Need to do - VARA attribution - DONE!, First Sale - DONE!

, Merger/Scenes a faire - eh
not done, remedies - not done, mannion - not done, review duration!!

To sustain an action for infringement, you must own a valid copyright in the work

For a valid copyright, there must be 1) originality, 2) fixation, 3) copyrightable subject matter,
and 4) compliance with statutory formalities. Nimmer-13.01

There are two threshold requirements for a work to be copyrightable. It must be 1) original and
2) fixed. (Section 102a of the Copyright Act)

(Understanding Copyright Law)

Copyright infringement occurs where there is: 1) ownership of a valid copyright and 2) copying
by the defendant. (Feist/Nimmer 13.01)

Originality

A work is original if there is independent creation and a modicum of creativity. Feist. Sweat of
the brow is not acceptable to demonstrate creativity. Id. The work should be evaluated as a
whole, and the relationship between parts of the work can suffice to make a work original.

In the Alfred Bell case, slight, inadvertent differences in the way a work was copied was
sufficient to constitute originality. The Appellate Court found that the term ​original​ should be
read to mean "owes its origin" to a particular author, and not that the work was "startling, novel
or unusual, or a marked departure from the past."

Judges should not try to determine whether a work possesses artistic merit or beauty. Bleistein.

Fixation
A copyright comes into existence when an author takes the affirmative step of placing his or her
original work on a material object (tangible medium of expression (102a)) such as a piece of
paper, digital media, or a block of marble.

Must be sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise

communicated for more than a transitory duration.

Cablevision clarifies the fixation requirement. 1) The work must be embodied in a medium
(placed in a medium so that it can be perceived, reproduced, etc.) and 2) it must remain
embodied in that medium for more than “a transitory duration.” Remaining in a buffer for 1.2
seconds was not sufficiently long to meet the “duration” requirement.

Normally improvisational theater or jazz would not qualify. However, if it is being

simultaneously recorded, it may fall within a part of the Copyright Act which protects
improvisational works that are simultaneously recorded and broadcasted. The transmission is
required.

The work as fixed need only be perceivable with the aid of any machine or device.

Idea/Expression - Relook at page 85 of Understanding Copyright Law (4 applications of

idea/expression - merger, GUI, literary characters, historical facts and research)

What is copyrightable is not an idea, but the particular expression of an idea.

Formalities

The Copyright Acts of 1909 and 1976, as well as the Berne Convention Implementation Act of
1988, altered the US’s policy on formalities.

Publication

To determine whether you needed to comply with certain US formalities and whether your
copyright is still valid, I will need to know the work’s date of publication. For the purposes of
formalities, publication is defined narrowly. King. It can occur in two cases: 1) when tangible
copies of the work are distributed to the public is allowed to exercise dominion and control over
the copies, or 2) the work is exhibited and displayed in a way that invites unrestricted copying by
the general public, like a sculpture without restrictions on photography. Id.

However, the courts in the two King cases and in a case about Oscar statuettes have shown a
willingness to push the boundaries of publication in order to prevent forfeiture.

Performance is not publication, regardless of how large an audience is. (King). Similarly, public
display is not publication. (Section 101, 1976 Copyright Act). The question is whether the
display was unrestricted, or whether the public was admitted to view the work with an express or
implied understanding that copying was not allowed. If there was such an understanding, then
only limited publication took place.

Duration
If your work was published before 1923, its copyright has expired. If it was published between
1923-1963, it may still be valid, but only if it was properly renewed by people eligible to renew
them. If it was first published after 1964, then the copyright has not yet expired. There are some
nuances to the specific expiration date that depend on exactly when your work was first
published, but functionally it will still enjoy copyright protection if it was first published after
1964.

Originally, if you had never published the work, then it enjoy an unlimited term of copyright
protection under state common law copyright. However, this was preempted by federal copyright
in the 1976 Copyright Act, so all works are protected only for the life of the author plus 70 years.

Notice/Registration/Deposit

There are three different time frames that are relevant for formalities. The first is pre-1/1/1978,
the second is 1/1/1978-3/1/1989, and the last is post-3/1/1989.

There are a number of requirements for notice, registration, and deposit, which differ for each of
these three periods.

For the first period, notice is mandatory and required affixing the name of the copyright owner,
the date of the first publication of the work, and a symbol in a reasonably noticeable location of
the work at the time of first publication. Registration was mandatory for an infringement suit or
renewal. Deposit with the Library of Congress was also required.

For the second period, notice was also mandatory. However, a failure to provide notice with the
first publication could be cured for a 5 year period afterwards. Registration was mandatory for an
infringement suit, for statutory damages, and for attorney’s fees. Deposit with the Library of
Congress was again required, though failure to deposit was punished only with fines, never
forfeiture.

In the last period, notice is optional, but it may affect statutory damages. Registration was
mandatory for an infringement suit for US works, for statutory damages, and for attorney’s fees.
Deposit with the LOC was again required, and again failure to deposit was punished only with
fines.

For all these periods, statutory damages are only available if the work was registered prior to
infringement.
For deposit, the Registrar of Copyright has exempted certain categories of works from the
deposit requirement, like three-dimensional sculptural works, most advertising material, and
individual contributions to collective works. 37 Code of Federal Regulation 202.20-202.21
(1987).

Ownership

One obstacle to claiming sole ownership of a copyright is the work for hire doctrine. It states
that, for works made for hire, ownership of the copyright vests with the employer, who is also
considered the author for purposes of copyright. The other is if the work is properly considered a
“joint work.”

Works for Hire

Works for hire can be created in two ways. First, employees may create a work in the scope of
their employment. Second, an independent contractor may create a specially commissioned
work. (Section 101).

Specially Commissioned Works by Independent Contractors

Specially commissioned works must fall into one of nine categories:

1) Contributions to a collective work

2) Part of a motion picture or other audiovisual work,
3) Translations
4) Supplementary works
5) Compilations
6) Instructional texts
7) Tests
8) Answers to Tests
9) Atlases

In addition, there must be express agreement in writing that the work should be considered a
work made for hire.

Despite Congressional intent to limit the work for hire doctrine, a broad interpretation of
supplementary and collective works could encompass a large percentage of work done by
free-lance artist and writers.
Employees

For the purposes of the WFH doctrine, the definition of “employee” is the same as in agency
law. Community for Creative Non-Violence v. Reid. (CCNV) Although the Restatement of
Agency calls for a multifactor test to determine whether someone is an “employee,” some salient
factors are: the hiring party’s right to control the manner and means of the worker’s work, the
provision of employee benefits, the tax treatment of the hired party, and whether the hiring party
has the right to assign additional projects to the hired party.

The work must also be created within the employee’s scope of employment. This is a three part
test: 1) was the employee hired to perform this kind of work? 2) did the creation of the work
occur within the time and at the place of the employee’s job? 3) was the employee actuated in
part to serve the employer?

Joint Works

Joint works are created when multiple authors intended at the time of the writing that their
contributions become part of a joint work. Lindsay, Aalmuhammed. When the fulfillment of the
intent takes place is irrelevant - it could take 50 years for the integration of two author’s works
into a final composition. The heart of the inquiry is whether all authors had the primary intent of
joining their works into a joint work.

Also necessary is that each collaborator contributes sufficient original expression to stand as its
own copyrightable subject matter.

The court in Aalmuhammed also indicated that an “author” should be considered a person to
whom the film owes its origin, with “superintendence” of the work or that he was the “inventive
or mastermind of the movie.”

Exclusive Rights

The copyright in a work grants the owner up to six exclusive rights: reproduction, adaptation,
distribution, performance, display. Section 106. Sound recordings do not enjoy a public display
or public performance right, except for certain digital audio transmissions. PGS (pictorial,
graphic, sculptural) works do not enjoy a public performance right.

Reproduction
To win a 106(1) action, you must show that the defendant in fact copied, that what he created is
legally a “copy”, and that this constituted improper appropriation and is therefore actionable.

For a defendant to copy your work, he must have used it as a model, template or inspiration,
even subconsciously. (George Harrison) Nimmer-13.01. You must show that it is more likely
than not that the defendant did not independently create his work. There are four ways to do this:

1) Direct Evidence
2) Striking Similarity
3) Common Errors
4) Access + Probative Similarity

You can have direct evidence someone copied your work, either from testimony or from forensic
evidence. The two works can be so strikingly similar or have such unusual common errors that
one work was likely to have copied the other. Or you can show access to the work and probative
similarity.

Access is merely the reasonable opportunity to view a work. Nimmer-13.02, Bolton.

To be considered a copy:
1) The work must be embodied in a tangible medium (placed in a medium so that it can be
perceived, reproduced, etc.) (102a) and 2) it must remain embodied in that medium for more than
“a transitory duration.” Remaining in a buffer for 1.2 seconds was not sufficiently long to meet
the “duration” requirement. (Cablevision)

Finally, for the copying to be actionable or infringing, it must constitute improper appropriation.
Even leading judges have agreed that the standard for copyright infringement is vague. Peter
Pan.
There are three kinds of actionable copying:

1) Comprehensive Copying
2) Fragmented Literal Similarity
3) Comprehensive Nonliteral Similarity

If the copying constitutes fragmented literal similarity, we must show that the defendant copied a
“substantial” amount of protected expression. A “substantial” amount of protected expression
can still be fairly minimal - in the Iowa State case, defendant’s use of plaintiff’s footage totaling
2:42 was sufficient to be considered “substantial.” The copying of a flute riff in the Larrikin case
was also sufficient to be considered “substantial.” In that case, the judge found that it was the
quality and not the quantity of the work taken that made the copying “substantial.”

The quantity of new, non-plagiarized material added is irrelevant. Sheldon.

[Should also analyze if what was taken was “protected expression.”]

The copying can also constitute comprehensive nonliteral similarity. Here, one work duplicates
the fundamental essence or structure of another without copying the exact expression. However,
copyright only protects expression; it does not protect ideas. Literal similarity, though, is not
necessary. Steinberg. The question is how much copying of the “expression of the idea”
(Feist/Peter Pan Fabrics) is allowed before the works are considered “substantially similar” and
the copying “improper appropriation.”

Courts have devised a number of tests to try to resolve the tension between the accepted copying
of unprotected ideas and the unacceptable copying of protected expression. On one end of the
spectrum, courts may simply try to look at the totality of the work. Courts might step up their
scrutiny by asking whether a “more discerning” lay observer would find infringement. Finally, in
the Altai abstraction filtration comparison test, courts may attempt to think about the works
abstractly, then filter out portions of the works that are not protected by copyright, then compare
the two abstracted, filtered works. Examples of computer software that are not protected by
copyright include elements that are necessary for the program to function efficiently or those that
are necessitated by external factors. This test is the least kind to copyright owners - by
abstracting and filtering, a work may be reduced to bite-sized parts that are less likely to be
copyrightable or infringed. Although it is the dominant test in computer software cases,
commenters have called for its adoption across all copyright cases. Nimmer-13.03 (citing Feist).

Finally, courts look to whether the works are really similar enough to be considered
“substantially similar.” Courts have a number of different terms they use to describe this
standard. One asks whether two works have the “same aesthetic appeal.” Mannion, Boisson.
Another asks whether there is “apparent appropriation.” Peter Pan Fabrics, Steinberg. Yet
another compares the total concept and feel of the two works, though this approach is losing
favor. Nimmer-13.03. Finally, courts have also compared the intrinsic and extrinsic nature of the
works. Kroft.

When the works are similar enough, either to the average person or to the more discerning
observer, the new work will be considered improper appropriation and the copying actionable
under 106(1).
Modification

The test for evaluating a derivative work under 106(2) is almost identical to that under 106(1).
Castle Rock (Seinfeld) The only difference likely to occur on the exam is the situation where an
author legitimately purchases a copyrighted work and then modifies his copy. Whether this
would be considered a derivative work depends at least in part on the Circuit. See Mirage
Editions (9th Circuit, book pages glued onto ceramic tiles); but see Lee v. A.R.T (7th Circuit
decision (same issue but with postcards, court reasoned it was like putting a piece of art in a
frame).

If you violate 106(2), you forfeit whatever copyright you might have enjoyed in your derivative
work. Pickett (Prince guitar case).

Distribution

106(3) grants the copyright holder the exclusive right to the sale, rental, lease, or lending of their
work. It is unclear whether making a copy available to the public without actually distributing it
violates 106(3). Hotaling and Nimmer suggest it would, a more rigid interpretation grounded in
the text of the statute suggest it would not.

First Sale Doctrine

The first sale doctrine, embodied in section 109, limits a copyright owner’s right of public
distribution. Nimmer outlines 4 requirements for this defense: 1) the copy was manufactured
with the copyright owner’s authorization, 2) that particular copy was transferred under the
copyright owner’s authority, 3) the defendant qualifies as the lawful owner of that copy, and 4)
defendant thereupon disposed of that particular copy.

The third prong was challenged in Autodesk, where limitations on a defendant’s use of software
rendered them a licensee, not a lawful owner.

Section 602a also limits the importation or exportation of goods manufactured outside of the US
into or out of the United States without the copyright owner’s permission. The importation part
was largely eviscerated by the Supreme Court’s decision in Kirtsaeng, finding one-way
importation not to violate 602a. See also Quality King (holding the first sale doctrine applied to
parallel importation).

Performance/Display
VARA

VARA protects only certain moral rights, namely, the right of attribution and of integrity. VARA
applies to works of visual art, like sculpture, paintings, drawings, prints, or photographs taken for
exhibition. There cannot be more than 200 copies of the work, and if there are any copies at all,
they must be numbered and signed. Works for hire are also excluded under the definition of
author - only the author has VARA rights, which do not transfer upon death and last only for the
life of the author. VARA rights are only granted if the work also qualifies for a copyright.

Doctrine - 1) Work of visual art? 2) Not a work of hire? 3) Not too many copies/copies are
signed and numbered? 4) Author still alive? 5) Copyrightable work? 6) Attribution problem? 7)
Integrity problem? 8) Is there destruction of a work of recognized stature?

(Intentional distortion, mutilation, or other modification, not including modification as a result of

the passage of time or the inherent nature of the materials. Also if the modification of a work of
visual art is the result of conservation, or of the public presentation, including lighting or
placement, then no violation of integrity.

Contributory Infringement/Vicarious Liability

Plaintiffs may go after defendants under direct, vicarious, or contributory theories of liability.

Contributory Infringement

If a party has knowledge of an infringing activity and induces, causes, or contributes to it, he/she
will be held liable for contributory infringement. Posner summarizes this as “roughly an
infringer’s accomplice” and describes the activity as “personal conduct that encourages or assists
the infringement.” Nimmer-12.04.

Doctrinally, there are three elements necessary to show contributory infringement. First, there
must be direct infringement. For a defendant to contribute to infringement, there must have been
a direct infringement to begin with. Second, the defendant must have knowledge of that
infringement, either actual or vicarious. Finally, the defendant must have materially contributed
to the infringement.

In the Betamax case, the court held that, where the defendant supplied the technology to
potentially infringe, they are not liable for contributory infringement when their technology has
the capacity for substantial noninfringing uses. This appears to negate the knowledge prong of
contributory infringement - a manufacturer who sells equipment with substantial non-infringing
uses does not have constructive knowledge that its customers may use the equipment to infringe
on copyrights. Therefore, if a defendant does have actual knowledge of infringing uses, they can
still be held contributorily infringing. Napster. Aimster restricts this to technology that has
substantial noninfringing uses, not merely the capacity. Grokster upholds the Betamax decision
but re-emphasizes the inducement possibility of contributory liability. There, because the
defendant had targeted customers known to engage in illegal uses (former Napster users), the
Grokster defendants were still contributorily liable.

Vicarious Liability

Vicarious liability, similarly, has three requirements. First, there again must be a direct
infringement. Second, the defendant must have a financial interest in the infringement. Finally,
the defendant must have the right and ability to supervise the infringer. No knowledge, actual or
constructive, is necessary.

Vicarious liability developed out of the application of respondeat superior to copyright cases, but
evolved beyond the doctrine of master-servant liability. In Fonovisa, where the infringing
behavior (selling illegally copied records at a swap meet) made the swap meet more attractive to
potential consumers, indirectly benefiting the defendant, they were found to meet the second
prong of vicarious liability, financial interest.

Fair Use

Fair use, pursuant to Section 107, asks courts to evaluate four factors: 1) the purpose and
character of the use (commercial or not, transformative or not), 2) the nature of the copyrighted
work (more protection for unpublished creative works, less for published factual works), 3) the
amount of copying, and 4) the impact on the potential market.

Purpose and Character of the Use

When the use of a copyrighted work is noncommercial, courts are more likely to find fair use.
Betamax, Harper+Row. However, this factor is not determinative. Blanch, Acuff-Rose.

The question is whether the purportedly “fair” use is being done to generate revenue or make a
profit. The Supreme Court has defined this question as whether “the user stands to profit from
the exploitation of the copyrighted material without paying the customary price.” Harper+Row.
This was also adopted in Letterese.
When the new work transforms the copyrighted work, its use is more likely to be fair. This is
likely the most important factor in fair use.

Works that comment or criticize are paradigmatic of fair use, enumerated in the preamble to
Section 107. Thus, those works that comment on or criticize a copyrighted work, like a theater
critic’s review, are transformative in nature. Lennon (allowing the use of 15 seconds of Imagine
when the purpose was to criticize the song’s message). Parody also generally falls within this
protected category of fair use. Leibovitz, Acuff-Rose.

The inquiry of transformation also takes into account the social value of the new use. Perfect10,
Betamax. Where new works seem to add social value, they are more likely to be found to be fair.

Works that were created for a new purpose are also more likely to be considered fair use.
Betamax, Perfect10, AV (TurnItIn), Blanch. Nimmer calls this inquiry a functional test - whether
the new work was created to serve the same function as the copyrighted work and acknowledges
its importance, whether as part of the first or the fourth factor of fair use.

Nature of the Copyrighted Work

Unpublished works receive more protection from fair use than do published works. Harper &
Row (Nation magazine reprints ~300 words of Ford’s unpublished autobiography). Salinger.
(The use of Salinger’s letters in a biography about the author was not fair use, in part because the
letters were unpublished.)

Creative works also receive more protection than factual works. Blanch. Creative works seem to
strike closer to the heart of what copyright was intended to protect, rather than factual works that
are created more through diligence than originality or inventiveness.

Amount of Copying
Even small takings can exceed the scope of fair use when the essence of a work is taken. Harper
+ Row. (300 words out of a 200,000 word manuscript.) No more than is necessary for the fair
use purpose should be taken. Letterese (asking “whether the amount taken is reasonable in light
of the purpose of the use and the likelihood of market substitution”).

Impact on Potential Paying Market

This fourth factor asks courts to balance the public benefit from allowing the use of the work
with the private gain the copyright holder could receive if the use were denied.
Some forms of harm are not cognizable under this prong of fair use. These include: 1) the license
fee the defendant would have paid the plaintiff, 2) the ability to charge people interested in
making transformative (likely fair) uses, 3) injuries resulting from the criticism, 4) impairment of
markets for other works by the plaintiff.

The proper scope of the market is also contested, though courts oftentimes use “traditional,
reasonable, or likely to be developed” markets as the scope of the plaintiff’s potential harm.
Expanding the scope of the market limits what uses may be considered fair. Consider
Blackmun’s dissent in Sony, positing the proper scope of the market to be “any group of people
who would pay for access,” even a group cultivated by the defendant. See also Letterese, which
implicitly adopted this definition. (Scientology case)

Nimmer suggests the proper analysis is whether the new work performs a different function than
the copyrighted work. Nimmer-13.05.