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Terms in this set (66)
Purpose of intellectual property law
Article 1 section 8 of the constitution- "to promote the progress of science and useful arts by securing time to authors and inventors exclusive rights to their respective writings and drawings." This was written as a statement to a new country ensuring that it could develop.
Copyright protects all works of authorship fixed in a tangible medium of expression.
What may be copyrighted? Why?
1. Literary works
2. Musical works
3. Dramatic works
4. Pantomime and choreographic works
5. Pictorial, graphic, and sculptural works
6. Motion pictures and other audiovisual works
What cannot be copyrighted? Why not?
Including the distinction between facts and expression
1. Trivial materials
2. Ideas are not copyrightable
3. Facts cannot be copyrighted (difference between facts and expression)
4. Utilitarian goods - things that exist to produce other things (dress or uniform)
5. Methods, systems, mathematical principles, formulas, equations
An event or a fact cannot be copyrighted, but the expressions of the facts can be copyrighted.
What is the duration of copyright?
Works created after 1978- life of the creator plus 70 years
Works created before 1978- 95 years
Works created by more than one person- life of the last living creator plus 70 years
Works for hire- 95 years after the publication
6 rights guaranteed by copyright protection
Reproduction of the work
Preparation of derivative works
Public distribution of the work
Public performance of the work
Public display of the work
Public digital performance of a sound recording
Define & use the three-part test for copyright infringement.
All or nothing test
1) Is the copyright on the plaintiff's work valid? While this inquiry will look at matters such as the proper registration of the work, the heart of this examination is to determine whether the copyrighted work is an original work that can be protected by copyright
2) Access has to be proven. The plaintiff has to prove that there was access by the defendant to the original work
3) Are the two works the same or substantially similar? (Krofft Test ~ Pino v. Viacom, Inc)
1. Substantial similarity between the general ideas? If yes then,
2. Substantial similarity in the manner expression?
Pino case is an application of this
Compilation of facts + Arrangement = Originality
Define the reason copyright's "Fair Use" Doctrine exists.
The fair use doctrine exists to balance the author's right to compensation for his work and the public interest in the dissemination of ideas and information.
It permits limited copying of an original copyrighted creation not yet in the public domain.
Define & use the four-part test for fair use
1) the purpose and character of the use
2) The nature of the copyrighted work
3) amount and substantiality of the portion used in relation to the copyrighted work as a whole
4) The effect of the use on the potential market for or value of the copyrighted work.
The purpose and character of the use
Transformative- are you transforming the material into something different than what it was intended for?
Morganstein v ABC, Elsmere Music v. NBC
Parody- a use in which the copyrighted work is at least in part targeted. A critical and usually humorous effort to mock a creation. To qualify as parody the use must reflect the content of the original, not just the style or the method of presentation.. Social and literary criticism. Socially significant value as free speech under the first amendment. Can be fair use.
Fox News Network LLC v. Penguin Group, Elsmere Music v. NBC
Is it commercial, educational, nonprofit?
CRITICAL COMMENTARY - Savage v. Council on American Islamic Relations
PUBLIC INTEREST - Rosemont v. Random House
Savage v. Council on American Islamic Relations (2008) Clips were used for criticism and comment of Savage's views. It was not unusual to use the audio clips to authenticate his critical statements. This factor favored the defendant. They used the clips of Savage to criticize him, if they didn't include the clips then no one would understand why they were criticizing him
Rosemont v. Random House (1966): A use that serves the public interest is fair use. A millionaire bought the rights to copyrighted material in a biography about himself to attempt to stop the publisher from using the material in the book. He created Rosemont, a fake company to do so. 2nd US Court of Appeals ruled it was contrary to the public interest if people could buy the rights of published material to stop authors from using material. You can't use copyright to act as a sensor and shut down information. Regulatory interpretation of copyright applied here, which focuses on the benefits of the country itself aka serving the public interest.
The nature of the copyrighted work
(this prong is usually won by the person who owns the copyrighted work)
Accessible- can you buy the thing? If so then it is accessible
Creative vs informational
Consumable- do you use it once and throw it away or can you use it again and again
Published vs unpublished- connected to accessibility, if it is accessible then it is published - Salinger v. Random House
The effect of the use on the potential market for or value of the copyrighted work.
Critical - Kane v. Comedy Partners
Heart of the material - Salinger v. Random House
Because it's parody and transformative, you can get away with using 100% of the material
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