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Copyright Exclusive Rights Outline

LLM Law Outlines > Intellectual Property (IP) Law Outlines

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05. Copyright - Exclusive Rights 1
Reproduction, Derivative Works, Distribution, Public Display, Public Performance, Moral Rights
MML 625-717; 17 U.S.C. §§ 101 ("copies," "derivative work", "display," "perform," "publicly," "work of visual art"), 103(a), 106, 109, 602, 106A, 107

1. Anatomy of a Copyright Case

Ownership of valid rights in an original work of authorship

"Original" work of authorship

Fixed in a tangible medium of expression

Plaintiff owns the work

Copyright remains in effect

2. Infringement

Both must be shown for the violation of Exclusive Rights:
(a) copying in fact: actual copying, show that D use some elements of P's work to make
D's work - relied on it and used it (c.f. creating independently)
(b) copying in law: substantial similarity - D copying from P's work is sufficient whether quantitatively/ qualitatively (mostly both) to provoke legal liability for infringement

Relevant limitations/ exclusions

Other defenses

Two types of infringement
- Direct infringement: directly infringe the rights of copyright holders
- Indirect infringement: encourage/ assist a third party to infringe
Exclusive Rights of Author
- 1976 Act

1. Reproduction §106(1)

2. Adaptation (Derivative Work) § 106(2)

3. Public Distribution § 106(3)
 Import § 602

4. Public Performance § 106(4)

5. Public Display § 106(5)
- VARA 1990

6. Moral Rights § 106A
- AHRA 1992

7. DAT Restrictions; Taxes §§ 1002-07
- DPRSRA 1995

8. Digital Performance Right § 106(6)
- DMCA 1999

9. Anti-Circumvention Protections §§1201-02

1 Copyright
Direct Infringement
Traditional Copyright Rights
- s.106 Exclusive Rights in Copyrighted Work: "Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission."
(I) Reproduction The Right to Make Copies
- Definition § 106: The owner of a copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords

Must be fixed  fixation: a copy is only a copy once it's fixed. Reproduction rights do not include things that are not fixed  public performance of the work is not an infringement of reproduction rights.
o Two pronged test of infringement

1. copying in fact

2. copying in law

Distribution not required: still violating reproduction right even if you reproduced other's work without distributing it. E.g. can infringe by reproducing a work and no one else ever sees it.s.106(1) grants exclusive rights to literal reproduction + "substantially similar" reproductions of protected expression  address 2 distinct aspects:
o (1) proving copying; and
 whether someone has actually copied the work of another [c.f. patent protection:
prohibits making, using, selling offering to sell, or importing the patent invention whether or not the accused infringed copied the patentee's technology]
 Copyright only prohibits copying, it doesn't bar independent creation of similar work
 Court would ideally like to have direct proof of copying: e.g. eyewitness testimony,
records indicating that an author obtained the work from another…etc.
 But evidence is usually not available

(2) assessing substantiality of copying protected expression [quantum of copying]
2 Copyright
"Copyrighted work could be infringed by reproducing it in whole or in substantial part" H.R. REP. No.94-1476
 whether P's copyright is infringed is often complicated by the fact that many copyrightable works intermingle original expression with public domain materials
 'substantial similarity' has different meanings: (1) an aid in determining proof of copying; and (2) whether the appropriation of protectable material was improper
- Infringement analysis:
o (1) copying and

(2) improper/ unlawful appropriation
 whether D took from P's works so much of what is pleasing to ears of lay listeners,
who comprise the audience for whom such popular music is composed, that D
wrongfully appropriated something which belongs to P
(i) Copying
- Arnstein v. Porter (2d Cir. 1946)
o Facts: Arnstein (P) sued Porter (D for infringement of copyrights in several of P's famous musical compositions  P sought a jury trial, alleging the D plagiarized his songs. P alleged that D had the opportunity to take this material from P. D denied ever hearing or seeing any of
P's compositions. District court granted summary judgment for P, D appealed




To establish infringement, there must be both copying in fact + law (2 Part Test)
 When the defendant denies using the plaintiff's work, or claims that the extent of the use is not infringing, infringement requires proof of:

1. Copying in facts: actual copying (direct evidence) of factual copying, prove by

1. Direct evidence (D admit copying, rare); or

2. Evidential proof

Access by D to P's work + probative similarity between P & D's work [Inverse ratio rule: more access, lower threshold on similarity;
vice versa]
o (1) there must be evidence that the defendant had access to the copyrighted work, and;
o (2) there must be evidence that the works are substantially similar.
 Without direct evidence of copying, "the similarities
[between the works] must be so striking as to preclude the possibility that P and D independently arrived at the same result."
 If no similarities  no amount of evidence of access will suffice to prove copying

Independent creation is a total defense on copyright
[Question of fact goes to the jury, expert opinion accepted]

2. Copying in law
 Copyrighted material  resulting in substantial similarity [Expert opinion irrelevant]
Held: similairty between the songs + some access  whether two songs were substantially similar enough to constitute copyright infringement  no direct evidence of access  a matter of fact  for a jury to decide  case remanded for a jury trial.
Dissent: no legal basis for claim of plagiarism  no proof of access nor plagiarism 3 Copyright only thing definitely mentioned seemed to be the repetitive use of the note in certain places by both P and D, surely too simple and ordinary a device of composition to be significant
 previously music plagiarism cases relied on the total sound effect + and analyzed the music enough to make sure of an intelligible and intellectual decision
 P support his claim of plagiarism of small detached portions here and there, the music fillers between the better known parts of the melody
 P's compositions are of the simple and trite character where small repetitive sequences are not hard to discover
Rentmeester v Nike (2018) the term 'substantial similarity' is used to describe both the degree of similarity to prove

1. Copying (similarities between the 2 works need not be extensive/ involve protected elements of P's work + only need to be similarities that one would not expect to arise if works had been created independently); and

2. Unlawful appropriation (must be 'substantial' + involve protected elements of P's work)
Ty, Inc. v GMA Accessories, Inc: two works may be strikingly similar - may in fact be identical - not because one is copied from the other but because both are copies of the same thing in the public domain



o oProof of copying by deliberate error/ common mistake
 e.g. Fiest deliberately plant minor errors in their works to trap copyist
Techniques for reducing the risk of infringement
 Avoid having access to works that might influence them, movie studios and TV
producers routinely return unsolicited scripts unopened

Subconscious copying

Actionable - copyright is strict liability, accidental copying is no excuse
 or if the similarity between the two pieces are totally coincident

Note independent creation is a defense against copyright infringement 4 Copyright




oThree Boys Music Corp v Bolton
 Facts: Isley Brothers released a song 'love is a Wonderful thing' in 1966, originally 100+ ranking and released in CD  Bolton later release a song with the same name +
with similar melody  Isley Brothers sued and won $5.4M  D appealed  Court upheld jury's verdict
 P's argument: song was played a lot on radio, when Bolton probably heard it and copied it  D grew up listening to a lot of Black R&B groups, song came out when
Bolton was 13, D confessed that he is a huge fan of the group in 1988.
 Bolton claim he had never heard the song  could be lying/ never heard it/
subconscious copying  However, accidental copy is no excuse, as copyright is straight liability (MR not required)  still responsible even if you don't rmb
Bright Tunes Music Corp v Harrisongs Music Ltd
 D had access to P's work + both songs consisted of phrase that has a unique pattern
 despite subconscious copying  still infringement of copyright - it is no less so even though subconsciously accomplished
 mostly applied in the music industry
Selle v Gibb
 Facts: Sell sue Gibb for infringement - Selle played publically in Chicago, but it wasn't popular nor widely disseminated - sent recording to 11 companies (8 returned). Bee Gees recorded the song in France in 1977, had evidence of how they wrote the song. A professor of Music testified that two songs have striking similarity that Bee Gee would not have created without copying Selle  jury held infringement
 7th Circuit held no infringement:
 no matter how similar the songs are,
 there must be a possibility of access (here, access was so limited  Selle would not have heard the song)
Pop songs are often built around a few chords - hence it is easy for songs to sound similar 
Court should be more sensitive to possible constrains in the genre/ other things in the public domain that cause similarity

Copying in Fact: actual copying is proved by

1. direct evidence;

2. evidential evidence (access + probative similarity); or

3. striking similarity

(ii) Improper Appropriation
- Whether D copied sufficient protected expression to violate P's copyright interests
- Nichols v Universal Pictures Corporation (2nd Cir 1930) Abie's Irish Rose Case

Court doesn't talk about the copying of fact, P alleged D copied the plot and characters, but not exact dialogue, making the work substantially similar

Infringement is not limited to exact copying
Level of abstraction  filtration  protectable expression

Held: Insufficient protected expression to violate P's copyright interest  no substantial similarity  no infringement
 Both stories were very different, the only similarity being an argument between an
Irish father and a Jewish father

5 Copyright
Plot and characters are either to general and underdeveloped to be protected, or they are stock characters were from public domain

Test for Improper appropriation

(1) Extrinsic test analytically dissects the objective manifestations of creativity (plots,
themes, dialogue, mood, setting, pace, sequence, characters in the Plaintiff's work) to determine the elements that are protectable under copyright law

(2) Trier of fact: on a purely subjective perspective, determines whether D's work improperly appropriates the plaintiff's protected expression

How much must be taken to constitute improper appropriation - threshold for infringement
 in whole/ any substantial part
 by duplicating it exactly/ imitation/ simulation
 wide departures/ variations from the copyrighted works would still be infringement if the author's expression rather than merely the author's ideas are taken
 Fragmented literal similarity: even a small amount of the original, if qualitatively significant, may be sufficient to be an infringement Horgan v Macmillan

Sliding scale and virtual identity test
 More similarity is required when less protectable matter is at issue  many courts now require 'virtual identity' when dealing with works in which copyright protection is thin


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