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Mass Comm Law Exam 4 - Ch 14-16 - Vergobbi

Terms in this set (37)

Ch 14
Copyright
Purpose of intellectual property law
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
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Copyright law because "...in order to encourage the creation of books, plays, and art, the creator... had to be assured they would be rewarded for their labor."

The real logic behind copyright law—is the fostering of the creative spirit.

Pember, 543
What may be copyrighted? Why?
Copyright law protects "all works of authorship fixed in a tangible medium of expression." Not ideas, but the EXPRESSION OF IDEAS.

e.g. Writings, photographs, paintings, music , drama, etc.

Examples in book:
1. Literary works (including computer software)
2. Musical works, including any accompanying words
3. Dramatic works, including any accompanying music
4. Pantomimes and choreographic works
5. Pictorial, graphic and sculptural works
6. Motion pictures and other audiovisual works
7. Sound recordings

Pember, 545
What cannot be copyrighted? Why not?
• Trivial materials - e.g. titles, slogans, or minor variation on works in public domain.
• Ideas - law protects the literary or dramatic expression of an idea, such as a script, but not the idea itself.
• Facts - "The world is round" is a fact. An author cannot claim as own. Exists in public space/domain.
* Distinction between facts and expression—FACT is not protected by © but the EXPRESSION of facts is.
• Utilitarian goods—things that exist to produce other things. A lamp exists to produce light. (but design elements not related to the function CAN be ©... e.g. lamp's decorative features.)
• Methods, systems, and mathematical principles, formulas, and equations
What is Duration of copyright?
Life (of last living creator) + 70 yrs. is for:
• works created AFTER Jan. 1, 1978
• works by more than one author

95 yrs. after publication is for:
• works for hire
• work BEFORE Jan 1, 1978
6 rights guarandeed by copyright protection (Pember page 543)
Right of:
1. REPRODUCTION of work
2. Prep. of DERIVATIVE works
3. Public DISTRIBUTION
4. Public PERFORMANCE
5. Public DISPLAY
6. Public DIGITAL PERFORMANCE of a sound recording
Copyright Infringement Test (3 prongs - plaintiff must prove...)
1. Is the coyright VALID? (Feist Test C+A=O)
2. Did defendent have ACCESS to the work prior to infringement?
3. Are the two works the SAME or SUBSTANTIALLY SIMILAR? (Krofft test - H.R. Puf'n'stuff, apply Pino)
Apply Copyright Infringement Test: Prong 1
(Feist Test)
Prong weighs matters like official registration. Is it an original work that can be protected by copyright?
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The Feist Test, (Compiled a database but court ruled "only databases in which factual items are organized or selected or coordinated in some novel or artful manner will be protected by copyright law." Later that year NYC company won a suit because of how they selected firms and organized the listings.)

C + A = O
- Compilation - gathering facts
- Arrangement - expression of the facts, individuality
- Originality

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Sweat-of-the-brow is bogus→ J. O'Connor quoted Justice Brennan

"The primary objective of copyright law is not to reward the labor of authors, but to promote the process of science and the arts."

Pember, 548
Apply Copyright Infringement: PRONG 2
The plaintiff must convince the court that the defendant had access to the copyrighted work.
Apply Copyright Infringement Test: PRONG 3
(Krofft Test + Pino)
Krofft Test (Krofft vs. McDonalds - H.R. Puf-n-Stuf and McDonald's characters) is to show the general idea "substantially similar"

• Is the general idea or theme of both works the same?
• How is the idea expressed? How is the theme carried out? Is the manner of expression similar?

(Pino case applies as next step—if found "substantially similar"—to look at how the idea is carried out. Tommy Pino sued network for making reality show called "Pros vs Joes". He previously proposed a show featuring contests between professional atheletes and amatuers. The court acknowledged "substantial similarity" of general idea, but the MANNER in which the program and the proposal carried out the idea was in fact "substantially different" when considering PLOT, DIALOGUE, MOOD, SETTING and PACE were all different.
"Poor Gene Miller" Miller v. Universal Studios
Miller wrote book "83 Hours Till Dawn", spending 2500 hours. Universal made docudrama called "83 Hours Till Dawn" about the event. Similarities were striking, even some mistakes from the book made it into the video. Miller sued for copyright infringement. First court sided with him, but then were overturned in 5th district.

Reasoning:
"The VALUABLE DISTINCTION in copyright law BETWEEN FACTS and the EXPRESSION of facts cannot be maintained if research is held to be copyrightable.

There is no rational basis for distinguishing between facts and the research involved in obtaining the facts," the court said. "A fact does not originate with the author of a book describing the fact. Neither does it originate with the one who 'discovers' the fact... there may be originality and hence authorship in the manner of reporting, i.e. the 'expression' of the facts."

(p. 550) → research = facts, so anyone could find the same facts compiled by Miller

"Poooooooooor Jean Miller. The courts first loved him, but then they dumped him, etc."
Why does "Fair Use" Doctrine exist?
To balance author's right to compensation, against public's interest in widest possible dissemination of ideas and info.
Fair Use Test - "score card"
1. Purpose & character of the use
2. Nature of Copyrighted work
3. Amount of work used (percentage or proportion)
4. Effects the use on the potential market for or value of original

In the case of a 2-2 tie prong 4 is the heavy hitter (tie breaker)
1. Purpose & character
a. PUBLIC INTEREST - (Rosemont v. Random House: Howard Hughs book, "it would be contrary to the public interest to permit individuals to buy the rights of anything published about them to stop authors from using the material.")

b. EDUCATIONAL - usually ok w/ limits

c. COMMERCIAL INTERESTS - almost never ok even in small amounts

d. PARODY (satire does not work!)

e. CRITICAL COMMENTARY - usually ok (Kane v. Comedy - Jon Stewart showed a clip of her on "The Daily Show". Was a fair use because it was used for critical purposes. "defendant sought to critically examine the quality of plaintiff's public access television show," the court ruled.)

f. TRANSFORMATIVE USE - usually ok (***Morgenstein v. ABC, artist took a picture of Sen. Obama by AP, transformed it into a "stunning, abstracted and idealized visual image that created a powerful new meaning that conveys a radically different message")
d. Parody
Parody → is a use which the copyrighted work is at least in part targeted. A critical and usually humorous effort to lampoon a creation. To qualify as parody, the use must reflect the content of the original, not just the style or method of presentation.
(- Fox News v. Penguin p563, "The keystone to parody is IMITATION. Here, whether you agree with him or not in using the mark [fair and balanced], Mr. Franken is clearly mocking Fox,")
(- Campbell case for Justice Souter: Parody springs from its allusion to the original. "Its art lies in the tension between a known original and its parodic twin." )

Satire → is a use in which no reference is made to the original work. It is merely a vehicle by which to make a comment about something else.
(- Dr. Seuss case: Parody v. SATIRE "The cat is NOT in the hat", a book satirizing the O.J Simpson case itself and not the original book, and for "borrowing" the image of the distinctive red and white striped stove-pipe hat.)
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