COPYRIGHT LAW 2003 Columbus School of Law The Catholic University of America Prof. Fischer March 22, 2003

WRAP-UP We are studying the exclusive rights of the copyright owner in s We have studied the RIGHT OF REPRODUCTION in s. 106(1), the RIGHT OF DISTRIBUTION in s. 106(3) and the RIGHT OF ADAPTION in s. 106(2) Today we continue the right of adaptiona and then turn to the rights of public performance and public display in ss. 106(4) and 106(5)

Limitations on the Right of Adaption include: Limited for sound recordings to rearranging or remixing of sounds fixed in sound recording – so it’s not an infringement to make an independent fixation of other sounds even if they simulate those in the copyrighted sound recording (s. 114(b)) Certain privileges for public broadcasters to adapt sound recordings 114(b) Compulsory license for musical works in s. 115 permits making of musical arrangements that conform to style or manner of performance involved. Owners of buildings embodying copyrighted architectural works can make alterations (s. 120(b))

Fixation and Infringing Derivative Works Must a derivative work be fixed to infringe? This question has arisen in the context of video game enhancements. If users enhance a video game and companies develop products that permit modifications to a video game, do they infringe the right of adaption?

Lewis Galoob v. Nintendo (9 th Cir. 1992) A derivative work must be fixed to be PROTECTED under the Copyright Act, but not to INFRINGE. However, must incorporate a portion of a copyrighted work in some concrete or permanent form. Ninth Circuit upholds district court’s finding that the Game Genie’s displays are not derivative works because they do not produce their own displays but just enhance audiovisual displays originating in Nintendo game cartridges. The altered displays don’t incorporate a portion of a copyrighted work in some concrete or permanent form. Similar to a kaleidoscope pointed at a work of art.

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?

PUBLIC PERFORMANCE AND DISPLAY RIGHTS These are additional exclusive rights of the copyright owner beyond to the right to make and distribute copies and adaptions of a work What works do these apply to? See s. 106(4), 106(5), 106(6)

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?

QUESTIONS CB 415 1a Columbia Pictures v. Aveco, 800 F.2d 59(3d Cir. 1986) – infringement 1b On Command v. Columbia Pictures, 777 F. Supp. 787 (N.D. Cal. 1991) – infringement 1c Columbia Pictures v. Professional Real Estate Investors, 866 F.2d 278 (9 th Cir. 1989) – no infringement It seems that courts are worried about market substitution – thus they will be concerned about how many rentals are made in a particular time period.

RIGHT OF PUBLIC DISPLAY See section 106(5) Only applies to certain kinds of work See definition of “display” in section 101. Same definition of “publicly” as for right of public performance Not a lot of cases about infringement of this right How does First Sale doctrine apply to the right of display? See 109(c)

What Public Interest Exceptions Exist For Right of Public Performance and Display? See section 110

What Exceptions Exist For Right of Public Performance and Display? Face-to-face teaching 110(1) certain instructional broadcasts 110(2) - note controversy over whether this is appropriate in a digital age for distance learning, so amended by TEACH Act (enacted late in 2002) played/sung as part of religious service 110(3) nonprofit performance 110(4) etc..

COMPULSORY LICENSES Section TV broadcast relays Section satellite transmission Section recordings of musical works Section jukeboxes Section public broadcasting Section digital sound recordings

A BRIEF LOOK AT MORAL RIGHTS What are moral rights? How do they differ from economic rights? U.S. law has very limited moral rights in comparison to many European countries with civil law systems, like France, Poland, and Italy.

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 as a resiult of US ratification of Berne, which contained a provision on moral rights in Article 6bis. The US amendment was the Visual Artists Rights Act of now section 106A of the Copyright Act.

GILLIAM v. AMERICAN BROADCASTING CO. (2d Cir. 1976) Does U.S. law, pre VARA adequately protect moral rights? S. 2(3) of the Berne Convention Implementation Act stated that US law was sufficient. What do you think?

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. contradictory results in 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 Congress amended law 2 years following accession to the Berne Convention (effective June 1, 1991) 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. At least 9 states have also enacted laws protecting, to some degree, rights of attribution and integrity for visual artists

VISUAL ARTISTS RIGHTS ACT of 1990 What types of work does it cover? See Martin Is my snapshot of my dogs covered by VARA? A limited edition of 100 photos that aren’t signed by the author? What about a work made for hire? See Carter v. Helmsley-Spear?

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

TYPES OF INFRINGEMENT 1. Direct 2. Secondary (vicarious, contributory)

DIRECT “Unauthorized exercise of one of the exclusive rights of the copyright holder” – in s. 106 or DMCA.

Contributory Infrigement What’s contributory infringement?

Contributory Infrigement What’s contributory infringement? It is one of 2 types of indirect infringement for which there is liability. The other type is vicarious infringement. Of course both require that there be a direct infringement of copyright. So if the infringement is abroad but authorized in the US, there would be no liability under US law – US copyright law is not exteraterritorial unless Curb is right and there is infringement domestically by violation of authorizatio right

Contributory Infrigement What’s contributory infringement? This is indirect liability for copyright infringement. The idea is if you directly contribute to another’s infringement you should be liable. Classic statement: Gershwin v. Columbia Artists Mgt. (2d Cir. 1971): “One who with knowledge of the infringing activity induces, causes, or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory infringer’.

Vicarious Infringement What’s vicarious infringement?

Vicarious Infringement This doctrine comes from the tort doctrine of respondeat superior. To be liable, there must be control and financial benefit. Gershwin: [E]ven in the absence of an employer- employee relationship, one may be vicariously liable if he has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities.”

Sony Did the sale of the Betamax VTR constitute contributory infringement? Why or why not?

Sony Did the sale of the Betamax VTR constitute contributory infringement? Why or why not? No, it did not - it was fair use“where the product was widely used for legitimate unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.” What were these uses?

Sony What were these uses? Time-shifting, which was fair use; it was noncommercial and there was no proof of past harm to plaintiffs’ market and also no substantial likelihood of future harm.

NAPSTER: Another contributory infringement case 9 th Circuit found reliance on Sony unpersuasive.