COPYRIGHT
SECTION 102--
GIVES PROTECTION TO "ORIGINAL WORKS OF AUTHORSHIP FIXED IN ANY TANGIBLE MEDIUM OF EXPRESSION," i.e. INTELLECTUAL PROPERTY (BOOKS, POEMS, PHOTOGRAPHS, MUSIC, CHOREOGRAPHY, SCULPTURE, COMPUTER PROGRAMS, ETC.). THE PROTECTION IS GIVEN TO THE EXPRESSION OF AN IDEA, BUT NOT TO THE IDEA ITSELF.
SECTION 302--DURATION OF COPYRIGHT
WORKS CREATED BEFORE JAN. 1, 1978: 26 YEARS, RENEWABLE FOR ANOTHER 26 YEARS
1978 AMENDMENTS: LIFE OF THE AUTHOR PLUS 50 YEARS
SONY BONO COPYRIGHT EXTENSION ACT OF 1998: LIFE PLUS 70 YEARS
SECTION 106--PROTECTION EXTENDED TO THE COPYRIGHT OWNER
1. TO REPRODUCE THE COPYRIGHTED WORK IN COPIES OR PHONORECORDS
2. TO PREPARE DERIVATIVE WORKS BASED UPON THE COPYRIGHTED WORK
3. TO DISTRIBUTE COPIES OR PHONORECORDS OF THE COPYRIGHTED WORK TO THE PUBLIC BY SALE OR OTHER TRANSFER OF OWNERSHIP, OR BY RENTAL, LEASE, OR LENDING
4. IN THE CASE OF LITERARY, MUSICAL, DRAMATIC, AND CHOREOGRAPHIC WORKS, PANTOMINES, AND MOTION PICTURES AND OTHER AUDIOVISUAL WORKS, TO PERFORM THE COPYRIGHTED WORK PUBLICALLY
5. IN THE CASE OF LITERARY, MUSICAL, DRAMATIC, AND CHOREOGRAPHIC WORKS, PANTOMINES, AND PICTORIAL, GRAPHIC, OR SCULPTURAL WORKS, INCLUDING THE INDIVIDUAL IMAGES OF A MOTION PICTURE OR OTHER AUDIOVISUAL WORK, TO DISPLAY THE COPYRIGHTED WORK PUBLICLY
web site: http://www.loc.gov/copyright/
Notice:©date name. All rights reserved.
Registration and Deposit
Form CO replaces:
VA--painting, photos, prints, maps, diagrams, models. . .
TX--non-dramatic literary works: fiction, nonfiction, poetry, tests, advertising copy, computer programs
PA--musicals, dramatic works, pantomines, choreography, movies, videos
SR--sound recordings
Money (new fee schedule July, 2008)
Two copies
SECTION 107--FAIR USE
NOTWITHSTANDING THE PROVISION OF SECTION 106, THE FAIR USE OF THE COPYRIGHTED WORK, INCLUDING SUCH USE BY REPRODUCTION IN COPIES OR PHONORECORDS OR ANY OTHER MEANS SPECIFIED BY THAT SECTION, FOR PURPOSES SUCH AS CRITICISM, COMMENT, NEWS REPORTING, TEACHING (INCLUDING MULTIPLE COPIES FOR CLASSROOM USE), SCHOLARSHIP, OR RESEARCH, IS NOT AN INFRINGEMENT OF COPYRIGHT. IN DETERMINING WHETHER THE USE MADE OF A WORK IN ANY PARTICULAR CASE IS A FAIR USE THE FACTORS TO BE CONSIDERED SHALL INCLUDE--
1. THE PURPOSE AND CHARACTER OF THE USE, INCLUDING WHETHER SUCH USE IS OF A COMMERCIAL NATURE OR IS FOR NONPROFIT EDUCATIONAL PURPOSES;
2. THE NATURE OF THE COPYRIGHTED WORK [1992 AMENDMENT]: "THE FACT THAT A WORK IS UNPUBLISHED SHALL NOT ITSELF BAR A FINDING OF FAIR USE"];
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.
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AN ACTION FOR COPYRIGHT INFRINGEMENT
*PL. IS THE OWNER OF THE COPYRIGHT
*DEF.'S WORK IS SUBSTANTIALLY SIMILAR
comprehensive literal similarity
comprehensive paraphrase
non-comprehensive literal similarity
non-comprehensive paraphrase
*DEF. HAD OPPORTUNITY TO COPY (ACCESS)
DEFENSES
PUBLIC DOMAIN
FAIR USE
***
CASES:
Facts and Research
Miller v. Universal City Studios, Inc. (5th Cir. 1981).
In Dec. 1968 the daughter of a wealthy land developer was kidnapped from an Atlanta motel room and buried alive. She was rescued after 5 days in the box. She collaborated on a book with Miller, a reporter covering the story, 83 Hours Till Dawn. Def. Universal wanted to make a made-for-TV-movie but was unable to reach an agreement with Miller. Universal made a movie, "The Longest Night," which was broadcast on ABC. At trial there was conflicting evidence with respect to whether or not the screenwriter relied on the book for the screenplay. The jury awarded Miller $200,000. Universal appealed on the basis of a jury instruction that "research is copyrightable."
Issue: Is research copyrightable?
*facts vs. expression of facts
*requirement of originality
-facts belong to the public domain
*copyright protection does NOT apply to the labor of research
-Hoehling v. Universal City Studios, p. 321.
Fixation
Horgan v. MacMillan (2d Cir. 1986)
Balanchine and The Nutcracker and the New York City Ballet
*the photographers have the copyright in the still photos and MacMillan has the copyright in the book
*Balanchine's Estate has the copyright in the choreography
see pp. 326-328
Substantial Similarity and Access
Selle v. Gibb (7th Cir. 1984).
Pl., Selle, wrote the song, "Let It End," which he performed 2-3 times in the Chicago area. He sent the piece to 11 music publishing companies; they were not interested. When he heard the Bee Gees hit, "How Deep Is Your Love" he recognized much similarity.
Pl. expert witness, a professor of classical music at Northwestern, testified as to "substantial similarity." pp. 337-338
Defendants, Bee Gees, provided a work tape of the session in which they composed the song, among other songs. They do not read/write music and their creative process is unconventional.
Issue: is there copying when there is no access?
*independent creations or creations from a prior common source can be copyrighted even if they are substantially similar p. 339
Substantial Similarity
Sahuc v. Tucker (E.D.La. 2004)
Pl., Sahuc is a photographer with a gallery in the French Quarter in New Orleans. Def., Tucker is a painter/photographer working in and around Jackson Square. Pl. is claiming that def.'s photo, "Breaking Mist," infringes upon his copyrighted photo, "Decatur Street Gate." Def. admits he saw "Gate" in pl.'s gallery. Hence access is proven.
Issue: Is there substantial similarity?
Both photos were taken in fog and include the elements: St. Louis Cathedral, statue of Andrew Jackson, urn, banana leaves, palm trees, [and are devoid of people].
Defendant's photo was originally color, while pl.'s was black and white. Also def.'s photo has a puddle of water and what appears to be trash.
Pl.'s expert testifies as to substantial similarity.
The court finds the standard NOT to be expert testimony, but a layman's side-by-side viewing. Def.'s photo is printed in b&w and framed in an identical frame to pl.'s photo. The court sees substantial differences:
*positioning of the elements (centering vs. off-centering)
*focus
*"feel"