#16469 - Copyright Exclusive Rights - Intellectual Property (IP) Law

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

Overview

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]

2. 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, e.gg. 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...