COPYRIGHT LAW 2008 Columbus School of Law The Catholic University of America Prof. Fischer November 17, 2008

Makeup Class on DMCA 6:10-7:35 in Room 220 on Tuesday November 18

Written Exercise 2 Due November 24 for comments Model answer will be distributed on that day Please do not discuss before distribution of model answer If hand in, could positively affect class participation but if do not, no negative consequences

VISUAL ARTISTS RIGHTS ACT of 1990 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? See also Phillips v. Pembroke (D. Mass. 2003)

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)

Expansive Interpretation of VARA E.g. Flack v. Friends of Queen Catherine, Inc. (S.D.N.Y. 2001) [CB p. 630] Martin v. City of Indianapolis (7 th Cir. 1999) [C p. 630] But see Pollara v. Seymour (2d Cir. 2003)

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) [p. 640]

RIGHT OF DISTRIBUTION 106(3) First Sale Doctrine Record Rental and Computer Software Rental Amendments of 1984 and 1990

PUBLIC PERFORMANCE AND DISPLAY RIGHTS What works do these apply to? See 106(4), (5), and (6) Basically if it moves it’s a performance (e.g. plays, dances, movies, public readings of books) and if not a display (e.g. paintings, sculptures, physical copies of books) For sound recordings - to perform publicly by means of a digital audio transmission, such as webcasting over Internet

PUBLIC PERFORMANCE 1. Public performance if perform at a place open to public or where a substantial number of persons outside of a normal circle of family and social acquaintances are gathered 2. Or if transmit to a place specified in clause (1) or to public by means of any device or process where members of public capable of receiving performance receive in same place or in separate places and at same time or separate times.

IS IT A PUBLIC PERFORMANCE If you rent a movie and show it at home to 12 friends and neighbors? If you show it at summer camp? If you broadcast it on network TV?

PERFORMING RIGHTS SOCIETIES What’s a performing rights society? What are the big 2 performing rights societies in the U.S.?

PERFORMING RIGHTS SOCIETIES ASCAP, BMI are the 2 biggest (SESAC is another small one) How does ASCAP work? – see Ocassek v. Hegglund What is a blanket license? Note that ASCAP can’t sue for infringement in its own name. How do you challenge ASCAP or BMI fees? What’s the difference between GRAND rights and SMALL rights?

What Public Interest Exceptions Exist For Right of Public Performance and Display? See section 110

What Exceptions Exist For Right of Public Performance and Display? Face-to-face teaching 110(1) certain instructional broadcasts 110(2) - note controversy over whether this is appropriate in a digital age for distance learning played/sung as part of religious service 110(3) nonprofit performance 110(4)