Copyright Law Ronald W. Staudt Class 12 March 2, 2009

Amazon Retreats On Kindle's Text-To-Speech Issue BNA's Internet Law News - 3/2/09 Amazon won't fight the publishing industry on the issue of whether the Kindle 2's text-to-speech function violates copyright. The retailer, which makes the popular Kindle electronic-book reader, announced late Friday that the company is modifying systems to allow authors and publishers to decide whether to enable Kindle's text- to-speech function on a per-title basis. [CNET]

Ownership 1.Initial ownership- intellectual v. muscular Lindsay 2.Works made for hire: Economic concept CCNV v. Reid Teachers exception Sound recordings 3.Wednesday Joint works: Intellectual concept Thomson v. Larson Aalmuhammed Gaiman

§ 201. Ownership of copyright (a) Initial ownership. Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work. ***

Lindsay v. R.M.S. Titanic z“Defendants first argue that plaintiff cannot have any protectable right …[because he] did not himself actually photograph the wreckage. This argument, however, does not hold water.”  17 USC 101  A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author … zAndrien? Geshwind?

Authorship as an Economic Concept: Works Made for Hire § 201. Ownership of copyright *** (b) Works made for hire. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. ***

Authorship as an Economic Concept: Works Made for Hire A "work made for hire" is-- (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. ***

Who is an employee? zCCNV v. Reid yFacts yConflict in the circuits: 4 tests x right to control x actual control x common law agency xformal salaried employees yControl tests and 2 parts of 101 yLegislative History yPredictability

CCNV v. Reid (cont.) Applying the test- agency factors z(“…right to control the manner and means by which the product is accomplished.”) ySource of tools yLocation of work yDuration of relationship yDiscretion over hours of work yMethod of payment yHiring of assistants yIs work part of regular business of hiring party yIs hiring party a business yProvision of employee benefits yTax treatment of hired party ySkill required yRight to control manner and means of creation yRight to assign new projects zJoint Authorship zQuestions p especially #4 on 316

Employee Created Works zAymes v. Bonelli- software zCarter v. Helmsley-Spear – sculpture zMartha Graham School - dance zWithin the scope of employment-software yAvtec—no yCramer--yes yGenzmer--yes yMiller--yes yRoeslin--no yQuinn--no

Works for Hire zTeacher Exception zTiming of Contract for 9 categories ySchiller & Schmidt v. Nordisco Corp- writing must precede creation yPlayboy Enterprises v. Dumas- agreement must precede creation

Sound recordings & work for hire… (see p. 327 gloss) zIn determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law , nor the deletion of the words added by that amendment-- (A) shall be considered or otherwise given any legal significance, or (B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination, by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made For Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law , were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations.

Sound recordings, in & out zAct Nov. 29, 1999 (effective on enactment, as provided by § 1012 of S. 1948, as enacted into law by § 1000(a)(9) of such Act, which appears as a note to this section) purported to amend para. (2) of the definition relating to work made for hire by inserting "as a sound recording," after "audiovisual work"; however, the insertion was made after "audiovisual work," in order to effectuate the probable intent of Congress Act Oct. 27, 2000, § 2(a)(1) (effective as of 11/29/1999, as provided by § 2(b) of such Act, which appears as a note to this section), in the definition of "work made for hire", in para. (2), deleted "as a sound recording," following "audiovisual work".