Copyright Fundamentals Exclusive Rights Victor H. Bouganim WCL, American University

Victor H. Bouganim, WCL, American University, Spring 2001 Rights of Copyright Owners F The Right to Make Copies F The Right to Prepare Derivative Works F The Distribution Right F Public Performance and Display Rights F Moral Rights

Victor H. Bouganim, WCL, American University, Spring 2001 The Right to Make Copies F Right of copyright owners to prevent others from making exact or substantially similar reproductions by any means now known or later developed.

Victor H. Bouganim, WCL, American University, Spring 2001 Arnstein v. Porter Second Circuit (1946) F Ira Arnstein sued Cole Porter for infringement of copyrights in various musical compositions. F The court provided a standard formula for deciding whether a defendant has infringed a copyright owner’s exclusive right to make copies. F Test for infringement: –copyright is valid –copying of the copyrighted work –copying amounted to an improper appropriation

Victor H. Bouganim, WCL, American University, Spring 2001 Nichols v. Universal Pictures Corp. Second Circuit (1930) F Defendant produced publicly a motion picture play, which Plaintiff alleges was copied from his own play. F The issue was whether the part taken was substantial enough to constitute infringement. F The theme of the play was too generalized to grant a monopoly and the characters were commonplace figures. F The court used an abstractions test to separate copyrightable expression from public domain ideas--a continuum with pure idea at one end and pure expression on the other.

Victor H. Bouganim, WCL, American University, Spring 2001 Steinberg v. Columbia Pictures S.D. New York (1987) F Plaintiff alleged that Defendant’s promotional poster infringed his copyright on an illustration he drew for the New Yorker. F The issue was whether there was substantial similarity between the two works so as to constitute copying. F Substantial similarity is “whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” F The court found the style, an important ingredient of expression, of the two posters to be substantially similar.

Victor H. Bouganim, WCL, American University, Spring 2001 Class Discussion F Does it matter what sort of works are at issue? F Are courts likely to be able to determine the similarities between two movies more easily than between two computer programs? F How much must be taken to constitute improper appropriation? F Is the “ordinary observer” perspective, likely to distinguish between the protectable and nonprotectable elements of a work in assessing infringement?

Victor H. Bouganim, WCL, American University, Spring 2001 Limitations on the Exclusive Right to Copy F Sec. 108 exempts a public library or archives which makes only one copy of a work at a time for specified purposes. F Secs. 112 & 118(d) permit broadcasters to make “ephemeral” or “ancillary” copies of certain performances and displays during broadcasting. F Sec. 115 permits anyone to record a musical composition upon the payment of a royalty specified in the statute. F Sec. 1008, added by the AHRA, authorizes consumers to make copies of sound recordings for noncommercial use.

Victor H. Bouganim, WCL, American University, Spring 2001 The Right to Prepare Derivative Works F In many cases where this right is infringed, one of the other exclusive rights will also be infringed. F Protection “extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work.” Section 103(b)

Victor H. Bouganim, WCL, American University, Spring 2001 Derivative Works F “A work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed or adapted. A work consisting of editorial revisions, annotations, elaboration, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.’” Section 101.

Victor H. Bouganim, WCL, American University, Spring 2001 Midway Mfg. Co. v. Artic Int’l, Inc. Seventh Circuit (1983) F Plaintiff, a manufacturer of video games, alleged that Defendant’s circuit boards, used to speed the rate of play, infringed its copyright on certain video games. F The issue was whether the “speeded-up” game constituted a derivative work based on the original video game. F The court found that, because the “speeded-up” game is more exciting to play and requires creativity to produce, the owner of the copyright in the original game should be entitled to rights in this derivative work. F The court noted that such interpretation of the definition of derivative works is within the limits set by Congress.

Victor H. Bouganim, WCL, American University, Spring 2001 The Distribution Right F This right is closely allied to the right to copy. F An important limitation on this right is the First Sale Doctrine : –A copyright holder cannot restrict what a purchaser of a particular lawful copy does with that copy; the purchaser may not copy it, but may resell it without restriction or liability.

Victor H. Bouganim, WCL, American University, Spring 2001 Quality King Distributors v. L’anza Research Int’l Supreme Court (1998) F The issue was whether the First Sale Doctrine applies to imported copies. F Section 602 of the Copyright Act : –Importation into the United States, without the authority of the owner of copyright of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106.

Victor H. Bouganim, WCL, American University, Spring 2001 Quality King v L’Anza Research S. Ct F Plaintiff is interested in protecting the integrity of its method of marketing by attempting to stop imports of copyrighted labels. F Issue: Whether the copyright owner can control further distribution or whether the first sale doctrine is applicable to imported copies? F Result: Parallel importation question is not covered by the Copyright Act of 1976.

Victor H. Bouganim, WCL, American University, Spring 2001 Public Performance & Display Rights F To perform or display a work “publicly” means: –to perform or display it at a place open to the public or at any place where a substantial number outside of a normal circle of a family and its social acquaintances is gathered; or –to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. Section 101.

Victor H. Bouganim, WCL, American University, Spring 2001 Statutory Limits on Performance & Display Rights F Public Interest F Compulsory Licenses F Exclusions

Victor H. Bouganim, WCL, American University, Spring 2001 Moral Rights F Right of Attribution F Right of Integrity F Visual Artists Rights Act of 1990

Victor H. Bouganim, WCL, American University, Spring 2001 Copyright - Exclusive Rights International Perspective Economic Rights F Reproduction F Publication F Adaptation F Public Performance F Communication F Distribution Rental right

Victor H. Bouganim, WCL, American University, Spring 2001 Right of Distribution F Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership. [WCT, Article 6] F Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author.

Victor H. Bouganim, WCL, American University, Spring 2001 A ‘Copy’ - Definition F As used in these Articles, the expressions “copies” and “original and copies,” being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects. [Agreed Statements Concerning Article 6 and 7 of the WCT] F Physical objects only ? F Digital files ?

Victor H. Bouganim, WCL, American University, Spring 2001 Rental Right F In respect of at least computer programs and cinematographic works, a Member shall provide authors and their successors in title the right to authorize or to prohibit the commercial rental to the public of originals or copies of their copyright works. [TRIPS, Article 11] F Phonograms – Art F WCT, Article 7. F In respect of computer programs, this obligation does not apply to rentals where the program itself is not the essential object of the rental.

Victor H. Bouganim, WCL, American University, Spring 2001 Limitations and Exceptions F Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder. [TRIPS, Article 13] F Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. [WCT, Article 10.1]