Copyright Law Ronald W. Staudt Class 10 October 1, 2013

Overview Quick look at characters & sound recordings Initial ownership- intellectual v. muscular Lindsay Works made for hire: Economic concept CCNV v. Reid Teachers exception

Characters yNichols - the Hand formula- “specificity test” yWarner Bros - Sam Spade- “constitute the story being told” yAnderson – Rocky IVRocky IV xSilverman v. CBS any other physical features adequately described in the pre-1948 radio scripts may be copied even though those characteristics are visually apparent in the television films or tapes. xMGM v. Honda?

Nimmer on Copyright 2.12 zThe issue of whether a character from a work of fiction [can be protected] apart from the story in which such character appears, is in a sense more properly framed as relating to the degree of substantial similarity required to constitute infringement rather than in terms of copyrightability per se.

Cartoons & Comics yGaiman v. McFarlane xThe story! xWhat did Gaiman do? xScenes a faire & stock characters xSam Spade? xLiterary v. graphic expression

Sound Recordings & Musical Works zDefinitions ySound recordingSound recording yPhonorecord yMusical work zNewton v. Diamond – ySubstantial similarity & filtration yWhat is the dissent’s main point?

Newton composes song “Choir” Then he plays and records “Choir” $5000 ECM $1000 Beastie Boys sample 6 seconds of Choir6 seconds of Choir use it 40 times in Pass the MicPass the Mic Sound recording rights only

Ownership Initial ownership- intellectual v. muscular Lindsay Works made for hire: Economic concept CCNV v. Reid Teachers exception Sound recordings

§ 201. Ownership of copyright (a) Initial ownership. Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work. ***

Lindsay v. R.M.S. TitanicR.M.S. Titanic z“Defendants first argue that plaintiff cannot have any protectable right …[because he] did not himself actually photograph the wreckage. This argument, however, does not hold water.”  17 USC 101  A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author … zAndrien? Geshwind?

Authorship as an Economic Concept: Works Made for Hire § 201. Ownership of copyright *** (b) Works made for hire. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. ***

Authorship as an Economic Concept: Works Made for Hire A "work made for hire" is-- (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. ***

Who is an employee? zCCNV v. Reid yFacts yConflict in the circuits: 4 tests x right to control x actual control x common law agency xformal salaried employees yControl tests and 2 parts of 101 yLegislative History yPredictability

CCNV v. Reid (cont.) Applying the test- agency factors z(“…right to control the manner and means by which the product is accomplished.”) ySource of tools yLocation of work yDuration of relationship yDiscretion over hours of work yMethod of payment yHiring of assistants yIs work part of regular business of hiring party yIs hiring party a business yProvision of employee benefits yTax treatment of hired party ySkill required yRight to control manner and means of creation yRight to assign new projects zJoint Authorship zQuestions p especially #3 on 316

Employee Created Works zAymes v. Bonelli- software zMartha Graham School - dance zWithin the scope of employment-software yAvtec—no yCramer--yes yGenzmer--yes yMiller--yes yRoeslin--no yQuinn--no

Works for Hire zTeacher Exception zTiming of Contract for 9 categories ySchiller & Schmidt v. Nordisco Corp- writing must precede creation yPlayboy Enterprises v. Dumas- agreement must precede creation