melissa b. jaffe art law attorney (ca and or) phone: 503.233.3347 [email protected]
TRANSCRIPT
Melissa B. JaffeArt Law Attorney
(CA and OR)
Phone: 503.233.3347
www.mbjaffelaw.com
Shepard Fairey
VS.
COPYRIGHT
A Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished.
The copyright protects the form of expression rather than the subject matter of the expression.
For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine.
Definition of “copyright”
"original works of authorship" fixed in any tangible medium of expression.
The manner and medium of fixation are virtually unlimited. Creative expression may be captured in words, numbers, notes, sounds, pictures, or any other graphic or symbolic
media.
The subject matter of copyright is extremely broad, including literary, dramatic, musical, artistic, audiovisual, and
architectural works. Copyright protection is available to both published and unpublished works.
What are the rights?
• reproduce the copyrighted work• prepare derivative works• distribute copies or phonorecords• publicly perform the copyrighted work• publicly display the copyrighted work
It’s illegal to violate any of the exclusive rights of the copyright owner.
Limits to copyright protection
"fair use" doctrine"compulsory license"
statutory limitations for educational, religious, and charitable purposes
Fair Use Doctrine
Section 107 of the Copyright Act -- criticism, comment, news reporting, teaching, scholarship, and research as examples of uses that may be eligible for the fair use defense*.
Under this doctrine a judge may excuse unauthorized uses that may otherwise be infringing.
Expressly incorporated in the 1976 Copyright Act.
How to secure a copyright?
Copyright is secured automatically when the work is created.
A work is "created" when it is fixed in a “copy or a phonorecord for the first time.”
NO REQUIRED publication, registration or other action in the Copyright Office is necessary to secure copyright!
Why Register?
• Creates a public record of the copyright claim.
• Required before an infringement suit may be filed in court (for works of U. S. origin).
• Establishes prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate if registered within 5 years of publication.
• Statutory damages and attorney's fees are available to the copyright owner in court actions if registration is made within 3 months after publication of the work or prior to an infringement of the work. Otherwise, only an award of actual damages and profits is available to the copyright owner.
•Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.
How long does copyright protection last?
That depends on the date of creation (among other things)...
Created after January 1, 1978:(protected under the 1976 Copyright Act)
Created by an INDIVIDUAL AUTHOR:
• Copyright protection begins at the moment of creation and lasts for a period of 70 years after the author's death.
Created by TWO or MORE AUTHORS:
• In the case of "a joint work” the term lasts for 70 years after the last surviving author's death.
WORK MADE FOR HIRE:
• For works made for hire, and for anonymous and pseudonymous works, copyright protection generally lasts for 95 years from publication or 120 years from creation, whichever is shorter.
Created before January 1, 1978:(protected under the 1909 Copyright Act)
• Protection begins with first publication of the work and lasts for a period of 28 years, renewable for an additional term of 28 years, for a total term of protection of 56 years.
•In 1976, Congress extended the renewal term to 47 years, increasing the total possible term of protection to 75 years.
•In 1998, Congress again extended the renewal term by an additional 20 years, for total possible term of protection of 95 years from publication.
... and...
• For works created but not published or registered by January 1, 1978, copyright lasts for a period of 70 years after the author’s death (or at least through December 31, 2002).
•For works not registered, but published on or before December 31, 2002, the term of copyright lasts through December 31, 2047.
Will my copyright protect me overseas?
NO “international copyright” “Territorial” in nature.
Berne Convention on the Protection of Literary and Artistic Works & Universal Copyright Convention.
. “National Treatment:” Qualifying foreign work generally must receive the same protection as a local work. “Minimum standards:” of copyright protection. General minimum period of life of the author plus 50 years.
For further information and a list of countries that maintain copyright relations with the United States, you can request “Circular 38a, International Copyright Relations of the United States”
“ORPHAN ACT”S.2913 & HR5889
NOTICE OF CLAIMED INFRINGEMENT MUST BE SENT
TO SUSPECTED INFRINGER
INFRINGER MAY LIMIT LEGAL DAMAGES AND SUCCESSFULLY SKIRT EQUITABLE DAMAGES ENTIRELY IF:CAN SHOW BY PREPONDERANCE OF THE EVIDENCE:
Performed & Documented a qualifying g.f. search;
Unsuccessful in attempts;
Provided Attribution (Reasonable Under the Circumstances);
Notice that the Infringer used the work per the Orphan Act;
Asserts in the initial pleading of a civil action eligibility per Orphan Act; and
States with particularity the steps taken during initial discovery.
Anonymous May 20, 2008 (11 months ago) LinkReplyOverall Rating: 5.0 | Login to Rate | 0 of 3 found useful.
This basically sums up the bill -
Thief: "Wow - that's a nice car, I wonder who owns it? hmm..."
Thief: "Wow - I looked all over and I couldn't find the owner. I'm going to take it for a drive. "
Owner calls the cops and the cops find the thief -
Cops: "You are under arrest unless you can prove that you searched for the owner of the car before you took it for a joy ride."
Thief: "My friend is back at the restaurant we were eating at and he can verify that I looked all over the block and knocked on the doors of several homes before taking the car."
Cops: "Well, that's good then. Please take the car to the wash and fill it up for the owner and return it. Then please pay the owner $100.00 for the use of the car for the day."
Thief: "Sure thing officer."
Owner of the car: "WTF?"
Shepard Fairey
VS.
Digital Millennium Copyright Act.
Penalizes those who "intentionally remove or alter" "copyright management information" (CMI), or knowingly distribute a work from which CMI has been stripped.
CMI includes identifying labels naming the title, author, or publisher of a work, as well as the terms under which it's released—whether these labels come in the form of plaintext captions or embedded metadata.
Shepard Fairey
VS.
• Gordon v. Nextel, medical illustrator sued producers of a television commercial in which a pair of posters he'd drawn appeared in the background, with the copyright information removed. The court ultimately held that the posters appeared in focus too briefly for their use to rise to the level of infringement; it was, in legal terms, a de minimis use.
• BUT had the copyright information been removed as a hedge against an infringement suit, or for more innocent reasons? While the court accepted the defendants claim that they'd (falsely) believed the posters had been cleared for use in the commercial, the court's approach suggests that—under admittedly rare circumstances—a noninfringing use of a work might still violate the DMCA's prohibition on removing identifying information.
Shepard Fairey
VS.
In Fairey's case, the AP will likely have to:
(1) Persuade a court, that the artist "removed" identifying information (or at least distributed his version knowing such information "had been removed"), and
(2) That he did so with the knowledge that it would conceal an act of infringement. A good faith belief that his adaptation was a fair use (rather than an infringing derivative work) should be enough to protect Fairey here.
But if they succeed, it could vastly increase the damages AP can claim: copyright owners can claim $2,500 to $25,000 per violation of the DMCA—in this case each of the hundreds of thousands of Obama images Fairey sold without an AP credit.
Melissa B. JaffeArt Law Attorney
(CA and OR)
Phone: 503.233.3347
www.mbjaffelaw.com