1. Copyright III Class 5 Notes Law 507 | Intellectual Property | Spring 2004 Professor Wagner Copyright © R. Polk Wagner Last updated: 6/3/2016 2:47:50 AM

2. 2 Today’s Agenda 1.Cleanup a)Types of Works b)Duration of Copyright 2.The rights of copyright owners.

3. 3 Types of Works 1.Literary works 2.Pictorial, graphic, sculptural works 3.Architectural works 4.Dramatic, Pantomime, and Choreographic Works 5.Musical Works and Sound Recordings 6.Motion Pictures and A/V Works 7.Derivative works and compilations Roth Greeting Cards (1970) oArtwork: ©, but not infringed oText: not ©

4. 4 Duration of Copyright 1909 Act: 56 total years (renewal at 28)1909 Act: 56 total years (renewal at 28) 1976 Act: Life of the author + 50 years; 75/100 for entity authors1976 Act: Life of the author + 50 years; 75/100 for entity authors 1998 Sonny Bono CTEA: Life of the author + 70 years; 95/120 for entity authors1998 Sonny Bono CTEA: Life of the author + 70 years; 95/120 for entity authors Eldred v Reno: challenge of 1998 CTEA “limited times” as a limit on Congress oHistory & text suggests “limited” is interpreted by Congress 1st Amendment as requiring heightened scrutiny oNot unless “traditional” boundaries of © are altered

5. 5 The Rights of Copyright Owners The exclusive rights of copyright owners: 1.The right to make copies 2.The right to make derivative works 3.The right to distribute copies 4.The right to publicly perform or display 5.(Moral rights)

6. 6 The Right to Make Copies Basic components of copyright infringement: 1.Copying 2.Improper Appropriation Arnstein v Porter (2nd Cir. 1946) What evidence is necessary to show copying? oDirect evidence? oCircumstantial evidence? –Note the sliding scale analysis... oIs intent an element of copying? (Or of infringement?)

7. 7 The Right to Make Copies Nichols v Universal Pictures (2nd Cir. 1930) What test does the court use? Note the 9th Circuit analysis: oObjective test: sort out the © from the rest oSubjective test: analyze similarity of © parts How much must be taken to infringe? What is the proper standard by which to analyze similarity?

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9. 9 Right to Make Copies Steinberg v Columbia Pictures (SDNY 1987) Why doesn’t the court separately analyze copying and improper appropriation? oRecall... circumstantial evidence of copying: –Access –Similarity

10. 10 Right to Prepare Derivative Works Anderson v Stallone (CD Cal 1989) Why is Anderson’s work a derivative work? Can Anderson keep the copyright for the non-copied portions of the work? 1.Do we need to protect derivative works? (Won’t standard infringement suffice?) 2.Does the derivative work right create incentives? (Good or bad?) 3.Why allow Stallone to take Anderson’s entire work?

11. 11 Right to Distribute Copies 17 USC 106(3): © owners have the exclusive right to distribute their works Important limitation: first sale doctrine (FSD) The FSD allows a lawful owner of a particular copy to determine what happens to that copy Typically the copy must stay in the same formConsider: Does the FSD swallow the distribution right? Is this right necessary? (Won’t distribution infringe the right to make copies?)

12. 12 Public Performance & Display Rights Public performance: if it moves (movies, plays, dances, readings, etc.) Making the work perceivable Public display: if it is still (photos, paintings, sculptures, etc.) Display is allowed “where the copy is located” Note: no public performance rights for analog sound recordings (but a right in the musical compositions)

13. 13 Public Performance & Display Rights What is “Public”? Open to those beyond family and social acquaintances Any sort of broadcasting Limits on Public Performance/Display Rights Public interest exceptions Compulsory licenses

14. 14 Moral Rights Visual Artists Rights Act of 1976: Right to claim authorship Right to prevent use of artist’s name Some rights related to modification/destruction Note that other theories (trademark, etc.) are also used to try to establish moral rights

15. 15 Next Class Copyright IV Fair Use