hello everybody welcome today we start a new segment we will begin with copyright law copyright being one of the important areas of intellectual property rights i want to straight away move to the modern statutory history of the u.s copyright law i want to highlight that the modern statutory history begins with the 1909 enactment we look at all of the enactments from the 1909 enactments because some of the uh existing works uh or some of the works that have been created uh under the 1909 statue continues to have copyright validity and therefore for these type of works the 1909 act will control right so therefore we start we you we have to understand that there are different regimes most of the works tend to fall under the 1988 or 1976 regime but still we may have an odd work uh that falls within the uh 1909 regime um so the 1909 act was one of the earliest copyright enactments of statutes in the united states uh the act broadened the scope for protection uh copyright was given for a term of 28 years and was renewable for an additional period of another 28 years it included all of the formalities as you can as you can see here we'll talk about what these formalities are but the 1909 included the formalities next we move to the 1971 act the 1971 act um introduced the sound recording act the purpose was to prevent phono record piracy right due to advances in what we called then as duplicating uh technology at that time in all actuality congress did not grant the full bundle of rights usually afforded to copyrights uh but they were only granted one specific right which is the right of reproduction which basically means only the copyright owner had the right to reproduce the contents of the uh phono records uh they also had right to distribution and uh adaptation rights but they were they were not nuanced enough but they did have those rights what they did not have was the public performance rights um the next big enactment was the copyright act of 1976. this continued to broaden the scope of copyright protection so more and more works were introduced into copyright protection um and uh this enactment also had the formalities that included the formalities increase the term for uh to life plus 50 years instead of 28 years of original term and another 28 years of renewal term now it's life plus which is what is here it's life plus 50 years uh and this enactment preempted state and common law uh protections right so from there we go to the 1980 amendment which for the first time uh incorporated computer programs into the copyright act uh so so it remains significant for that the 19 from there again the 1988 amendment uh the amendment was enacted because the u.s ratified the burn convention so some of the burn convention requirements were introduced through these amendments and so this is called the burn convention amendment act 1990 uh we have the architectural works uh copyright protection act so architectural plans etc fell within the realm of copyright 1992 we introduced the home sorry audio home recording act this uh actually prevented audio tape piracy of music right and required digital recording devices to incorporate what is called as a scms or serial copy management system so this was like a little chip it allowed recorders to make a first generation copy but not a second generation copy to be made from the first generation copy so if you remember the your old tape recorder those cassettes you could tape uh you know from an original into a tape recorder from a taped tape recorder into another tape tape record to another copy became you know then you could hear the scratching noises so that was because of some of the legal protections that were introduced and those technologies were introduced um at this point it's very clear that congress did not think that technology right would develop beyond the ahra that quickly but it did such that by 1995 congress felt the need for the uh digital performance in sound recording act so that was the act of 1995 digital performance and sound recording act and this act the 1995 act amended several of the sections right to us i believe section 106 114 all of these essentially um this was the first time that musical recordings were given public performance rights we'll talk about it later but that's an important right that was included to certain musical performances to sound recording artists right uh copyright holders of musical recordings had the exclusive right to perform the work publicly by means of audio transmission that's what it did it allowed uh copyright folders of such musical recordings the exclusive right to publicly perform uh sorry to perform through digital uh transmission right so this enabled record companies to collect royalties on digital performances so that's how we start saw the proliferation of these uh you know cyrus radio and other other types of uh you know uh satellite radios and so on and so forth and now of course satellite radios are subject to a separate enactment that was enacted later but for our purposes i want to highlight the 1995 uh enactment then came the sony bono copyright extension act of 1998 it extended the copyright term to another 20 years and then of course the digital millennium copyright act right so the digital millennium copyright act um essentially protected some of the digital works we'll talk about some of these when we specifically look into uh digital millennium so it prevented what we call as breaking of copy protection devices so once there is copy protection or encryption is done this act prevented the decryption of such encrypted work right so that that's the dmca so we haven't done patterns but i do want to highlight the differences when we get to patterns you'll understand it much better copyright is a mere registration system it's not an examination system which basically means under you know when you send it to the copyright law it i mean copyright office it basically record it there is no system wherein uh the copyright office will will examine to see if it's good or bad or mediocre copyright it's therefore it makes it easy the ease of protection is very important you'd see that in patents it's not that easy right the protection is only against unauthorized copies which basically means people can make authorized copies it also means people can independently create the exact same work and that wouldn't be a copy so the protection under copyright law is only against unauthorized copies and then of course the big thing which is the duration the duration differs depending on the type of work importantly the copyright office does not issue any copyright unless in the patent system it merely records it and registers it uh it will send you probably a certificate of registry i mean it will send you a certificate of registration but it's still it's not an issuance it's not an examination system i have you already talked about it copyright is protectable from the moment it is created subject to certain conditions but from the moment it's created it is uh protected this requirement of originality is lower because obviously uh right it is merely a recordation system and the rights confirmed by the law itself provides the balance because it's easy to register we believe that the rights itself provides the balance between consumers and the uh you know the rest of the creators right in this segment we'll talk about the requirements for copyright protection what can be protected how can copyright be protected and who is the author and owner so these are the different things this is the broad outline of what i plan to cover the requirements the subject matter formalities and authorship and so i want to begin with the requirements for protection right now the copyright statute essentially says that copyright protect copyright protection subsists in original works of authorship fix it in a tangible medium of expression so in order for a material to get copyright protection it has to be an original work of authorship it has to be fix it it's called the fixation requirement and it in some cases it has to adhere to certain formalities so we look at each one of these so i begin with the originality requirement the originality requirement is the central tenet what is considered original in law it has to be independently created and it should have a modicum of creativity what is independent creation this is a great example of what is independent creation if some by some magic a man who had never known it never known that it existed basically where to compose right the owed on a gracious urn independently he would be the author and that would be independently copyrighted and like keats he would also have the copyright over that but the trick here is that man should not have known that it existed and should have come up with it independently right so the author is entitled to a copyright if he independent created of a work completely identical with what existed before if you're wondering whether there are examples of these this is a great example when christopher reeves passed right so look at some of these uh some of these depictions very very similar depictions although each one where independent creations and different expressions of the same idea understand that so independent creations of the same idea would each benefit from independent uh copyright because what is protected is the expression and not the idea facts and historical research cannot be copyrighted facts and historical research therefore cannot be copyrighted i want you to keep that in mind right so shall i move from here um the best example for this is uh you know miller versus universal city studios i believe it's a 1980s decision uh in this uh i mean this decision revolved around one of the uh uh one of the tv serials by name the longest night it was you know it was made by the abc or at least it was broadcast and by uh by the abc um the serial itself was based on a book written by gene miller called 83 hours till dawn that was the title of the book now that book was based on a real event where in atlanta this girl was kidnapped and kept in a coffin for 83 hours to not discover and finally she was discovered after 83 hours so that's called 83 hours till dawn right so that's the uh so that was the book and the tv serial was derived from the book and the question was whether uh the tv production the television production was a copy uh copyright infringement of the book and and the quote basically said as long as the tv production was an independent creation of the actual facts and not just borrowing from the book uh it cannot be considered a violation of uh it could cannot be considered as an infringing work right now we looked at independent creation right and we looked at facts as an example of how independent creation works right facts do not originate with one who discovers it there may be originality the originality will be preserved but the fact itself can be susceptible to more uh you know more creative renditions of the of the facts the second is and and you probably heard the sound here it's it's called the modicum of creativity right we looked at originality now we look at modicum of creativity it basically means the copyright office is not the judge of how much creativity is required in order to uh you know in order to uh benefit from a copyright the best example is this case borrowed joyce versus uh lithographic company versus cerrone case in this case this is a picture of uh oscar wilde uh the photographer claimed copyright over it right and the issue was really whether this should be susceptible to a copyright protection because you know the allegation was well there isn't anything creative with the picture right and the quote basically and if you see this is supreme court decision the court said uh um you know um the requisite level of creativity is very low and that codes or not the copyright office will be the arbiter of how much creativity is required even a slight amount of creativity will suffice the same thing you would see has played out in other other issues such as the video games and so on and so forth so for example in this case the question was whether this video game was too simplistic to get copyright protection and whether the sound was again too simplistic i don't know if you can hear it it was too simplistic and the court said as long as there is some modicum of creativity that should be enough right um so again this is another example as well quotes do not look for do not judge artistic merit the question was whether this should be considered an artistic work this obviously the advertisement for the uh uh for the circus and the court said for the great wallace shows and the quotes and the question was whether this should be protected by copyright and the court said that they would not judge artistic merits so that's what you see here are there exceptions to this originality or modicum of creativity yes you bet there is right so 37 cfr section 2021 right um talks about the uh talks about the exceptions if you're wondering uh what the cfr is it's the code a federal register right um so the question is um sorry for federal regulations and the question is um hold on let me just i don't know if i missed a slide okay so sorry we are we are back to 37 cfr uh so the question is whether there are exceptions to modicum of creativity and yes there are exceptions to modicum of creativity the code of federal regulations 37 cfr uh section 202 one talks about the exceptions these exceptions are uh words short phrases titles slogans lettering coloring all of these are exempted from copyright protection single words if you want to protect these things you can protect it using trademarks all of these things right can be protected using trademarks copyright protection typically does not copyright does not provide any protection to these uh these type of items right um so anything that is works that that embody d minimus level of originality right uh it has to have right some level or d minimus very minimal level of originality requirement in order to get the benefit of copyright protection what is the d minimus limitation rhythms are not protectable short phrases we just talked about it it's also a uh you know entitled uh i'm sorry 37 cfr right and these are some examples of things that will not uh be protected and as i said the practice tip is whatever is excluded here will be protected under trademarks law right so we talked about so far we have talked about independent creation then we talked about modicum of creativity a small level of creativity is sufficient so if you see your book the book has a case that talks about what amounts to modicum of uh creativity i i would like for you to go back and read that case that's fierce publications versus rural telephone uh services this case this particular case is a minor for discussing uh the modicum of creativity requirement the question here related to a telephone directory rural telephone service had its own telephone directory which had an alphabetical listing of names sounds and other telephone numbers the yellow pages came in the yellow pages came in and uh basically did most of the work themselves except they couldn't get a bunch of listings i think about 80 plus they tried to ask rural to give it and rural refused to give it so they basically just took it from rural so the question in that case was whether compilations qualify as embodying a modicum creativity understand that if the answer to this is yes then compilations would get copyright protections whether this what rural had is a compilation is a separate question the legal question is independently whether compilations uh would would be susceptible to uh to copyright protection um right in this case the court looked at this looked at the facts and it said always facts are not copyrightable but original compilations of facts can be copyrighted on what basis can one claim copyright over factual compilations only when even those compilations would reflect some level of originality in selection and arrangement so copyright protection is limited to the original components and not to the factual components in this case it looked at rural telephone directory it said most of it is alphabetical listings so really it had nothing original and therefore even if there is protection that protection was thin so because protection was thin came the next question which is whether it was infringing and the court said it really is not uh infringing work right um so now we looked at original work we looked at uh modicum of creativity it's part of what is an original work next we move on to look at what is the fixation uh a requirement right so fixation requirement helped copyright law to adopt to sorry to adapt to new technologies right unless it's fixed it is not considered copyrightable so fixation is important to understand who the author is who is the person who wrote it right it's the writing part that matters and copyright is on what is being written created or produced of the cases right so fixation is important now what is fixation both the statute as well as the fourth have defined it right uh the early history suggests that fixation was limited to things that humans could see and read obviously it excluded braille but that has been amended that that's the famous white and smith case under the 1976 enactment right it avoids any such unjustified distinctions right so under the 96 sorry 1976 enactment right um so fixation any uh any work is considered fixed right if it is embodied right by or under the authority of of the author and is sufficiently stable to permit to be perceived so other people can perceive it read it see it enjoy it reproduce sorry enjoy it etc right for more than a transitory duration so let me repeat it a work is considered fix it right when it's embodiment in a copy or phono record in a book or a phono record or whatever the means is is done by the author or with the author's permission right and it is sufficiently stable such that it can be perceived for a period that is more than a mere transitory duration right so fixation requires tangible medium of expression it can be now known or later developed so new technologies are covered it preserves the copyright ability of works that are reaching the public in unfixed form but are simultaneously recorded so that's how football games uh brought i mean live performances music performances news coverage as long as these things are simultaneously recorded it's considered fixed and it will be susceptible to copyright protection fixation is sufficient if the work is perceived reproduced or is being communicated these are some examples this is not fixed not fixed right not fix it right not fix it but this because it is simultaneously recorded is fix it this is again not fixing right so understand what the fixation requirement is unfit works may get some state law protection but in order to get federal copyright protection it has to be a fix at work right the question of what is fix it became huge when the video game cases came out the question was whether audio-visual images generated by a video game is considered fix it in a tangible medium of expression right and the court said yes these are fixed even though the images are moving it is still stored and therefore it's considered fixed and does the participation of the player prevent the fixation and the court said no the shape of the aliens etc what they look like uh etc are all fixed and just because they move it doesn't mean that they're not uh right it's not unfixed in fact the code said how they move is also fixed and because you can be in the computer's memory right so this is you know these are some of the requirements of of copyright protection right so one hypothetical before we move to the formalities uh a non-broadcast performance that is recorded by an audience member would still be considered uh right if it's recorded by the audience member right would be considered as a non-infringing recordation and the author cannot control the unauthorized fixation unless the artist records the work either prior to performance or simultaneously right so a broadcast performance that simultaneously recorded by audience and artist member sorry by the artist and the audience member the audience recording would be considered infringing artist recording gives it copyright protection right fix it by it is treated as fixed by artists and therefore will be protected under copyright law but the audience recording would be considered an infringing copy with that that's an example with that example i want to move to formalities i want to highlight uh four formalities but really we'll only focus on three notice publication registration and deposit in order to fully understand this i want you to appreciate that we are looking at two specific actually three specific regimes the 1909 regime the 1978 regime and then the postburn 1989 regime for copyright protection uh so under the 1909 regime if you if you look at notice what do we mean by notice have you uh seen this the little what do you say the little c with the with the circle i don't know if any of you have uh you know this that's notice when you see this it it tells people that something that the material has been copyrighted right so the question is do we have to give notice in order for the work to be considered uh protected the answer for works that continue to be protected under the 1909 regime is absolutely yes if we wanted federal copyright uh protection if there was no notice it would fall within public domain under the 1976 regime pre-burn notice was required but five-year opportunity to clear or to cure the deficiency so after five years then the author within five years rather the author should add the notice and republish post burn after 1989 notice became optional these days even if you don't put the c in circle if it's written etc you would get a copyright protection except the innocent infringer defense will not be available so if somebody is infringing it then i mean if somebody is infringing it they could say i there was no notice and therefore i did not think it was copyrighted right so that's the only disadvantage but other than that notice is optional it's encouraged but it is not mandatory second is registration do we have to register it with the copyright office that's the second question under the 1909 regime registration is optional for the first 27 years right so that's the last year of the first term but in order to renew it one has to register if you register it then you get uh another 28 years right so such registration was all mandatory for works published before 1964 that was also a prerequisite for suit for filing a lawsuit registration was prerequisite for filing a lawsuit right under the 1976 regime registration is considered optional but it's important because registration provides prima facie validity of the work so once it's registered then you know that the work belongs to you and it also gives notice to the rest of the world right it provides constructive notice to the rest of the world that the work is registered in this person's name it is a prerequisite to file a lawsuit right and uh some incentives include damages attorneys fees etc are allowed only if it's registered under the 1976 uh act right except for damages and that same thing continued uh under the post burnout in the 1989 uh enactment as well except right even though it's a prerequisite for filing a uh you know lawsuit what is a prerequisite registration was a prerequisite for filing a lawsuit it was limited to u.s works under the post-burn statute the reason being foreigners would not register their work in the us right and therefore uh they cannot be punished if their work is infringed in the u.s and they sue in u.s codes we cannot punish them for not registering the work in the united states if they did not live in the united states right so yes registration is recommended for u.s works it's a prerequisite to file a suit for u.s work but not to non-us burn works right as i told you there are some incentives with to registration deposit is whether copyrighted work should be deposited in the uh you know in the in the copyright office and or the library of congress under the 1909 enactment it's a prerequisite to file a suit uh there are potential sanctions for failure to deposit uh the work it's pretty similar for both the 1976 and the 1989 works right and there are sanctions for failure to the failure to deposit the world so basically you have to send a copy to the to the library right um the next is recordation of transfer so if you wrote a book and you want to license it you want to transfer assign some of the royalties transfer some of the rights in the book those are all recordation of transfer under the 1909 work 1909 regime unrecorded transfer was void against the sequent bonafide purchaser so if it's not recorded then it was considered white so it was considered as if it was never recorded so it was mandatory to record a transfer however 1976 act retained this and made it a prerequisite recordation as a prerequisite for suit but post burn it is not considered a prerequisite for suit you can still file a suit uh even if you don't record a transfer but if you have an agreement or something you can base it on the agreement and still file a lawsuit right so with that we have looked at the requirements for protection and then we looked at the formalities uh for protection as well so these are the requirements and we looked at all of the formalities of protection what we will look at next is what is called as the subject matter of copyright protection understand that all they are looking at right now is the categories of work that will be susceptible to copyright protection for example can a machine be protected under copyright law probably not right but can a signal be protected under copyright law probably not can a book be protected yes right so the question is what kind of subject matters will be protected under copyright law these are the different works that are that will be protected literary musical dramatic pantomimes choreographic pictorial graphical and sculptural works motion picture works we'll talk about each one of these other audio visual works sound recordings cinematographer where a cinematograph works and finally architectural works these are all the different types of works that will be protected under so those are the different types of subject matter protected under copyright law uh the only additional item care that i want to add and we'll talk about is compilation and derivative works compilation and derivative works are also protected uh under copyright law right so we begin with literary work right literary work is anything that's not audio-visual but includes books periodicals manuscripts phono records etc so all of these things are all literary works right they are you know they are fix it they are in a tangible medium right it doesn't matter where they are embodied these are protected pictorial graphical and sculptural work pictorial graphical sculptural work they are all protected right under copyright law there is one exception though and we'll talk about this exception i'm going to name the exception but we'll talk about it later which is and that exception is the design of a useful article a design of a useful article cannot be protected or well let me put it this way i'm sorry a design of a useful article will be considered as a pictorial graphical or sculptural work right and will be protected right only if it can be identified separately and can exist independently so the all pictorial graphical sculptural work can be protected the exception is design of useful articles which are typically cannot be protected unless that particular article right incorporates pictorial graphical or sculptural features right that can be identified separately from the utilitarian aspect we'll talk about this a little bit more but understand pgs work these are called pgs work and understand that there is an exception to it right useful articles doctrine is a limitation to protecting pges work for a building etc pgs work or artistic merit is not a consideration for protection next we go on to talk about architectural works right so architectural works are protected as pgs work pictorial graphical work uh earlier these structures were because it was considered as pgs work these works were not protected but remember we talked about the architectural works copyright protection act and that act which was enacted in 1990 extends protection to buildings plans drawings etc what it does not protect is functional features so like the tap etc right things that are useful for the building tabs and maybe trash cans and things like that if it's part of the building cannot be uh protected uh and the um uh of whatever is not functional would be considered uh protected under this right there are two limitations or i should highlight two exceptions to protection it does not include the right to prevent distribution of paintings and photos and other works understand that what we are talking about is the plants of the building so imagine you buy the house the plan of the building is with the architect uh sorry the copyright for the plan of the building is owned by the architect so the architect is the owner of the uh you know the building plans of the building plan but just because you take a picture of the building or post a picture you will not violate and that's the first limitation we are talking about here you will not violate the architects rights when you do that right uh owners also are of course allowed to make authorized uh uh i mean they're authorized to make alterations etc without the consent of the uh of the copyright only so architectural work so the question is are buildings protected yes buildings are protected these gargoyles may be separately protected they may be subject to separability analysis as a pgs work are they useful articles or are they pictorial graphical cultural world right the overall shape of the building yes under architectural work uh this is pre-1990 post 1990 the only limitation is the functionality limitation anything that's not functional would be protected so made it much much much more easy right um photographs etc are permitted are plants protected yes uh and yes under this enactment too right so they're both uh plants are protected under both right note that right under before 1990 others could build from lawfully acquired plans because these were considered as pictorial graphical and sculptural work right this is before 1990 buildings were architectural works building plans were considered pictorial graphical and sculptural work so if you bought it lawfully or if you acquired it lawfully then you could copy it and and that was not a violation but after 1990 one cannot copy these plans because these are all protected separately and clearly under the statute right um so you know copyright over buildings is big business this is one great example i thought i i'll bring it this building is registered as a pictorial graphical and cultural work one warner brothers used a shot of this building in batman forever immediately right the building owner the the owner of the copyright sued warner brothers saying that's a violation of copyright but the court held it was not an infringement because 102 a exempts and allows pictures of pgs work so that's how these things work understand that's how these uh litigations would uh you know uh litigation would come up with these right the next is dramatic works dramatic works are anything that portrays a story behind story by means of a dialogue uh um or acting right and this includes the accompanying music and they're protected similarly pantomimes and choreographic works the rule is very very simple they're copyrightable uh right and impromptu dances of course not susceptible to copyright protection but simple dance steps again treated like short uh phrases but the notations etc are all protected by copyright right so that's one of the big things i want to highlight right um so the next is uh sound and musical work just a couple of things i want to highlight before we wind down for the day note that cinematograph work or audio visual work are subject to it's also called as motion picture works these are subject to separate and independent protection right now the musical composition is subject to a separate copyright that is different from sound recording musical composers get copyrights and those are different and musical compositions get additional right to public performance which means if um um i can't think of an artist well if jlo wrote a song right and i took that song and performed it in public with my own tune my own voice etc i would still violate jlo's right to public performance of the musical composition right so that's what we mean when we say musical compositions benefited from right to public performance the right to publicly perform the composition was exclusively with the author of the musical uh composition or the copyright holder of the musical composition sound recordings of course were treated separately right um so sound recordings are works that resulted from series of musical fixation of musical spoken and other sounds right but excluded recordings in motion picture or other audio visual work right so understand the uh sound recordings had some sort of public performance rights we'll talk about it and these were introduced only from 1972 very late right musical composition always as you saw here had a right to public performance that right came in a limited fashion for sound recordings only from see this performance right from 1897 and this from 1972 right so understand that sheet music which is the written version of the music uh is treated separately uh and uh and they are protected separately musical compositions these sheet music is also subject to compulsory license basically it means other authors can seek to license it and license cannot be denied that basically that means several artists can record their own version of that sheet music the same thing is not available for sound recordings right so so that's why you'll see same artist so i'm sorry different artists singing the same song but different sounds and music right because those if they imitate would be a copyright infringement musical composition has performance rights from 1897 sound recording also has but it's limited to digital works so it's called digital performance rights and that came only from 1972 it's because of this that you will see see very similar song by two different artists so the sheet music can be compulsively licensed from the owner of that puppy right however the song each independent in this case willie nelson uh and uh write the pet shop boys each would have their own right to the uh you know to their to their songs right they each get separate from right to their respective uh compositions right uh so with that i want to wind up but i do want to say a few things ascap bmi csac etc they collect royalties for everything from radio plays to elevator music to clubs to restaurants and everything right so in turn they turn around and pay the writer publisher and that's the biggest question we have in music industry right so they have detailed methods of keeping the book books and so they do that understand that harry fox collects mechanical license fee right what is mechanical license mechanical license grants limited permission to work but to study improve reinterpret you know those are people who work on music theory and all of that they can get licenses from uh right from places like harry fox right a mechanical license also gives the holder permission to create copies of the recorded song which they did not write or did not have copyright over as long as the license fee was failed right now um right so there are different types of licenses uh as you may imagine if you go to ascap or bmi's webpage you'll see the different types of licenses uh there are synchronization license what else uh you know other types of full licenses and so on and so forth mechanical license also is one example these licenses help one to create a medley of rights right each gives you different rights one type of license gives you the rights to print the song in the sleeve the other doesn't and so on and so forth so each of these gives one different rights ah you know and for of course for a subject to the payment of the license fee right so far we looked at all the subject matters that can be protected in the next segment we will look at any limitations we already talked about the useful article so we look at that and then we'll move on to look at uh what kind of rights are provided and we'll also look at associated issues from rights such as infringement and so on thank you very much and i'll see you all in the next class