COPYRIGHT LAW FALL 2006 Columbus School of Law The Catholic University of America Prof. Fischer November 15, 2006

WRAP-UP RIGHT TO PREPARE DERIVATIVE WORKS The right of adaption (s. 106(s)) is infringed when a party makes an unauthorized derivative work in which a preexisting work is recast, transformed, or adapted Derivative markets are often more valuable than the market for an original work The issue of infringement of s. 106(2) often arises when a work is adapted to different media W Test is substantial similarity

CleanFlicks (D.Col. 2006)

Family Movie Act of 2005 What exemption to copyright infringement does this act provide Is this censorship?

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 INCLUDE 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?

Berne Convention Art. 6bis Independently of the author’s economic rights... The author shall have the right to claim authorship of the work 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.

VISUAL ARTISTS RIGHTS ACT Congress amended law following accession to the Berne Convention on March 1, 1989 Some states have enacted laws protecting, to some degree, rights of attribution and integrity for visual artists

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 What are counterarguments?

VISUAL ARTISTS RIGHTS ACT of 1990 What types of work does it cover? Is my snapshot of my dog “Nicky” covered by VARA? What about a work made for hire? (See Carter v. Helmsley- Spear (2d Cir. 1995)

Pollara v. Seymour (2d Cir. 2003) Why wasn’t the work at issue subject to protection under VARA? See also Phillips v. Pembroke (D. Mass. 2003)

RIGHTS IN VARA Rights of attribution and integrity Attribution (1 affirmative, 2 negative) Exceptions

VARA Can you waive moral rights? Can you transfer moral rights? Note – preemption provision in 301(f)(1)

Effective date of Vara What is it?

Effective date of Vara What is it? June 1, 1991 Does VARA apply to works of visual art that were created before that date? See Pavia v Avenue of the Americas Assocs., 901 F. Supp. 620 (S.D.N.Y. 1995)

RIGHT OF DISTRIBUTION 106(3) First Sale Doctrine Record Rental and Computer Software Rental Amendments of 1984 and 1990

PUBLIC PERFORMANCE AND DISPLAY RIGHTS What works do these apply to? See 106(4), (5), and (6) Basically if it moves it’s a performance (e.g. plays, dances, movies, public readings of books) and if not a display (e.g. paintings, sculptures, physical copies of books) For sound recordings - to perform publicly by means of a digital audio transmission, such as webcasting over Internet

PUBLIC PERFORMANCE 1. Public performance if perform at a place open to public or where a substantial number of persons outside of a normal circle of family and social acquaintances are gathered 2. Or if transmit to a place specified in clause (1) or to public by means of any device or process where members of public capable of receiving performance receive in same place or in separate places and at same time or separate times.

IS IT A PUBLIC PERFORMANCE If you rent a movie and show it at home to 12 friends and neighbors? If you show it at summer camp? If you broadcast it on network TV?

PERFORMING RIGHTS SOCIETIES What’s a performing rights society? What are the big 2 performing rights societies in the U.S.?

PERFORMING RIGHTS SOCIETIES ASCAP, BMI are the 2 biggest (SESAC is another small one) How does ASCAP work? What is a blanket license? Note that ASCAP can’t sue for infringement in its own name. How do you challenge ASCAP or BMI fees? What’s the difference between GRAND rights and SMALL rights?

RIGHT OF PUBLIC DISPLAY See section 106(5) Only applies to certain kinds of work See definition of “display” in section 101 How does First Sale doctrine apply to the right of display? See 109(c)

DIGITAL PERFORMANCE RIGHT IN SOUND RECORDINGS Prior to section 106(6), no public performance right for sound recordings Added in 1995 (amendments to 106, 114). Why? Digital Performance Right in Sound Recordings Act of 1995: new statutory license Digital Millennium Copyright Act of 1998: expanded statutory license to include webcasting