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Copyright Exclusive Rights Outline

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05. Copyright - Exclusive Rights 1

Reproduction, Derivative Works, Distribution, Public Display, Public Performance, Moral Rights

MML 625-717; 17 U.S.C. §§ 101 (“copies,” “derivative work”, “display,” “perform,” “publicly,” “work of visual art”), 103(a), 106, 109, 602, 106A, 107


  1. Anatomy of a Copyright Case

    • Ownership of valid rights in an original work of authorship

    • “Original” work of authorship

    • Fixed in a tangible medium of expression

    • Plaintiff owns the work

    • Copyright remains in effect

  2. Infringement

    • Both must be shown for the violation of Exclusive Rights:

      1. copying in fact: actual copying, show that D use some elements of P’s work to make D’s work – relied on it and used it (c.f. creating independently)

      2. copying in law: substantial similarity - D copying from P’s work is sufficient whether quantitatively/ qualitatively (mostly both) to provoke legal liability for infringement

    • Relevant limitations/ exclusions

    • Other defenses

    • Two types of infringement

  • Direct infringement: directly infringe the rights of copyright holders

  • Indirect infringement: encourage/ assist a third party to infringe

Exclusive Rights of Author

  • 1976 Act

    1. Reproduction §106(1)

    2. Adaptation (Derivative Work) § 106(2)

    3. Public Distribution § 106(3)

      • Import § 602

    4. Public Performance § 106(4)

    5. Public Display § 106(5)

  • VARA 1990

    1. Moral Rights § 106A

  • AHRA 1992

    1. DAT Restrictions; Taxes §§ 1002-07

  • DPRSRA 1995

    1. Digital Performance Right § 106(6)

  • DMCA 1999

    1. Anti-Circumvention Protections §§1201-02

Direct Infringement

Traditional Copyright Rights

  • s.106 Exclusive Rights in Copyrighted Work: “Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

  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, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

  5. 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 audiovisual work, to display the copyrighted work publicly; and

  6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”

(I) Reproduction The Right to Make Copies

  • Definition § 106: The owner of a copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords

    • Must be fixed fixation: a copy is only a copy once it’s fixed. Reproduction rights do not include things that are not fixed public performance of the work is not an infringement of reproduction rights.

    • Two pronged test of infringement

      1. copying in fact

      2. copying in law

    • Distribution not required: still violating reproduction right even if you reproduced other’s work without distributing it. E.g. can infringe by reproducing a work and no one else ever sees it.

  • s.106(1) grants exclusive rights to literal reproduction + “substantially similar” reproductions of protected expression address 2 distinct aspects:

    • (1) proving copying; and

      • whether someone has actually copied the work of another [c.f. patent protection: prohibits making, using, selling offering to sell, or importing the patent invention whether or not the accused infringed copied the patentee’s technology]

      • Copyright only prohibits copying, it doesn’t bar independent creation of similar work

      • Court would ideally like to have direct proof of copying: e.g. eyewitness testimony, records indicating that an author obtained the work from another…etc.

      • But evidence is usually not available

    • (2) assessing substantiality of copying protected expression [quantum of copying]

      • “Copyrighted work could be infringed by reproducing it in whole or in substantial part” H.R. REP. No.94-1476

      • whether P’s copyright is infringed is often complicated by the fact that many copyrightable works intermingle original expression with public domain materials

      • ‘substantial similarity’ has different meanings: (1) an aid in determining proof of copying; and (2) whether the appropriation of protectable material was improper

  • Infringement analysis:

    • (1) copying and

    • (2) improper/ unlawful appropriation

      • whether D took from P’s works so much of what is pleasing to ears of lay listeners, who comprise the audience for whom such popular music is composed, that D wrongfully appropriated something which belongs to P

(i) Copying

  • Arnstein v. Porter (2d Cir. 1946)

    • Facts: Arnstein (P) sued Porter (D for infringement of copyrights in several of P’s famous musical compositions P sought a jury trial, alleging the D plagiarized his songs. P alleged that D had the opportunity to take this material from P. D denied ever hearing or seeing any of P’s compositions. District court granted summary judgment for P, D appealed

    • To establish infringement, there must be both copying in fact + law (2 Part Test)

      • When the defendant denies using the plaintiff’s work, or claims that the extent of the use is not infringing, infringement requires proof of:

      1. Copying in facts: actual copying (direct evidence) of factual copying, prove by

        1. Direct evidence (D admit copying, rare); or

        2. Evidential proof

          • Access by D to P’s work + probative similarity between P & D’s work [Inverse ratio rule: more access, lower threshold on similarity; vice versa]

          • (1) there must be evidence that the defendant had access to the copyrighted work, and;

          • (2) there must be evidence that the works are substantially similar.

            • Without direct evidence of copying, "the similarities [between the works] must be so striking as to preclude the possibility that P and D independently arrived at the same result."

            • If no similarities no amount of evidence of access will suffice to prove copying

          • Independent creation is a total defense on copyright

[Question of fact goes to the jury, expert opinion accepted]

  1. Copying in law

    • Copyrighted material resulting in substantial similarity [Expert opinion irrelevant]

  • Held: similairty between the songs + some access whether two songs were substantially similar enough to constitute copyright infringement no direct evidence of access a matter of fact for a jury to decide case remanded for a jury trial.

  • Dissent: no legal basis for claim of plagiarism no proof of access nor plagiarism

    • only thing definitely mentioned seemed to be the repetitive use of the note in certain places by both P and D, surely too simple and ordinary a device of composition to be significant

    • previously music plagiarism cases relied on the total sound effect + and analyzed the music enough to make sure of an intelligible and intellectual decision

    • P support his claim of plagiarism of small detached portions here and there, the music fillers between the better known parts of the melody

    • P’s compositions are of the simple and trite character where small repetitive sequences are not hard to discover

  • Rentmeester v Nike (2018) the term ‘substantial similarity’ is used to describe both the degree of similarity to prove

    1. Copying (similarities between the 2 works need not be extensive/ involve protected elements of P’s work + only need to be similarities that one would not expect to arise if works had been created independently); and

    2. Unlawful appropriation (must be ‘substantial’ + involve protected elements of P’s work)

  • Ty, Inc. v GMA Accessories, Inc: two works may be strikingly similar – may in fact be identical – not because one is copied from the other but because both are copies of the same thing in the public domain

  • Proof of copying by deliberate error/ common mistake

    • e.g. Fiest deliberately plant minor errors in their works to trap copyist

  • Techniques for reducing the risk of infringement

    • Avoid having access to works that might influence them, movie studios and TV producers routinely return unsolicited scripts unopened

  • Subconscious copying

    • Actionable – copyright is strict liability, accidental copying is no excuse

      • or if the similarity between the two pieces are totally coincident

    • Note independent creation is a defense against copyright infringement

    • Three Boys Music Corp v Bolton

      • Facts: Isley Brothers released a song ‘love is a Wonderful thing’ in 1966, originally 100+ ranking and released in CD Bolton later release a song with the same name + with similar melody Isley Brothers sued and won $5.4M D appealed Court upheld jury’s verdict

      • P’s argument: song was played a lot on radio, when Bolton probably heard it and copied it D grew up listening to a lot of Black R&B groups, song came out when Bolton was 13, D confessed that he is a huge fan of the group in 1988.

      • Bolton claim he had never heard the song could be lying/ never heard it/ subconscious copying However, accidental copy is no excuse, as copyright is straight liability (MR not required) still responsible even if you don’t rmb

    • Bright Tunes Music Corp v Harrisongs Music Ltd

      • D had access to P’s work + both songs consisted of phrase that has a unique pattern despite subconscious copying still infringement of copyright – it is no less so even though subconsciously accomplished

      • mostly applied in the music industry

    • Selle v Gibb

      • Facts: Sell sue Gibb for infringement – Selle played publically in Chicago, but it wasn’t popular nor widely disseminated – sent recording to 11 companies (8 returned). Bee Gees recorded the song in France in 1977, had evidence of how they wrote the song. A professor of Music testified that two songs have striking similarity that Bee Gee would not have created without copying Selle jury held infringement

      • 7th Circuit held no infringement:

        • no matter how similar the songs are,

        • there must be a possibility of access (here, access was so limited Selle would not have heard the song)

    • Pop songs are often built around a few chords – hence it is easy for songs to sound similar Court should be more sensitive to possible constrains in the genre/ other things in the public domain that cause similarity

  • Copying in Fact: actual copying is proved by

    1. direct evidence;

    2. evidential evidence (access + probative similarity); or

    3. striking similarity

(ii) Improper Appropriation

  • Whether D copied sufficient protected expression to violate P’s copyright interests

  • Nichols v Universal Pictures Corporation (2nd Cir 1930) Abie’s Irish Rose Case

    • Court doesn’t talk about the copying of fact, P alleged D copied the plot and characters, but not exact dialogue, making the work substantially similar

    • Infringement is not limited to exact copying

Level of abstraction filtration protectable expression

  • Held: Insufficient protected expression to violate P’s copyright interest no substantial similarity no infringement

    • Both stories were very different, the only similarity being an argument between an Irish father and a Jewish father

    • Plot and characters are either to general and underdeveloped to be protected, or they are stock characters were from public domain

  • Test for Improper appropriation

    • (1) Extrinsic test analytically dissects the objective manifestations of creativity (plots, themes, dialogue, mood, setting, pace, sequence, characters in the Plaintiff’s work) to determine the elements that are protectable under copyright law

    • (2) Trier of fact: on a purely subjective perspective, determines whether D’s work improperly appropriates the plaintiff’s protected expression

    • How much must be taken to constitute improper appropriation - threshold for infringement

      • in whole/ any substantial part

      • by duplicating it exactly/ imitation/ simulation

      • wide departures/ variations from the copyrighted works would still be infringement if the author’s expression rather than merely the author’s ideas are taken

      • Fragmented literal similarity: even a small amount of the original, if qualitatively significant, may be sufficient to be an infringement Horgan v Macmillan

    • Sliding scale and virtual identity test

      • More similarity is required when less protectable matter is at issue many courts now require ‘virtual identity’ when dealing with works in which copyright protection is thin

      • (works involving unprotectable elements and/or where the range of creative expression is limited)

  • Appropriate perspective for assessing substantial similarity

    • Ordinary observer

      • Depends on the work being analyzed, impression of target audience of that work

      • e.g. how dolls would be perceived by children

      • “Whether the ordinary observer, unless he set out to detect the disparities between two works, would be disposed to overlook them, and regard their aesthetic appeal as the same” Peter Pan Fabrics Inc v Martin Weiner Corp

    • Arnstein v Porter (2nd Cir 1946)

      • Whether a reasonable observer (a lay listener/ customer/ ordinary observer) listening to P’s music composition would find to D’s work as a substitute and consume D’s work instead aims to protect the potential financial return from the musical work

      • Expert opinion is ‘utterly immaterial’ to the determination of improper appropriation [Prof: but can have expert giving opinion on how customer would perceive?]

      • Dissent: tune deaf jurors should be excused as they would not be a good consumer; judges are not the one to decide either

      • Different treatment between different Circuits: Arnstein focuses on the overall impression that one has; does not dissect the work as in Nichols

    • Steinberg v Columbia Pictures Industries: infringement was found despite a lot of differences between the two drawings Framework of analyzing copying in law is clearer than the outcome, difficult to predict as the court has no finalized test

  • De Minimis Doctrine: law does not concern itself with trifles

    • the copying of the protected material is so trivial as to fall below the quantitative threshold of substantial similarity

    • allows literal copy or a small and usually insignificant portion of P’s work (but court would apply with consideration to qualitative considerations)

Summary (Reproduction Right)

  • Infringement elements: 1) copying in fact, and 2) copying in law

  • Copying in fact can be shown by

    1. Direct evidence, or

    2. Circumstantial evidence of copying (access + similarity; inverse relationship)

      • Access: chain of events connecting plaintiff’s work to defendant’s access, or wide dissemination of plaintiff’s work

        • Subconscious copying can count.

      • No matter how great the similarity, there must be some access.

        • Yet strong similarity is evidence of access.

  • Copying in law

    • Protected material must be copied, and the amount copied must be more than de minimis

    • Copying need not be literal or exact to rise to the level of copying in law; substantial similarity suffices.

    • Measuring substantial similarity

      1. The type of people to whom the works seem similar

      2. The nature of the similarity

      3. The degree of similarity that amounts to substantial

    • General test in CA2: whether the ordinary observer, unless he or she set out to detect the disparities, would be willing to overlook them & regard their aesthetic appeal as the same

II. Right to prepare Derivative Work/ Right of Adaptation

  • Previously, translating a work into another language was not counted as infringement

  • 1909 Act started expanding concept of infringement, protecting translation of copyrighted work

  • 1976 Act expended protection to all types of work

    • § 106(2) the owner of a copyright under this title has the exclusive rights to do and to authorize… to prepare derivative works based upon the copyrighted work

    • § 101. A “derivative work” is a work based on one or more preexisting works

      • such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, 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

      • Even if what D did was not fixed

    • Elements:

      1. Recast, transform, or adapt copyrighted work

      2. Contribute copyrightable (original) expression

  • Rationale: derivative work right encourages copyright holders to expand into different industries

    • Fear to encourage people what they are not good at

    • Should authors have such a broad control over their work?

      • E.g. book writer can make it into a movie, translations, other products

      • Author should have control over the derivative: to choose who is to make the movie, who to play the roles in the movie, who to translate the book

      • But author may not want to make a movie out of their book, despite the society wanted one

Character Protection

  • Anderson v. Sylvester Stallone, 1989 WL 206431 (C.D. Cal.)

    • Facts: Stallone wrote the scripts for Rocky. Anderson wrote a new movie involving characters from Stallone’s script entitled Rocky IV. Stallone created a new movie with portions from Anderson’s script, but gave him no credit.

    • Held: denied Anderson’s claim

      1. Visually depicted characters can be granted copyright protection

        • Whether character is protected

        1. Graphic characters,

          • 9th Circuit Test for Graphic Characters (later clarify that the test applies to everything) Delineated in sufficient detail

          • “Characters and relationships are delineated so extensively that they are protected from bodily appropriation when taken as a group and transposed into a sequel by another author.”

          • E.g. Mickey Mouse: Walt Disney v Air Pirates (1978)

          • Nichols v Universal Pictures Test: a character should be granted copyright protection if it is developed with enough specificity to constitute protectable expression

        2. Literary characters: must constitute the story being told

          • More rigorous test for granting copyright protection to characters: Warner Bros Pictures v Columbia Broadcasting System a character could not be granted copyright protection unless the character “constituted the story being told” not explicitly overruled by Nichols

      2. Rocky characters constituted expression protected by copyright independent from the story in which they are contained;

        • Stallone owned the copyright of the Rocky character (from the first 3 movies) Rocky characters are so highly delineated that they warrant copyright protection the character was so highly developed and central to the three movies made before Anderson’s treatment that they “constituted the story being told”

      3. Anderson's treatment appropriated these characters and created a derivative work based upon these characters without Stallone's permission in violation of s.106(2) Anderson's work is an unauthorized derivative work featuring the Rocky character

        • 106(2) work would be considered an infringing work if the material which it had derived from a prior work had been taken without the consent of the copyright proprietor of the prior work

        • usually court would take an extensive comparison under Krofft substantial similarity test to determine whether Anderson’s work is a derivative work

        • Here, Anderson retained the names, relationships and built on the experiences of these characters from prior Rocky movies they are Stallone’s characters

        • Bodily appropriating significant elements of protected expression in the Rocky characters copied protected expression Anderson’s treatment infringes on Stallone’s copyrighted work

      4. Since it is unauthorized derivative work Anderson has infringed upon Stallone’s copyright no part of the treatment can be granted copyright protection.

      • §103(a): “The subject matter of copyright… 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.”

        • 103(a) deny copyright to derivative work, in which the pre-existing work tends to pervade the entire derivative work,

          • but not to collective work, where the infringement arises from the copying of the selection and arrangement of a number of pre-existing works, and not per se from the reproduction of any particular prior work

          • It’s too difficult to separate out would have to select line by line whether it is infringing

        • Eden Toys v Florelee Undergarment derivative work had been made without the permission of the original author would not have valid copyrights, since the preexisting illustration used without permission would tend to pervade the entire work

  • Whether something is derivative work

    • Originality requirement for derivative works

      • Gracen v Bradford Exchange (1983) derivative work must be substantially different from the underlying work to be copyrightable + no part of an unlawful derivative work could be copyrighted

    • Castle Rock Entertainment v Carol Publishing Group (1998)

      • The book Seinfeld Aptitude Test infringed the copyright in the Seinfeld TV series because it took numerous facts from the episodes created by the copyright owner – to create question, wrong answers to choose from, decided what to compile

      • Since Seinfeld is fictional, the court concluded that these ‘facts’ constituted copyrightable expression D could not prevail on a fair use defense

      • But the book doesn’t substitute the show in any way, people would still want to watch the show (esp. since P did not exploit the market of TV shows) + may even increase people’s interest for the show

      • 2nd Circuit: it is an infringing derivative work, too difficult because TV show and book are different genera similarity base on quantitative and qualitative - did they take too much of an important material: the book is a work based on a preexisting work (TV show) + recast/ transform/ adapts it

    • Warner Bros Entertainment v RDR Books no longer a derivative work

      • Lexicon published reference books on Harry Potter JK Rowling sued held infringement of the reproductive right (but not derivative right)

      • Infringement of reproduction right: substantially similar, quantitative qualitative

      • But not infringement of derivative book right: despite taking a lot of expression, based on preexisting work and recast/ transform/ adapts it, but the book is so far away from the original work, it doesn’t represent original authorship no longer a derivative work (it’s not a story but a reference book)

  • Comparison to Patent scope: copyright law appears to afford the copyright proprietor broad control of all extensions of their original expression - only original author/ licensee is entitled to a copyright in the derivative work

    • s.103(b) extend protection only to new expression, not to preexisting material included in the derivative work

    • Copyright has no blocking doctrine

      • c.f. Patent law: ‘blocking patents’ permits a second investor to obtain a patent on his improvement despite that improvement also infringes another payment

  • Video Game enhancements: Whether add-on devices and software designed to enhance the playing experience constitute derivative work

    • Midway Mfg Co v Arctic Int’l D sold printed circuit boards that sped up P’s video games court ‘derivative work’ = a speeded-up video game is a substantially different product from the original game more exciting to play + requires some creative effort to produce hence owner of the copyright on the game should be entitled to monopolize it on the same theory that he is entitled to monopolies the derivative works listed in s.101

  • Content Filtering: A co. developed a technology that allows consumers to activate film-specific filters to black out violent and sexual scenes co. wrote software masks that run in parallel with DVDS that instruct the player to skip over particular scenes motion picture studios brought suit, alleging such script constituted unauthorized derivative works. Congress passed the Family Entertainment and Copyright Act of 2005, which immunizes “the making of imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture…”

Summary (Right to Prepare Derivative Works)

  • “A ‘derivative work’ is a work based on one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted.” (§ 101)

  • Some courts suggest that a work that is substantially similar to a copyrighted work (in ways that are not transformative) is also a derivative work (Castle Rock), while others suggest that they are distinct (Warner Brothers).

    • Warner Brothers: According to the statute, derivative works “are ‘recast, transformed, or adapted’ into another medium, mode, language, or revised...

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