1. Introduction to Copyright
Laws and Issues & “Fair Use”

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Requirements for Copyright
 Original work of authorship fixed in a tangible
medium of expression, including:
 Music, movies, books, art, software, CDs, statues,
restaurant menus, toy animals, cereal boxes
 Items excluded from copyright include:
 Manufactured goods, any idea or concept, most
useful things (other than software), methods of
operation, names, common phrases, facts, data.
 Protection is automatic and at zero cost in US
 Some countries outside the US require registration

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Useful Article Doctrine
 Copyright does not extend to the useful
application of an idea.
 Includes works of artistic craftsmanship insofar as
their form but not their mechanical or utilitarian
aspects are concerned
 If can not separate art from utility, courts will
deny protection for the entire work
 Lamp incorporating sculpture of woman at base
 Integrated circuit – art, but connected to utility
 Drawing is protected, circuit itself is not protected

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Lots of Exceptions to Rights
 Fair Use – the largest area of exceptions
 Right of use for promotion
 Record store can play selections to promote sales
of albums without violating copyright
 Right to make copy of program to maintain or
repair it, or for archival backup
 Otherwise, this would violation reproduction right
 Various special statutory limitations on rights

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Reproduction Rights
 Right to exclude others from making copies
 Most basic of all copyright protections
 Exclusive rights to copy or make records, etc.
 A copy is “any material object from which,
either with the naked eye or other senses or
with the aid of a machine … the work can be
perceived, reproduced, or communicated”
 Phonorecords not originally viewed as copies

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Specific Exceptions for Copying
 Transmitting organizations may make copies
of works temporarily for later transmission
 Radio, TV stations, Cable companies, Satellite
 Even temporary recording is otherwise violation
 Computer programs archive or backup copies
 Necessary for usage, repair, maintenance of code
 Specifically limited ONLY to SOFTWARE (and not
a right which extends to music or video)

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Derivative Works Rights
 Right to exclude all others from creating
works based on copyrighted original work
 Protects authors from having movies made without
permission of author
 Protects against secondary work without consent

Series of Star Wars books based on original concept
 Is this protecting expression, or ideas?
 Where is the boundary? Grey area – hard to know
 Broad definition of derivative work today

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Derivative Work Scope Over
Time
 Derivative Work in past did not include
translations under US law
 Not same “expression” and not same audience
 1853 Stowe case – narrow view of copyright
 US Law is much stricter now than previously
 Prohibits translations, recordings, arrangements,
dramatizations, films, abridgments, condensations,
fictionalizations, or “any other form in which a work
may be recast, transformed, or adapted”

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Derivative Right Case Example
 Artist cuts out pictures from popular book,
and attaches them to ceramic tiles to sell
 Fixes original pictures cut out of book to tiles
 Adds clear coating to protect and “cures” art
 Is this a prohibited derivative work? Why?

Mirage Editions, Inc. vs Albuquerque Art Co (1988)
 What other rights or defenses to copyright
violation might the artist claim?

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Distribution Rights & First Sale
 Right to distribute copies to the public by sale
or OTHER TRANSFER of ownership
 In reality, redundant with reproduction right
and derivative work rights, so not new right
 However, limitations to right are important,
and are referred to as “first sale” doctrine
 Once copyright owner sells work, many rights
transfer to the new owner, including resale

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First Sale Doctrine
 The purchaser of a copyrighted work has the
right to modify and resell works purchased,
so long as illegal COPIES are not made
 Any copies of software made for maintenance,
backup, or for operations must be DESTROYED
 Derivative works not allowed under this right
 But, not always clear what is a derivative work
 Leases not a sale, but courts might “reform” a
lease to make it a sale if judge wants to

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First Sale Doctrine Case
Example
 Copyright owner sells work of art to new
owner with express restrictions that prohibit
resale or modification of work
 New owner ignores restrictions, and makes
modifications and resells work in violation of
the original sale agreement terms
 This is NOT a violation of copyright law,
although it does create contract law claim
 Copyright transferred via first sale

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Performance Rights Reserved
 Powerful right to exclude all others from
publicly performing work without permission
 Applies to literary, musical, dramatic, pantomime,
choreographic, movies, & other audiovisual works.
 Except for purely pictorial works and sound
recordings, includes all copyrightable works
 Exclusion of sound recordings is important
 Performers have no rights to royalties, but
composers of original work may have rights

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Limitations on Performance Rights
 Some types of performance are allowed:
 Face to face educational activities
 Religious worship
 Non-commercial “charitable” performance
 Limited reception on home receivers at no charge
 Fairs
 Performances by or for the handicapped
 Only exempted if performed with no direct or
indirect commercial advantage or fee

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Display Rights
 Internet publication of pictures or work
included in display rights of copyright owner
 Only the original copyright owner has right to
broadcast images of work
 So, if you BUY original of painting, you CAN make
broadcast of painting on the Internet
 However, if you BUY a COPY, you do not have
the right to broadcast this copy of work via internet
 Right to make image available outside one
location is restricted only to original work owner

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Digital Transmission
Performance
 Sound recordings protected in 1995
extension to copyright laws to add new rights
 Sound recording owners have full rights to
any digital transmissions of their works (e.g.,
via the internet) and can negotiate fees
 Radio stations do NOT have to pay same fees
 Rebroadcast of radio via Internet is grey area
 Originally broadcast as analog, but digital online
 Copyright owners negotiating digital radio terms

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Advanced Digital Technologies
 Various laws passed in 1999, including
DMCA
 Restrictions on breaking copyright encryption
 Limitations on digital copying machine sales
 Must have Serial Copy Management System
 Protects rights of copyright owners for copies
 CRIMINAL PENALTIES for violation of DMCA
 Digital watermarking of music & video
 Protections of rights may harm innovations

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Copyright Infringement
 Infringement NEED NOT BE INTENTIONAL
 Liability for “innocent” infringement clearly shown
 Even unconscious infringement creates liable

Author thinks work is original, but influenced by work

George Harrison, of Beatles, infringed song by Chiffons
 “My Sweet Lord” too much like “He’s So Fine” in style

Harrison did not intend to plagiarize, but he did so
 Vicarious Infringement
 Hire band & they infringe. Firm hiring also liable.

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Types of Infringement
 Direct Infringement – violation of at least one
of rights protected by copyright
 Lawsuit against copy center for copying textbooks
 Violation of distribution by selling illegal DVDs
 Contributory Infringement – inducing,
causing, or materially contributing to the
infringing conduct of another person
 Vicarious Infringement – right to control
infringer acts and receives benefit from acts
 Napster case and Sony case

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Proof of Infringement
 Must establish ownership of work.
 Direct evidence seldom is available, and is
usually proven via circumstantial evidence
 Remarkable resemblance to original, and
infringer had some contact with original work
 Combination creates persuasive presumption
 Proof of access and substantial similarity of work
 The more works are different, the higher the
standard of proof that is required or needed

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Two Stage Process in Proof
 First, did copying occur?
 Was borrowing from public domain rather than
work of the copyright holder?
 Did copyright owner copy other works, and thus, is
not entitled to protection of “original work?”
 Second, was copying illegal or permitted?
 Ideas, concepts, method of operation, process
limitation on copyright protections
 Fair use exceptions to copyright protections

22. Fair Use: “The Right to
Copy”
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Fair Use: “The Right to Copy”
 Copyright law is fairly simple in concept, but
fair use is area that complicates application
 Defense of fair use admits to copying, but
asserts an allowed or permitted right to copy
 Most common in certain traditional contexts:
 Education, literary and social criticism, parody,
and 1st amendment activities (e.g. news report)
 Balancing tests of various competing policies

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Photocopying and Fair Use
 Limitations on what can be copied unclear
 NOT specified in statue
 Specifically allowed for classroom use under some
certain conditions, but limitations not clear
 Rights for libraries to make limited copies
 Limited copying for scholarly work

Wholesale copying of entire works “not favored by law”

Brevity and spontaneity character of work copied
 “For-profit” copying not likely to be permitted

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Balancing Test of Fair Use Defense
 Purpose and character of use, including
commercial nature
 Nature of copyrighted work
 Proportion that was “taken”
 Economic impact of “taking”
 Intent and motives of defendant
 First amendment interest (USA only)
 Balancing test of all above factors jointly

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Typically Competing Interests
 Policy issues often are in conflict in applying
fair use defenses, and there are seldom easy
and clear-cut cases that reach the courts
 Because of complicated and difficult policy
tradeoffs, fair use has been referred to as “the
most troublesome in the whole law of copyright”
 Dellar v. Samuel Goldwyn (1939)
 Sony case discussion of fair use rights
 Example of Parody and Fair Use

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Registration for Copyright
 Not required, but must be done to obtain
“statutory damages” for infringement
 Statutory damages often important when it is
hard to show actual damages
 If work was “registered” with US Copyright
office BEFORE infringement occurred, and if
work ALSO had copyright notice, THEN
 $30,000 USD damages per infringement, and up
to $150,000 USD per willful infringement

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Remedies for Copyright Infringement
 Plaintiff can recover BOTH actual damages
AND defendants profits from infringement
 As alternative, statutory damages may apply if
copyright is registered in advance and notice given
 Court may punish repeat offenders or highly
offensive actions with treble damages
 Injunctions also commonly requested,
including preliminary injunctions during trial

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Criminal Liability
 In addition to civil law remedies, infringers
may also face criminal liability in some cases
 In 1997, “No Electronic Theft Act” signed
 Punishes with fines and prison time those who
copy compact discs, VCR tapes, DVDs, or
software CDs worth more than $1000 USD
illegally
 Law requires no proof of any commercial gain
 Distribution for free is still considered “sale”
 Online music copying unclear in this regard