COPYRIGHT LAW 2003 Columbus School of Law The Catholic University of America Prof. Fischer March 19, 2003

HANDOUTS and ANNOUNCEMENTS Remember - Quiz 2 is due in class next Monday

WRAP-UP We are studying the exclusive rights of the copyright owner in s The first one that we studied last class is the RIGHT OF REPRODUCTION in s. 106(1).

The right of distribution Section 106(3) of the Copyright Act protects the right "to distribute copies... of the copyrighted work to the public by sale, or other transfer of ownership, or by rental lease or lending.“ At essence, a right to control the publication of a work Public performance does not by itself infringe right of distribution though may infringe right of public performance in s. 106(4) Includes distribution of authorized and unauthorized copies

PUBLIC DISTRIBUTION THROUGH DIGITAL TECHNOLOGIES Making available unauthorized copies of copyrighted work on website available for downloading by public has been held to infringe distribution right, e.g. Playboy v. Frena, Hardenburgh, Chuckleberry, Webbworld This is so even though “transmission” was not added to s. 106(3).

Distribution Right Accdording to the N.D. of Illinois in Marobie, did NAFED’s acts violate the right of distribution? Is this a good decision?

What Is the First Sale Doctrine?

It is an exception to the right of distribution when the copyright owner has consented to the sale or other distribution of copies or phonorecords of her work. See s. 109(a): “Notwithstanding the provisions of s. 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner to sell or otherwise dispose of the possession of that copy or phonorecord.” What’s the purpose of this doctrine?

Some exceptions to first sale doctrine Certain copyright industries successfully persuaded Congress that certain kinds of rental and lending facilitated unauthorized copying and so created market substitutes for sales of authorized copies S. 109(b) – restrictions on rental of phonorecords and computer software, but interestingly not videos Lots of debate as to whether first sale doctrine applies to electronic transfers of copies because transferring copies also creates a copy- some say s. 109 needs amendment

Additional Right of Importation (Supplements distribution right) Section 602(a): unauthorized importation of copies or phonorecords of a work that have been acquired outside the United States constitutes an infringement of the distribution right. Some limitations on this right e.g. private use (you can buy a CD in Poland and bring it to the US in your luggage for personal use, for example), certain educational, government uses

Limitations on Right of Distribution include Certain distribution by libraries – s. 108 Compulsory license for nondramatic musical works – s. 115, s. 118 Certain distribution of works in specialized formats exclusively for use of blind and disabled s. 121 – (also an exception to the reproduction right)

RIGHT TO PREPARE DERIVATIVE WORKS The right of adaption (s. 106(2)) 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 Test is substantial similarity

RIGHT TO PREPARE DERIVATIVE WORKS Overlaps the right of reproduction but is somewhat broader. Nimmer thinks that section 106(2) is superfluous - he thinks that infringement of the right to prepare derivative works also necessarily infringes the reproduction right or the performance right. Examples of derivative works – translation, dramatization, musical arrangements

Is Section 106(2) necessary Some commentators, such as Paul Goldstein think it is (see p. 377 of your CB). They argue that protecting derivative works serves to ensure that there are adequate incentives to develop new works.

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. Section 103(a) provides that only the original author of licensee can get copyright in a derivative work. If an infringer makes a movie out of a copyrighted book,she can’t get copyright in the movie. Is this fair where the derivative work is more valuable than the original?

Castle Rock Entertainment v. Carol Publishing Group, Inc. (2d Cir. 1998) What are the answers to the 3 trivia questions from the allegedly infringing “SAT” at p. 378? No. 1 No. 11 No. 12

Castle Rock Entertainment v. Carol Publishing Group, Inc. (2d Cir. 1998) What are the answers to the 3 trivia questions from the allegedly infringing “SAT” at p. 378? No. 1 – marine biologist No. 11 – Junior Mints No ?

Castle Rock Entertainment v. Carol Publishing Group, Inc. (2d Cir. 1998) Did the Second Circuit uphold the district court’s award of summary judgment to Castle Rock, who claimed that the Seinfeld Aptitude Test infringed its copyright in the Seinfeld television series? Why or why not? What tests for infringement were considered/applied? Would you have ruled the same way as the Second Circuit?

Must an infringing derivative work satisfy the originality requirement? Some disagreement on this in the courts. See, e.g. Mirage Editions and Lee.

Mirage Editions v. Albuquerque A.R.T. Company (9 th Cir. 1988) What did A.R.T. do that plaintiffs’ claimed amounted to copyright infringement? What rights were allegedly infringed? A.R.T. appealed district court grant of summary judgment in favor of Mirage, Dumas and Van der Marck. How did the Ninth Circuit rule? Why? Did the First Sale doctrine apply?

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 the court’s decision?