Professional Documents
Culture Documents
Copyright Law Attack Outline 2010
Copyright Law Attack Outline 2010
1. Types of Infringement
a. reproduction(copying) – §106(1)
b. derivative work §106(2)
c. distribution – §106(3)
d. perform– §106(4)
e. display – §106(5)
f. perform transmission of a digital audio sound recording – §106(6)
2. Was there copying? (§106(1)
a. Infringement: (1) that D copied form P’s copyrighted work (and)(2) the copying went so far as to constitute improper
appropriation
b. To prove Copying: (1) access to CR work and (2) substantial similarities
i. Some courts allow to infer access, if SS is nearly or exact copying (Court does not believe that the work was
independently created
c. Only parts of the work that are copyrighted are protected from copying
d. Tests: (Total look and Feel, Porter): (1) interpreted from the intended audience (2) D took from P’s works so
much of what is pleasing to the ears/eyes
e. Lyons Test: whether the works are so similar that the introduction of the alleged copy into the market
will have an adverse effect on the demand for the protected work
3. Is there Proof of Copying?
a. Do not have to have knowledge of copying, if subconsciously copying (Bright Tunes Music Corp)
4. Is there Substantial Similarities?
a. Must go towards the expression, not their ideas or facts
i. Similarities of facts or ideas may be probative of the existence of copying (false facts inserted to prove copying)
b. Merger of ideas/expression cannot be used to demonstrate infringement.
c. Copying from 3rd parties is also a defense of infringement (similarities is because they copied from the same source)
d. Striking Similarity: the two works are so similar, that access/copying can be inferred.
e. Ordinary Observer Test: whether an average lay observer would recognize the alleged copy as having been
appropriated from the copyrighted work
f. Two approaches to SS:
(1) Fact-finder judge substantial similarity with respect to the whole of the copied portions of the plaintiff’s work
including portions that viewed in isolation might not be eligible for copyright
(2) Fact-finder judge first removed from consideration the uncopyrightable elements of the copied material then
evaluates those remaining elements for SS.
g. Substantial Similarities for Computer Programs : ((1) First break down the allegedly infringed program into its
constituent structural parts, (2) Then examine each of these parts for such things as incorporated ideas, expression that
is necessarily incidental to those ideas and elements that are taken from the public domain, a court would then be able
to sift out all non-protectable material. (3) The courts compare this material with the structure of an allegedly infringing
program. - (abstraction-removal-comparison test) – (Computer Associates International, Inc)
h. Authors that have given rights to their work are given more lieniet treatment for SS, (Gross)
5. What are my rights it my work is a Phonorecord(106,115,114)?
a. §115 provides for a compulsory licensing fee scheme. Harry Fox License, if you make a phonorecord, anyone
can make their own as long as they pay fees.
b. Requirements: (1) serve the copyright owner with notice of its intention to obtain a compulsory license, “before or
within thirty days after making, and before distributing any phonorecords of the work
c. Phonorecords have only been protected since 1972
d. §114 Protection: (1) protection extends to recordings, “that directly or indirectly recapture the actual sounds fixed in the
protected recording and (2) protection does not extend: to a recording, “that consists entirely of an independent fixation
of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording”
i. Bridgeport: No substantial Similarities Test, by the language of 114(b). If you can prove copying, then you have
protection.
e. Recording Devises: (1) home copying for non-commercial use is non-infringing (2) Recording/copying devises
must have a SCMS to protect against copying (3) portion of revenue from these devises goes to record industry
6. My rights to Derivative Works(§106(2))?
a. To be a derivative work, it need not be fixated. (covers performances/plays)
b. Hogan: Whether, the ordinary observer unless he set out to detect the disparities, would be disposed to overlook them,
and regard their aesthetic appeal as the same. (Look and feel test to derivative works)
c. It cannot be a derivative work if you don't take a protective element from the first, even if it was based on the
original work.
d. Ownership of a copy, and the modification of that copy is not a derivative work (first-sale doctrine)
e. Infringement: A derivative work must exist in (1) a concrete and permanent form and must (2) substantially
incorporate protected material from the pre-existing work.
f. exclusive right to compilations does not appear in 106
g. §117 => (1) it is not an infringement for the owner of a copy of a computer program to make or authorize the making of
another copy or adaptation of that computer program provided (2) that such a new copy or adaptation is created as an
essential step in the utilization of the computer program in conjunction with a machine
7. Have my moral Rights been effected?
a. Gilliam allowed for recovery for mutilation of a TV program, but might be limited under Daistar. (Lanham Act)
8. VARA: §106(a) protects against a PGS work’s destruction and mutilation, but can only be exercised by the artist
a. 106A(a)(1)(A) gives the author the right to claim authorship of the work.
b. 106A(a)(1)(B) gives the right not to have an author’s name associated with a WVA he or she did not create
c. 106A(a)(3) gives Sculptor the right to prevent any intentional “distortion, mutilation, or other modification”
d. VARA does not include: (1) works made for hire (2) advertisements or promotional material (3) movies, most functional
works, maps/dictionaries/books/magazines applied art etc. (
e. VARA Information:(1) works created after 1990, rights are the life of the author (2) prevent destruction if it is of
recognized stature (3) prevent intentional distortion mutilation or other modification that would hurt the reputation (4)
modifications are the result of time are not protected (5) rights can be waived by written contract but never transferred (6)
conservation, changes in lighting and placement of the work is not protected unless by gross negligence.
f. Applied Art: Applied art describes two-and three-dimensional ornamentation or decoration that is affixed to otherwise
utilitarian objects
g. VARA is not retroactive, if the modification happened before 1990, then no protection. It only protects against
the act of modification/destruction (Pavia)
h. VARA does not protect site specific Art (Phillips)
i. §113(d), deals with removing art from buildings
j. (VARA) applies to physical copies of works, not to the intangible works themselves.
9. My rights to distribute (106(3)
a. If you make and distribute copies you infringe both 106(1) & (3)
b. the copyright owner’s rights under section 106(3) cease with respect to a particular copy or phonorecord once
he haw parted with ownership of it
10. Does the first sale Doctrine Apply (§109)?
a. Digital first Sale: Because giving a digital copy in fact yields new copies, the first sale doctrine, which derives
from the analog copy owner’s chattel rights, does not apply
b. FSD only applies to items made in the US, exported to other countries and then imported back (Costo & Quality
King Distributors, Inc.) (§602)
c. Importation: If the product was purchased oversees, then FSD does not protect the importer from infringement
(Pearson Educational)(§602,§501)
11. My Public Performance Rights (106(4),(5),(6))
a. People who own copies have a right to display the image. (§109)
b. You cannot perform a work in public if you do not have a license. (ASCAP and BMI handle the lcensing fees of
public performed works)
c. Under 1976 Act
i. Perform: a work means to recite, render, play, dance, or act it, either directly or by means of any device or process
or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the
sounds accompanying it audible.
ii. Public: (1) 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 and its social acquaintances is gathered; or (2) to transmit or otherwise
communicate a performance or display of the work to a place specified by clause
iii. Transmit: a performance or display is to communicate it by any device or process whereby images or sounds are
received beyond the place from which they are sent.
d. ASCAP does not cover Dramatic Works
e. Internet Servers: Do not display by simply providing links to places were the material is displayed.
12. Was there any secondary Infringement?
a. There can be no CI or VI if no direct infringement occurs
b. Contributory Infringement: (1) has knowledge of the infringing activity (2) induces or materially contributes to
the infringing conduct of another
i. willful blindness can establish knowledge (In re Aimster)
ii. Substantial non-infringing use: A sale of an article though adapted to an infringing use is also adapted to
other and lawful uses, is not enough to make the seller a contributory infringer. (If there is a valid non-
infringing use: time-shifting, Sony) (measured not if there “is” but if there is the capability of Substantial non-
infringing use)
iii. Grogster: if the inducement is to promote the non-infringing use, can still infringe (even when the article has a
substantial non-infringing use)
c. Vicarious Infringement: (1) has the right and ability to supervise the infringing activity (2) has a direct
financial interest in such activates
i. Enhancement or draw to one’s facilities because of infringing activity is enough to establish financial interest (Fonovisa,
Inc)
13. Protection for Internet Secondary Infringers (§512)
a. 512 provides a safe harbor for internet companies from monetary and injunctions
b. To be eligible for 512 safe harbor: (1) procedure/location for receiving notices of infringement (2) must take action to
remove infringers (3) have a policy to terminate repeat offenders
c. §512(h) subpoenas cannot be filed against 512(a) service providers (512(c) notice cannot be given for ISP services
providers, which is a requirement for the subpoena)
d. Failure to comply with the notice requirement in 512(c)(3) by Copyright Holders does not require ISP to take
down content. (Substantially compliant is enough, but failure to sign under perjury is not enough to establish notice)
e. §512(g) => provides remedies when copyright holder acts in bad faith to take down content that is copyrighted
material
f. Perfect 10: Must have a “reasonably” implemented notice and takedown policy
g. If notice is not given, ISP still have to act if red flags are present: a service provider may lose immunity if it fails to
take action with regard to infringing material when it is “aware of facts or circumstances from which infringing activity is
apparent.” (But ISP’s are not required to police, so hard to prove, knowledge of red flags)
14. Was there Fair Use(§107)?
a. Always start with the enumerated categories at the top of 107 to see if the use fits into one of those categories
: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research
b. Look at things that would not be infringing if it was in analog form, but it is in digital.
c. Four Factor Statutory Test Used in Every Fair Use Case: (1) the purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit educational purposes; (2) nature of the
copyrighted work;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a
whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
d. Factor #1 Issues: (1) commercial use (2) transformative use (3) legitimate purpose
i. the more transformative (fair use), the more commercial less transformative (not fair use)
ii. parody v. satire (Parody is more likely a FU, because it needs to mimic the original, Satire can stand on own, gets less
protection as FU)
iii. can be commercial without charging a “fee”
iv. was the copying done just to get at the unprotected elements of the work (Sega)
v. were the sales directly related to providing the “copyrighted material”
e. Factor #2 Issues: (1) works of non-fiction and facts are given less protection (2) is the work published (3) does
not play a major role unless one or two is met
f. Factor #3: Issues: (1) the amount taken has to be related to the purpose of Factor 1 (2) take more than
needed to accomplish #1’s goals => no fair use (3) if what was taken was the “heart” of the work, moves
towards a finding of Not fair use (4) if what was taken was the “creative expression” not just facts/information
(5)
g. Factor #4: Issues: (1) would the author pursue the market (2) can the CR holder establish a market by using the
licensing in the fair use question (3) it is potential market not current market
i. authors are less likely to pursue markets that are critical or parody their work (If so almost always find FU)
ii. The 4th factor does not recognize a decrease in value of a copyrighted work that may result from a particularly
powerful critical work
iii. To negate fair use one need only show that if the challenged use, “should become widespread, it would adversely
affect the potential market for the copyrighted work
iv. Market Loss: (1) loss of direct sales (2) if use becomes widespread it will hurt market