intellectual property boston college law school january 19, 2007 copyright – ownership, duration

Intellectual Property

Boston College Law School

January 19, 2007

Copyright – Ownership, Duration

Topics

• Works of Authorship

• Ownership– Initial Ownership– Joint and Collective Ownership

• Duration, Renewal, Termination

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

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

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

Architectural Works

• Protection extended in 1990• Limitations:

– Functional elements not protected– Pictorial representations permitted– Alterations and destruction of buildings permitted

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

Musical Works

• Includes both tune and lyrics

• Examples: “Happy Birthday”, Copeland’s Third Symphony, Britney Spears’s latest song

• Limitations: compulsory cover license

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

Covers

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)

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.

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

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

Greeting Card Example

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 ….”

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.”

“Employee”

• Possible definitions– Employer retains right to control– Employer actually exercises control– Common law agency definition– Formal, salaried employee

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

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.”

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

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”

Aalmuhammed v. Lee

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

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.”

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

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

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

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

Eldred v. Ashcroft

• Challenge to copyright term extension– Violates Copyright Clause

• “Promote progress”• “Limited times”

– Violates 1st Amendment

• Court rejected both arguments– Congress given much deference under copyright clause– 1st amendment addressed by copyright doctrine

• Idea/Expression doctrine• Fair Use

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…

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)

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

Administrative

• Read through II.E.1 – Reproduction Right