Yours? Mine?Ours? : Yours? Mine? Ours? Copyright Law Basics Don Showalter Holland & Knight LLP October 3, 2003


Slide2: TECHNOLOGY PROPERTY RIGHTS FREE SPEECH ©


Copyright: Copyright BASIS: Federal: Statute (Title 17 U.S.C.) & Common Law SUBJECT MATTER: “Original Works of Authorship Fixed in a Tangible Medium of Expression” PROTECTABLE WORKS: Literary Works Musical Works Dramatic Works Pantomimes & Choreographic Works Pictorial Graphic & Sculptural Works Motion Pictures & other Audiovisual Works Sound Recordings Architectural Works


§106 Exclusive Rights of © Owner:: §106 Exclusive Rights of © Owner: Reproduce copies Prepare derivative works Distribute copies Perform publicly Display publicly NOTE: Use is not a right which can be controlled under copyright law but may be restricted under contract (license agreement) §106A Author of “Works of Visual Art” (signed, limited edition <200) Rights of Attribution & Integrity Non-Transferable Waivable


Ideas vs. Expression: Ideas vs. Expression © Only Protects Expression 17 U.S.C. § 102(b): 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.


Slide6: Not Protectable Facts per se are not protected by copyright. Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 449 U.S. 340 (1991). Works in public domain Works lacking originality e.g. “ya got ta suck da head of dat der crawfish” “Work of the United States Government” §105


Fair Use - §107: Fair Use - §107 Certain uses, such as criticism, comment, news reporting, teaching, scholarship, or research, may exculpate infringement of copyright. Fair use factors: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. The nature of the copyrighted work (e.g., creative versus functional works). The amount and substantially of the portion used in relation to the copyrighted work as a whole. The effect of the use upon the potential market for or value of the copyrighted work. Coursepack Cases – copying not Fair Use Princeton Univ. Press v. Michigan Document Services, 1996 Fed App 0357 (6th Cir. 1996) (en banc) Basic Books v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991)


Ownership of ©: Ownership of © Initially – Author/Joint Authors §201(a) Exception: “Work made for hire” (a) prepared by employee within scope of employment or (b) (i) work specifically ordered or commissioned for: Use as a contribution to a collective work Part of motion picture/other audiovisual work Translation Supplementary work (foreward, afterward, illustration, etc.) Compilation Instructional text Test Test Answers, or Atlas, and (ii) Express, written, signed agreement


Ownership of © continued: Ownership of © continued Subsequently – “Transfer of © Ownership” by assignment, mortgage, exclusive license or other conveyance of © or any of the exclusive rights comprising ©. §203 Right of Revocation of Inter Vivos Transfers 5 yr window beginning at grant date +35 yr. Not applicable to Works made for Hire


Who is an Author/Joint Author?: Who is an Author/Joint Author? Case law: Inseparable or Interdependent Parts of a Unitary Whole Joint Authors must have intended their contributions be merged Mere collaboration insufficient Decision making authority over content How did contributors credit themselves/others? Importance of contribution to audience appeal of work Contribution must be copyrightable Contribution must be more than de minimus


Securing ©: Securing © Common Law Rights – arise upon fixation © Registration: Prerequisite to infringement suit - §411 Evidentiary Advantages - §410(c) Additional Remedies – if timely §412 Statutory damages Attorneys’ fees Unpublished works – prior to infringement Published works – prior to infringement or within 3 months of first publication Simple Mechanics Registration form Deposit material $35 Fee Effect retroactive to filing date


Copyright Notice: Copyright Notice © 2003 The Florida State University Not required for works first published after Berne Convention Implementation Act of 1988 May defeat “innocent infringer” defense


Infringement: Infringement Direct: Ownership of valid ©, and Copying or substantial similarity & access Contributory/Inducement Civil Remedies – 3 year statute of limitations Injunction Impoundment/Destruction Damages: Actual and any additional profit of infringer or Statutory $750 - $35K – Up to $150K if willful


Infringement continued: Infringement continued Criminal Penalties – 5 year statute of limitations Willful infringement For commercial advantage or private financial gain Reproduction or distribution with in 180 day period of works valued >$1,000 Fine Imprisonment Forfeiture/Destruction of copies and manufacturer equipment


Common Defenses: Common Defenses Non-ownership by Plaintiff Invalidity/Unenforceability “fraud” on the Copyright Office Misuse Non-infringement Merger, scenes a’faire, functionality Insufficient similarity Lack of access Fair use or express statutory exception License


Slide16: Digital Millennium Copyright Act (DMCA), 17 U.S.C. §512(d) The DMCA created safe harbors for “Online Service Providers” doing the following: transmitting, routing, or providing connections for transmissions; systems caching (certain intermediate and temporary copies of material on a system or network); information residing on systems or networks at direction of users; providing links to infringing materials. Search engines qualify as “Information Location Tools” and specifically benefit from the fourth safe harbor, above, provided that they: Appoint agent to receive notices of claimed infringement; Adopt policy for terminating users who are repeat infringers; Promptly disable links to infringing materials upon receiving proper notice


Term: Term §302 In General – works created after 1/1/78 Life of last surviving author + 70 yr. Works for hire/anonymous/pseudononymous works: 95 yr after 1st Pub. Or 120 yr from creation Exception: §106(A)(d) Rights of Attribution/Integrity Expire at end of calendar year of death of last surviving author Whichever is less