1. Intellectual Property Boston College Law School January 19, 2007 Copyright – Ownership, Duration

2. Topics Works of Authorship Ownership –Initial Ownership –Joint and Collective Ownership Duration, Renewal, Termination

3. 17 U.S.C. § 102 (a) Copyright protection subsists,… in original works of authorship fixed in a tangible medium of expression, …. Works of authorship include the following categories: –(1) literary works; –(2) musical works, …; –(3) dramatic works; –(4) pantomimes and choreographic works; –(5) pictorial, graphic, and sculptural works; –(6) motion pictures and other audio visual works; –(7) sound recordings; and –(8) architectural works

4. Literary Works Definition: “works … expressed in words, numbers, or other verbal or numerical symbols or indicia” Examples: books, articles, papers, catalogs, data compilations, software Limitation: short words and phrases not protected

5. Pictorial, Graphic, Sculptural Definition: “include two-dimensional and three- dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models ….” Limitation: useful article doctrine

6. Architectural Works Protection extended in 1990 Limitations: –Functional elements not protected –Pictorial representations permitted –Alterations and destruction of buildings permitted

7. Dramatic, Pantomime, Choreo. Works that are meant to be performed Examples: plays, dances, screenplays, etc. –Must be fixed; if unfixed, subject to state law –Subject to special rules re: public performance right

8. Musical Works Includes both tune and lyrics Examples: “Happy Birthday”, Copeland’s Third Symphony, Britney Spears’s latest song Limitations: compulsory cover license

9. Musical Works Compulsory “cover” license, –17 U.S.C. 115, if: Author has already authorized distribution of a recording Payment of statutorily set royalty for every copy sold No material change to fundamental character of the work

10. Covers

11. Sound Recordings Definition: “works that result from the fixation of a series of musical, spoken, or other sounds” Examples: N.Y. Philharmonic’s recording of Copland’s Third Symphony, Britney Spears’s latest album Limitations: No general public performance right (although recent digital performance right)

12. Motion Pictures and A/V Definition: “works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any….” Examples: movies, multi-media works, video games, etc.

13. Derivative Works Definition: “based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version ….” Example: movie version of Harry Potter –Additional originality subject to protection –Subject to multiple copyrights

14. Compilations Definition: “work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” Examples: academic journals, certain encyclopedias, musical compilations, factual compilations Main issue is originality

15. Greeting Card Example

16. Ownership 17 U.S.C. § 201(a) –(a) “Copyright … vests initially in the author or authors of the work” –(b) “In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author …, and unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights ….”

17. Work for Hire 17 U.S.C. § 101: Work for hire: –(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 …, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”

18. “Employee” Possible definitions –Employer retains right to control –Employer actually exercises control –Common law agency definition –Formal, salaried employee

19. Work for Hire Factors to consider for employee –Right to control work being performed –Skill required –Source of instrumentalities and tools –Location of work –Duration of relationship –Right to assign additional projects –Hired party’s discretion –Payment method –Role in hiring and paying assistants –Whether in the regular business –Payment of employee benefits, taxes

20. Work for Hire 17 U.S.C. § 101: Work for hire: –(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 compilation, as an instructional text, …, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”

21. Work for Hire Work for Hire vs. Assignment –Term Work for Hire: 120 years from creation or 95 from publication Assignment: life of the author + 70 years –Termination Work for Hire: no right to terminate Assignment: right to terminate assignment after 35 years

22. Joint Works 17 U.S.C. § 201(a) –(a) “Copyright … vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work.” 17 U.S.C. § 101 –“A ‘joint work’ is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole”

23. Aalmuhammed v. Lee

24. Collective Work Definition: “A ‘collective work’ is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” Issues –Copyright in each contribution is a separate copyright –In absence of agreement, collective work owner acquires only right to reproduce and distribute each contribution as part of the collective work and any revision

25. Duration 17 U.S.C. § 301 –“Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death.”

26. Duration Terms for different types of works –Individual authors: life + 70 years –Anonymous works, pseudonymous works, works for hire: 95 years from publication or 120 years from creation, whichever is earlier –Joint works: life + 70 years for last surviving author Term extends to end of calendar year

27. Duration History –1790: 14 initial + 14 renewal = 28 total –1831: 28 initial + 14 renewal = 42 total –1909: 28 initial + 28 renewal = 56 total –1976: life + 50 = approx. 80 total –1998: life + 70 = approx. 100 total

28. Duration Created after 1/1/78 –Date: from creation –Term: life + 70 … Published 1964-78 –Date: from publication –Term: 28 initial + 67 renewal (automatic) Published 1923-63 –Date: from publication –Term: 28 initial + 67 renewal (must renew) Published prior to 1923 –Public domain

29. Copyright Term Extension Arguments against –Little incentive impact for future works –No incentive impact for existing works –Prevents works from entering public domain Arguments for –Harmonization with other countries –Incentive to preserve and distribute works

30. Eldred v. Ashcroft Challenge to copyright term extension –Violates Copyright Clause “Promote progress” “Limited times” –Violates 1 st Amendment Court rejected both arguments –Congress given much deference under copyright clause –1 st amendment addressed by copyright doctrine Idea/Expression doctrine Fair Use

31. Transfer 17 U.S.C. § 201(d) –(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance … –(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights …, may be transferred as provided by clause (1) and owned separately…

32. Termination Post 1978 transfers - 17 U.S.C. § 203 –Can be effective during 5 year period, 35 years from original transfer –Notice between 2 and 10 years from effective date Pre 1978 transfers - 17 U.S.C. § 304(c) –Can be effective during 5 year period after expiration of original 56 year term under 1909 Act or 75 year term under 1976 Act (general rule)

33. Termination Important Limitations –Does not apply to works for hire –Derivative work exception Can still continue to use derivative work under grant But cannot prepare new works

34. Administrative Read through II.E.1 – Reproduction Right