Copyright Outline

I. Ownership of a Valid Copyright

A. Copyrightable Subject Matter

Copyrightable subject matter consists of an original work of authorship fixed in a tangible
medium of expression.

1. Fixation
Copyrightable works must be “fixed in any tangible medium of expression, now
known or later developed, from which they can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a machine or device.” 17
U.S.C.
§ 102(a).

a. Definitions

i. Fixation
“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.” 17 U.S.C. § 101 (“fixed”)

ii. Copies
“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 phonorecord, in which the work is first
fixed.” 17 U.S.C. § 101 (“copies”)

iii. Phonorecords
“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 sounds are first fixed.” 17 U.S.C. § 101
(“phonorecords”)

b. Requirements

i. Embodiment Requirement

1) “Tangible”
Any medium of expression is tangible except the mind or an
unrecorded impromptu or extemporaneous speech. The Cloud operates
through hardrives all around the world, so it is a tangible. The content of
an unsaved Microsoft Word document is in RAM, so it is tangible.

2) Communicable
An embodiment must be perceptible, reproducible, or otherwise
communicable either directly or with the aid of a machine or device.

ii. Duration Requirement

To satisfy fixation, the perception of the work need not be permanent, but
the embodiment enabling the perception needs to be stable and non-
transitory. Williams Electronics v. Artic Int’l (3d Cir. 1982).

i. User Interaction
An audiovisual copyright on a video game that responds to player
participation satisfies fixation inasmuch as a substantial portion of sights
and sounds repeat from game to game regardless of how the player
operates the controls. Id.

ii. Rapidly Overwritten Data

a) Buffer
Cablevision’s embodiments of recorded DVR programs in data
buffers were transitory because no bit of data lasted for more than 1.2
seconds before it was automatically overwritten. Cartoon Network
LP, LLLP v. CSC Holdings, Inc, (2d Cir. 2008).

b) RAM
Although RAM is constantly rewritten every 500 milliseconds,
content saved in it until a computer turns off can satisfy the duration
requirement if the program runs for more than a transitory period.
MAI Systems Corp. v. Peak Computers, Inc., (9th Cir. 1993).
 i) Legislative History
“[T]he definition of fixation would exclude from the concept purely
evanescent or transient reproductions such as those projected briefly
on a screen, shown electronically on a television or other cathode ray
tube, or captured momentarily in the memory of a computer.” H.R.
Rep. No. 94-1476, 94th Cong., 2d. Sess. 53 (1976).

iii. Authorization Requirement

Fixation can only occur “by or under the authority of the author.” 17 U.S.C.
§ 101 (“fixed”).

c. Performances

i. Simultaneous Broadcast
A consensual recording made simultanteously with its transmission is
fixed.
It is a copyright violation to record at the same time as a live broadcast.

ii. Recording, Then Broadcast

If the sounds and images are first recorded and then broadcast, the
recorded work would be a copyrightable “motion picture.”

iii. Recording, Not Broadcast

If there is only a live performance and not a live broadcast, then any
consensual recording is not yet fixed but only in the process of being fixed.
So an audience member may record the performance at the same time as
the authorized recorder without violating copyright law.

iv. No Consensual Recording

a) Live Musical Performance

“Anyone who, without the consent of the performer(s) involved,
fixes the sounds or both the sounds and images of a live musical
performance in a copy or phonorecord, or reproduces copies or
phonorecords of such a performance from an unauthorized
fixation . . .
shall be subject to copyright remedies . . . to the same extent as an
infringer of copyright.” 17 U.S.C. § 1101 (anti-bootlegging
provision)
 b) Live Non-Musical Performance
If there is no authorized recording of a live non-musical performance,
a private recording is neither a fixation nor a copyright violation.

d. Hypotheticals
i. A famous author working in a coffee shop writes a stunning first sentence,
which he saves to his computer’s hard drive. 1.2 seconds later, a barista looks
over his shoulder and is so moved at this first sentence that he spills a jug of
boiling water on the author’s computer, making the hard drive unreadable.
The barista then uses the line in his own novel. In contrast to Cartoon
Network, the author reasonably foresaw that the hard drive would last for
more than
1.2 seconds. So it is potentially distinguishable but a tough case.
ii. The “Rimp-Rovisers” are Toledo’s most popular improv comedy troupe.
A friend of the group records a video of their show. Is it fixed? Only if the
recording was authorized. Fixation can only occur “by or under the
authority of the author.” 17 U.S.C. § 101 (“fixed”).
iii. A friend of the Rimp-Rovisers records the video with permission. Can a
different audience member record the show as well? Yes, if it is only a live
performance but not a live broadcast, then the consensual recording is not
yet fixed but only in the process of being fixed. So an audience member
recording it at the same time as another person is not a copyright violation.
iv. The Rimp-Rovisers break out into song. There is no consensual recording,
no broadcast, and no copyright. Can an audience member record this part of
the show? No, this violates the anti-bootlegging provision in 17 U.S.C. § 101.
v. The Browns are one of Cleveland’s most popular football teams. An
employee of the team records the game, and a local TV station broadcasts it
as well.
Can a TV viewer record the broadcast? This is a prima facie copyright
violation that falls under fair use.

2. Originality
Originality is a constitutional requirement. (Sarony).

a. Originality is not
i. An aesthetic judgment about the value/quality of work (Bleistein)
ii. Absolute novelty (Bleistein)
iii. Hard work (Feist)
iv. Fact collection

b. Originality requires (Feist)

 i. Independent creation (i.e. not an infringement of a preexisting work)
ii. Some minimal level of creativity in the work independently created
iii. More than a physical change in medium

c. Possible Sources of Originality

i. Personal reaction to the original (Bleistein)
ii. Posing the subject matter (Sarony)
iii. Mistakes in rendition that lead to distinguishable variation (Bell)
iv. Selection or arrangement of material (Feist)
v. Rendition: Choices in angle, light, shade, exposure (Mannion)
vi. Timing of reproduction (Mannion)*
Copyright only extends to the original elements of the work.

d. Exclusions
i. Copyright protection cannot extend to mere facts or historical theories
(All that matters is whether it is presented as fact, e.g., If a book is presented
as historical fiction, the content would be copyrightable and protectable
against a retelling of the story in different words.)
ii. Copyright protection cannot extend to systems/methods/ideas.
1) 17 U.S.C. 102(b): “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.”
2) Baker: “Where the truths of a science or the methods of an art are the
common property of the whole world, any author has the right to express
the one, or explain and use the other, in his own way” (no copyright
protection for the accounting system but thin copyright protection for the
forms themselves)
iii. Copyright protection cannot extend to scenes à faire, i.e., incidents,
characters, or settings which are as a practical matter indispensible,
or at least standard, for treatment of a certain topic or for a certain genre
(e.g., “Heil Hitler” in Nazi Germany). It is virtually impossible to write
about a particular historical era or fictional theme without employing certain
stock literary devises. (Hoehling)

e. Compilations
Compilations of facts or otherwise uncopyrightable material may receive a
copyright under Feist if there is some modicum of creativity in organization.

17 U.S.C. § 103: Compilations and Derivative Works

 (a) The subject matter of copyright as specified by section 102 includes
compilations and derivative works, but protection for a work employing
preexisting material in which copyright subsists does not extend to any part of the
work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the material
the author contributors, as distinguished from the preexisting material employed
in the work, and does not imply any exclusive right in the preexisting material.
The copyright in such work is independent of, and does not affect or enlarge the
scope, duration, ownership, or subsistence of, any copyright protection in the
preexisting material.

f. Authorial Revisions
If a person copyrights a book but later revises it, he can copyright the tweeks,
but the first edition still goes into the public domain. (Same for the Bluebook.)

g. Merger Doctrine
When there are a limited number of ways to express an idea, the expression and
the idea “merge” into one. Thus, there may be little to no protectible expression.
The work might receive a thin copyright protecting only from verbatim copying.
Examples: Forms, contest rules, data organization. There is a circuit split as to
whether merger is a bar to copyright or a defense to copyright.

h. Fiction Becoming Fact

In the Simpsons episode Bart to the Future” (aired on March 19, 2000),
Trump becomes President. If a cartoon series had aired an episode where Trump
became President before he in fact became president, that would have infringed
the Simpsons. But if a cartoon series airs an episode where Trump is President
after he in fact became President, that would not infringe the Simpsons.

i. “Fact” Becoming Fiction

Under copyright estoppel, if the original author represents something as a fact,
it is immaterial if it is later proves to be false.

j. Poetry Hypotheticals
i. Poetic Recipe Hypo: John writes a beautiful, poetic explanation of how to
make beef carpaccio. Paula reads John’s work and writes her own poetic
rendition of the recipe, borrowing the key prep steps from John. Is this
infringement? No, because the recipe was in the public domain (even if John
discovered it) and the poetic expression was changed.
ii. Poetic Fiction Hypo: John writes a beautiful poetic explanation of how the
Morgs swarmed Doodledorf. Paula reads John’s work and writes her own
 poetic rendition of the story, borrowing the key plot points from John.
Is this infringement? Yes, fiction receives thicker protection.

k. Safe Driver Phonebook Hypothetical

Drawing on publicly available facts, Paul organizes a phone book based on
driving records. People with clean driving records are at the front, then everyone
with 1 moving-traffic violation, then 2 violations, and so on. Ties are broken by
alphabetical order  Is the phone book original enough. There is arguably
something protectible here. Under Feist, there is a low bar for creativity
in compilations. Even if someone had already thought of it before, it would still be
original if Paul came up with the idea on his own. Absolute novelty is not
required. But copyright protection only extends insofar as the originality extends

l. Medium Transformation Hypothetical I

In our Meshworks discussion, we suggested that change in medium cannot provide
the basis for the distinguishable variation. But what if choice of medium itself is
highly original, such as a replica of a cathedral out of toothpicks? The choice of
medium might be original, but extending copyright protection might come to close
to copyrighting a method, which is prohibited under 102(b).

m. Red Letter Hypothetical I

To facilitate understanding of religious texts, a leading theologian proposes
changing the font color depending on who is speaking, creates rules for different
font colors, and meticulously applies them to 7,957 verses. Can he get a copyright
in the finished text? No, that is a system or method.

n. Burrow-Giles v. Sarony (1884)

o. Baker v. Seldon (1879)

p. Bleistein v. Donaldson Lithographing (1903)

q. Bridgeman Art Library v. Corel (S.D.N.Y. 1999)

r. Bell v. Catalda Fine Arts (2d Cir. 1951)

s. Feist v. Rural Telephone (1991)

t. Mannion v. Coors Brewing (S.D.N.Y. 2006)

3. Authorship
a. Ownership
Authorship is distinct from ownership. Authorship affects duration, and authors
receive additional rights later in copyright term.
17 U.S.C. § 201(a)—Initial Ownership: “Copyright in a work protected under this
title vests initially in the author or authors of the work. The authors of a joint work
are coowners of copyright in the work.”

17 U.S.C. § 101: A joint work is a work prepared by two or more authors with the
intention that their contributions be merged into inseparable or interdependent
parts of a unitary whole. (E.g., a volume of a law review.)

b. Who is an Author
A contributor becomes an author when:
i. He adds original expression that could stand on its own as the subject matter
of copyright (Goldstein) and
ii. The parties intend for that contributor to be a coauthor (look at objective
indicia of intent, such as how the parties bill themselves) (Lee)
The person who performs the fixation is not necessarily the author (Titanic).

If copyright ownership were vested in manual laborers who only contributed to

the fixation element, it would increase transaction costs, leading to the tragedy of
the anticommons. The Coase Theorum states low transaction costs facilitate trade.

c. Works Made for Hire

i. Definition: 17 U.S.C. § 101 (paraphrased): A work for hire is either a work

prepared by an employee within scope of employment, or a specially ordered
or commissioned work that the parties expressly agree in a signed written
instrument to consider as a work for hire.

1) “Employee”: An employee under the common law of agency (CCNV)

(a multi-factor balancing test): Consider control, skill, source of tools,
location of work, ability to assign extra work, discretion over when and
how to work, subcontracting, benefits and, tax treatment.

“Control” means control over manner and means of the work,

not creative control) (JustMed). Tax treatment is not dispositive.

2) “Scope of Employment”: 3-Part Test (no balancing; need all elements)

(Rouse v. Walter): A work is within the scope of employment when:
(a) the work is of the kind the employee was hired to perform, (b) it
 occurs substantially within the authorized time and space limits, and (c)
it is actuated, at least in part, to serve the employer (subjective intent)

ii. Employer is Author: 17 USC § 201(b)—“Works Made for Hire: “In the
case of a work made for hire, the employer or other person for whom the
work was prepared is considered the author for purposes of this title, and,
unless the parties have expressly agreed otherwise in a signed written
instrument, owns all of the rights comprised in the copyright.”

iii. Definition of Employer: A person who is an employee under common-law

agency rules (more favorable to employers in that it allows them to swoop in
and claim work for hire without paying a salary) (This also comes with
preexisting law about scope of employment)

d. Rimp-Rovisers. Hypothetical
The “Rimp-Rovisers” are Toledo’s most popular improv comedy troupe.
A friend of the group records a video of their show. Who is the author? Ignoring
the possibility of corporate ownership, the members of the improv troop on stage
are authors because they are writing the material in real time.
If the friend simply put the camera on the tripod, he would analogous to the
photographer in the submarine in Lindsay v R.M.S. Titanic. If he made creative
shooting decisions, that would be an original expression that could stand on its
own as the subject matter, which could satisfy Goldstein. But Aalmuhammed
requires intent for coauthorship, and there is no evidence the improvisers
intended the friend to be a co-author. We would need more context.

e. Helpful Suggestions Hypothetical

Hannah is struggling to finish her first novel. Samantha flippantly offers a nice
one-liner than Hannah decides to give to one of her characters. Adam reads the
book carefully and suggests a way to merge two of the subplots into a single
narrative. Hannah rewrites a third of the book in response to Adam’s suggestion.
Who should be considered an “author” here? Hannah is definitely an author.
Since neither Samantha nor Adam added original expression that could stand on
its own as the subject matter of copyright, they are not authors.

f. Spin-Off Company Hypothetical

A Facebook engineer has an idea for an improved social network. To develop a
protoype, he codes using Facebook computers during the regular workday. His
contemporaneous notes indicate an intention to use his code to compete directly
with Facebook and “make Zuck pay.” He was not acting under the scope of his
employment because there was no subjective intent, so it is not a work for hire
4. Not a System, Method, or Idea

5. Separability (for Useful Articles)

17 U.S.C. § 102(a)
Works of authorship include
1. Literary works (non-audiovisual works, such as scripts and software)
2. Musical works, including words (a separate copyright from the sound recording)
3. Dramatic works, including music
4. Pantomimes and choreographic works
5. Pictorial, graphic, and sculptural (PGS) works;
6. Motion pictures and other audiovisual works;
7. Sound recordings; (e.g., music, poetry recording, or audiobooks, but not sounds
accompaying an audiovisual work)
8. Architectural work (added in 1990)

a. 17 U.S.C. § 101 - Definitions

“Pictorial, graphic, and sculptural works” include two-dimensional and
three-dimensional works of fine, graphic, and applied art, photographs, prints
and art reproductions, maps, globes, charts, diagrams, models, and technical
drawings, including architectural plans. Such works shall include works of
artistic craftsmanship insofar as their form but not their mechanical or utilitarian
aspects are concerned; the design of a useful article, as defined in this section,
shall be considered a pictorial, graphic, or sculptural work only if, and only to the
extent that, such design incorporates pictorial, graphic, or sculptural features that
can be identified separately from, and are capable of existing independently of,
the utilitarian aspects of the article. [Separabiltiy requirement for useful articles]
A “useful article” is an article having an intrinsic utilitarian function that is not
merely to portray the appearance of the article or to convey information. An
article that is normally a part of a useful article is considered a “useful article”.
b. Separability Test (Star Athletica)
0. Determine if there is a PGS work and if so whether it is a useful article
1. Identify the features with PGS qualities
2. Apply those features in a different medium of expression and see if a PGS
work is still obtained.
3. Ensure the new PGS work is not itself useful (conceptually, transferring a 3d
work into a 2d work cannot eliminate usefulness). E.g., a Jaguar figurine on a
Jaguar car could be analytically separated from the useful item (car).
It would be immaterial if the the Jaguar figurine made the car slightly more
aerodynamic or was intended to be more aerodynamic but was not.
 Separate Constraint - § 113(b): No protection for useful copies unless useful the
original could also be protected.

c. Useful Articles: Easy Cases

A sarcophogus-lamp would be copyrightable. The sculptural shape of a Jaguar
figurine on the car would be copyrightable, unless it were commonly used to
lift the hood.
d. Useful Articles: Hard Cases
A bike rack which won a design award for its beautiful industrial design and
seemless fusion of form and function. Brandir v Cascade (judge thought it was
not useful)

Beautiful belt buckles on display in the Metropolitan Museum of Art with a

locking mechanism. Kieselstein Cord v Pearl (judge thought the locking
mechanism was separable)

A still-functional bullet on a necklace.

e. Useful Articles: Clothing

A cheerleading outfit a useful article. It allows cheerleaders’ movement to
be unrestricted. The baseline is not other clothing but no clothing, which would
give maximum freedom of movement. But a useful article must have utility other
than conveying information. The usefulness is warmth and modesty. In contrast,
a vest would merely convey information.

f. Useful Articles: Clothing

Toys are not useful articles.

1. Original toy volkswagon bug  accused toy volkswagon bug

Straightforward case
2. Original real volkswagon bug  accused real volkswagon bug
Straightforward case
3. Original toy volkswagon bug (not useful)  accused real volkswagon bug
(useful)
Useful copy: Check original for separability (113 b)
4. Original real volkswagon bug (useful)  accused toy volkswagon bug
(not useful)
Useful original: Check for separability

The fact that you can make a toy version of a car is insufficient to thwart
separability. The policy rationale is that everything can be turned into a toy.
B. Formalities

Current formalities
Fixation
No notice required (but can still be helpful for damages)
No registration required (Registration creates presumption of validity that must be
refuted by D)
Can’t file suit until Copyright Office registers or denies application
(Fourth Estate)
Deposit of work (enforced by fine rather than forfeiture)
**Basically, copyright is now an opt out system.

1976- same as present  except notice was required but more forgiving than previous
regimes because you could cure a publication without notice within 5 years.

1909
o Publication- was trigger point to get authors out of state copyright and into federal
regime
 Publication without formalities resulted in loss of both state copyright
protection and federal protections. So states set a high bar for what counts
as publication
 Estate of MLK v. CBS- Publication: (affected by technical limitations of
the time)
 Tangible copies distributed to the public in a way that gives them
dominion and control over the work
 Work is exhibited or displayed in such a way as to permit
unrestricted copying
o Notice
o Registration
o Deposit
C. Duration

 Copyright always expires on New Year’s Eve & you round up to get the extra days
o In works published pre-1978 based on date of publication
 Just have to know Yeldy’s four categories
o Category 1: Anything published before 1924, now in public domain
o Category 2:  Published after 1977
 Single author= life + 70
 Joint Works= last author to die + 70 years
 Anonymous/Pseudonymous/Work for Hire= shorter of 95 years after
publication or 120 years after creation
o Category 3: Published 1924-77
o Category 4: Works Created but not Published on 1/1/1978
Category 3 (renewal terms):

 Policy- purpose of these is to protect authors from themselves and keep them from losing
surprising value in works
 Renewal term goes to: Author (if alive), widow(er) or children when author is dead,
author’s executor, author’s next of kin (intestacy)
 Renewal Term Begins when renewal notice is filed and you can file it one year prior to
expiration
o Pre-1964: you had to file renewal notice
o Post- 1964: Automatically done but if you didn’t renew yourself, the owner of the
derivative work gets to continue using the work under the same terms of the
previous license.
 Derivative works lawfully created during the base term are considered infringing in the
renewal term, forcing parties back to the bargaining table (Abend); Unless you rely on
automatic renewal and then you lose the benefit of the Abend rule.

Termination of Transfer

 Only applies to pre-1978 transfers in renewal term and post-1977 transfers

o cannot be waived by contract and do NOT prevent use of derivative works
 Terminations are effective 35-40 years from the grant the are seeking to terminate
o *Exception when grant includes first right to publish, 5 year window opens 35
years from publication or 40 years from execution, whichever is earliest
o Notice must be served 2-10 years before effective date
 Termination rights go to:
o Author (if alive)
o Widow- 100% if author dead without heirs. 50% if author dead with kids
 children/grandchildren get 50% divided per stirpes
  51% of shares are required to exercise termination
 Joint Works
o Termination rights track the author who made the grant

Never Published, Never Registered Works2

Type of Work Copyright Term In the public domain in the

U.S. as of 1 January 2019 3

Unpublished works Life of the author + Works from authors who

70 years died before 1949

Unpublished anonymous and pseudonymous works, 120 years from date Works created before 1899
and works made for hire (corporate authorship) of creation

Unpublished works when the death date of the author 120 years from date Works created before 18995
is not known4 of creation5

Works Registered or First Published in the U.S.

Date of Conditions7 Copyright Term 3

Publication6

Before 1924 None None. In the public domain due to copyright

expiration

1924 through Published without a copyright notice None. In the public domain due to failure to
1977 comply with required formalities

1978 to 1 March Published without notice, and without None. In the public domain due to failure to
1989 subsequent registration within 5 years comply with required formalities

1978 to 1 March Published without notice, but with 70 years after the death of author. If a work of
1989 subsequent registration within 5 years corporate authorship, 95 years from
publication or 120 years from creation,
Date of Conditions7 Copyright Term 3
Publication6

whichever expires first

1924 through Published with notice but copyright None. In the public domain due to copyright
1963 was not renewed8 expiration

1924 through Published with notice and the copyright 95 years after publication date
1963 was renewed8

1964 through Published with notice 95 years after publication date

1977

1978 to 1 March Created after 1977 and published with 70 years after the death of author. If a work of
1989 notice corporate authorship, 95 years from
publication or 120 years from creation,
whichever expires first

1978 to 1 March Created before 1978 and first published The greater of the term specified in the
1989 with notice in the specified period previous entry or 31 December 2047

From 1 March Created after 1977 70 years after the death of author. If a work of
1989 through corporate authorship, 95 years from
2002 publication or 120 years from creation,
whichever expires first

From 1 March Created before 1978 and first published The greater of the term specified in the
1989 through in this period previous entry or 31 December 2047
2002

After 2002 None 70 years after the death of author. If a work of

corporate authorship, 95 years from
publication or 120 years from creation,
whichever expires first
Date of Conditions7 Copyright Term 3
Publication6

Anytime Works prepared by an officer or None. In the public domain in the United
employee of the United States States (17 U.S.C. § 105)
Government as part of that person's
official duties. 19

Works First Published Outside the U.S. by Foreign Nationals or U.S. Citizens Living
Abroad9

Date of Conditions Copyright Term in the

Publication United States

Before 1924 None In the public domain (But

see first special case below)

Works Published Abroad Before 197810

1924 through Published without compliance with US formalities, and in In the public domain
1977 the public domain in its source country as of 1 January 1996
(but see special cases) 20

1924 through Published in compliance with all US formalities (i.e., notice, 95 years after publication
1977 renewal)11 date

1924 through Solely published abroad, without compliance with US 95 years after publication
1977 formalities or republication in the US, and not in the public date
domain in its home country as of 1 January 1996 (but see
special cases)

1924 through Published in the US less than 30 days after publication Use the US publication chart
1977 abroad to determine duration

1924 through Published in the US more than 30 days after publication 95 years after publication
1977 abroad, without compliance with US formalities, and not in date
the public domain in its home country as of 1 January 1996
(but see special cases)
Date of Conditions Copyright Term in the
Publication United States

Works Published Abroad After 1 January 1978

1978 to 2002 Created before 1978 and first published in a country that is a The greater of 70 years after
signatory to the Berne Convention or other 17 USC § the death of author (or if
104A(h)(3) treaties 20 work of corporate
authorship, 95 years from
publication) or 31 December
2047

2003- Created before 1978 and first published after 2002 in a 70 years after the death of
country that is a signatory to the Berne Convention or other the author, or if work of
17 USC § 104A(h)(3) treaties 20 corporate authorship, 95
years from publication

1 January Published without copyright notice, and in the public domain In the public domain
1978 - 1 in its source country as of 1 January 1996 (but see special
March 1989 cases)18

1 January Published without copyright notice in a country that is a 70 years after the death of
1978 - 1 signatory to the Berne Convention or other 17 USC § author, or if work of
March 1989 104A(h)(3) treaties and is not in the public domain in its corporate authorship, 95
source country as of 1 January 1996 (but see special cases) 18 years from publication

1 January Published with copyright notice in a country that has 70 years after the death of
1978 - 1 copyright relations with the US (but see special cases) 13 author, or if work of
March 1989 corporate authorship, 95
years from publication

After 1 Published in a country that has copyright relations with the 70 years after the death of
March 1989 US13 author, or if work of
corporate authorship, 95
years from publication

After 1 Published in a country with which the United States does not In the public domain
March 1989 have copyright relations under a treaty

Special Cases

1 July 1909 In Alaska, Arizona, California, Hawaii, Idaho, Montana, Treat as an unpublished work
through 1978 Nevada, Oregon, Washington, Guam, and the Northern until such date as first US-
 Date of Conditions Copyright Term in the
Publication United States

Mariana Islands ONLY. Published in a language other than compliant publication

English, and without subsequent republication with a occurred
copyright notice12

Anytime Created by a resident of Eritrea, Ethiopia, Iran, Iraq, Not protected by US

Marshall Islands, San Marino, or Timor-Leste and published copyright law until they
in one of these countries.  Works from Nauru, Palau, become party to bilateral or
Somalia or South Sudan may also be included.13 international copyright
agreements

Anytime Works whose copyright was once owned or administered by Not protected by US
the Alien Property Custodian, and whose copyright, if copyright law
restored, would as of January 1, 1996, be owned by a
government14

Anytime If fixed or solely published in one of the following countries,  

the 1 January 1996 date given above is replaced by the date
of the country's membership in the Berne Convention or the
World Trade Organization, whichever is earlier:
Afghanistan, Algeria, Andorra, Angola, Armenia,
Azerbaijan, Belarus, Bhutan, Cambodia, Cape Verde, Cook
Islands, Comoros, Equatorial Guinea, Grenada, Haiti, Jersey,
Jordan, Kiribati, Democratic People's Republic of Korea,
Kuwait, Kyrgyzstan, Laos, Malaysia, Micronesia, Mongolia,
Montenegro, Nepal, Niue, Oman, Panama, Papua New
Guinea, Qatar, Samoa, São Tomé and Príncipe, Saudi
Arabia, Solomon Islands, Sudan, Syria, Taiwan, Tajikistan,
Tonga, Turkmenistan, Tuvalu, United Arab Emirates,
Uzbekistan, Vanuatu, Vietnam, Yemen

Sound recordings

(Note: The following information applies only to the sound recording itself, and not to any
copyrights in underlying compositions or texts.)
   
Unpublished Sound Recordings, Domestic and
Foreign

Date of Conditions In the public domain in the

Fixation/Publication U.S. as of 1 January 20193

Prior to 15 Feb. 1972 Indeterminate Subject to state common law

protection. Enters the public
domain on 15 Feb. 2067

After 15 Feb. 1972 Life of the author + 70 years. For unpublished Nothing. The soonest
anonymous and pseudonymous works and works anything enters the public
made for hire (corporate authorship), 120 years from domain is 15 Feb. 2067
the date of fixation

Sound Recordings Published in the United States

Before 1923 None 1 January 2022

1923 to 1946 None 100 years from publication

1947 to 1956 None 110 years from publication

1957 - 14 Feb 1972 None 15 Feb 2067

15 Feb 1972 to 1978 Published without notice (i.e, ©, year of publication, In the public domain
and name of copyright owner)15

15 Feb. 1972 to 1978 Published with notice 95 years from publication.

2068 at the earliest

1978 to 1 March Published without notice, and without subsequent In the public domain
1989 registration

1978 to 1 March Published with notice 70 years after death of

1989 author, or if work of
corporate authorship, the
shorter of 95 years from
publication, or 120 years
from creation. 2049 at the
earliest

After 1 March 1989 None 70 years after death of

author, or if work of
   
Unpublished Sound Recordings, Domestic and
Foreign

Date of Conditions In the public domain in the

Fixation/Publication U.S. as of 1 January 20193

corporate authorship, the

shorter of 95 years from
publication, or 120 years
from creation. 2049 at the
earliest

Sound Recordings Published Outside the United States

Before 1923 None 1 January 2022

1923 to 1946 None 100 years from publication

1947 to 1956 None 110 years from publication

1957 to 14 Feb 1972 None 15 Feb. 2067

15 Feb 1972 to 1 In the public domain in its home country as of 1 Jan. Subject to state common law
March 1989 1996 or there was US publication within 30 days of protection. Enters the public
the foreign publication (but see special cases) domain on 15 Feb. 2067

15 Feb. 1972 to 1978 Not in the public domain in its home country as of 1 95 years from date of
Jan. 1996. At least one author of the work was not a publication. 2068 at the
US citizen or was living abroad, and there was no US earliest
publication within 30 days of the foreign publication
(but see special cases)

1978 to 1 March Not in the public domain in its home country as of 1 70 years after death of
1989 Jan. 1996. At least one author of the work was not a author, or if work of
US citizen or was living abroad, and there was no US corporate authorship, the
publication within 30 days of the foreign publication shorter of 95 years from
(but see special cases) publication, or 120 years
from creation

After 1 March 1989 None 70 years after death of

author, or if work of
corporate authorship, the
shorter of 95 years from
publication, or 120 years
    
Unpublished Sound Recordings, Domestic and
Foreign

Date of Conditions In the public domain in the

Fixation/Publication U.S. as of 1 January 20193

from creation

Special Cases

Fixed at any time Created by a resident of Eritrea, Ethiopia, Iran, Iraq, Not protected by US federal
Marshall Islands, San Marino, or Timor-Leste and copyright law because they
published in one of these countries.  Works from are not party to international
Nauru, Palau, Somalia, or South Sudan may also be copyright agreements
included.13

Fixed prior to 1996 Works whose copyright was once owned or Not protected by US federal
administered by the Alien Property Custodian, and copyright law
whose copyright, if restored, would as of 1 January
1996 be owned by a government14

Fixed at any time If fixed or solely published in one of the following  

countries, the 1 January 1996 date given above is
replaced by the date of the country's membership in
the Berne Convention or the World Trade
Organization, whichever is earlier: Afghanistan,
Algeria, Andorra, Angola, Armenia, Azerbaijan,
Belarus, Bhutan, Cambodia, Cape Verde, Cook
Islands, Comoros, Equatorial Guinea, Grenada, Haiti,
Jersey, Jordan, Kiribati, Democratic People's
Republic of Korea, Kuwait, Kyrgyzstan, Laos,
Malaysia, Micronesia, Mongolia, Montenegro, Nepal,
Niue, Oman, Panama, Papua New Guinea, Qatar,
Samoa, São Tomé and Príncipe, Saudi Arabia,
Solomon Islands, Sudan, Syria, Taiwan, Tajikistan,
Tonga, Turkmenistan, Tuvalu, United Arab Emirates,
Uzbekistan, Vanuatu, Vietnam, Yemen

Architectural Works16

(Note: Architectural plans and drawings may also be protected as textual/graphics works)
Date of Date of Construction Copyright Status
Design

Prior to 1 Not constructed by 31 Dec. Protected only as plans or drawings

Dec. 1990 2002

Prior to 1 Constructed by 1 Dec. Protected only as plans or drawings

Dec. 1990 1990

Prior to 1 Constructed between 30 Building is protected for 70 years after death of author, or if
Dec. 1990 Nov. 1990 and 31 Dec. work of corporate authorship, the shorter of 95 years from
2002 publication, or 120 years from creation17

From 1 Immaterial Building is protected for 70 years after death of author, or if

Dec. 1990 work of corporate authorship, the shorter of 95 years from
publication, or 120 years from creation17
II. Violation of Protected Elements of the Work

A. Copying in fact
Copying in fact may be conscious or subconscious (Bolton)

1. Direct Evidence of Copying, or

2. Circumstantial Evidence of Copying

a. Access
“Reasonable posibility” or “reasonable opportunity” requires a specific chain of
events or widespread dissemination. No matter how similar two works are, there
needs to be some evidence of access (Selle v. Gibb). But many courts treat this as
a sliding scale (i.e. the more similar the works, the weaker the evidence of access
that the court will accept)

b. Substantial similarity (First Sense)

Shared, complex content or a shared unexpected departure from normal structure
or error that reduces the probability of independent creation.
i. If probative, striking similarity can be used to show access (e.g., not two
authors rewriting the same Shakespearian play)
ii. Plaintiff must show quantitative and qualitative similarity

Defendant may rebut circumstantial evidence with evidence of independent creation.

B. Act that infringes a 106 right

1. Reproduction right
Once copying in fact is established, Plaintiff must prove substantial similarity (in the
second sense), i.e., that the defendant took too much.

De minimis use
When considering whether use is de minimis, courts consider:
a. The observability of the copyrighted work
b. The length of time it is observable
c. Focus, lighting, camera angles, and prominence. Gottlieb v. Paramount Pictures
(a copyright pinball machine in a movie was de minimus)

Learned Hand in Sheldon v MGM: “True, much of the picture owes nothing to the
play; some of it is plainly drawn from the novel; but that is entirely immaterial; it is
enough that substantial parts were lifted; no plagiarist csan excuse the wrong by
showing how much of his work he did not pirate” (unless copying was de minimus)

It is necessary to strike a balance between protecting the author’s works while

facilitating the creation of new works
Second Circuit Tests for Substantial similarity
a. Lay Observer Test - Arnstein v Porter (2d Cir. 1946): “The question
[of permissible copying] is whether defendant took from plaintiff’s works so
much of what is pleasing to the ears of lay listeners, who compromise the
audience for whom such popular music is composed, that defendant
wrongfully appropriated something which belongs to the plaintiff. Suely, then,
we have an issue of fact which a jury is percularily fitted to determine.”
i. Definition of “wrongful” is circular
ii. If plaintiff establishes copying in fact, there is no standard for
dismissal, summary judgment, or judgment notwithstanding the
verdict.
iii. Test meant to eliminate judicial discretion and increase power of jury
b. Ordinary Observer Test - Steinberg v Columbia Pictures (S.D.N.Y. 1987):
The test for substantial similarity is “whether an average law observer
would recognize the alleged copy as having been appropriated from the
copyrighted work.”
i. In Steinberg, magazine designers copied a fictionalized street map of
New York instead of copying the public domain original. So it was a
narrow victory.
ii. But the idea of a map of the world from an egocentrically myopic
perspective cannot be protected.
iii. What do we do if the unprotectable parts of a work steal the lay
observer’s attention and they find infringement when there legally is
none?

c. More Discerning Observer Test - Boisson v. Banian (2d Cir. 2001):

Whether a more discerning observer would say that the works have the same
total concept and feel.
 Use this test when the work has unprotectable (public domain) elements.
Ignore the unprotectable elements.
 The more discerning observer is a Second Ciruit judge (so the district
court will give this to a jury) (Mannion v. Coors)

Ninth Circuit Test for Substantial similarity

One Test with Two Parts (Krofft; Cavalier)

a. Extrinsic Test- judged on specific criteria that can be listed and analyzed
 Usually done with expert testimony
 Involves objective manifestations of expressions (plot, themes, dialogues,
characters, sequence of events)
 CAN be determined as a matter of law

b. Intrinsic Test- similarity between the two forms of expression

 Total look and feel
 Based on the perspective of the specific, relevant audience
 Analytic dissection/experts not relevant here
  Question for the jury

2nd Cir.: P must prove access and get do technical analysis to prove copying in
fact
Then the lay observer comes along to decide if 106 right was infringed

9th Cir.: Access is the basis for copying in fact

Then you get the lay observer’s impressions and technical analysis to determine if
106 right was infringed
Easier to get summary judgment in the 9th Cir. because cases can be resolved at
the extrinsic test with expert testimony

2. Right to prepare derivative works

17 USC 101 “A “derivative work” is a work based upon one or more preexisting
works, such as a translation, musical arrangement, dramatization, fictionalization,
motion picture version, sound recording, art reproduction, abridgment, condensation,
or any other form in which a work may be recast, transformed, or adapted. A work
consisting of editorial revisions, annotations, elaborations, or other modifications
which, as a whole, represent an original work of authorship, is a “derivative work”.”
A derivative work is one that is “substantially similar” to the original (Well-Made
Toy)
o BUT it is possible to infringe the derivative work right without infringing the
reproduction right, see Micro Star v. Formgen
  A derivative work doesn’t need to be fixed → so you can make a derivative
work right without ever making a copy
o Can think of derivative works as having (sort of) an influence from moral rights

Character Copyrights

 Not really a thing because characters are not works of authorship eligible for
copyright
 But the copyright protection afforded to a book/movie/comic extends to the
characters themselves, to the extent that the characters are sufficiently distinctive
(X One X)
o We still analyze infringement using substantial similarity, we just use a
narrower test for characters (comparing character to character rather than
the total look and feel of two larger works)

3 Requirements for Character Copyright (D.C. Comics)

 First, Character must have physical as well as conceptual qualities

 Second, Character must be sufficiently delineated to be recognizable as the same
character whenever it appears
o Must remain consistently identifiable across works
 Third, Character must be especially distinctive and contain some unique elements
of expression (i.e. NOT a stock character)

High Bar of. Character Copyrights

 Character copyright has a high bar to protect authors

o A cartoon character may not be eligible for protection until coloring,
clothing, and facial features are established (Walker v. Viacom)
 The duration of character copyright is limited to copyright duration of the original
work
 Remember, even if you don’t have character copyright, you can still compare the
two works as a whole

3. Distribution
Owner of copyright has the exclusive right “to distribute copies...of the copyrighted
work to the public by sale or other transfer of ownership, or by rental, lease, or
lending” 106(3)
Merely offering/making a work available does not count as distribution (Capitol
Records v. Thomas)
When there’s no evidence of distribution→ we assume the work was distributed
(Hotaling 4th Cir.)
File-sharing does count as distribution
 We ignore what’s happening at a technical level and just consider what’s happening at
a global level
A BIG THEME OF COPYRIGHT LAW: Should a court consider what’s happening
at a technical level or just consider what the user experiences?

First Sale Doctrine – 17 USC 109

 If you are the owner of a lawful copy of a work, you can sell or lend or otherwise
transfer ownership of that copy without infringing copyright
o The copy must be lawful, i.e., not pirated
o Cannot be leasing or renting the copy (17 U.S.C. 109(d))
o Only a defense to distribution, NOT reproduction
o Does not apply to:
 Owners engaged in renting/lending musical works or software (but
nonprofit libraries are excluded from this)

 ReDigi was “reslling” digital music and asserted the first sale doctrine as a
defense
 Court says this violates both the reproduction right and the distribution right
o On a technical level, this is reproduction
o On a global level, this is distribution
 First sale doesn’t apply because the work being transferred is an
unlawful reproduction

4. Public Performance or Public Display

7 U.S.C.  § 106(4)- Public Performance

In the case of literary, musical, dramatic, and choreographic works, pantomimes, and
motion pictures and other audiovisual works, to perform the copyrighted work
publicly

17 U.S.C.  § 106(5)- Public Display

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 audio visual work, to display the copyrighted work publicly

17 U.S.C.  § 101- Display

To display a work means to show a copy of it, either directly or by means of a film,
slide, television image, or any other device or process or, in the case of a motion
picture or other audiovisual work, to show individual images non-sequentially

To perform or display publicly means

 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 or its
social acquaintances is gathered OR
o Ex. turning on a radio in a coffee shop or displaying a book at Notre
Dame
 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
o Ex. A cable company broadcasts the football game to a sports bar.
Both the cable company and the sports bar are publicly performing

 Sound recordings don’t get public performance rights

 “Public” is the key element: is the work being performed or displayed to the
public

 It doesn’t matter how many people are actually present, it matters if some
place is open to the public

Aereo and Public Performance

 Aereo performs because it performs like the other cable services that Congress
was targeting with the statute
o Technical v. Global- “But this difference means nothing to a subscriber. It
means nothing to the broadcaster.” “Why should any of these
technological differences matter? They don not render the commercial
objective any different from that of cable companies”
 The technical differences should be ignored and we should look at
basically what is happening on a global/economic level
 To transmit a performance is not limited to a single act of communication; it looks
to what the service is doing with all of their subscribers
 Demonstrates that new technologies have expanded the 106 rights so that they
overlap (reproduction, distribution, and performance can blur together)

 Implications of this for other cases

o Streaming audio- If there’s any fixation, that is the works are fixed for
more than a fleeting amount of time, then reproduction might be infringed.
Distribution would not be infringed unless the end user got a copy.
 o Cloud storage- If the work is fixed and can be played back, public
performance might be infringed

Perfect 10 and Public Display

 Causing an electronically stored image to appear on a user’s screen is a “display”

 If the accused is infringer doesn’t store the image in the first place, it has no copy
that can be displayed
 Causing a browser to load an image from another website is not display
o *This is contrary to Aereo’s approach of looking at work from the
perspective of the end user. It doesn’t matter to this court that a google
image user sees both the thumbnails and full size images in the same way

Exceptions to public performance/display

First Sale for Public Display- Codified in 109(c)

 The owner of a particular copy is entitled to display the copy publicly to
viewers present where the copy is located
 You have to own it, not be leasing or renting
 Needs to be a lawfully made copy
 The viewers must be present at the place where the work is located (so online
streaming would be excluded)

17 U.S.C 109(e)
 special exception from right to display/perform for owners of coin-operated
equipment (basically exception for arcade games)
17 U.S.C 110
 Includes a bunch of exceptions to public performance right.
 Sports bars and coffee shops can put on TV and music subject to certain very
specific limitations about the number of speakers and the sizes of TV

C. Volitional Act (or cable company-like infringer)

III. Direct or indirect theory of liability

If you have a copy machine and were offering copyrighted books, the copying of books would be
a volitional act. Any automated user-control system will likely lack a volitional act. The
exception in Aero: If it looks too much like a cable company, no volitional act required for direct
liability.

Indirect liability – Good when direct infringers are anonymous, e.g., on torrent sites, so you
cannot get to them. Also good when you want a defendant with

Contributory or vicarious liability requires direct infringement. Never skip 1 and 2.

 Volitional Act Theory

o D is directly liable when they engage in a volitional act of infringement (RTC v.
Netcom)
 Not just a device/tool used to infringe (ex. copy machine)
 “That selection and arrangement by the service provider constitutes a
volitional act directed to specific copyrighted works and thus serves as a
basis for direct liability.” - Aereo
 Ex. Offering a copy machine and a selection of copyrighted books
 Volitional act is selecting content available for the user to access
 If the system is automated and user controlled, you probably haven’t
directly infringed (Cartoon Network)

 Aereo Theory
o If you look too much like a cable company
o This theory is newer and puts pressure on the volitional act requirement (you
should still bet on volitional act)

Indirect liability
Useful when you can’t reach a direct infringer or you want to sue someone with a lot of $$$$$
You NEED direct infringement to even get to this step
So talk about who the direct infringer is and what 106 rights the direct infringer is violating AND
THEN consider indirect infringement

indirect: Vicarious Liability

 Right and ability to supervise infringement

o Right- authority to stop/limit the infringement
o Ability- the practical ability to do so (dependant on technology)
 Being able to take steps that would have an indirect effect on reducing
infringing conduct are not sufficient to count as right/ability  (Perfect 10 v.
Visa and Perfect 10 v. Amazon)
  Ex. Google being able to keep infringing images out of google
searches or Visa refusing to process credit card payments from
infringers
Usually practical ability depends on whether technology is available,
not on whether the specific firm can provide it

 Direct financial interest- a causal relationship between the

infringing activity and any financial benefit reaped by D regardless
of how substantial (Ellison v. Robertson)
 **No knowledge requirement; just the right/ability to supervise. As
technology improves, the possibility for vicarious liability grows.
That’s the reason for the safe harbor.

Usually practical ability depends on whether technology is available, not on whether the specific
firm can provide it
Indirect: Contributory Infringement

 Knowingly inducing, causing, or materially contributing to the infringing conduct of

another
o Requires actual knowledge of specific infringing material or acts (Napster)
o OR intent to cause infringement (Grokster- inducement doctrine)
o Material contribution
 Hosting physical space where infringing goods are sold (Fonovision)
 Hosting a website where infringing content is available for download (but
the Safe Harbor might save you)
 Providing a link to a website/computer where infringing content is
available for download (Napster)
 Processing credit card payments is NOT material contribution (Perfect 10
v. Visa)
 **The bar for what counts as material contribution is much lower than what counts as
vicarious liability. The puts a lot of pressure on the knowledge element.

Indirect: Contributory Infringement

 Knowingly inducing, causing, or materially contributing to the infringing conduct of

another
o Requires actual knowledge of specific infringing material or acts (Napster)
o OR intent to cause infringement (Grokster - inducement doctrine)
o Material contribution
 Hosting physical space where infringing goods are sold (Fonovision)
 Hosting a website where infringing content is available for download (but
the Safe Harbor might save you)
  Providing a link to a website/computer where infringing content is
available for download (Napster)
 Processing credit card payments is NOT material contribution (Perfect 10
v. Visa)
 **The bar for what counts as material contribution is much lower than the bar for
vicarious liability, which puts a lot of pressure on the knowledge element.

DMCA Safe Harbor: 512(c)

Reason internet exists
If a service provider…
a. lacks the right kind of knowledge- (c)(1)(A)
b. has no direct financial benefit while having the right and ability to control- (c)(1)
(B)
c. expeditiously takes down material after receiving an infringing notice- (c)(1)(C)
d. has a policy for terminating the accounts of repeat offenders (i)(1)(A)
*Scope of protection- no monetary damages and limited injunctions
DMCA Safe Harbor: 512(c)
Kind of Knowledge

What kind of knowledge matters:

a. You must lack actual knowledge AND

b. Not be aware of facts or circumstances from which infringing activity is apparent or

expeditiously remove the material upon obtaining awareness

Red flag knowledge- Lack subjective awareness of facts that would have made specific
infringement objectively obvious

Ex. NOT red flag knowledge- through spot checks D knows that 25% of their content is
infringement. General knowledge of rampant infringement.

Ex. Red Flag Knowledge- D is subjectively aware that a user called “deathtohollywood”
uploaded a major motion picture currently in theater

Red flag knowledge = specific infringement objectively obvious. E.g., can objectively prove a
user named “deathtohollywood” who had uploaded a movie in theatres was intending to infringe
E.g., a torrenting software

Safe Harbor: Right & Ability to Control

If have a direct financial benefit, cannot have right/ability for human control pre-posting

Things that do count as right/ability to control

 i. Pre-screening submissions for quality
ii. Rendering extensive advice to users about what kind of content to upload
iii. Editing user content
iv. Suggesting prices (or anything that gets you to involved into the sales process)
v. Anything that means a human being sees the content before it’s uploaded. Once it goes
live

Things that do NOT count as right/ability to control

i. Ability to take down content in response to a DCMA notice
ii. Eforce non-copyright rules (indecency, hate speech, etc,) AFTER content is posted
iii. Selectively monitor site for infringement (Youtube has a tool to automatically police
infringement that they only offer to partners and court says this is fine)

Device Liability

Staple Article of Commerce Doctrine (Sony Rule)- “[T]he sale of copying equipment, like the
sale of other articles of commerce, does not constitute contributory infringement if the product is
widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of
substantial noninfringing uses.”
Sony was about time-shifting VCRs which some used to infringe
1. Not a safe harbor, just no imputed knowledge or intent for simply
selling a product capable of substantial lawful use (Grokster)
1. For a while, this was a complete and total safe harbor. As a policy matter,
copyright holders weren’t totally sure that VCRs and stuff like that were
ultimately that bad but then file sharing really starting killing certain industries
and so this had to change

Inducement Doctrine (Grokster)- One who distributes a device with the object of promoting its
use to infringe copyright, as shown by a clear expression of intent or other affirmative steps taken
to foster infringement, is liable for contributory infringement
1. This modifies the Napster definition of “knowingly” for contributory infringement
2. You still need the material contribution element satisfied by providing the tool
3. Why can’t you get to infringement another way?

File-sharing tools are designed without centralized servers, which means they are
purposefully designed to not have liability-inducing knowledge (contributory
infringement) and since the user downloads the software and controls it
themselves there’s no ability to control

4. Evidence of Inducement- Marketing to Napster users; Giving specific advice

about how to download infringing content; Creating lists of specific infringing content
(ex. Box Office Movies)
Inducement – applies to peer-to-peer sharing, new services
 Remedies

Menu of Remedies From the Copyright Statute

1. Injunctions- 502
2. Impoundment/Destruction- 503
3. Actual Damages and Profits- 504(b)
4. Statutory Damages- 504(c)
5. Costs and Attorney’s Fees- 505
6. Criminal Penalties- 506

Monetary Damages: Actual Damages & Profits OR Statutory Damages

 *You either get actual damages & profits OR statutory damages, you can’t get both
o Strategic considerations:
 you don’t want to get overturned on appeal
 The infringer might not have any real profits (ex. file sharing)

Calculating Actual Damages and Profits

 Actual damages- end up looking like a compulsory license; whatever the fair market
value (FMV) of a license is
o You’d get an expert to talk about and present evidence of what the FMV is
o This is why we add on profits so that the infringer loses money
o Otherwise, we’d have no deterrence

Calculating Actual Damages and Profits

Profits: Two types (Frank Music v. MGM)

Direct profits:

 start with the direct profits D made from the work

 Determine what percentage of the infringing works belongs to P (ex. 12% of the show is
infringing)
 Subtract anything that is attributable to non-infringing elements added by defendant
o Most difficult to account for; battle of the experts

Statutory Damages

 Default: sum of not less than $750 or more than $30,000 as the court considers just
o Willfulness= max goes to $150,000
o Innocent= min goes to $200
 Based on a PER WORK basis
 o compilations, like albums, are counted as one work. Circuits have different rules
about episodes of shows, etc.
 For 7th Amendment, juries assess statutory damages (Feltner)
 Willfulness= D knew or had reason to know, or recklessly disregarded the fact that his
conduct constituted copyright infringement

 After notice (piracy warnings or actual), D is willful unless he reasonably and in good
faith believes he is not infringing (Princeton Univ. Press)
o Subjective- good faith belief
o Objective- A belief is unreasonable when “law supported the other position so
clearly that there was a reckless disregard for P’s property” (Princeton Univ.
Press)
 Injunctions (eBay)

1. Irreparable injury
1. Judgement-proof defendant or some other specific njury that is hard to
compensate for
2. NOT just a violation of your IP rights/right to exclude
b. Remedies available at law are inadequate to compensate for that injury
c. Considering balance of hardships between P and D, a remedy in equity is warranted
d. Public interest not disserved by injunction

Criminal Penalties

 Willful infringement AND one of

o Purposes of commercial advantage or private financial gain
o Reproduction or distribution of copies with retail value totaling >$1000 in 180 day
period
o Distribution of certain works being prepared for commercial distribution by a
publicly accessible computer network
 Willful for criminal liability- a voluntary, intentional violation of a known legal duty.
o After receiving notice, infringement is willful unless D in good faith believes their
actions don’t infringe (no reasonableness, all subjective)