Copyright IV Class 6 Notes Law 507 | Intellectual Property | Spring 2004 Professor Wagner Copyright © R. Polk Wagner Last updated: 5/27/16 12:33 tt

2 Today’s Agenda 1.Cleanup: a)Distribution right b)Public performance/display right c)Moral rights 2.Fair use a)Basic fair use b)Videotaping c)Photocopying d)Parody

3 Right to Distribute Copies 17 USC 106(3): © owners have the exclusive right to distribute their works Important limitation: first sale doctrine (FSD) The FSD allows a lawful owner of a particular copy to determine what happens to that copy Typically the copy must stay in the same formConsider: Does the FSD swallow the distribution right? Is this right necessary? (Won’t distribution infringe the right to make copies?)

4 Public Performance & Display Rights Public performance: if it moves (movies, plays, dances, readings, etc.) Making the work perceivable Public display: if it is still (photos, paintings, sculptures, etc.) Display is allowed “where the copy is located” Note: no public performance rights for analog sound recordings (but a right in the musical compositions)

5 Public Performance & Display Rights What is “Public”? Open to those beyond family and social acquaintances Any sort of broadcasting Limits on Public Performance/Display Rights Public interest exceptions Compulsory licenses

6 Moral Rights Visual Artists Rights Act of 1976: Right to claim authorship Right to prevent use of artist’s name Some rights related to modification/destruction Note that other theories (trademark, etc.) are also used to try to establish moral rights

7 Fair Use — § U.S.C. § Limitations on exclusive rights: Fair use … the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. … [T]he factors to be considered shall include - (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

8 Fair Use: Basics Harper & Row v Nation Enterprises (1985) How does the First Amendment factor into the analysis? Factors: oPurpose of use: commercial, to “scoop” Time (Harper) oNature of the work: unpublished (Harper) oAmount used: 1% of Book, 13% of Nation’s article (Harper) oEffect on the market: harms the pre-licensing (Harper) What if the Nation had published well after Time? Should it matter how much original expression the infringer offers to the mix?

9 Fair Use: Videotaping Sony Corp. v. Universal (1984) Why is the case about “contributory infringement”? Note the importance of the “staple article of commerce doctrine” oGiven the above, what was the analysis really about? Substantial noninfringing uses: oAuthorized time-shifting oUnauthorized time-shifting (why?) How would Sony come out today? (Could VCRs have recording functions?) Would the analysis of unauthorized time shifting turn out the same if the technology allowed Universal to deliver the time-shifted programming (for a fee)?

10 Fair Use: Photocopying American Geophysical Union v Texaco (2nd Cir. 1994) 1.Purpose and character: oArchival (majority) [Publishers] oNormal practice (dissent) [Texaco] 2.Nature of the work: factual [Texaco] 3.Amount of work used: all [Texaco] 4.Effect on Market: oSignificant licensing loss (majority) [Publishers] oNo real losses (dissent) [Texaco]

11 Fair Use: Parody Campbell v Acuff-Rose (1994) Purpose/nature of use: “transformative” oWhy is transformative use important? Nature of the work: “not much help” oWhy is the nature of the work unhelpful? Amount used: parody will use the work substantially Effect on the market: no presumption of market harm for parody Is 2 Live Crew’s song really a parody? What is a satire? Why is it treated differently than parody? (See, The Cat NOT in the Hat, p. 492)

12 Next Class Copyright V The Digital Millennium Copyright Act (DMCA) The Digital Millennium Copyright Act (DMCA)