IM 113: Introduction to Copyright Fall 2013 November 18, 2013 Ed Lamoureux, Ph. D. Professor Department of Interactive Media Department of Communication © Ed Lamoureux/Steve Baron, 2012

Introduction to Copyright Requirements for acquiring a copyright –The work must be “original” for the purpose of legal proceedings, originality means that the work has not been previously copyright protected.

–The work must “fixed” The expression of the idea, not the idea itself, is copyrighted. –However, “publication” is not limited to “professional distribution.” “everyone” is now a producer and distributor and all mediated communication might be copyright protected. Introduction to Copyright Requirements for acquiring a copyright

–For proper protection, the work/copyright should be registered –Well, not exactly. It’s actually a 3-level system. –SOME rights are conferred to the copyright holder immediately on “fixing the creation.” Once “fixed,” you can claim that it’s yours, protected, and that others should not infringe. –More protection comes from posting the copyright notice (name of copyright holder, the symbol ©, and year of publication. –Posts a warning to others of the protection & grants the right to sue for infringement. Introduction to Copyright Requirements for acquiring a copyright

Timely registration of the work (after creation and before any infringement) with the copyright office extends the scope of the rights. –With registration, statutory damages & attorney’s fees may also be recovered. –Without timely registration, the protection is very weak as legal procedures cost $. The ability to recover damages and fees are the only real “leverage” against infringers. Introduction to Copyright Requirements for acquiring a copyright

Initially: The author/creator of the work Multiple authors might share a copyright covering “the whole” of a collaborative work; or multiple authors might maintain control over the part of the collaborative work they did. –To clearly establish collaborative rights, draw specific contracts. Introduction to Copyright Who owns the rights?

Authors/creators may assign their rights to others, contractually. –Most of the copyright protected content in America is owned/controlled by large, sophisticated, corporate media interests. Introduction to Copyright Who owns the rights?

Others (generally, employers) may own the rights, by virtue of the nature of the employer/employee relationship. In most cases, one’s “usual” work output is assigned to the employer; sometimes (rarely) it’s yours. In a Work for hire (outside “normal” employment), money is paid for specific work products. Work for hire confers copyrights to the employer in the absence of specific contractual agreements otherwise. Introduction to Copyright Who owns the rights?

1.Reproduction Right: to copy, duplicate, transcribe, or imitate the work in fixed form. 2.Modification Right. Also known as the derivative works right, this is the right to modify the work to create a new work that is based on a preexisting (derivative work). HOTLY contested area (transformative nature of fair uses and fan creativity problematize derivatives). Introduction to Copyright A suite of rights are protected

3.Distribution Right: to distribute copies of the work to the public by sale, rental, lease, or lending. 4.Public Performance Right: to recite, play, dance, act, or show the work at public place or to transmit it to the public. There are lots of arguments over the nature of digital (re)distribution as public performance (or not) Introduction to Copyright A suite of rights are protected

5. Public Display Right: to show a copy of the work directly or by means of a film, slide, or television image at a public place or to transmit it to the public. There are lots of arguments over the nature of digital (re)distribution as public performance (or not) Introduction to Copyright A suite of rights are protected

Ideas: cannot be copyrighted Federal materials cannot be copyrighted Facts cannot be copyrighted (although sometimes the unique ways in which they are arrayed can be) –For example, the names, addresses, and numbers displayed in a phone directory can’t be copyright-protected but the design/layout of a particular way of arraying them sometimes can be Introduction to Copyright Exceptions to Copyright law

Independent creation. Same-time independent creation cannot be controlled. Time-ordered independent creation, if proven to be truly independent, cannot be controlled. –In U.S. system, timely registration is key and often will trump independent creation. Introduction to Copyright Exceptions to Copyright law

First Sale Doctrine: once I buy it, I can rent it, display it, resell it. Although there are legal limits in certain situations, the principle is that the author no longer controls/profits from the work. First sale is largely overturned for digital content by the Digital Millennium Copyright Act (DMCA) Technological copying in certain broadcast/transmission situations. Fair Use Parody (usually as part of a fair use defense) Introduction to Copyright Exceptions to Copyright law

Under current US law (the 1976 copyright law and the 1998 copyright extension act), the copyright term for works created by individuals is the life of the author plus 70 years. The copyright term for “works made for hire” is 95 years from the date of first “publication” (distribution of copies to the general public) or 120 years from the date of creation, whichever expires first. Introduction to Copyright Duration

Infringement: After an author gains the copyright, someone copies, performs, publishes, displays or creates a derivative work without permission. Introduction to Copyright Infringement and Punishment

–Penalties could include: Fines not less than $750 or more than $30,000 Fines up to $150,000 for willful infringement Actual damages and any profits made by infringement –Initial Thomas award ($80,00 each song) –Initial Tannenbaum award ($40,00 each song) Without timely registration, only actual damages (loses) can be recovered (and the cases usually cost way more than that) Introduction to Copyright Infringement and Punishment

Music is different; it is an example of how licensing can work as an alternative to permission-based system. –Once a song is recorded by a valid rights owner, others may also record it (without permission or fees) by giving notice and then paying royalties based on sales of the new recording. Introduction to Copyright Compulsory Licensing

–“public” performances require clearance and royalties. But, generally, the royalties are paid by the venue so cover artists often play without permission or payments. –Generally personally private (in the shower, car, at home or in a private office) performances don’t require clearance or payment. Introduction to Copyright Compulsory Licensing

–Great care must be taken here as licenses must be obtained for EACH of the rights, depending on use. In some cases, one might need to obtain multiple licenses, perhaps from different rights holders. Introduction to Copyright Compulsory Licensing

There are multiple sets of rights and licenses/fee structures within the compulsory system for music Public Performing Right: The exclusive right of the copyright owner to authorize the performance or transmission of the work in public. In certain situations, performers need to acquire a Public Performance License granting the right to perform the work in, or transmit the work to, the public. Reproduction Right: The exclusive right of the copyright owner to authorize the reproduction of a musical work as in a record, cassette or CD. Introduction to Copyright Compulsory Licensing

Mechanical License: Harry Fox Agency, Inc. issues licenses on behalf of the copyright owner or his agent, usually to a record company, granting the record company the right to reproduce and distribute a specific composition at an agreed upon fee per unit manufactured and sold. Synchronization License: Music Publishers issue licenses as copyright owner or his agent, usually to a producer, granting the right to synchronize the musical composition in timed relation with audio- visual images on film or videotape. There is NO blanket sync license agency/agent/process. Introduction to Copyright Compulsory Licensing

To emphasize: There is NO blanket sync license agency/agent/process. You may work at a place that has one or the other sort of “blanket” license. For example, BU pays so that the band can play, teachers can play certain stuff in class, the clarion can toll, etc. But the license that allows all that does NOT allow putting a song to a video and posting it to the web or putting a song into a movie or tv show, even if the song was covered under the blanket license. Snyc licenses are sold in one way: from the publisher, per use..... With one set of exceptions..... Introduction to Copyright Compulsory Licensing

The one major exception to sync. License arrangements: Media Libraries One can acquire “media libraries.” They are like clip art for sound and images. We have some in the college (accessible via the lab web page). The library has some. Broadcast stations (TV and radio) purchase materials for use as their production library. The terms of service for these purchases specify the uses to which materials can be put. Very often, their sync. rights are cleared as part of the purchase price. People who work at commercial outlets often get used to just going into the library and grabbing anything they find. In some professional places, the $ paid (often that you don’t know about) makes this ok. Don’t use material until you are sure what you have and what rights you’ve acquired.

Digital Performance Right in Sound Recordings Act of 1995: authorized a compensatory system for digital sound recordings. Introduction to Copyright Compulsory Licensing