Copyright Law for the Artist/Entrepreneur

Copyright Law
for the Artist/Entrepreneur

Frisina, LLC
Creating Wealth Through Intellectual Property TM

Copyright © 2007-2012 Frisina. LLC
www.frisinaIP.com

You will learn:
• Scope of rights
• Acquiring a copyright
• Copyright notices
• Remedies for infringement
• Defenses to infringement


Exclusive Right
• A copyright holder has the exclusive right to:
– Reproduce the work
– Prepare derivatives
– Distribute copies
– Perform publicly
– Play sound recording publicly
– Display publicly


Rights of Attribution and Integrity


Attribution and Integrity

• Related but distinct from copyright

• Rights of Attribution and Integrity
– The right to be credited with the work, and the right to prevent being
credited with a mutilation of the work that would reflect negatively on the
author (17 U.S.C. 106A).


• “Qualified” works:
– Certain forms of visual art: e.g. original paintings, drawings, prints,
sculptures
– Excluded: e.g. audiovisual works, commercial works, works made for hire,
reproductions of qualified works.

• Registration not required to file suit for attribution and integrity;
§411(a)


• Term: life of the author
• Not transferrable
• Waivable
– only by a writing signed by the author, and only to the extent
expressly stated in the writing.
• Remedies
– Infringement: Injunction, impounding, damages/profits
– No criminal liability; §506(f)


Copyrights


Copyrightable Subject Matter
• “Original works of authorship fixed in any tangible medium
of expression” 17 U.S.C. 102(a)

• Exclusions 17 U.S.C. 102(b)
– Ideas, procedures, processes, systems, methods of operation,
concepts, principles, or discoveries


Acquiring A Copyright
• Requirements
– Creative work of authorship
– Fixation
• Accrual at the time of “fixation”; 17 U.S.C. §102(a)


Registration

• Why register?
– Requirement for access to the federal courts §411(a)
– Statutory damages, attorney’s fees § 412
– Prima facie validity § 410(c)


Registration
• Requirements
– Fee
– Original work of authorship
– Fixation in a tangible medium of expression
– Deposit §407
• “best edition”
– Published in the US, and
– Best suited for the Library of Congress
• Exceptions: burdensome, unfair, or unreasonable
– Notice
• No longer required


Authorship
• Effect on Term; § 302
– Assuming works made on or after Jan 1, 1978
– Generally
• life of the author +70 years
– Anonymous, Pseudonymous, or work made for hire
• The shorter of:
– 95 years from first publication, or
– 120 years from creation


Authorship

• General rule:
– Creator is author

• Works made for hire
– Exception to the general rule
– Contractor versus employee
• Applies to all employees and to some contractors
• Important to clearly identify the relationship
• Work for hire doctrine does not exist outside the United States


Authorship

• Contract works made for hire
– Requirements:
• 1) one of 9 categories specifically enumerated in §101, and

• 2) a writing signed by both parties


Authorship

• Agreements to assign future works
– At the time of hire

• Copyright assignment agreements
– Contractors and employees alike
– Worldwide scope


Copyright Notice
• March 1, 1989
– For works made on or after March 1, 1989 notice is beneficial
but longer a requirement
• Pre-March 1, 1989
– For works made before March 1, 1989 the law is more
complicated
– Critical question: date of original publication


Copyright Notice
• Effect
– Prevents innocent infringement defense
• Not less than $200

– Lack of notice does NOT invalidate copyright


Copyright Notice
• Proper form
– [©, Copyright, or Copr.] [year first published] [author name]
• E.g. “© 2012 Frisina, LLC”
– “©” is preferable
• Other forms may not be sufficient for infringement in non-English speaking countries

• Placement
– “affixed to the copies in such manner and location as to give reasonable
notice of the claim of copyright”


Damages
• Actual Damages
– Plaintiff only needs to prove gross revenue; 504(b)
• Statutory Damages; §504(c)
– Electable at any time before final judgment
– $750-$30,000 “as the court considers just”
– Willful: up to $150,000
– Innocent: not less than $200


Criminal Liability
• Applies in three general cases:
– Advantage or gain
• “Commercial advantage” or “private financial gain”
– Value
• Reproductions or distributions having a total retail value of $1000 or
more during any 180 day period
OR
– Some distributions over computer networks


Defenses to Infringement

• Fair Use §107
– Affirmative defense
– Deceptively simple analysis
• Analysis is actually complex and results are often unpredictable


• Fair Use §107 (cont.)
– Non-exclusive Four Factor Test (“shall include”)
• 1. purpose and character of the use
– Use “for purposes such as criticism, comment, news reporting, teaching…, scholarship, or
research, is not infringement…”
• 2. nature of the work
– E.g. education versus purely entertainment value
• 3. amount and substantiality of use compared to the work as a whole
– Was the use more than necessary to satisfy the specific fair use purpose?
• 4. effect of the use on economic value of the work
– Often cited as the most important factor


• Statute of Limitations; § 507
– Civil actions: 3 years
• Generally measured from the date the plaintiff learned of infringement
or could have learned of it through reasonable diligence.

– Criminal actions: 5 years
• Measured from the time the cause of action arose.


• Abandonment
– Requires a showing of intent
• e.g. destroying the only existing copy, or making a statement
dedicating the work to the public

• Forfeiture
– Occurs by operation of law. Intent is irrelevant.
– Due to act or omission of copyright holder


• Misuse
– Relatively new
• Typically found in software cases
– Requires misconduct
• Copyright holder tries to exclude others from more than the scope of his copyright
– Example: copyright holder licenses software to licensee, and a term of the license
agreement bars the licensee from using his own ingenuity to create software implementing
the idea expressed in the licensor’s program. Lasercomb America Inc. v. Reynolds, 911
F.2d 970 (4th Cir. 1990).



• Fraud on the Copyright Office
– Obtaining registration by deceit
– Registration is rendered unenforceable


Introduction
Representative Sectors Our mission is to create wealth for our clients through the
• Chemicals strategic use of intellectual property.
• Polymers
• Pharmaceuticals We understand the challenges facing businesses in today's
• Biotechnology economic environment, and strive to secure and monetize our
• Biomedical clients’ intellectual assets. With over 15 years in innovation
• Medical Imaging combined as a patent attorney and scientist, I am uniquely
• Advanced Materials positioned to guide clients through the legal maze of intellectual
• Nanotechnology property strategy facing start-ups and more established ventures.
39 East Market Street
Suite LL-1 • Semiconductors
Akron, OH 44308 • Medical Instruments In addition to legal expertise and an unimpeachable commitment
(330)777-0063 x100
• Medical Tests to quality, we offer our clients unparalleled value and security.
dominic@frisinaip.com • Liquid Crystals Particularly, we have strategically invested in state-of-the-art
www.frisinaip.com • Power Generation practice and intellectual property (IP) portfolio management
• Fuel Cells systems. These systems enable us to intelligently analyze
• Software clients’ IP holdings and suggest tactics to exploit strengths,
• Internet Law identify and shore-up weaknesses, and generate income.
• Business Methods


Thank You
For Further Information
www.frisinaip.com
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IP Owl Blog
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Contact Me
(330)338-0589 Direct
dominic@frisinaip.com


Copyright Law for the Artist/Entrepreneur

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