Term
| What is the purpose copyright? |
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Definition
| To protect an original work of authorship |
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Term
| What is not copyrightable? |
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Definition
| Ideas, chattels, procedure, discovery |
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Term
| What is Copyrightable material? |
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Definition
| 17 U.S.C. Sect. 102: “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine. |
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Term
| What are the elements of CR material? |
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Definition
a. Copyrightable subject matter
b. Fixation: on a tangible mean
i. Something that can be perceived by a perceiver: Physical rendering of the work, material object, paper, magnetic tape, marble block
c. Work must original with the author (Originality) |
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Term
| What are copyrightable subject matter? |
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Definition
1. literary works
2. musical works
3. dramatic works
4. pantomimes and choreographic works
5. pictorial, graphic, and sculptural works
6. motion pictures and other audiovisual works
7. sound recordings |
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Term
| What applies to pre-1923 works? |
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Definition
| 1. All unprotected because they have fallen into the public domain |
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Term
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Definition
1. Registration, general publication (dissemination), notice (stamp)
2. Term: 28 + 28, renewal required to prevent entering public domain. |
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Term
| When do you renew under the 1909 Act? |
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Definition
| a. Renew: within the 28th year |
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Term
| How long is a material CRable under 1962? |
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Definition
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Term
| What are the formalities under the 1976 Act? |
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Definition
1. No formalities (just need fixation)
2. Term: life + 50 |
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Term
| What did the Sonny Bono CR Term extension act do? |
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Definition
2. Added 20 more years to ever work still protected under copyright
3. Term: life + 70 or (95 years for WFH) |
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Term
| What happened under the 1992 Act? |
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Definition
| 1. Amendment allows 1909 works in their first term (28 years of younger) of protection get automatic renewal |
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Term
| What works are in the public domain? |
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Definition
| works that are not renewed, finish CR protection, and works created before 1923 |
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Term
| When does duration start for the 1909 Act? |
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Definition
| moment of CR registration |
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Term
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Definition
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Term
| Under 1976 act, what is the duration of a joint work? |
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Definition
| life + 70 of last remaining author |
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Term
| vi. Anonymous, WFH, psydonoymous |
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Definition
| 95 years from date of publication or 120 years from date of creation, whichever is shorter |
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Term
| What is the maximum protection for 1909 acts |
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Definition
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Term
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Definition
: any works created within the scope of employment or commissioned by independent contractors
i. Cannot terminate
ii. In writing
iii. Within 9 statutory things |
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Term
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Definition
| a work prepared by 2 or more authors with the intention that their contributions be merged into inseparable or interdependent parts of an unitary who |
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Term
| under a joint work, is substantial contribution enough? |
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Definition
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Term
| What kind of intent is required for joint work? |
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Definition
| there must be an intent to be coauthors and to share |
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Term
| How is control defined under joint work? |
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Definition
| the mastermind, the person who has artistic control is the author and thus both must have creative control over the entire work. Allmuhammed v. Lee |
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Term
| What are the bundle of rights for CR? |
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Definition
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) control first sale and 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;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. USC Sec. 106 |
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Term
| What are the rules of licensure? |
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Definition
| licenses are contractual temporary ownerships of CR rights |
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Term
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Definition
• Nonexclusive: not in writing (public performances)
• Exclusive: in writing (one or more of rights) |
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Term
| When can you terminate a right? |
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Definition
| if you assign someone their right, you have the right to terminate |
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Term
| How do you terminate a transfer under the 1909 Act? |
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Definition
| 1. owner of CR can by contract transfer the renewal term before the renewal term is up. |
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Term
| What is the vested rule of CR? |
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Definition
| immediate right to present or future enjoyment; nothing more needs to happen |
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Term
| What is the contingent rule of CR? |
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Definition
| dependent upon the occurrence of some future event which is itself uncertain |
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Term
| What is the rules of heirs in CR? |
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Definition
| : The US Supreme Court found that a copyright owner's right to permit the creation of a derivative work passes to the heirs of the author of the work, who are not bound by the original author's agreement to permit such use. Stewart v. Abend |
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Term
| in 1909 act, what are the years for termination? |
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Definition
| end of 28 year term, you can work back; 1 year window at end of 28 years |
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Term
| What is the rule under the 1976 act for terminating rights? |
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Definition
opportunity to terminate after 35 years to transfer after the date of transfer
1. 5 year window btw 35 and 40; but must give notice of terminating
a. notice: min 2 years; max 10 years from date of termination |
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Term
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Definition
| : rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. Only for visual artists. |
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Term
| how long do moral rights last? |
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Definition
| i. Only lasts for life of the author |
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Term
| What is the right of name attribution |
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Definition
| permitting the author to be recognized as author of created work, to publish as anonymous or pseudonymous, to prevent work from being attributed to another, and to prevent name from being used on works not created or distorted |
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Term
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Definition
| permitting the author to prevent altercations, distortions or destruction of his work. |
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Term
| j. Copyright Infringement: |
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Definition
| As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner |
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Term
| elements of CR infringment |
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Definition
1. Ownership of a valid CR
2. Must have unlawful copying
a. Direct evidence: prove D saw, heard or had a copy of the work before reproducing the work
b. Circumstantial evidence: Access+ substantial similarity
i. Access:
1. Wide dissemination or accessible to the target audience
2. Probably experience with the original |
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Term
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Definition
a. Factors:
i. Purpose of the use (commercial, educational, nonprofit)
1. Transformative: the more transformative the work, the less significant the other factors
a. Parody:
i. Has to make fun of the ting you are copying
ii. Have to be able to identify what you are copying, you can only use as much of the copyrighted work that it is necessary to conjure up the image of the it
iii. Would a reasonable person in that audience think that it is a parody
ii. Nature of the work (factual work v. fictional)
iii. Amount and substantially of the use
1. Quantitative and qualitative analysis
a. amount: total use
b. Substantial: how it fits in the entirety of the case
iv. How it affect the commercial marketplace: does this harm the opportunity to sell the work? |
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Term
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Definition
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Term
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Definition
| there is a taking, but so trivial, law will not offer a remedy |
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Term
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Definition
1. Direct: similarities must be substantial; pirate cannot show how much they did not do wrong by showing how much they did not pirate
2. Subconscious copyright: clear connection btw the CR work and the new work due to access but lack of intent |
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Term
| contributory infringement |
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Definition
a. A will be liable for B’s infringement if A has actively induced the infringement or with knowledge of the infringement A has supplied the means to infringe
i. C=K+P
ii. Knowledge + participation (promote) |
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Term
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Definition
a. A will be held liable for the infringement of B if A supervises or has the power to supervise the acts of infringement and benefits or stands to benefit financially from the infringing acts
i. V=B+C
ii. Benefit + control |
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Term
| substantial non-infringing uses |
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Definition
1. If there are substantial non-infringing uses then the party will not be held liable as a third party if they did not vicariously or contributory contribute to the infringement.
2. A party can’t hide behind the possibility it can be used for legal purpose as a defense. (Grokster case) |
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Term
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Definition
a. Injunctions
i. Preliminary/permanent
ii. Impoundment and/or Destruction |
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Term
| actual damages of CR infringement |
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Definition
a. Actual
i. P’s loss + D’s gain
ii. Apportionment of Profits: P has to show D’s gain, and then its D’s responsibility to show what portion of the gain is not based on the infringement. D’s must also show what portion is not profit (expenses). |
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Term
| statutory of CR infringement |
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Definition
a. General range: 750-30,000 per infringement
i. Innocent infringer can be as low as 200 per infringement
ii. Willful infringer can be up to 150,000 per infringement |
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Term
| Attorney Fee and court costs |
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Definition
a. Plaintiff chooses the remedy, can have all four. But must choose whether actual or statutory damages before final judgment
b. Must register to sue for infringement
c. In order to get statutory damages, court costs, and attorney’s fees the copyright must have been registers prior to the actual infringement
i. SOL in 3 years from time of knowledge to reasonably known |
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Term
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Definition
| word, name, or mark that identifies the source of goods or services |
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Term
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Definition
| identifies the source of goods |
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Term
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Definition
| : identifies the source of services |
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Term
| What is the purpose of a trademark? |
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Definition
| The purpose of a trademark is to allow customers to identify the manufacturer or sponsor of a good or the provider of a service |
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Term
| How do you establish ownership of a trademark? |
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Definition
i. use the mark in commerce; a court must identify the quality or characteristic for which the group is know by the public
1. do not have to register the trademark to have protection, but constructive notice means extra protection for the trademark
2. a mark on the product is not required, but encouraged for damages because it eliminates the innocent infringer defense |
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Term
| 1. How does a court decided which party owns the trademark when its conflicting testimony |
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Definition
| a. Look at which party “controls or determines the nature and quality of the goods which have been marketed under the mark is question.” Bell |
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Term
| How does usage apply in trademark? |
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Definition
2. Usage must be consistent with a “present plan of commercial exploition”
3. Must be used in a way that dos not deceive the public we see
4. Exceptions
a. Historic information
b. A celebrity’s name so long as there is artistic relevance
c. A person’s image or likeness |
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Term
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Definition
| Any person who shall without the consent of the registrant: use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive. |
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Term
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Definition
| cannot use an author’s name in connection with a work in which the author’s true participation or contribution is misrepresented |
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Term
| How must a P show false advertising? |
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Definition
a. the advertisement is false
b. is true but will likely mislead or confuse consumers |
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Term
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Definition
i. Material is not trademarked
ii. generic words need a disclaimer because generic words cannot be trademarked on their own, but the combination of the words are trademarkable
iii. fair use: if the defendant used the mark as (1) a descriptive sense and (2) good faith |
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Term
| What are the two types of privacy and right of publicity? |
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Definition
a. Right of privacy: innate, inherent right
b. Right of publicity: acquired throughout one’s lifetime by creating economic value in one’s name, image, or likeness |
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Term
| When does the right of privacy originate? |
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Definition
at birth
a. No actions or formalities required |
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Term
| What are the four interests? |
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Definition
a. Appropriation: using someone’s name or likeness without permission
i. Must demonstrate a lack of consent
b. Intrusion: encroaching into someone’s physical solitude or seclusion
c. Public disclosure of fact: public disclosure of private fact even if true in a manner a reasonable person would find objectionable
i. Ex. health records, drug
ii. Not a legitimate concern to the public
d. False light: publicity information that places P in false light where no reasonable connection that exists, but implying a reasonable connection exist |
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Term
| deceased persons to right of privacy |
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Definition
| 3. Right of action for the invasion of the right of privacy is purely person and deceased persons do not have privacy rights that extend beyond their lifetime |
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Term
| How does a privacy right become available to sue |
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Definition
4. Rights must be direct and personal to them
5. The violation must be offensive to the reasonable person |
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Term
| What is the right of publicity |
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Definition
| : bestows upon an individual privileges that monetize the individual’s personality (economic right) |
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Term
| When can the right of publicity be exploited? |
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Definition
| 1. The right of publicity can be exploited during the celebrity’s lifetime and after his or her death pending on jurisdiction |
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Term
| What are the 6 interests of publicity rights? |
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Definition
a. Performance: individuals right to exclusively perform services by which the individual has a living
b. Adaptation: one’s exclusive right to authorize others to create derivative works personifying that person’s performance
i. fictional characters do not limit a person’s claim as to the manner of their likeness
c. Personality products: right of exploration of products of the persons name, likeness, or image
d. Endorsement: use of a person’s name, likeness, image, or reputation in relation with advertising of goods or services
e. Reputation: protection of one’s reputation against misuse even if the use was otherwise authorized |
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