COPYRIGHT LAW

Courtney M. Dunn407-418-6465courtney.dunn@lowndes-law.com

November 20, 2012

©Lowndes, Drosdick, Doster, Kantor, & Reed, P.A., All rights reserved

What is a Copyright (©)?

An original work of authorship, fixed in a tangible medium of expression.

See, 17 USC 101 et seq.

What is an “Original Work”?

Any work that was independently created (not copied) and that contains a

“modicum of creativity”.

What is “Fixed in a Tangible Medium”?

The work in question must be set in a form in which it can be perceived either directly or with the aid of a device.

Things that are not fixed in a tangible medium are not subject to copyright protection

Types of works subject to protection

Generally include: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; architectural works.

What cannot be protected?

Facts or any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work;

Words and short phrases such as names, titles, and slogans; Typeface designs;

Lists of ingredients;

Blank forms that do not themselves convey information;

Works consisting entirely of information that is common property containing no original authorship

What does a copyright give you? Exclusive right to do and authorize:

Reproduction of the work

Derivative works

Distribution of work by sale or transfer or license

Public performance of work

Display of work in public

Limitations on a Copyright?

Fair use: allows for limited copying of a work without the permission of the owner Very fact dependent Examples:

Criticism Comment News reporting Teaching Scholarship Research

How do you determine if something is Fair Use Consider:

Purpose and character of the use

Nature of the copyrighted work

Amount and substantiality of use

Effect upon the value of the copyrighted work

Other Limitations on a Copyright Libraries and archives First sale doctrine Record rental Software rental Performances and displays Secondary transmissions Ephemeral recordings Pictorial, graphic, sculptural

works Sound recordings Musical recordings -

compulsory licenses Jukeboxes - negotiated

licenses

Computer programs - Essential step in utilization of program or Archival (backup) copy allowed

Public broadcasting Satellite retransmissions –

superstations Architectural works Reproduction for blind and

disabled Satellite retransmission –

local Reproduction for blind/

people with disabilities Satellite retransmissions

within local markets  

How to Obtain Copyright Protection Copyright Protection attached upon

creation. There is no need to register a work, but may do so.

Registration is required, however, to enforce rights and provides additional benefits such as statutory damages for infringement.

How do you register a copyright? Application must be submitted to the Copyright Office

of the Library of Congress. Note: Patents and federal trademark registrations are

with the United States Patent and Trademark Office (USPTO)

Contents of Application: Completed application form

TX – Non-dramatic literary work VA – Visual arts work PA – Performing arts work SE – Sound Recording work SR - Serials

Deposit materials Fee

Information needed to complete Application Name and address of applicant If the work is “made for hire”, a statement of

such or if the applicant is not the author then a statement of how the applicant obtained ownership

Title of work Year of creation Date of first publication, if any Identification of the work as a derivative or

compilation Other relevant information

Deposit Materials

Unpublished work One complete copy

Published work Two complete copies of best edition

Work first published outside US One complete copy as published

Contribution or collective work One complete copy of best edition

Some exceptions apply For example, for computer programs a print out of

the first and last 25 pages is ok

Who owns a Copyright?

Author Authors, if joint work What about employees?

“Work made for hire” doctrine   work prepared by an employee within the scope of

his or her employment; or 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

Take away – get an assignment up front!

What is the Term of a Copyright? In the U.S.: the life of the author plus 70

years, unless the work is anonymous, pseudonymous or a work-made-for-hire

then, the lesser of 95 years from its publication or 120 years from its creation.

Copyright Notice

Prior to 1978 failure to use a copyright notice on your copyrightable materials was fatal to your copyright and placed the material into the public domain.

Omissions between January 1, 1978 and March 1, 1989 could be cured under certain circumstances.

Since March 1, 1989, use of a copyright notice has been optional, but failure to mark your materials can provide infringers with an "innocent infringer" defense, preventing you from collecting actual or statutory damages for any infringing act committed before the infringer received actual notice.

Example of Proper Notice: “© Your Name 20XX” “© Your Name 20XX, All rights reserved.”

Copyright Infringement

What is it? 17 USC 501 et seq. – Anyone who violates the

exclusive rights of the owner by making an unauthorized copying, distribution or derivation of a work Rights of owner set forth in 17 USC 106

Kinds of Infringement Direct Contributory Vicarious Liability of states

Pre-filing considerations

Where to file? Federal District Court: Exclusive, original

jurisdiction for Patent and Copyright cases. 28 USC 1338(a) Note: could have an exception for

counterclaims Venue: Where the defendant resides or in

any district where the defendant does business.

Pre-filing considerations (cont.) Jury or non-jury Nature and type of work involved Extent of copying Parties involved Registration certificate in hand?

Certificate of registration is now a procedural prerequisite

If registration is sought but refused serve complaint on Copyright office

Proving your case

Exclusive rights Ownership Access by defendant Substantial similarity of work Damages, if any

Should you use an expert? Depends

Should you use surveys?

Defenses Fair Use

See above Must be pled as an affirmative defense For computer programs

Right to make archival copy Right to dissect programs to determine functional interface

Implied License Can be orally granted for non-exclusive grant Elements

Author creates for another Author delivers the work Author intends that party distribute and/or copy

SOL (3 yrs.) and/or laches Lack of Notice Fraud on the Copyright Office Misuse Parody

Satire not necessarily a defense

Remedies

Damages- at option of copyright owner:

Actual damages and profits made by infringer that are not taken into account in calculating actual damages. To establish an infringer’s profits, the copyright owner is

required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work

OR

Statutory damages of $750 to $30,000 for each infringement (court’s discretion as to actual amount). Can be increased to $150,000 per infringement if the infringement was committed willfully.

Other Remedies

Injunction

Seizure, impoundment and destruction of infringing goods

Criminal offenses

Attorney’s fees and costs

Thank You! Questions?