Optional Middleton Assignment: Chapter 5
Copyright is recognized in the Constitution, Article I, Section 8,
Purpose: "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
Protects imaginative creations of persons, allows them to control commercial copying and use of their property
Analysis: Is it copyrightable? --> Was the copyright infringed? --> Was the infringement a fair use?
Definition: Original works of authorship fixed in any tangible medium of expression.
NOT PROTECTED: Copyright protects expression, NOT ideas or facts.
Feist Publications v. Telephone Service Co.: Courts will look to the selection, organization and presentation of facts or unoriginal elements to determine if the expression can be protected. In this case, names and telephone numbers could not be protected.
Bundle of Rights -- divisible rights
1. To create derivative works or authorize others to do so. (Also called adaptation rights.)
Derivative works -- adaptations, books to moves, dolls based on cartoons. Compilations of works may be copyrighted
2. To distribute when owner chooses (publish, sell, loan, rent)
Permission for one medium does not extend to a newer medium.
DOES NOT extend to control over resale of a copy after it is first sold. First Sale Doctrine means you can sell or rent your copy of a book after you buy it without anyone owing royalties to copyright owner.
3. To perform or display or to collect royalties from others who do.
Broadcast of a copyrighted work is a public performance, so radio stations pay BMI and ASCAP who collect royalties for copyright holders.
Retransmission of broadcast music is also a public performance and is infringement if used for commercial purposes.
4. To restrict copying, except for fair use
Public libraries may copy an article to fill individual requests by noncommercial users.
5. Moral rights -- to protect integrity of certain works, the right to be known as the author, the right to withdraw work from distribution. Only for paintings, drawings, photographs produced for exhibition, and prints and sculpture.
DETERIMINING INFRINGEMENT
1. Did the alleged infringer have ACCESS to the original work?
2. Is the alleged infringement SUBSTANTIALLY SIMILAR to the original?
FAIR USE :
Definition: "Privilege that people other than than the copyright holder have to use the copyrighted material in a reasonable manner without the consent of the copyright holder"
Four Factors to determine Fair Use:
1. Purpose and Character of Use
a. news and comment
b. satire and parody.
c. teaching and noncommercial research
d. personal entertainment
e. comparative advertising
2. Nature of the copyrighted work
news reports -- public interest in dissemination
unpublished -- courts very protective.
3. Amount and substantiality of portion used
Quantity: One stanza from a short poem = substantial infringement
Quality: Using the "best parts"
4. Effect on marketability
Effect of copying not only on the present market but also on the potential market.