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 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 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

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. Helmsley- Spear (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)