CREATIVE PROPERTY / COPYRIGHT COMM 407: CHAPTER 6.
-
Upload
briana-gregory -
Category
Documents
-
view
216 -
download
0
Transcript of CREATIVE PROPERTY / COPYRIGHT COMM 407: CHAPTER 6.
CREATIVE PROPERTY / COPYRIGHT
COMM 407: CHAPTER 6
Immaterial Property
An area of law that deals with intangible property
Patents Copyrights Trademarks
The Constitution
“The Congress shall have the power to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writing and discoveries.” Article I, section 8
A fundamental question: Are these temporary rights residing only in the inventors
or property rights residing in the creation? Patents and copyrights are now treated like property
rights, so that they may be sold, licensed, mortgaged, assigned, transferred, given away, abandoned, actively developed, or held as investments without being developed.
Just as there is generally no legal requirement that owners of real property develop their vacant land, there is likewise no legal requirement that patent owners develop their inventions
Patents Any person who “invents or discovers any new and useful
process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the law.
Granting exclusive rights to the inventor is intended to encourage the investment of time and resources into the development of new and useful discoveries.
Patents Patents give the inventor a monopoly on selling
the product for 20 years Three kinds of patents include: Patents on inventions with utility (20 years) Patents on designs (14 years) Patents that protect plants (e.g., flowers)
Copyright
The law of copyright gives the author, or the owner of the copyright, the sole and exclusive right to reproduce the copyrighted work in any form for any reason.
Rights under Copyright Law
The right of reproduction The right of preparation of derivative works The right of public performance of the work The right of public display of the work The right of public digital performance of a
sound recording (with exceptions)
What Can Be Copyrighted?Expressive and Original Creation
Literary works Musical works Dramatic works, including accompanying music Pantomimes and choreographic works Pictorial, graphic and sculptural works Motion pictures /audiovisual work Sound recordings Computer software Maps, architectural design
What Cannot Be Copyrighted Facts (including news) Trivial materials such as titles or slogans
(but some could be “trademarked”) Ideas Utilitarian goods Methods, systems, mathematical principles,
formulas and equations
Utilitarian goods
Examples: clothing; automobile bodies; furniture; appliances; dinnerware; and lighting fixtures.
Thus: the design of the chair, the flatware, or a car body itself cannot by copyrighted
However: a carving on the back of a chair or a floral relief
design on silver flatware can be copyrighted a logo of a car can be trademarked
Car ‘knock-offs’ .
News Events Copyright law protects the expression of the
story – the way it is told, the style and manner in which the facts are presented
Copyright law does not protect the facts in the story; other journalists may use the facts you have gathered to write their news story
Originality
The work must be original: not a reproduction
Compilations of factual information: The “sweat of the brow” doctrine
A legal proposition that even though facts are not copyrightable, a person who invests great energy and hard work in amassing these facts deserves some reward for this hard work.
Accepted by courts only if certain originality of the effort can be established.
Compilations of factual information: Business Directories
O’Dwyer Co. v. Media Marketing (1991)
O’Dwyer’s listing of PR agencies was a copyrightable compilation.
It was ruled to be original by its research and criteria for inclusion of agencies
Compilations of factual information: Telephone Books and Databases
Feist Publications, Inc. v. Rural Telephone Service Co., Inc. (1991)
While some new compilations of facts may be protected by copyright, the Court said, there was no novelty or originality in the compilation of these materials
(a telephone book)
Collective work
Collective work, compilations made up of individual contributions (e.g., an anthology of poetry) is copyrightable.
Derivative work
Material based on existing work is copyrightable as long as the material has a sufficient amount of originality (e.g., condensation, translation)
However, a consent must be obtained from the owner of the copyright to the original work
Ownership
Copyright ownership begins at the moment a work that can be protected is created (in a tangible medium).
There is no formal procedure required for copyright protection.
A NOTE: ownership of physical object is not the same as copyright ownership (e.g., letters received from a friend).
Copyright Notice: Copyright © 2013 by…..
Under International and American Law the affixing of the Notice is not required.
However, it is recommended to prevent “innocent infringement.”
The “Innocent infringer” is someone who claims he/she didn’t know that the work was copyrighted because there was no notice (The U.S. Copyright Law protects such persons from liability from infringement).
Registration
Registration is not necessary to establish copyrights,
However, it must be done before filing a lawsuit in case of infringements To register a copyrighted work with the federal
government, see details at http://www.copyright.gov/
Ownership
Individual author Joint Authorship Work Made for Hire (was the author an
employee?) Government Works
Joint Authorship A "joint work of authorship" is a work prepared by two
or more authors with the intention that their contributions will be merged into inseparable or interdependent parts of a unitary whole.
"Inseparable" applies when individual contributions are blended (e.g., computer programs)
“Interdependent" refers to works with separable elements (e.g., lyrics and music).
The prevailing view is that a joint author's contribution must be independently copyrightable.
Joint Authorship: contribution Joint authors need not make equal contributions. The default rule is that the copyright ownership is equal,
but the default ownership allocation can be varied by written contract.
Work made for hire In a work made for hire situation, the "author" of the work
is no longer the individual who created the work. Instead, the "author" is considered to be the entity which hired the actual creators of the work
The Copyright Act limits the work made for hire doctrine to two specific situations:
a work prepared by an employee within the scope of his or her employment; or
a work specially ordered or commissioned for use
work created by an employee The determination of whether an individual is an
employee: the control exerted by the employer over the employee the control exerted by the employer over how and where
the work is done; the supplying of equipment for the employee's use; and the payment of benefits and the withholding of taxes.
work created by an independent contractor In order for the work of an independent contractor to be a
work made for hire, the following facts must exist: the work must be specially ordered or commissioned; there must be a written agreement between the parties
specifying that the work is a work made for hire.
work made for hire?
Community for Creative Non-Violence v. James Reid (1989)
James Reid, sculptor from Maryland.
Free-Lancing and Copyright (p. 297)
Rights a Publisher May Purchase From a Free-Lancer All rights - ownership of the complete
story/photograph First serial rights - the right to use the piece for
the first time in a publication
New York Times v. Tasini (2001) Tasini sold his work to the New York Times Later the N.Y. Times sold that work to databases
companies (e.g., Lexis/ Nexis). Tasini filed lawsuits arguing that the he has the right to the
original work. The Supreme Court agreed: Although newspapers have
the republication rights, selling content to database companies does not constitute republication
Government works
All government work is precluded from copyright ownership
All government work can be copied and published (or republished)
EXCEPTIONS: work produced by private consultants/contractors
Duration of Copyright
Published before 1923: copyright has expired
Published 1923-1963: 95 years (if renewed in 28th year)Works created 1978 and after are protected for the life of the author plus 70 yearsWorks created 1978 and after as “work for hire” are protected for 95 years from publication or 120 years from creation, whichever is shorter
See more on the website of the U.S. Copyright OfficeAnd in this document of the U.S. Copyright Office
After copyright expiration
A work falls into the public domain and may be copied by any person for any reason without payment of royalty to the original owner
Copyright Infringement Anyone who violates the exclusive rights of the
copyright holder is guilty of infringement of copyright.
Rights under Copyright Law
The right of reproduction The right of preparation of derivative works The right of public performance of the work The right of public display of the work The right of public digital performance of a
sound recording (with exceptions)
Copyright Infringement The Criteria to Determine Infringement
Is the copyright on the plaintiff’s work valid? Did the defendant have access to the plaintiff’s
work prior to the alleged infringement? Are the two works the same or substantially
similar?
Jurors hit Robin Thicke and Pharrell Williams with $7.4-million verdict
A federal jury found Tuesday 3/10/2015 that the 2013 hit song "Blurred Lines" infringed on the Marvin Gaye 1977 chart-topper "Got to Give It Up," awarding nearly $7.4 million to Gaye's children.
Jurors found against singer-songwriters Pharrell Williams and Robin Thicke, but held harmless the record company and rapper T.I.
George Harrison vs Bright Tunes Music Corp.
George Harrison accused of plagiarizing ‘My Sweet Lord’ (1971) from a 1962 song “He’s So Fine” recorded by the Chiffons.
Michael Bolton vs the Isley Brothers
A suit was brought against Michael Bolton by the Isley Brothers for allegedly lifting parts from their original song Love is a Wonderful Thing
Michael Bolton vs the Isley Brothers The district court found in favor of the Isley Brothers. The Isley Brothers were awarded $5.4 million, the
calculation based on sixty-six percent of past and future royalties
Similar? Same?
Budka Suflera (Poland) Takie Tango Power Station (Taiwan) Drunk Tango
'Happy Birthday to You‘ Is Under Copyright (owned by Warner Music Group)
If you want to sing it at your home at a birthday party you don't have to pay anything, because that is a private performance
But if you want to use it in a television show, a movie, or a television commercial, you'll pay anywhere from $5,000 to $30,000 for those rights.
The song generates approximately $2 million in royalties every year
See more in the book about the dispute over the rights (page 258)
Enforcing / fighting infringement
Demand to cease the unauthorized use (a cease-and-desist letter)
Request a judge to issue an injunction to order the unauthorized use
File a lawsuit for damages
Damages for Infringement A Plaintiff May:
Ask the court to assess the defendant for any damage they have suffered
Ask for the reimbursement of profits made by the infringer from pirating the protected work
Receive statutory damages
Copyright infringement is also a criminal offense (usually prosecuted in a straightforward piracy cases)
“Fair Use” of Copyrighted Material
Permits limited use and copying of an original creation that has been properly copyrighted without the owner’s consent and without paying a royalty
Factors To Be Considered In Determining Fair Use
The purpose and character of the use The nature of the copyrighted work The amount and substantiality of the portion
used in relation to the copyrighted work as a whole
The effect of the use on the potential market for or value of the copyrighted work
Special case of Music and Sound Recording
Compulsory licensing for sound recording: the law permits anyone to make sound recording of copyrighted musical work as long as royalties are paid.
Performance rights: Digital versus ‘terrestrial’ Recording artists, music + lyrics authors have the rights to
collect royalties for digital transmission/performance. However, in the terrestrial broadcast the royalties are
required only for music and lyrics authors. ‘Performance’ applies only to public places
Special case of Music and Sound Recording Performance rights societies for broadcasting sound
recording:
Broadcast Music Inc. (BMI) and The American Society of Composers, Authors and Publishers (ASCAP)
Blanket licenses cost about 2-3% of the total station revenue
Copyright and the Internet Publishing copyrighted material on the Internet
constitutes public display. Thus, it violates owner’s exclusive right to the
material.
ISP companies have immunity from copyright infringement by users
Copyright and the Internet A&M Records v. Napster (2001) In 2001, the 9th Circuit Court of Appeals ordered Napster
to stop facilitating the free transfer of recorded music The court ruled that the music service was abetting
copyright infringement by its users MGM v. Grokster (2005) The U.S. Supreme Court ruled that copyright owners can
sue technology companies who encourage consumers to share copyrighted files
Trademarks Any word, symbol or device (or combination of the three)
that differentiates an individual’s or company’s goods and services from competitors
The function of trademark law is to stop confusion in the marketplace
Brand names, shapes, slogans, telephone numbers and colors can all be trademarked
Trademarks Four Main Functions of Trademarks and Service
Marks Distinguish one seller’s goods from another’s Signify all goods bearing the trademark or service mark
come from a single source Signify all goods bearing the mark are of an equal
quality level Serve as a prime instrument in advertising and selling
Trademarks
Infringement Dilution Unfair competition