Copyrights protect creative expressions from unauthorized reproduction.
- Only the original expression though. All the ideas and facts of a work immediately go into the public domain. 17 U.S.C. § 102.
The power to regulate copyrights comes from Article I, Section 8, Clause 8.
For one to have a copyright, the work must be:
- Work of authorship
- Fixed in a tangible medium of expression
- Capable of reproduction and human readable
Copyrights must be registered to file a lawsuit, and there are perks to having registered the copyright beforehand.
Copyrights last for the author's life plus 70 years.
Work of Authorship
Works of authorship are defined in 17 U.S.C. § 102:
- literary works;
- musical works, including any accompanying words;
- dramatic works, including any accompanying music;
- pantomimes and choreographic works;
- pictorial, graphic, and sculptural works;
- motion pictures and other audiovisual works;
- sound recordings; and
- architectural works.
A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
It does not have to be fixed for very long. Merely loading it into RAM is sufficient.
“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘’copies” includes the material object, other than a phonorecord, in which the work is first fixed.
“Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.
Originality is a requirement to copyright your work.
To be an original expression, it must only be minimally creative.
Scènes à Faire
The scènes à faire doctrine says you cannot protect generic plot lines or themes.
Having someone create something like your work independently does not invalidate the original's originality.
A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.
While facts are not protectable, compilations are. However, it must have at least some creativity. This is a very low bar however.
Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340
To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious” it might be.
Basically, it has to be anything more than an alphabetical list of people. Categorize it or something.
Copyright only protects expressions, not ideas or functions.
- In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
If an expression is indistinguishable from the underlying facts, the merger doctrine prohibits copyright protection. E.g., maps.
To be entitled to copyright protection, characters must pass a three-part test from DC Comics v. Towle:
- Character must have "physical as well as conceptual qualities."
- The character must be "sufficiently delineated" to be recognizable as the same character whenever it appears.
- It must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance.
- The character must be "especially distinctive" and "contain some unique elements of expression."
- It cannot be a stock character such as a magician in standard magician garb.
For there to be copyright infringement, there must be:
- a valid copyright
- a "copying of constituent elements"
- Violate an exclusive right in 17 U.S.C. § 106
- It doesn't matter if the results are the exact same if they were developed independently.
- The standard is "substantial similarity."
- Access is usually used as evidence of copying.
The Abstraction-Filtration-Comparison test is a test used to determine if the non-literal parts of computer programs are substantially similar. It comprises three steps:
- Isolate the abstract elements of the works and identify which are ideas and which are expressions.
- Filter out the non-protectable elements from the products.
- Compare the remaining elements.
In determining substantial similarity, the intended audience must be considered. If something targets an expert group, it should be tested if it is substantially similar to that group, not to lay people.
Holding a copyright gives one the exclusive right to:
- Derivative works
- Public performance
- Public domain?
For damages, the copyright owner can either get profits or (if registered) statutory damages. 17 U.S.C. § 504(a).
For profits, you can get actual damages plus all profits attributable to the infringement, and the burden of showing actual damages shifts to the infringer. (You get all profit unless the infringer can show just actual damages.) 17 U.S.C. § 504(b).
For statutory damages, you can get $750–$30,000 per work infringed upon. (not per infringement) If willful, it can go up to $150,000. 17 U.S.C. § 504(c). You can also get attorney's fees and possibly punitive damages.
- For statutory damages, you have to have registered an unpublished work or register a published work before or within three months of publishing it. 17 U.S.C. § 412.
- Statutory damages are subject to the innocent infringement defense. If the infringer had no reason to believe that his acts constituted copyright infringement, the damages may be reduced, to a minimum of $200. This defense cannot be raised if there was a notice of copyright with the work.
Copyright infringement is de minimis if the average audience would not recognize the appropriation.
A copyrighted work may be reproduced without constituting copyright infringement if it is for a protected purpose and if it is fair use. In determining whether a use is fair use, four factors are considered.
Fair use is largely judicially-created, as it was created and defined before being codified in the Copyright Act and statutory law is not very specific about how to define it.
A protected purpose is something
such as criticism, comment, news reporting, teaching, scholarship, or research.
Parody is a subset of criticism or commentary, and thus parody works must direct commentary or criticism at the work. Just being a parody or funny is not a protected purpose. The leading case on the matter is Dr. Seuss Enterprises v. Penguin Books.
- Purpose and character of the use
- Commercial or non-profit?
- Nature of the copyrighted work
- Has it been transformed into something beyond the work itself?
- Fact-based works are more likely to be fair use than creative works
- Portion of the copyrighted work used
- Effect of the use on the market
- Hardest to determine
- Most important
Secondary liability is imposed on one who did not commit the legal wrong directly, but is found responsible for encouraging, facilitating, or profiting from it.
Secondary liability is entirely based on common law.
For there to be secondary liability, there always has to be underlying direct liability for copyright infringement.
Contributory infringement is imposed on one who has control over an unauthorized use.
Vicarious liability is imposed on one who has the right and ability to supervise the infringing activity and has a direct financial interest in the activity.
A third, newer form of secondary liability is inducement liability.
[O]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. MGM Studios Inc. v. Grokster, Ltd.
Copyrights can be licensed expressly or impliedly and can be exclusive or non-exclusive.