Thursday, June 30, 2011

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. 

Tuesday, June 28, 2011

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.

Monday, June 27, 2011

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.

Thursday, June 23, 2011

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.

Wednesday, June 22, 2011

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.

Tuesday, June 21, 2011

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.

Wednesday, June 8, 2011

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.

Monday, June 6, 2011

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.