Term
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Definition
| Any original work of authorship fixed in any tangible medium of expression” |
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Term
| What is the constitutional source for CR? |
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Definition
| Art. I. Sect. 8, “to promote the Progress of Science and useful Arts” |
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Term
| What is the statutory source? |
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Definition
| 1. USC 17 Sect. 102(a); “Copyright protection subsists…in original works of authorships fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either direction with the aid of a machine or device” |
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Term
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Definition
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Term
| What international law covers CR? |
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Definition
1. The Berne Convention
2. Agreement on Trade-Related Aspects of Intellectual property Rights (TRIPS) |
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Term
| What are the two theories that cover it? |
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Definition
i. Natural Law/Personhood: the author has exclusive right to the art he or she created
ii. Utilitarian: IP is a public good that should be shared with the public |
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Term
| What are the elements of CR? |
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Definition
| originality, fixation, and formalities |
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Term
| what is required to be original |
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Definition
| independent creation and meet the minimum threshold for originality |
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Term
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Definition
| the party must have created the work through the application of some independent intellectual or artistic effort |
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Term
| What is the threshold to meet from creative |
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Definition
| No level of creativity required, but the selection and arrangement of the material cannot be so mechanical or routine as to require no creativity. Fiest |
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Term
| What are the exceptions to originality? What things are not copyrightable because they will never be original? |
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Definition
1. Facts and historic observations are not copyrightable. Feist
2. Single words or short phrases are typically uncopyrightable |
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Term
| What type of CR protection do factual compilations receive? |
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Definition
| a. Factual compilations copyright protection is very thin. Feist |
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Term
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Definition
| i. Transcribed to a physical medium that can be perceived by the perceiver |
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Term
| What will not be considered fixed for copyright? |
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Definition
a. transitory or evanescent expression such as improvised live performance or impromptu speeches that are not recorded
b. ideas are not protected. Only the manner which an idea is expressed can be protected |
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Term
| What are the formalities? |
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Definition
i. Notice
ii. Publication
iii. Registration
iv. Deposit |
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Term
| What are the 8 types of protected works? |
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Definition
| literary works, musical works, dramatic works, patomines and choregraphic works, pictoral graphic sculptural works, motion pictures, sound recordings, architectural works, |
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Term
| When are characters protected? |
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Definition
| a. As a general rule, characters are not protected at their foundational level (idea) unless they are highly delineated or they are the story being told |
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Term
| i. Learned Hand’s Levels of abstraction |
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Definition
| copy right protection is granted to a character and plot to the extent the character or plot is developed with enough specificity as to constitute protectable expression. |
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Term
| what is a musical composition? |
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Definition
| the composer of the music and lyrics has CR protection of the song itself |
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Term
| What is a sound recording? |
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Definition
| the parties who create the music that embody that song that hits the hears of the perceiver |
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Term
| What is not protected in CR? |
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Definition
| the idea, procedure, process, system, method of operation, concept, principal or discovery explain in a work |
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Term
| what is the merger doctrine? |
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Definition
| a work that communicates ideas that only can be express in one or a very few ways, then the court will find that the idea behind the work merges with the express and the work is not copyrightable. Morrissey v. Proctor & Gamble |
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Term
| what kind of protection does one have with the merger doctrine? |
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Definition
| thin, and so the works must be virtually identical |
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Term
| What is the useful article doctrine? |
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Definition
| article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey the information |
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Term
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Definition
| a. Section 106(3) grants CR owners the right to distribute, through sale or other means, either the original or subsequent copies of a CR work. Both the copier who never does anything with copies and the unknowing distributor of unauthorized copies are liable for infringement. |
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Term
| gray market goods/parallel imports |
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Definition
goods that were legitimately bought inexpensively and exported to the US for resale.
1. Supreme Court held the word “lawfully made under this title” in 109 do not restrict the first sale doctrine geographically. The first sale doctrine also applies to copies of copyright work lawfully made abroad. Kirtsaeng v. John Wiley |
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Term
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Definition
i. Blanket license: permission to publicly perform a song from a vast catalog in exchange for a fee based on the sale of the business activity.
ii. Compulsory licenses: sec 115; require payment at a statutory rate |
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Term
| What are moral rights in america? |
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Definition
| 1. Works of visual art: paintings, drawing, prints, still photographs, and sculptures existing in a single copy or limited edition |
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Term
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Definition
| even if a CR is transferred, the author has the right to claim authorship and to object to any distortion of the work |
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Term
| VARA applies exclusively to what |
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Definition
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Term
| how long do moral rights last |
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Definition
1. Prior: life of author plus 70 years
2. If the artist did not retain a copy, no moral rights |
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Term
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Definition
| purpose, nature, amount and substantiality, use on potential market |
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Term
| what is apportionment in CR? |
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Definition
| in computing an award of profits, there may be an apportionment so that only the part of the profits attributable to the CR material are owed. Sheldon |
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Term
| when is a preliminary junction necessary? |
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Definition
| remedy that is a matter of course where P convinces the court that a finding of infringement was likely |
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Term
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Definition
permanently exclude infringer from using the work
1. Elements:
a. That it has suffered an irreparable injury
i. Likelihood of success
b. Remedies available at law are inadequate
c. Remedy of equity is warranted considering Ps hardship
d. Public policy |
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Term
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Definition
| destroy all infringing material but very discretionary |
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Term
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Definition
| : lost revenue and indirect damage attributable to the infringing conduct |
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Term
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Definition
| only if CR owners have registered their CR prior to infringement they may elect at any time prior to entry of judgment to forgo recovering actual damages and profits and obtain statutory damages. Look at harm to P and gain to the D to discern. Registration (before infringement or within 3 months publication). |
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Term
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Definition
| anytime before judgment entered in lieu of actual damages and profits |
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Term
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Definition
| where P has not proved the D intentionally infringed, ct. must award btw 750-30,000. |
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Term
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Definition
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Term
| are puntative damages available? |
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Definition
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