International Copyright Protection

We've talked over the last several months about the basic aspects of United States copyright law.  I'd like to finish by talking a little about international copyright law.

The Berne Convention is the common name for the International Union for the Protection of Literary and Artistic Works.  Most developed countries are members of the Berne Convention, including the U.S. since 1989.  Run by the Word International Property Organization, the Berne Convention attempts to unify the treatment of copyright in each country.  Convention members must provide as strong protection to works originating in other member  countries as they do to works from within the country.  

The Berne Convention protects literary and artistic works.  Protection is automatic with no required formalities, and lasts generally for a term of the life of the author plus fifty years.  If a work of art originates in a member country, it is entitled to protection in all other member countries. 

The Universal Copyright Convention is administered by the United Nations.  It provides for less protection than the Berne Convention, but covers some different countries.  It protects literary, scientific, and artistic works.  There are some requirements, such as requiring that works be marked as copyright works.  

The World Intellectual Property Organization (WIPO) Copyright Treaty was ratified by the United States in 1998.  It has become very important in applying copyright law to the Internet.  This includes some important regulations and procedures regarding circumvention of technology used to protect intellectual property. 

 If you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com .  We also have a free pamphlet discussing copyright law and how it effects small businesses and individuals.

Statutory Damages for Copyright Infringement

Last time, we talked about remedies for copyright infringement. A copyright owner can get an injunction, ordering the infringer to stop the infringing activity. He can have infringing copies impounded and destroyed. And he can get the actual damages he suffered due to the infringement of his copyright or violation of his moral rights.

One problem is that some copyright infringements don't actually result in a great deal in actual damages or profits.  To solve this problem, the Copyright Act has provisions that provide for a different remedy, called statutory damages. Copyright owners may elect to receive this type of damages instead of actual damages in certain situations. If elected, the copyright owner can receive an amount that the court considers fair, ranging from $750 up to $30,000 for each infringed work. The court will decide what amount within that range is fair, and will generally consider how much actual damage the copyright owner suffered, and how much the damages should be to deter others from infringing the same kind of copyright protected work. If the copyright owner can prove that the infringer did so willfully, the statutory damages can be increased up to $150,000 per infringed work. Similarly, if the infringer can prove that he was not aware and had no reason to believe his acts constituted infringement, the court can decrease the statutory damages to no less than $200 per infringed work.

One key point is that copyright owners must register there works with the Copyright Office within certain deadlines in order to have the award of statutory damages. The work must have been registered before the commencement of the infringement and must have an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement. The Copyright Act requires that there will be no award of statutory damages for (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

Probably the most important take home message is that copyright owners must register their works within certain prescribed periods in order to have statutory damages available in the case of infringement. And without ths possible remedy, enforcing your copyright may not be economically feasible.

Next time, we'll talk a bit about international copyright protection. If you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com .  We also have a free pamphlet discussing copyright law and how it effects small businesses and individuals.

Remedies for Copyright Infringement

So, if you have a copyright protected work, and another person copies it without your permission, you must file a lawsuit against the person who copied your work.  If you can prove that the person infringed your rights, what can the court do for you?

The first class of remedies a court is authorized to grant are known as injunctions.  The Copyright Act authorizes courts to grant both preliminary and permanent injunctions, ordering the infringing party to stop the copyright infringement and any violations of the author's rights of attribution and integrity in works of visual art.  In addition, the Copyright Act has provisions for impounding infringing copies and materials used to infringe.  Upon final judgment of infringement, these impounded things can be destroyed. 

The second class of remedies a court can grant are damages and profits.  The successful plaintiff in a copyright case is entitled to recover the actual damages he suffered due to the infringement of his copyright or violation of his moral rights.  Additionally, he is entitled to collect any of the infringer's profits that are attributable to the infringement that are not already accounted for in the plaintiff's damages.  Generally, the actual damages will be the sales lost by the plaintiff to the infringer due to the infringer if the infringer is a competitor of the plaintiff.  Alternatively, if the infringer is not a competitor, the damages may take the form of a royalty payment for the infringing activity. 

One important aspect of proving damages in a copyright case is that the copyright owner only has to prove the gross revenue of the infringer.  The defendant then has the burden of proving how much should be deducted from the gross revenue for his expenses and how much of the gross revenue is due to factors other than his infringement.

As you can imagine, some copyright infringements might not generate a great deal in actual damages or profits.  The Copyright Act has provisions that provide for a different remedy, called Statutory Damages, in such instances. We'll talk about these provisions next time.  In the meantime, if you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com .  We also have a free pamphlet discussing copyright law and how it effects small businesses and individuals.

How Long Does a Copyright Last?

Lots of folks know a little about copyright law, and one of the things people are always interested in is figuring out when a copyright is no longer valid.  First, lets talk about when copyright protection starts.  Under the common law, copyright protection began immediately upon the fixation of the work in a tangible medium.  Protection under the U. S. Copyright Act depends on when the work was published.  Between 1909 and 1977, federal protection commenced upon publication with proper copyright notice.  Since January 1, 1978, federal copyright protection commences at the time of fixation, same as the common law rule. 

Figuring out when a copyright expires is a little tricky.  Under the 1909 Copyright Act, the term was 28 years, which could be renewed for a second 28 year term.  In the revision of the Copyright Act that became effective on January 1, 1978, Congress decided to extend the terms of those works that were still under copyright protection.  It simply added 19 years to the second term, making the second term 47 years.  This period was extended again in 1998 by adding an additional 20 years to the second term.   

For works created on or after January 1, 1978, copyright endures vor the life of the author plus 70 years.  In the case of joint authors, the copyright duration is tied to the life of the longest living author, to which the 70 years is added.  If a work has an anonymous or pseudonymous author, the copyright endures for the shorter of 95 years after first publication or 120 years after creation of the work.  For works made for hire, the same term applies-- the shorter of 95 years after first publication or 120 years after creation of the work. 

If a work was created before January 1, 1978, but not yet published, the same terms apply, with the added option of protection until at least December 31, 2002, if that was longer than the other calculated term.  In an effort to encourage publication, those unpublished works that were published by December 31, 2002 are now protected under an extension of term through December 31, 2047. 

Next time, we'll refocus on infringement, and discuss the remedies for copyright infringement.  If you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com .  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals

Copyright Registration: How? Why?

So copyright protection arises upon fixation of a creative work in a tangible medium.  So why should you bother with registration with the Copyright Office?  And how do you do it?

First, why get a work registered with the Copyright Office?  There are actually several very good reasons.  It is essentially impossible to rely upon the courts to protect your copyright in the absence of registration with the Copyright Office.  U.S. copyright owners must register their copyrights before they can bring a lawsuit for copyright infringement.  Note, however, that this requirement can be met by registering the copyright after the infringement.  But this sort of late registration is discouraged because certain remedies under the law are reserved for those who have their works registered early.  If a work is not registered before the alleged infringement, or within a short period of time following publication of the work, the owner of the copyright cannot receive what are known as "statutory damages".  Further, late registrants are not eligible to receive attorney fees.  I'll discuss these remedies later.  For now, suffice it to say that statutory damages and attorney fees can be very important in copyright litigation.

So you need to register your work to file a lawsuit and get statutory damages and attorney fees.  What do you have to do?  The owner of a copyright may register his work with the Copyright Office at any time.  Such registration includes completing an application and filing it with the Copyright Office along with copies of the work.  There is no rigorous examination of copyright applications, but those applications that are not in compliance with the requirements are rejected.  If the work is published, Copyright regulations require submission of copies of the work within three months of publication to the Library of Congress as well.

Next time, we'll talk about the duration of copyright protection. If you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Copyright Notice

Lots of folks think that the way to ensure that their creative work is protected by copyright is to include some notice that it is copyright protected, or including the © in the work.  But requirement of such a notice seems inconsistent with the idea that creative works are copyright-protected when they are fixed.  That said, in the United States, copyright notice has, at various times, been very important in protecting one's rights.  Different versions of the copyright law had different requirements.  It is important to know these differences when looking at older works, as the law at the time of publication applies with regard to notice requirements. 

Copyright Act of 1909:  Under this older scheme, applicable through January 1, 1978, common law copyright protection applied before a work was published.  Upon publication, there was no common law protection, and protection depended upon compliance with the statutory requirements.  The statute required that all authorized copies of a work carried proper notice of copyright.  This requirement was fairly strictly construed.  If even a few copies of a work had improper notice or no notice, then all copyright protection in the work could be lost. 

Copyright Act of 1976:  This scheme applies to works published between January 1, 1978 and March 1, 1989.  In this scheme, federal statutory protection began upon fixation of the work in a tangible form.  Notice was required for all visually perceptible copies of a work that were publicly distributed.  As before, failure to do so could result in loss of copyright protection.  However, if certain conditions were satisfied, the copyright protection could be saved in spite of the improper notice.  Copyright protection could be saved if only a small number of copies were distributed without notice, if the work was registered with the Copyright Office within five years of publication and efforts were made to add notice to copies distributed after the omission of notice was discovered, and if the copies of the work were distributed in direct violation of an express agreement in which the copyright owner insisted that the copies include notice.  If a copies lacked notice, and even if copyright protection was saved, innocent infringers who relied upon the lack of notice as an indication that the work was in the public domain were excused from paying damages for their infringement. 

Berne Convention:  This is the current scheme, applicable since March 1, 1989.  The Berne Convention is an international copyright protection scheme.  Most foreign countries have long shunned the need for copyright notice and other formalities.  In order to join the Berne Convention, the U.S. had to eliminate its notice requirement.  Accordingly, notice requirement is now strictly voluntary.  However, the U.S. code attempts to encourage the inclusion of the voluntary notice by providing that if proper notice is included on the published copy of a work to which an accused infringer had access, the defendant could not use an innocent infringer defense to mitigate actual or statutory damages.  Thus, including notice can be very important in any copyright litigation.

Next time, we'll talk about the requirements for copyright registration, and why it is worthwhile. If you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Divisibility of Ownership of Copyright

As you know, copyright law in the U.S. protects a bundle of exclusive economic rights.  These include the right to reproduce the work, the right to prepare derivative works, the right to distribute copies of the work to the public, the right to perform the work publicly, and the right to display the work.  Each of these economic rights are generally owned by the author of the work.  But the U.S. Copyright Act provides that the different rights can be assigned to others.  In fact, the author can even subdivide the rights to others.  As an example, the author of a book owns the right to make derivative works.  He could assign a part of this right, such as the right to adapt the book into a movie, to one person, and he could assign another part of that right, such as the right to publish a foreign language translation of of the book to another person.

So how does a copyright owner transfer his rights?  All transfers of exclusive copyright ownership must be in writing.  Note, however, if the transfer is merely permission to do something protected by copyright law, but not an exclusive right, it is just a license, and may be oral.

So does a work of art have to have a notice of copyright in order to be protected by United States copyright law? We'll talk about that next time.  If you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Copyright in Collective Works

So, say you and your four best friends are all poets.  You each write a few poems.  Among your poems is a limerick in which you extoll the virtues of drinking beer.  It's a really nice limerick.  All of the poems are really nice.  Your friend, Cole Lecter, gathers all the poems together and publishes them in a collection.  So, who owns the copywrite?

Well, fortunately, the drafters of the U.S. Copyright Act thought about this situation.  Section 201(c) of the Copyright Act provides that

Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

With this provision, it is clear that the presumption is that each of the contributors retain the copyright in his own works of authorship.  Thus, your limerick belongs to you.  What Cole has in this case (unless the parties agree otherwise) is the privilege to reproduce and distribute the individual works as part of his collection.  Cole does own the copyright to any work of his own authorship that is included in the collection.  For example, Cole's expression or contribution might include the selection and arrangement of the separate works, or the preface that he wrote himself. 

Is it possible for copyright rights in a single work to be owned by different folks?  Next time, we'll talk about that.  In the meantime, if you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

The Boss Might Own the Copyright: Works For Hire

In my last post, i talked about how the usual situation is that the initial owner of the copyright of a work is the author of the work.  A very important exception to this "usual situation" is when a work is "made for hire" according to the Copyright Act. According to the Copyright Act, section 101:

A “work made for hire” is — 

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a 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, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

It is important to determine if an artist who is making a work for another person is working more like an employee of "the boss", or if he is acting as an independent contractor on a specially ordered or commissioned work. If he is an employee, the initial copyright owner is the employer. If e is not an employee, then the initial owner of the copyright is the artist unless the parties agreed otherwise in writing. Generally, determining whether an artist is an employee ( and the work a work for hire) or an independent contractor is based upon a consideration of several criteria, including the following:

(1) the level of skill required- greater required skill weighs against a work for hire.
(2) the source of tools and instruments used- if provided by the artist, less likely to be found a work for hire.
(3) the location of the work- if done on artist's premises, less likely to be a work for hire.
(4) the duration of the relationship between the boss and the artist- shorter duration is less likely to be a work for hire.
(5) the degree to which the boss has the right to assign the artist to other tasks- if the boss can do this, more likely to be a work for hire.
(6) the artist's discretion in setting his hours- if the artist can do this, more likely not a work for hire.
(7) the method of payment- if the same as other employees, more likely a work for hire.
(8) the artist's role in hiring and paying any needed assistants- if he hires and pays assistants, less likely to be a work for hire.
(9) whether the work is part of the regular business of the boss- if it is, more likely to be a work for hire.
(10) whether the boss is, in fact, in business- if not, more likely not a work for hire.
(11) whether the boss provides employee benefits for the artist- if he does, more likely a work for hire.
(12) whether the boss withholds taxes from the artist's pay- if he does, more likely a work for hire.

The creator of a work for hire has very few rights under copyright law. Thus, it is very important to understand who owns a commissioned work and generally best to get it in writing from the start.

So who owns the copyright in a collection of stories or photographs with many different artists? I'll talk about that next time. In the meantime, if you have any questions about copyright law, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

From Politico: movie, music pact with Internet Service Providers

http://www.politico.com/news/stories/0711/58499.html

Who Owns a Copyright?

I hope you all had a nice 4th of July holiday.  Over the next few days, I'm going to write about ownership of copyright.  There are several different situations that need to be considered. 

Generally, the initial owner of the copyright of a work is the author of the work.  The author can exploit the work himself, he can transfer part of his rights to another, or he can transfer all of his rights to another.  But who is the author?  Generally, the author is the person who conceives of the copyrightable expression and fixes it into a tangible form, or has someone else to fix into a tangible form.  One interesting situation is when a work is made for hire.  In that case, the one who hired the worker who actually made the work is considered the author.  I'll talk about works for hire in my next blog. 

Another interesting ownership question involves ownership in joint works.  A work prepared by two or more authors who intend that their work be merged into inseparable or interdependent parts of a single work is considered a joint work.  The emphasis is on the intent of the authors at the time each of them made his contribution to the work.  The different authors don't need to work at the same time, or even know each other, but must intend to contribute to a single unitary work at the time he makes his contribution. 

Joint authors generally each own equal undivided interests in the joint work.  For example, two joint authors would each own one-half interest in the entire work.  Each owner is entitled to exploit the copyright without seeking any permission from the other, but will have to share the profits.  Note that this situation differs from one where two authors each own different copyrights that are exploited together.  For example, if A owns the rights to the lyrics of a song, and B owns the rights to the music, and either exploits the combination without the other's permission, he will be liable for infringement of the other's copyright.

Note that the ownership by joint authors of equal shares can be varied by agreement of the parties.  If you have any questions about the copyright ownership, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Enough?

It's the end of the month, so I thought I'd take a break from copyright law and retell a story a friend recently shared with me about an American banker, a Mexican fisherman, and the American Dream.

An American investment banker was at the pier of a small coastal Mexican village when a small boat with just one fisherman docked.  Inside the small boat were several large yellowfin tuna.  The American complimented the Mexican on the quality of his fish and asked how long it took to catch them.

The Mexican replied, "only a little while."

The American then asked why didn't he stay out longer and catch more fish?

The Mexican said he had enough to support his family's immediate needs.

The American then asked, "but what do you do with the rest of your time?"

The Mexican fisherman said, "I sleep late, fish a little, play with my children, take siestas with my wife, Maria, stroll into the village each evening where I sip wine, and play guitar with my amigos.  I have a full and busy life."

The American scoffed, "I am a Harvard MBA and could help you.  You should spend more time fishing and with the proceeds, buy a bigger boat.  With the proceeds from the bigger boat, you could buy several boats, eventually you would have a fleet of fishing boats.  Instead of selling your catch to a middleman you would sell directly to the processor, eventually opening your own cannery.  You would control the product, processing, and distribution.  You would need to leave this small coastal fishing village and move to Mexico City, then LA and eventually New York City, where you will run your expanding enterprise."

The Mexican fisherman asked, "But, how long will this all take?"

To which the American replied, "15 - 20 years."

"But what then?" Asked the Mexican.

The American laughed and said, "That's the best part.  When the time is right you would announce an IPO and sell your company stock to the public and become very rich, you would make millions!"

"Millions - then what?"

The American said, "Then you would retire.  Move to a small coastal fishing village where you would sleep late, fish a little, play with your kids, take siestas with your wife, stroll to the village in the evenings where you could sip wine and play your guitar with your amigos."

I hope all of you have the chance to spend some part of the upcoming holiday weekend with your friends and family, and I hope you'll reflect on what it means to have enough. 

When Copyright Violations are Fair: The Fair Use Defense to Infringement

In certain instances, a copyright owner might be able to show that an accused infringer did, in fact, infringe at least one of his rights under copyright law, but the infringer might be excused.  In what is known as the Fair Use Defense, courts are able to avoid rigid application of copyright law when they consider the law unfair or when the law stifles creativity or the dissemination of useful information to the public.  The Fair Use Defense is codified in Section 107 of the Copyright Act, as follows:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

As you can see, the Fair Use Doctrine as codified is meant to be applied flexibly, on a case-by-case basis, with many factors considered.  Several different factors are listed, but the court can consider other factors as well.  Going through each of the listed factors:

(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes: use for a commercial purpose is less likely to be deemed fair use than use for nonprofit educational purposes.  Moreover, if the accused acted in good faith, it is more likely to be found a fair use.  Incidental use, as opposed to extensive copying, is more likely to be deemed fair use.

(2)the nature of the copyrighted work: whether a work is published or not can be important-- copying an unpublished work is less likely to be deemed fair use.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole: if an unimportant portion of a work is copied, or if a small amount of a work is copied, it is more likely to be deemed a fair use. 

(4) the effect of the use upon the potential market for or value of the copyrighted work: If the copying has the potential to impair the marketing efforts of the owner of the copyrighted work, it is less likely to be deemed fair use. 

The Supreme Court has made it clear that no single factor is conclusive in determining fair use.  The fair use defense.  If you have any questions about the fair use defense to copyright infringement, email us or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Copyright Enters the Digital Age: The Digital Millenium Copyright Act

In 1998, Congress passed the Digital Millenium Copyright Act, known as the "DMCA".  The Act had several portions that served to update a great deal of the law as it applies to computer-related copyright matters.  One part amends U.S. copyright law to comply with the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty.  These two treaties were adopted in 1996, and include provisions known as the DMCA anti-circumvention provisions, which changed the remedies for the circumvention of copy-prevention systems and required that video recorders have built-in copy prevention devices. 

A second part of the DMCA relates specifically to limiting the liability of certain entities for online copyright infringement.  This portion, known as the Online Copyright Infringement Liability Limitation Act, creates what is known as a "safe harbor" for online internet service providers.  This shields the service providers against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) if they receive a notification claiming infringement from a copyright holder or the copyright holder's agent. 

A third part of the DMCA modifies the copyright act to permit those repairing computers to make certain temporary, limited copies while working on a computer, without violating any copyright. 

There has been over a decade of criticism of the DMCA and how it effects copyright holders and others.  Some have said that the DMCA makes it too easy for copyright owners to ask a website to take down copied material, even if there is no likely infringement liability.  When website owners receive a takedown notice it is in their interest not to challenge it, even if it is not clear if infringement is taking place, because if the potentially infringing content is taken down the website will not be held liable.  Some have criticized the DMCA's copy prevention portion as preventing the fair use of copyrighted materials, such as copying for educational uses.  And researchers in cryptography and data protection complain that the DMCA hinders their work.  There is some movement in the legislature to amend the law in response to these criticisms. 

Let us know if you have any questions on the DMCA.  Send us your questions or comments, or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

What Is Copyright Infringement?

So now you know what a copyright is, and you know about the various economic rights and moral rights associated with copyrighted works.  The United States Copyright Act provides that anyone who violates any of these rights is liable for direct infringement of the copyright.  This liability is to the owner with regard to the economic rights, and to the artist with regard to the moral rights.  In addition, a person knowingly induces, causes or contributes to the infringing conduct of another is liable for contributory infringement.  To clarify the difference, think about a flea market.  The flea market owner provides space to vendors and promotes the flea market.  A vendor sells bootlegged copies of Lady Gaga CDs, obviously without getting Ms. Gaga's permission to do so.  A local police officer on patrol at the flea market noticed this behavior, and warned the flea market owner about the infringing activity, but the flea market owner did nothing to stop it, and continued promoting the flea market.  In this case, the vendor of the Lady Gaga CDs would be liable for direct infringement because he violated Lady Gaga's economic rights.  The flea market owner, on the other hand, would be liable for contributory infringement because he contributed to the infringing conduct of the vendor, and he knew about the infringement. 

But consider a different circumstance.  The flea market owner operates his business differently, and receives a set percentage of each vendor's sales.  He also has the right per an agreement with the vendor to control what the vendor sales and ensure that the vendor follows the rules.  So he has both (1) the power to police the vendor's conduct, and (2) a direct financial interest in the vendor's proceeds.  If he permits the vendor to sell the Lady Gaga CDs that infringe the copyright, he will be liable for vicarious infringement of the copyright.  The vendor would still be liable for direct infringement. 

Tomorrow, we'll talk about the Digital Millenium Copyright Act, and how it effects infringement liability for internet-related activities.  Send us your questions or comments, or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Moral Rights in Copyright

In the last month or so, we've talked about the bundle of economic rights the owner of a copyright has in a copyrighted work.  These include the right to reproduce the copyrighted work in copies or phonorecords, the right to prepare derivative works based upon the copyrighted work, the 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, the right to publicly perform literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, the right to publicly display 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, and the right to publicly perform sound recordings by means of a digital audio transmission.  As economic rights, these rights go with the ownership of the copyrighted works.

But art is about more than economics-- it is also in many ways an extension of the person who created the art.  Accordingly, many countries have worked to protect what are known as the moral rights of the artist.  The United States adheres to the International Union for the Protection of Literary and Artistic Works (known as "The Berne Convention"), which requires the protection of these rights.  These rights stay with the creator of a copyrighted work, no matter the ownership of the copyrighted work.  The two most basic moral rights are the right of attribution and the right of integrity.  The right of attribution ensures that the author will continue to be recognized as the creator of the work, and that others may not claim the authorship of a work.  The right of integrity allows the author to keep others from distorting or misrepresenting his work. 

In addition to the protections of the Berne Convention, the Visual Artists' Rights Act of 1990 provides the right of attribution and integrity to artists of visual works. Visual works are defined as

(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

The Visual Artists' Rights Act does not apply to  

1. any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

2. any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

3.  any portion or part of any item described in clause (i) or (ii);

4.  any work made for hire; or

5.  any work not subject to copyright protection.

One very important aspect of moral rights is that the artist who creates the work retains the rights, even if he assigns his other rights to another.  Moral rights cannot be assigned.  The only way he may lose his moral rights is by specifically waiving his rights in a signed writing.  Otherwise, the moral rights endure through the lifetime of the artist.

Besides the Berne Convention and theVisual Artists' Rights Act, the Lanham Act may be used to protect the right of attribution through its prohibition of false designation of origin.  Further, there are state contract, privacy, unfair competition, and defamation laws that may protect certain moral rights.  

That's our overview of the economic and moral rights in copyright.  We'll move on to infringement next.  Send us your questions or comments, or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Public Display

We've been talking about the bundle of rights the owner of a copyright has in the copyrighted work.  You'll recall that Section 106 of the United States Copyright Act gives the copyright owner "the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) 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."  We've touched on all of these except public display, which we'll talk about today. 

But first, an apology: I have been somewhat negligent in posting on this blog due to some commitments I had in early June.  Suffice it to say that fish were caught in Nag's Head, cattle were taken care of in Vale, North Carolina, Chico the bull (pictured above) was delivered to a new home with lots of new lady cows to meet, and my niece is safe in her new home in Pensacola.  Now back to copyright law.   

As noted above, the right to public display of copyrighted work applies to all copyrighted works except for sound recordings and architectural works.  Obviously, sound recordings aren't displayed.  Architectural works are displayed, but extending the right to public display to such works would limit the usefulness of the final product.  The typical question in copyright matters is what, exactly, is meant by "public display"?   The copyright statute has defined this as follows:

To perform or display a work “publicly” means — 

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Easy stuff, right?  In case you haven't noticed, a recurring theme in copyright law is the exception to the rules.  The right to public display is, like the other rights, littered with exceptions:

1: Owners of lawfully made copies of a copyrighted work have the right to display their copy publicly to viewers that are present at the place where the copy is located.  Wider display beyond the location of the copy is reserved for the copyright holder, in order to protect his market.  Thus, television broadcast and internet display are not part of the exception.

2:  Public display on a home-style receiver, such as a television (like one used in homes) in a public place is not infringement of the right to public display, unless their is a charge to view the television.  This exception is often used by bars and restaurants which use televisions to entertain their customers.

3:  Display of a copyrighted work by instructors in face-to-face nonprofit educational settings do not constitute infringement.  If the school is a for-profit school, the exception does not apply. 

4:  Public display through instructional broadcasts by a governmental body or nonprofit educational institution do not infringe the right to public display if the broadcast is (1) to a classroom or palce of instruction, (2) to persons who are unable to attend class, or (3) to government workers as part of their employment. 

5:  Display during religious services does not infringe the right to public display.

6:  Secondary transmission of broadcast transmissions may not infringe the public display right in certain circumstances, such as when hotels receive broadcast signals and retransmit them to individual rooms.

In addition to the noted exceptions, the statute also requires that copyright holders submit to complulsory licenses of the right to public display by noncommercial broadcasts, by sattelite retransmission, and by cable systems.

Tomorrow,we will talk a little about what are known as moral rights. Please let us know if you have any questions or comments. Email is at jdellinger@mainspringlaw.com.

Performing Rights Societies

Earlier this week, we talked a little about the Digital Performance Rights in Sound Recordings Act, and how it can afford greater rights to owners of copyrighted sound recordings. Another interesting aspect of the public performance right is the widespread use of what are known as "performing rights societies". These are organizations that were created to deal with a problem unique in the copyright world to musical compositions. Musical works are performed so frequently by broadcast and live performance that a copyright owner might find it nearly impossible to keep track of to enforce his rights. Broadcasters of musical works would find it cumbersome to negoiate licenses to play individual songs. The performing rights societies deal with these problems.

The two largest performing rights societies are the American Society of Composers, Authors, and Publishers (known as "ASCAP") and Broadcast Music, Inc. ("BMI"). They act as agents for musical copyright owners. They issue licenses and monitor performances on behalf of the copyright owners. They can issue blanket licenses to multiple works and thereby reduce the costs associated with licensing. The radio stations, for example, can pay a set royalty to the performing rights society, and the performing rights society can distribute the royalties to the individual copyright owners. the performing rights societies also work to monitor the activities of the broadcasters to assure that copyright owners are rewarded for their work.

Tomorrow,we will talk about the right to public display of copyrighted works.

Please let us know if you have any questions or comments. Email is at jdellinger@mainspringlaw.com.

Digital Performance Rights in Sound Recordings

As we discussed last week, one of the important rights owned by certain artists is the right to public performances. This right does not generally apply to sound recordings. Congress remedied this somewhat in 1995 with its enactment of the Digital Performance Rights in Sound Recordings Act. This act provides for a limited right for owners of copyrighted sound recordings to preclude public performance of their works by means of digital audio transmission. This right was provided because of concern that digital performance would affect sales of records and compact discs. The right is, as noted, quite limited. For example,
- it does not apply to over the air radio or television broadcasts or rebroadcasts.
- it does not extend to digital transmissions of audiovisual works.
- it does not apply to digital performances of audio recordings that are not transmissions, such as playing a compact disc in a restaurant or bar.

The principal application of this limited right is against audio demand- type services, which enable a consumer to request and receive a digital transmission of a particular sound recording at any time. These services were deemed to be a great threat to the sale of audio recordings.

Tomorrow,we will discuss the compulsory licensing provisions that also effect the right to public performance.

Please let us know if you have any questions or comments. Email is at jdellinger@mainspringlaw.com.

Public Performance of Copyrighted Work

"Life is like a public performance on the violin, in which you must learn the instrument as you go along"
— E.M. Forster

While life may share many characteristics with public performance, it is not part of the bundle of rights associated with copyright. The copyright owner has the exclusive right to public performance of the copyrighted work. Besides not applying to life in general, this right does not apply to several categories of copyrighted subject matter. As you would expect, it does not apply to certain works that are not "performed.". This includes pictorial, graphic, and sculptural works and architectural works. Interestingly, the exclusive right to public performance does not generally apply to sound recordings. This means that radio stations may broadcast copyrighted sound recordings with no liability to the owner of the sound recordings copyright. I'll discuss the rather unusual world of public performance of sound recordings tomorrow. For literary works, musical works, dramatic works, pantomimes and choreographic works, and motion pictures, the exclusive right to public performance applies.

The Copyright Act defines public performance as follows:

To perform or display a work “publicly” means — 

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

It is important to note that there are often multiple incidents of "performances" of a copyrighted work. For example, a singer might sing a copyrighted song in public- a first performance. The performance might be recorded and broadcast by a television network- a second performance. The broadcast might be rerun later- a third performance. Each new rendition is a separate public performance.

But what is "public"? As the definition above states, it means a place open to the public or any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. If the public is free to go to a place, it is considered a public place, even if the place is small and can host only a limited number of people. Hotel rooms are generally not considered public places, so viewing a rented video in a hotel room is not a public performance. Note, though, that even places generally not considered public, such as a home, may still host a public performance if there are a substantial number of folks present who are not friends and family. Finally, the transmission of a performance to the public is a public performance. Whether anyone sees the performance is not important.

A few exceptions to the exclusive right to public performance are worth noting. Non-profit performance of nondramatic literary or musical works are not covered. Stores may publicly play musical works on the premises in order to promote sales of the works. And nondramatic musical works may be performed in the course of fairs sponsored by government and nonprofit agricultural organizations.

I'll talk about the public performance of sound recordings tomorrow. Please let us know if you have any questions or comments. Email is at jdellinger@mainspringlaw.com.

From Politico: The Politics of Piracy

http://www.politico.com/news/stories/0511/55397.html

The Right to Distribute Copyrighted Works and the First Sale Doctrine

Copyright owners have the exclusive right to distribute their copyrighted work to the public.  Distribution means the actual transfer of a material copy of the copyrighted material.  Simply offering to transfer is not distribution under copyright law.  Further, distribution includes a sale or other transfer of ownership, but also includes rental, lease, and lending of the copyrighted work.  As a distinct right, the right to distribute is separate from the other rights.  For example, a manufacture may have a license to reproduce a copyrighted work, with no mention of the right to distribute.  If he sells the copies he manufactured to the public, he would be infringing the right to distribute. 

The doctrine of first sale constitutes a significant exception to the exclusive right of distribution.  This doctrine provides that once there is an authorized transfer of a copyrighted work to another party, that party can transfer or dispose of his authorized copy freely.  This means that the copyright owner really only has the exclusive right to the initial distribution of a copy of his work, with few exceptions.  Obviously, the doctrine of first sale doesn't apply to unauthorized copies.  So if a merchant sales pirated copies of a copyrighted work, he is violating the exclusive right to distribute, with no protection from the first sale doctrine.  Another exception applies to audio works and computer programs.  Despite the initial sale of such works, even an authorized buyer does not generally have the freedom to rent the audio work or computer program out to the public. 

One interesting state law-based "exception" to the first sale doctrine is droit de suite, which literally translates as "piggyback".  This doctrine gives the creator of a work of fine arts the right to share in any appreciation in the value of his work if it is resold after his initial transfer of the work.   Droit de suite is recognized in some countries, but not recognized under U.S. copyright law.  However, California state law includes a droit de suite statute. 

I'll talk about the right of public performance next week.  Send us your questions or comments, or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

What's A Derivative Work?

U.S. copyright law gives the copyright owner the exclusive right to prepare works derived from the copyrighted work, or adapt the copyrighted work.  But what is a derivative work or adaptation?  The statute has a definition:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

It is clear that changing the form of a work, such as rewriting a book as a play, is an adaptation, and consitutes infringement of the book copyright book.  As in the right to reproduce, the copyright owner still must prove that the accused infringer copied the work, and that the resultant work is substantially similar to the copyrighted work in its expression.  As before, the expression is protected, not the idea.  

Another form of impermissible adaptation of a copyrighted work is when the copyrighted work is altered even if the work is not, in fact, copied.  For example, if a person buys authorized copies of a book containing copyrighted photos or other graphic art, then cuts the art out of the book and treats them with shellac or laminates them, and then offers the changed graphic art to the public as wall decorations, they did not copy the work.  However, they very well might be found liable for infringing the copyright by by the unauthorized adaptation of the work.  

There are, of course, certain exclusions to the exclusive right to adapt copyrighted works.  For sound recordings, infringement is only found if the adapted work actually copies the copyrighted work-- there is no liability if the adaptation uses an independently recorded version.  For computer programs, an authorized user does not infrine the copyrighted work if utilizing the program requires making and adapting a copy of the program.  Finally, for architectural works, the owner of a building embodying a copyrighted architectural work can alter or destroy the building without the copyright owner's permission. 

Next we'll talk about the exclusive right to distribute copyrighted works to the public.  Let us know if you have any questions or comments.  Post them on the blog, or email me at JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Copyright: The Right To Reproduce

We were talking yesterday about the rights that authors and artists (or other copyright owners to whom the artist's or author's rights have been transferred) enjoy under U.S. copyright law.  The first is the exclusive right to reproduce the copyrighted work.  This right extends only to the making of a material copy of a work.  Reading a work out loud, or playing an audio recording of copyrighted music, are not considered reproduction. Under U.S. law, in order to be liable for infringing a copyright by reproducing the work, it must be shown that the accused both (1) copied the copyrighted work, and (2) that the accused copy is "substantially similar" to the copyrightable parts of the copyrighted work.  Copying can be shown by providing direct evidence of the copying, or by showing that the accused had acccess to the copyrighted work and that the accused product is sufficiently similar to the copyrighted work.  If copying can be shown, then infringement by reproduction will be found if the copyright owner can show that the intended audience of the work would find the accused product substantially similar to the copyrighted work.  Remember, copyright protects the expression, not the idea.  Thus, similarity to the idea is not copyright infringement. 

Liability for copying a copyrighted work in a website is a fairly actively litigated area of copyright law.  Downloading or uploading a file is making of a copy of the file.  However, current caselaw is that, if the user (and not the website) is downloading/uploading to the website’s server, the website is not liable for reproducing the copyrighted work.  But if a website reviews files uploaded by users before those files are made available, the website may be found liable. 

There are several important exceptions to the owner's exclusive right to reproduce a copyrighted work. 
(1) If the work is a computer program, the lawful owner of a copy of it can reproduce it if running the program requires making a copy, such as copying to the computer's hard drive.  The lawful owner of a computer program can also make a backup copy. 
(2) If a work is a pictorial, graphic, or sculptural work portraying a useful object, then the copyright owner cannot keep others from reproducing the displayed useful object.  For example, if a picture of a car is copyrighted, the photographer cannot keep others from making the car itself. 
(3) If the work is an architectural work, the copyright owner cannot keep others from making pictures or paintings of the copyrighted architecture. 
(4) Libraries and archives enjoy certain exceptions from copyright law, allowing them to reproduce and distribute copyrighted works for noncommercial use in certain circumstances.
(5) Copying of audio works for broadcast, or home recording of audio works for noncommercial use, is not considered reproduction for infringement determinations.
(6) Only reproduction of the actual recorded copyrighted audio is prohibited.  Reproduction of independently recorded imitations is not prohibited.
(7) Recorded nondramatic musical works may be subject to a compulsory license, allowing broadcast of the works.
(8) Certain works may be subject to an exclusion allowing copying in specialized formats for the disabled, such as in Braille. 

Tomorrow, we'll discuss the exclusive right to prepare works derived from the copyrighted work.  As always, we look forward to your questions or comments on the blog, or by email at JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

WHAT RIGHTS ARE PROTECTED BY COPYRIGHT?

Last week, we talked about the kinds of works original works of artistic expression fixed in a tangible medium are protected by U.S. copyright.  Today, we'll talk about the nature of the rights authors and artists have under copyright.   Just to clarify, these rights apply to the author or artist, or to another owner of the rights to whom the author or artist has transferred his rights.  The exclusive "economic rights" granted to the copyright owner include the right to do or authorize another to do the following:

(1) Reproduce the copyrighted work;
(2) Prepare works derived from the copyrighted work;
(3) Distribute copies of the copyrighted work to the public;
(4) Publicly perform the work;
(5) Publicly display the work; and
(6) Performing copyrighted sound recordings by means of digital audio transmission.

In addition to these economic rights, the artist of visual art works has certain "moral rights," including the rights:

(1) To claim authorship in the work;
(2) To prevent the use of his name as the creator of any work that he did not in fact create;
(3) To prevent the use of his name as the creator of a work that he did create if it has been distorted, mutilated, or modified in such a way as to harm his honor or reputation; and
(4) To prevent the intentional or negligent destruction  of any of his works that are of recognized importance.

Over time, copyright law has developed to clarify what, exactly, each of these rights actually encompass.  Tomorrow, we'll discuss what is meant by the right to reproduce a copyrighted work.

In the meantime, feel free to email us at JDellinger@mainspringlaw.com if you have any questions, or if you'd like a free copy of our pamphlet discussing copyright law as it effects small businesses and individuals.

COPYRIGHT: WHAT IS IT?

Our lives are made more complete by the creations of gifted artists and authors. While artists and authors love their work, society has long recognized that there must be some mechanism for them to potentially reap the rewards for their work. This mechanism has generally included giving the exclusive rights to the copying and control of their work. In the United States, these rights are granted in the Constitution, which states that "The Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited terms to authors and inventors the exclusive right to their respective writings and discoveries.” U.S. Constitution, Article I, § 8, cl. 8.

Under U.S. Law, copyright protects what are known as Original Works of Artistic Expression Fixed In A Tangible Medium . By statute, this includes the work itself, or anything derived from the work itself. It includes any tangible thing that can be perceived, reproduced, or communicated. Specifically covered by U.S. Law are works within the following categories:
(1) Literary works, including computer software,
(2) Musical works, including any accompanying words;
(3) Dramatic works, including any accompanying music;
(4) Pantomimes and choreographic works;
(5) Pictorial, graphic, sculptural work, jewelry, and body art;
(6) Motion pictures and other audiovisual works;
(7) Sound recordings; and
(8) Architectural works.

An important point to note is that copyright protects the expression of ideas, but does not protect the ideas themselves. Nor does the protection extend to any procedure, process, system, method of operation, concept, principle, or discovery. Copyright is limited to the tangible expression of the idea.

Next we'll talk about the precise rights authors and artists have under copyright, and more about how to perfect those rights. In the meantime, email us if you have any questions, or if you'd like a free copy of our pamphlet discussing copyright law as it effects small businesses and individuals.

WELCOME!

Welcome to Mainspring Law's Blog! Mainspring is dedicated to providing intellectual property law services efficiently, while fostering the personal relationships that make this job worthwhile. This blog is an important part of our service. With this blog, we hope to provide interested readers with good information on topics in intellectual property law. Perhaps more importantly, we hope the comment process will allow readers to talk back to us so that we can provide better service.

We think the folks we are meant to serve are primarily small and mid-sized businesses and individuals. These folks may be less likeIy to have ready access to legal services and might have questions about exactly what is involved in the various types of intellectual property law, and how the different types of protection are important to them. So we thought a good place to start the conversation would be simply discussing some of the basics of intellectual property law. We'll start with a few posts about copyright law.