LAW COPYRIGHT 2008
Columbus School of Law The Catholic University of America Prof. Fischer November 10, 2008
WRAP-UP POINTS: MECHANICAL LICENSE
Section 115 of the Copyright Act is a limitation on the scope of the reproduction and distribution right of the copyright owner in section 106. It provides for a type of compulsory license known as the mechanical license This is a compromise designed to protect composers but prohibit music monopolies
: MECHANICAL LICENSE
Section 115 entitles musicians and record companies to make and sell (for private use) their own recordings of copyrighted musical works of another artist if (1) those copyrighted musical works have already been recorded with that other artists permission (2) the musicians and record companies pay a set statutory fee to the copyright owner and (3) they dont change the basic melody or fundamental character of the work.
PRIVATE COPYING OF SOUND RECORDINGS
Section 1008 of the Copyright Act of 1976, which was added by the Audio Home Recording Act of 1992, permits consumers to make copies of sound recordings for noncommercial use. Does this apply to ALL recording devices/media? This provision was a compromise over digital audio tape DAT technology.
PRIVATE COPYING OF SOUND RECORDINGS
This provision was a compromise over digital audio tape DAT technology. S. 1008 only applies to analog audio recordings or those using digital audio tape technology Other provisions in the AHRA?
AUDIO HOME RECORDING ACT
1. Infringement actions barred for home audiotaping (digital or analog) 2. Royalty charges imposed on sales of digital audiotape recorders and blank tapes (paid by manufacturers/importers). Pay into 2 funds (musical works [writers, publishers], sound recordings [record producers/performers]) 3. Obligation to include serial copy management systems in consumer digital audio recording devices to prevent copying copies.
RIAA v. Diamond
The Rio was a handheld digital playback device that stored and played compressed music files from a PC. It could not copy files or upload files to a computer or another Rio. did it violate copyright law?
RIAA v. Diamond
Ninth Circuit held that Rio was not a digital audio recording device under the Copyright Act of 1976 and so it did not violate the Copyright Act.
DMCA
Section 1201(k) how does it address problem of home videotaping?
RIGHT TO PREPARE DERIVATIVE WORKS
See s. 106(2 Overlaps the right of reproduction but is somewhat broader. Is it necessary?
Is Section 106(2) necessary
Some commentators, such as Paul Goldstein think it is. They argue that protecting derivative works serves to ensure that there are adequate incentives to develop new works. Others, e.g. Nimmer, think it is superfluous due to overlap with reproduction or public performance rights
Effect of section 103
All new expression in a derivative work is separately copyrightable. However, section 103(b) extends copyrights only to new expression, not the original material. Section 103(a) provides that only the original author or a licensee can get copyright in a derivative work. Is this fair?
HORGAN v. MACMILLAN
Issue: Can a book amount to an infringing derivative work where the original work is a work of choreography? Why or why not?
HORGAN v. MACMILLAN
2d Circuit found the District Judge applied the wrong test Correct standard is whether copy is substantially similar to original NOT whether original work could be recreated from copy
MICRO V. STAR FORMGEN (9th Cir 1998) Why did Micro Star file suit? Is Nuke It an infringing derivative work? Why or why not? Does putting a piece of pink saran wrap across your TV create an infringing derivative work?
COPYRIGHTABILITY OF VIDEO GAMES
Computer programs are copyrightable - so if you copy game you will infringe If you copy audiovisual display have you infringed?
COPYING VIDEO GAMES
Audiovisual display has been held to be separately copyrightable as an audiovisual work - though some doubts as to whether original or fixed because user can alter, to some extent, display
LEE v. A.R.T. Co. (7th Cir. 1997)
Did A.R.T. infringe Annie Lees copyright in her artworks by creating derivative works? Why or why not? How does the First Sale doctrine affect the courts reasoning? Is this like framing?
LEE v. A.R.T. Co. (7th Cir. 1997)
Note split in Circuits 9th v. 7th What is the economic argument for he courts decision?
NATIONAL GEOGRAPHIC V. CLASSIFIED GEOGRAPHIC
Did Ds compilations amount to infringing derivative works? What if D had just purchased and sold back issues? What if D sold individual torn-out articles? How can this case be
MORAL RIGHTS
Moral comes from French le droit moral What is the difference between moral and economic rights? Whats an example of a moral right?
MORAL RIGHTS
Right of integrity - right that work not mutilated or distorted Right of paternity - right to be acknowledged as the author of a work Right of disclosure - right to decide when and in what form work will be presented to public Under French law - PERPETUAL, INALIENABLE, and UNWAIVABLE
GILLIAM v. AMERICAN BROADCASTING CO. (2d Cir. 1976)
To what extent were moral rights part of U.S. copyright law pre-Berne Convention?
VISUAL ARTISTS RIGHTS ACT
Congress amended law following accession to the Berne Convention A6bis required author to have right to claim authorshipand to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the said work, which shall be prejudicial to his honor or reput...