COPYRIGHT LAW 2001 Columbus School of Law The Catholic University of America Prof. Fischer Class 19 (MARCH 26, 2002)

GOALS FOR THIS CLASS To finish learning about formalities (publication, notice, deposit, registration)

WRAP-UP: PUBLICATION AND NOTICE: Under the 1909 Act, if a work was not published with copyright notice it would be injected into the public domain It could also be injected into the public domain for failure to comply with other formalities like renewal 1976 Act does not bring works back into copyright If unpublished pre-1976 act work may still be protected under s. 303

WRAP-UP: 1909 ACT PUBLICATION 1909 Act did not define publication Case law determined when publication had taken place Public performance was not a publication under old law Until La Cienega distribution of phonorecords (sale of records) was held not to be a divestive publication. La Cienega held otherwise. As a result of that ruling, Congress added section 303(b) to the 1976 Act by amendment to overrule La Cienega.

WRAP-UP: PUBLICATION AND NOTICE: 1976 Act liberalized notice provisions and provided for copyright on creation not publication Accession to Berne Convention: notice becomes optional (as of March 1, 1989)

LIMITED PUBLICATION To ease the harshness of the 1909 rule requiring publication with proper notice, courts developed a doctrine called limited publication. A limited publication was a publication that did not have the divestive effect of a general publication.

TEST FOR GENERAL PUBLICATION In MLK case p. 391 of CB 1. If tangible copies of the work are distributed to the general public in such a manner as allows the public to exercise dominion and control over the work. 2. If the work is exhibited or displayed in such a manner as to permit unrestricted copying to the general public.

A Procedural note on MLK case Remember that this is at the summary judgment stage. Court reverses district court’s grant of summary judgment to CBS But 11th Circuit notes that there is some evidence supporting a general publication, just not enough to establish, beyond any genuine issue of material fact, that Dr. King made a general publication of his speech

ACADEMY OF MOTION PICTURE ARTS & SCIENCES V. CREATIVE HOUSE PROMOTIONS, INC. (9th Cir Was distribution of Oscar statues without copyright notice prior to 1941 a general publication? Why or why not? NOTE THE COPYRIGHT NOTICE ON THIS MORE MODERN OSCAR!

PUBLICATION UNDER 1976 ACT NOW THERE IS A DEFINITION Why do we still care about publication now that copyright arises from “creation” of works? What does this say about distribution of photograph records after 1/1/78?

Publication: Section 101 The distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance or public display, constitutes publication. A public performance or display of a work does not itself constitute publication.

CHANGES TO NOTICE REQUIREMENTS IN 1976 ACT (PRE-BERNE) Prior to Berne could you omit copyright notice and not lose copyright protection for the work? What provision(s) of the Copyright Act is relevant? What if you made mistakes in the notice?

BERNE CHANGES NOTICE REQUIREMENTS The Berne-implementation amendments changed the 1976 Act to eliminate copyright notice as a precondition to copyright protection. To what works do the Berne amendments apply?

NOTICE AFTER BERNE If you want to put a copyright notice on a work what must it consist of? Where should you put the notice? Do you have to put notice on? How about for phonorecords? What incentives are there in the law to include a copyright notice?

DEPOSIT REQUIREMENTS NOTE THAT BERNE PRIMARILY AFECTED PUBLICATION NOT DEPOSIT/REGISTRATION REQUIREMENTS What is the deposit requirement for the Library of Congress? See section 407 What is the effect of section 408? How does it differ from the deposit required under section 407?

REGISTRATION Who can register a work? What works can be registered? When can you register? What’s the purpose of the registration fee? ($30 more for works) How do you register? See Form TX (for non dramatic literary works at CB p. 409) Do you have to register to sue for infringement? What incentives exist to register? See s. 412

INFRINGEMENT In this unit, we learn about all of the exclusive rights in the bundle of rights owned by the copyright owner (see s. 106) We start with the “right of reproduction” in 106(a) - right to reproduce the copyrighted work in copies or phonorecords

Infringement: See Section 501 defining infringer as “anyone who violates any of the exclusive rights of the copyright owner as provided in sections 106 through 122” If owner of chattel in which work embodied refuses to permit author access to chattel in order to exercise her exclusive rights, is that a copyright infringement?

Infringement: If owner of chattel in which work embodied refuses to permit author access to chattel in order to exercise her exclusive rights, is that a copyright infringement? No - see Frasier v. Adams-Sandler (4th Cir. 1996)

COPIES See definition of copy in section 101 Digital copying - courts have consistently held that it’s still copying even if the work gets broken up into bits in the process of packet switching

Matthew Bender & Co. v. West Publishing Co. (2d Cir. 1998) West - premier reporter of judicial decisions in U.S. Official reporter for a few jurisdictions De facto reporter for federal cases, many states Are judicial opinions subject to copyright protection? Why or why not?

West What did Matthew Bender do that West claimed was an infringement of copyright? Did the court find a copyright infringement? Why or why not?