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
“Original Works of Authorship Fixed in a Tangible Medium of Expression”
Musical Works Dramatic Works Pantomimes & Choreographic Works
Pictorial Graphic & Sculptural Works
Motion Pictures & other Audiovisual Works
Architectural Works §106 Exclusive Rights of © Owner:: §106 Exclusive Rights of © Owner: Reproduce copies
Prepare derivative works
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
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
(b) (i) work specifically ordered or commissioned for:
Use as a contribution to a collective work
Part of motion picture/other audiovisual work
Supplementary work (foreward, afterward, illustration, etc.)
Test Answers, or
(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
Prerequisite to infringement suit - §411
Evidentiary Advantages - §410(c)
Additional Remedies – if timely §412
Unpublished works – prior to infringement
Published works – prior to infringement or within 3 months of first publication
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
Civil Remedies – 3 year statute of limitations
Actual and any additional profit of infringer
$750 - $35K – Up to $150K if willful Infringement continued: Infringement continued Criminal Penalties – 5 year statute of limitations
For commercial advantage or private financial gain
Reproduction or distribution with in 180 day period of works valued >$1,000
Forfeiture/Destruction of copies and manufacturer equipment Common Defenses: Common Defenses Non-ownership by Plaintiff
“fraud” on the Copyright Office
Merger, scenes a’faire, functionality
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
Rights of Attribution/Integrity
Expire at end of calendar year of death of last surviving author Whichever is less