Transcript Copyright Law 2008 - The Catholic University of America

COPYRIGHT LAW 2008
Columbus School of Law
The Catholic University of America
Prof. Fischer
November 10, 2008
WRAP-UP POINTS:
MECHANICAL LICENSE
• Section 115 of the Copyright Act is a
limitation on the scope of the reproduction
and distribution right of the copyright owner
in section 106.
• It provides for a type of compulsory license
known as the mechanical license
• This is a compromise designed to protect
composers but prohibit music monopolies
:
MECHANICAL LICENSE
• Section 115 entitles musicians and record
companies to make and sell (for private use)
their own recordings of copyrighted musical
works of another artist if (1) those
copyrighted musical works have already
been recorded with that other artist’s
permission (2) the musicians and record
companies pay a set statutory fee to the
copyright owner and (3) they don’t change
the “basic melody or fundamental character
of the work.”
PRIVATE COPYING OF
SOUND RECORDINGS
• Section 1008 of the Copyright Act of 1976,
which was added by the Audio Home
Recording Act of 1992, permits “consumers” to
make copies of sound recordings for
“noncommercial use”. Does this apply to ALL
recording devices/media?
• This provision was a compromise over “digital
audio tape” DAT technology.
PRIVATE COPYING OF
SOUND RECORDINGS
• This provision was a compromise over
“digital audio tape” DAT technology.
• S. 1008 only applies to analog audio
recordings or those using digital audio
tape technology
• Other provisions in the AHRA?
AUDIO HOME RECORDING
ACT
• 1. Infringement actions barred for home
audiotaping (digital or analog)
• 2. Royalty charges imposed on sales of digital
audiotape recorders and blank tapes (paid by
manufacturers/importers). Pay into 2 funds (musical works [writers, publishers], sound
recordings [record producers/performers])
• 3. Obligation to include serial copy management
systems in consumer digital audio recording
devices to prevent copying copies.
RIAA v. Diamond
• The Rio was a handheld
digital playback device
that stored and played
compressed music files
from a PC.
• It could not copy files or
upload files to a computer
or another Rio. – did it
violate copyright law?
RIAA v. Diamond
• Ninth Circuit held that
Rio was not a “digital
audio recording
device” under the
Copyright Act of 1976
and so it did not
violate the Copyright
Act.
DMCA
• Section 1201(k) – how does it address
problem of home videotaping?
RIGHT TO PREPARE
DERIVATIVE WORKS
• See s. 106(2
• Overlaps the right of reproduction but is
somewhat broader.
• Is it necessary?
Is Section 106(2) necessary
• Some commentators, such as Paul Goldstein
think it is. They argue that protecting
derivative works serves to ensure that there
are adequate incentives to develop new
works.
• Others, e.g. Nimmer, think it is superfluous
due to overlap with reproduction or public
performance rights
Effect of section 103
• All new expression in a derivative work is
separately copyrightable. However, section
103(b) extends copyrights only to new
expression, not the original material.
• Section 103(a) provides that only the
original author or a licensee can get
copyright in a derivative work. Is this fair?
HORGAN v. MACMILLAN
• Issue: Can a book
amount to an
infringing derivative
work where the
original work is a
work of
choreography? Why
or why not?
HORGAN v. MACMILLAN
• 2d Circuit found the
District Judge applied
the wrong test
• Correct standard is
whether copy is
substantially similar
to original
• NOT whether original
work could be
recreated from copy
MICRO STAR V. FORMGEN
(9th Cir 1998) • Why did Micro Star
file suit?
• Is Nuke It an
infringing derivative
work? Why or why
not?
• Does putting a piece
of pink saran wrap
across your TV create
an infringing
derivative work?
COPYRIGHTABILITY OF
VIDEO GAMES
• Computer programs
are copyrightable - so
if you copy game you
will infringe
• If you copy
audiovisual display
have you infringed?
COPYING VIDEO GAMES
• Audiovisual display has been held to be
separately copyrightable as an audiovisual
work - though some doubts as to whether
original or fixed because user can alter, to
some extent, display
LEE v. A.R.T. Co. (7th Cir. 1997)
• Did A.R.T. infringe
Annie Lee’s copyright
in her artworks by
creating derivative
works?
• Why or why not?
• How does the First
Sale doctrine affect
the court’s reasoning?
• Is this like framing?
LEE v. A.R.T. Co. (7th Cir. 1997)
• Note split in Circuits 9th v. 7th
• What is the economic
argument for he
court’s decision?
NATIONAL GEOGRAPHIC V.
CLASSIFIED GEOGRAPHIC
• Did D’s compilations
amount to infringing
derivative works?
• What if D had just
purchased and sold
back issues?
• What if D sold
individual torn-out
articles?
• How can this case be
MORAL RIGHTS
• “Moral” comes from French le droit moral
• What is the difference between moral and
economic rights?
• What’s an example of a moral right?
MORAL RIGHTS
• Right of integrity - right that work not mutilated
or distorted
• Right of paternity - right to be acknowledged as
the author of a work
• Right of disclosure - right to decide when and in
what form work will be presented to public
• Under French law - PERPETUAL,
INALIENABLE, and UNWAIVABLE
GILLIAM v. AMERICAN
BROADCASTING CO. (2d Cir.
1976)
• To what extent were
moral rights part of
U.S. copyright law
pre-Berne
Convention?
VISUAL ARTISTS RIGHTS
ACT
• Congress amended law following accession to the
Berne Convention
• A6bis required author to have right to claim
authorship…and to object to any distortion,
mutilation, or other modification of, or other
derogatory action in relation to, the said work,
which shall be prejudicial to his honor or
reputation.
• Some states have enacted laws protecting, to some
degree, rights of attribution and integrity for visual
artists
• Does VARA preempt other federal claims seeking
to protect moral rights? (Dastar)
Constitutional Questions
• Some constitutional questions:
• - did US on ratification adopt A6bis into
substantive U.S. Copyright law
• - did implementing legislation cause A6bis
to be enacted into law?
• Congress denied both in legislative history
to Berne Convention Implementation Act
Some reason to doubt Congress’
View
• Many judicial and scholarly pronouncements that
no moral rights in U.S. law; it is doubtful that
domestic law of U.S. pre-Berne satisfied U.S.
obligations under Berne
• e.g. 2 actions by Dmitri Shostakovich in France
and U.S. over use of his music in an anti-Soviet
film, “The Iron Curtain” came out differently
VISUAL ARTISTS RIGHTS
ACT of 1990
• Effective on June 1,
1991 What types of
work does it cover?
• Is my snapshot of my
dog covered by VARA?
• What about a work
made for hire? (See
Carter v. HelmsleySpear (2d Cir. 1995)
RIGHTS IN VARA
•
•
•
•
Rights of attribution and integrity
Attribution (1 affirmative, 2 negative)
Integrity
Limitations
VARA
• Can you waive moral rights?
• Can you transfer moral rights?
• Note – preemption provision in 301(f)(1)
VARA
• Can you waive moral rights? Yes
• Can you transfer moral rights? No
• Note – preemption provision in 301(f)(1)