COPYRIGHT LAW FALL 2006 Columbus School of Law The Catholic University of America Prof. Fischer November 13, 2006

PROTECTION FOR SOUND RECORDINGS Federal copyright protection only effective from February 15, 1972 State law copyright protection lasts until February 15, 2067 (s. 301(c))

SAMPLING What is the bright-line test of Bridgeport Music? (6 th Cir. 2005) Is it the same as substantial similarity?

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”. This provision was a compromise over “digital audio tape” DAT technology.

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, sound recordings) 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 (9 th Cir. 1999) 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 s. 1201(k) Prohibits manufacture and distribution of certain analog videocassette recorder unless recorders have certain copy control technologies Owners right to encode audiovisual work in a way that would work with copy control technology is limited to e.g. pay per view, etc..

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. Only the original author or a transferee/licensee of derivative work right 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?

Family Movie Act of 2005 What exemption to copyright infringement does this act provide Is this censorship?

WRAP-UP RIGHT TO PREPARE DERIVATIVE WORKS The right of adaption (s. 106(s)) is infringed when a party makes an unauthorized derivative work in which a preexisting work is recast, transformed, or adapted Derivative markets are often more valuable than the market for an original work The issue of infringement of s. 106(2) often arises when a work is adapted to different media W Test is substantial similarity

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

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 What are counterarguments?

VISUAL ARTISTS RIGHTS ACT of 1990 Effective on June 1, 1991 What types of work does it cover? Is my snapshot of my dog “Nicky” covered by VARA? What about a work made for hire? (See Carter v. Helmsley- Spear (2d Cir. 1995)

Pollara v. Seymour (2d Cir. 2003) Why wasn’t the work at issue subject to protection under VARA?

RIGHTS IN VARA Rights of attribution and integrity Attribution (1 affirmative, 2 negative) Exceptions

VARA Can you waive moral rights? Can you transfer moral rights? Note – preemption provision in 301(f)(1)

Effective date of Vara What is it?

Effective date of Vara What is it? June 1, 1991 Does VARA apply to works of visual art that were created before that date? See Pavia v Avenue of the Americas Assocs., 901 F. Supp. 620 (S.D.N.Y. 1995)