COPYRIGHT LAW 2002 Columbus School of Law The Catholic University of America Prof. Fischer April 10, 2002

FINAL QUIZ: KURT ADLER V. WORLD BAZAARS Turn to p Does Photo B infringe Photo A? (Access is acknowledged). Why or why not? Spend no more than 1 hour analyzing this question and hand in to me by Wednesday April 17.

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

WRAP-UP POINTS: 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.”

WRAP UP POINT: THE HARRY FOX AGENCY The Harry Fox Agency is a organization by a trade association of leading music publishers (NMPA) to represent music publishers. For a fee, HFA issues mechanical (and synchronization) licenses and collects royalties due under those licenses from record companies. For a great book on the music industry, see Krasilovsky/Shemel, This Business of Music.

HARRY FOX LICENSE The HFA mechanical license has some special features, for example, the service of notice of intention to obtain a compulsory license is waived. Courts have held that this license is still a variant of a compulsory license and should be treated as a compulsory license rather than a private contract.

OTHER MECHANICAL RIGHTS LICENSING ORGANIZATIONS Harry Fox Agency is not the only mechanical rights licensing organization. Others include the American Mechanical Rights Agency (AMRA), Copyright Management, Inc., and Publishers Licensing Corp. They are all very small in comparison to Harry Fox Agency.

INT’L MECHANICAL RIGHTS ORGANIZATIONS Other nations have mechanical rights organizations, e.g. Canadian Musical Reproduction Rights Agency Ltd. (CMRRA), British Mechanical Copyright Protection Society (MCPS), French Societé pour l’Administration du Droit du Reproduction (SDRM), etc...

LIMITS IN SECTION 114 Like section 115, 114 limits reproduction rights of the copyright owner but here the relevant copyright owner is the owner of rights in sound recordings. It only protects against reproduction of sound recordings that directly or indirectly recapture the actual sounds fixed in the protected recording.

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”. This provision was a compromise over “digital audio tape” DAT technology.

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, sound recordings) 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.

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.

RIGHT TO PREPARE DERIVATIVE WORKS See s. 106(s) Overlaps the right of reproduction but is somewhat broader. Nimmer thinks that section 106(2) is superfluous - he thinks that infringement of the right to prepare derivative works also necessarily infringes the reproduction right or the performance right.

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.

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 origininal material. Section 103(a) provides that only the original author of licensee can get copyright in a derivative work. If an infringer makes a movie out of a copyrighted book,she can’t get copyright in the movie. Is this fair where the derivative work is more valuable than the original?

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) - NOTE - YOU ARE NOT RESPONSIBLE FOR THIS CASE FOR THE EXAM: THE NEXT 2 SLIDES ARE INFORMATIONAL ONLY

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 reconciled with Lee?

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

MORAL RIGHTS To what extent were moral rights in U.S. copyright law prior to Berne? Note that law has been amended under Article 6bis (Visual Artists Rights Act of now section 106A)

GILLIAM v. AMERICAN BROADCASTING CO. (2d Cir. 1976) NOTE - YOU ARE NOT RESPONSIBLE FOR THIS CASE ON THE EXAM

GILLIAM v. AMERICAN BROADCASTING CO. (2d Cir. 1976) What are the relevant facts? Do the edited versions infringe Ps copyright? Is there a likelihood of success on a mutilation theory? Are moral rights recognized in the U.S.?

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

Constitutional Questions Some constitutional questions - did US on ratification adopt A6-bis into substantive U.S. Copyright law Did implementing legislation cause A6-bis 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 and so doubtful that domestic law of U.S. 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 covered by VARA? A limited edition of 100 photos that aren’t signed by the author? What about a work made for hire?

VARA Can you waive moral rights? Can you transfer moral rights?