 3. Compare protectable elements applying applicable scope of protection o What courts do: 2nd: Total concept and feel, but in a more discerning way. 9th: Does not distinguish between sub sim and prob sim Prove General COPYING: Access + Sub Sim o Uses Inverse Ratio Rule (2nd ONLY uses IRR for Prob Sim) Sub Sim: o Extrinsic Test: Applies to whether D copied AND whether Ds copying is improper If P fails, MSJ to D Objective, articulable similarities Filter out unprotectables for extrinsic, but still treates unprotectable as part of the whole. o Intrinsic Test: Subjective for jury; TCAF No MSJ, always to jury. NOTE: Non-copyrightable expression can itself be copyrightable expression. Phonorecords: o Sound equivalent of a copy; exception for those accompanying an audiovisual work. o Compulsory License to make and publically distribute phonorecords of nondramatic musical works (not sound recording). Only covers actual sounds as fixed o Public Performance = compulsory license o Mechanical License = broader than compulsory license 4

o 115 Conditions: (Music composition, NOT sound recording) 1. Previously recorded AND distributed to public under s authority 2. Primary purpose is to distribute copies to the public 3. No change in basic melody or fundamental character 4. If duplicating the sound recording, requires sound recording lawfully made AND must get permission of sound recording 5. Notice and payment of statutory royalties o Controlled Compositions Clause: statutory rate if you write it yourself o Ringtones: Fine, compulsory license o Cover Recordings: Do not infringe o Recreation of Sounds: Do not infringe o Movies: Need synchronization license o Karaoke: No statutory license o Sampling: NOT COVERED UNDER COMPULSORY LICENSE No de minimus/sub sim defenses = prima facie (6th, Bridgeport) o Digital Phonorecord Deliveries: NOT COVERED UNDER COMPULSORY LICENSE o Sound Recordings: NOT COVERED UNDER COMPULSORY LICENSE No right of Public Performance in sound recordings o Public Performance: NOT COVERED UNDER COMPULSORY LICENSE o Audio Home Recording Act: No problem to use a device, but does not apply to computers Analysis goes back to Fair Use Derivative Works: o Line Between Copy and Derivative: Audience Test of similar look and feel can infringe when nothing is copied. o Infringement: D incorporates a portion of copyrighted work AND incorporates protectable expression o First Sale Doctrine: Can do what you want post purchase, except make copies. o Derivative Works That are Not Copies: No fixation (eg. performace or display) BUT Note House Report says a derivate work doesnt have to be fixed Different context, without alteration or reproduction Alteration of a copy without further reproduction o 9th: Infringe = Concrete/permanent form + substantial incorporate protected material Eg. Mounting art on tile, but NOT putting a frame around it. o 7th: Infringe = if you add your own creative contribution To infringe, Ds work must meet reqs for copyrightability of derivative works. o Family Movie Act: pg 77 Moral Rights: o Four Rights: Right of Disclosure Say when finished + disclosed to public Right of Withdrawal So long as artist pays D for damages + motive is artistic/personal Right of Attribution Name, anonymous, pseudonymous Right of Integrity 5

o Waiver: NO o Limitations: Good faith + bound by agreed changes + consent to changes required by adapting to a new medium + limited for big works like film (all held by director) o Important for US: Americans in WW markets Judges import doctrine without saying so Berne Convention, even though Article 6bis is NOT adopted No modificiation by Congress was necessary because of preexisting doctines o Lanham Act: Gutted by Dastar o Visual Artists Rights Act: Artist can claim attribution rights Artist can prevent intentional distortion, mutilation, modification prejudicial to honor or reputation Upon any distortion, even if unintentional, artist can prevent use of name Can prevent destruction of a work of judicially recognized stature o VARA Limitations: Only to fine art, no advertising/commercial promotion Single copy or limted edition at 200 signed copies Not WFH Not motion picture Can be waived in writing Public Distribution Right o 106(3): Right to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending. o Note: No exclusive right to publication nor a making available right. o Even with the right to make copies, only can distribute to public with this right. o Important for: Sale/rental + enforcement + Electronic transmission o General: Making available is not distribution, but a reasonable inference. Doesnt req a transfer of a material object. Recipient owning a copy is enough. o First Sale Doctrine: Applies only if you own the underlying work, not licensee. Exceptions: No rental for music. o Software License: 1) Specify its a license 2) transfer restrictions 3) use restrictions o Maintain sufficient incidents of ownership over copies to be considered the owner o Droit de Suite / Artists Resale Royalty Right (3-5%): Really just in CA. Public Performance Right: o PUBLIC PERFORMANCE IN MUSICAL COMPOSITION o NO PUBLIC PERFORMANCE RIGHT IN SOUNDRECORDINGS Playing a song on the terrestrial radio means only commensating the composer, not the singer. o 3 Steps: Under 106(4) and 101 Performance? Initial rendition + subsequent transmission Public? Public place OR semi-public place OR transmission to public/semi/members of the public/recipients of different time or place. 6

Public presentation in a manner harmful to reputation/repugnant to artists conception

Exception? nondramatic musical work + no purpose of in/direct commercial advantage + no fee to performers + no in/direct admission charge Does not apply to direct transmission to public OR movies o Requires a volitional act to be Direct Liability (2nd, not extended to Zediva in 9th) o YES Public Performance: Streaming + Music Composition of a ring tone + Contemporaneous perception o NOT Public Performance: Buffer copy + Digital download + sound recording o ASCAP + BMI License covers PubPerf of music composition, no sound recording, which you have to negotiate Digital Public Performance in Sound Recordings (Digital Audio Transmission) o Nonsubscription digital broadcasts = no public performance right (114(d)(1)) o Webcasting (Internet Radio) + Subscription Digital Broadcasts (Satellite) = subject to statutory compulsory license (114(d)(2)) No advance schedules are lots tracks from same artist Eg. Pandora, webcast of radio o Interactive Services + Webcasts/Subscriptions that dont fit above = must obtain copyright owners permission (106(6), 114) Right of Retail Establishments o Fairness in Music Licensing Act pg. 90 Right of Public Display: o Make display work where its located Doesnt cover virtual position or Internet display o Digital: Server Test: Must reside on server, then fine. Incorporation Test: REJECTED inline linking is fine. Fair Use: Foundations + Market Centered Approach o 4 Statutory Factors: Purpose/character of use + nature if copyrighted work + amount/substantiality of Ps work used + effect of use on potential market for/value of work. o Trends: 1 is the most important, 4 used to be o Wendy Gordon Market Failure Approach pg. 93 o Sony: Time-shifting is noncommercial, nonprofit, consumptive fair use o Sony Presumption: Every commercial exploitation of material is presumptively unfair exploitation of the monopoly advantage. o Watch Out: Fragmented Literal Similarity + Fact/Expression Merger Fair Use: Transformative Use Approach + Parody o Parody so long as its parodic character may be reasonably perceived Parody targets the original o Still evaluate all the factors o More transformative (adds something new) = less likely market harm o Note Market Harm Test: How likely is it that Ds work will substitute in market for the Ps. o Transformative requires new productive purpose (2nd Castle Rock) o Dont take more than necessary, but can take least as is necessary to conjure original o Pg. 101 for comparative Fair Use: Post-2005 7

o TEST: Whats purpose of original? Whats the purpose of Ds work? Compare. o TEST: Different Expressive Purpose Plainly different o Fair Use Markets: holder cannot prevent others from entering fair use markets merely by developing a market for parody or news, eg. o Subjective Intent of Artist: Proof problem o 9th: P10 v Amazon: Different purpose or funcition especially if it promotes the goals of law and serves the interest of the publice. 2nd: Just wants purpose o Public Interest: Better o Doesnt have to be parody to be transformative o TIPS: dont take too much + no advertisements Non-Transformative Use: o Not required in principle for Fair Use, but very difficult without it. o No advertisements/commercialization o Space-Shifting: Ok in RIAA v. Diamond Rio o Napster (9th): Not transformative if just retransmitting the original + dicta suggesting personal copying is commercial by getting for free something they would pay for. o BMG v. Gonzales (7th): Downloading is commercial and has actual market harm. o Overall: Time-shifting = fair use, librarying/other may be fair use. Consumer copying is fair use, but its dicta. Downloading on P2P isnt fair use. o MDS (6th, pg. 109): Creative modification of expression + Market Harm (transaction costs) + no circularity where owner has interest in filling niches Contributory Liability o Reqs: Knowledge + Contribution (induce/cause/materially contribute direct/means Knowledge: Specific or general? Contribution: 9th: Sites and facilities are enough when you have knowledge o P10 v. Amazon (9th): Actual knowledge of specific infringing material AND at a time that you can take simple measures to prevent further damage. No need to redesign o LOOK FOR: Removed steps in the causal chain Eg. P10 v. Visa (9th): Assisting website to make money lacks a sufficiently direct nexus to actual infringement Vicarious Liability o Reqs: Right and ability to supervise the infringer + obvious and direct financial interest in exploitation of infringing materials Right and Ability: Contractual right to prevent + abstract ability to police Direct Financial Benefit: Overall business benefit + admission fees + enhanced attraction o Test: 9th: Sites and facilities (Cherry Auction) o DONT NEED KNOWLEDGE OR PERMISSION Third Party Liability: o Contributory Liability: Sony v. Universal: Knowledge: 8

o As a long as cable of substantial noninfringing use then fine. o Staple article of commerce + substantial noninfringing use o Required actual knowledge Material Contribution: o Substantial noninfringing commercially significant use A&M v. Napster (9th): Actual knowledge of specific infringing activity and materially contributes to that direct infringement. No defense for substantial non- Dont extend Sony to service providers when theres actual knowledge NOTE: In offline world (Cherry Auction), general knowledge is enough. o In online world (here), specific knowledge is required. Aimster (7th): D must show actual or probable substantial noninfringing use NOT mere physical capability + Show either no substantial infringing uses OR ones that would be too costly to eliminate. Dont have to eliminate or reduce if disproportionately costly o Vicarious Liability: Sony v. Universal: Got it wrong, was really talking about CL A&M v. Napster (9th): Right to police depends on existing system architecture; s duty police Aimster: Can force D to change archetecutre, but they can rebut its too costly. Grokster Active Inducement: o A separate and independent grounds for contributory liability o Mass Market Context: Does not require actual knowledge of particular infringing acts when a clear expression or other affirmative steps taken to foster infringement Knowledge of massive infringement + deliberate avoidance not enough o Main Factor: Tried to be the new Napster o Secondary Factors: Didnt develop filter + earned revenue from ads increasing infringe These are NOT enough without trying to be the new Napster. o Taint: Initial inducement taints the entire business; unsettled for how long. o Good Faith Filter: Just a factor, not enough for liability ISP Secondary Liability: o Religious Tech v. Netcom (Cal.): CL: Once there is knowledge + ability to stop, failure to do so at any cost creates liability. VL: Flat fees arent enough for financial benefit o General Rules: Safe harbor = no monetary damages If cant meet safe harbor, do CL + VL analysis Injunctions must be narrowly tailored to remove access to speicific infrigers o Application: Serviec Provider Definition + 1 of the 4 Types 9

Service Provider Definition: Transmission, rooting, digital online comm. Pg 125 1 of 4 Types: See pg 125 DMCA Safe Harbor: See pg. 125 Higher Bar: red flag + greater right/ability to control Repeat Infringers: Reasonably implement policies to remove them MUST TERMINATE REPEATS ALL 4 TYPES Enough to have a working notificiation system + procedure for dealing o Just record most infringegers. Financial Benefit: Startup fee + flat periodic payments arent enough. Cost to Policy: Born on holder Duty to Investigate: NO Compliant Notices: From anyone are enough; but entitled to doubt. Non-Compliant Notices: Dont count as notice Eg. Copyright industry database is not a red flag. Viacom v. YouTube: o Safe Harbor Statute see pg 128 o Actual and Constructive Knowledge: Needs specific identifiable infringing material o Right and Ability to Control: Must be item specific, re: knowledge o Financial Benefits: Enjoying benefit o Overall: Must be hit over the head Procredural requirements collapse with substantive requirements Notification = must take down Take down is home free o Wrongful Takedown Notices: No need for full-fledged investigation, but need for some kind of review of whether use is a fair use before sending out a takedown notice. Damages see pg. 131 DRM/TPM: o Analyze primar facie + fair use + transformative o DMCA prohibits circumventing DRM for access not copying. Use copyright law to curb copying. o Sony Test: Off-the-shelf consumer product Is there a substantial non-infringing use? Eg. Fair or gov work Product or service? o Grokster Test: Was there active inducement? o DMCA Provisions: 1201(a)(2): pg. 133 Primarily designed OR limited commercially significant purpose OR marketed for use in circumvention NOTE: Can still protect uncopyrighted works + sub non-infringe dont matter o Fair Use: 2nd (Reimerdes): No fair use 9th (MDY) Leaves it open. o Relation to Content: 10

Remedies: o eBay v. MercExchange + Winter v. NRDC: No longer any presumption of irreparable harm in Copyright infringement cases o Injunction: P must demonstrate suffering irreparable harm without one + likelihood of harm + colorable claim + balance of hardships for prelim or permanent injunction (Flexibline Lifeline Systems 9th) P10 v. Amazon: Prove sufficient causal connection between harm to its business and Googles search enginge HIGH BAR Zediva Case: Interference with ability to control LOW BAR o Damages: Actual Damages + Ds Profits OR Stat Damages See pg 140 Stat Damages o Pg 142 o NOTE: Circuit Split Over: 9th Independent Economic Value Test: gets its own Stat 2nd: No IEVT (Bryant) Con Law: Copyright Clause Con Law: 1st A Transfer + Licensensing Transfer Scope

Chamberlain (Fed) + Lexmark (6th): Access menas ability to perceive the copyrighted work Should have a reasonable relation to content; not aftermarket monopoly MDY (9th): DRM must control access to a work

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