We have 2 separate copyrightable works
each has its own copyright and
its own term.
Arnold wrote an unfinished novel – when he died there was a
Once 70 years pass after Arnold’s death anyone can write
an ending to his novel.
Angela adds to it to produce a new work – that copyright expires
70 years after her death.
Angela’s work would cover the original material she added
and end 70 years from the date of her death.
How Do We Know When a Copyright Has Been Infringed?
Elements Common to All Copyright Claims
others from doing these things (i.e., right to sue them when
Reproduction § 106(1)
Preparation of Derivative Works [a.k.a. Adaptation] § 106(2)
Distribution to the Public § 106(3)
Public Performance § 106(4), 106(6)
Public Display § 106(5)
3 Elements You Must Show in Every
whatever elements the
right calls for)
Element One: Ownership of Valid Copyright
must show you are the author or got an
assignment from the author
Raises issues of copyright validity (originality, fixation, merger, ownership, etc.)
As P, you would normally have the burden but timely registration will shift burden
on this element to D
Element Two: Copying of Copyrighted Work
if someone didn’t copy, it’s not
Doesn’t matter if someone independently developed it
Element Three: Improper Appropriation
did the person copy so much that we will
label them as a copyright infringer?
Arnstein v. Porter
(P alleged that D stole tunes for several popular songs that Defendant
had written; D was very famous, P not so much).
Impossible for Porter to copy them if he had never heard the songs – Arnstein must
prove he copied them.
: in many cases there is direct evidence of copying
Admission, eyewitness, and so forth
If no direct evidence, look for
so look at
Are the works so similar that we can infer that the access resulted in