Copyright of each separate contribution is distinct

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Copyright of each separate contribution is distinct from copyright in collective work as a whole Vests initially in author of the contribution Presumed to have acquired only privilege of reproducing and distributing, revision, and a later collective work in the same series Owner of copyright in collective works: o (1) right to reproduce/distribute each individual piece (2) revision (3) later collective work Duration of Ownership So long as the author is being incentivized but not monopolizing the copyright Too long of copyright can stifle innovation/creation by others Rights and Infringement Proof of Copying: Defendant admits copying Circumstantial evidence o Evidence of access o Evidence of similarities 1. No similarities  No infringement 2. Striking similarities (~access)  Infringement a. Can substitute for access b. But some courts require access 3. Some similarities + evidence of access  Infringement for fact finder to infer Unlawful Appropriation: Based on substantial similarity Access: Reasonable opportunity to view or copy a work  Mere possibility is not enough Misappropriation: Determined by ordinary lay listener/hearer Copyright Infringement = Strict Liability Offense  Even if not intentional
Fragmented Literal Similarity: 9th Circuit: Marvin Gay and Blurred Lines Access & Substantial Similarity Can be subconscious Rejected thin protection Sound tracks are protected, in the past you had to look at music sheets only which could reveal more similarities Dissent: looks at constellation of individually unprotected parts Defenses to Copyright Infringement Fair Use Doctrine Most important defense in all of copyright law  Technically everything we do is copied – downloading a file, etc. Vital Functions/Goals: 1. Balancing the interests of authors and those who use their work as an input for cumulative creativity – focuses farther than just initial creation 2. As a safety valve for freedom of expression Justice Story: If design is for purposes of criticism  fair use If design’s purpose is to supersede  not fair use Sony Corp. of America v. Universal City Studios, Inc. (1984): Viewers recorded shows for later viewing – infringement? fair use? (1) commercial use is presumptively unfair, at home use is okay (3) even though it was copied as a whole, it was still okay (4) many TV copyright owners consented to the copying of their program o No current harm, future harm is speculative Viewing considerations together  “time shifting” is fair use Harper & Row, Publishers, Inc. v. Nation Enterprises (1985): Narrower doctrine for unpublished works o Nimmer treatise: unpublished work = factor tending to negate fair use o 1976 Act – legislative history – right to control first pubic distribution Four Factors: (1) purpose and character of the use:
went beyond simply reporting but made a “news event” out of an unauthorized first publication (2) nature of copyrighted work:

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