Overview
of the Topic:
Intellectual property serves as an umbrella term consisting
of copyrights, trademarks and patents. Although each of the aspects have their
own definition according to which they are applied, the U.S. copyright law
protects the rights of creators of “original works of authorship” to use their
creations. The Statute of Anne was the very first copyright law, originating in
England, where the U.S. found most of the basis for creating its own copyright
law.
Congress has its own rights in terms of adopting copyright
laws, which were given by the U.S. Constitution. One of the most significant
international treaties on copyright is the Berne convention that happened in
1886, signed by the U.S. in 1988.
The U.S. copyright law finds its essential form in the 1976
Copyright Act, which offers an exact definition of a copyright, and what kinds
of work it entails in its protection. However, certain works, especially media
circulation works, are more often seen as plagiarism rather than copyright
violation, as not absolutely every work in tangible form gains the right to
copyright.
In regards to original work, it is copyrighted from the
moment it is given in some form of a tangible medium. However, when talking
about the work created by an employee for the purpose of his profession and
job, it is considered to be ‘work made for hire’. This means that the copyright
of the work belongs to the employer, not the employee.
In order to retain protection of original material, it is
not necessary to provide a copyright notice. Copyrights may be given away, sold
or leased, depending on the original owner of the work.
Copyright after January 1, 1978 last during the lifetime of
the creator’s work, plus 70 years after his/ her death.
Infringement identifies as the violation of the copyright
protection, and is framed in a 4-point balancing test, which is used by courts
in the infringement cases.
The ever growing use of digital media compelled the government
to bring new regulations. Hence the Digital Millennium Copyright Act, in which
technologies that circumvent copyright protections are banned. The law protects
the ISPs against the copyright lawsuits if the ISP takes down the material that
the creator says is posted without permission (safe harbor protection).
Under the Federal Lanham Act, trademarks are protected from
infringement. The common law protects unregistered marks within the geographic
area where they are used. Marks can have several forms and identifying aspects.
A mark must be registered with the Trademark Office in order to gain the Lanham
Act protection.
Domain names may also be registered as trademarks.
Defining
Key Terms:
Intellectual
Property: The legal category including copyright,
trademark and patent law.
Copyright: An
exclusive legal right used to protect intellectual creations from unauthorized
use.
Statute
of Anne: The first copyright law, adopted in England in
1710, protected authors’ works if they registered them with the government.
Berne
Convention: The primary international copyright treaty
adopted by many countries in 1886 (U.S. 1988).
Work made
for hire: Work created when working for another person
or company. The copyright in a work made for hire belongs to the employer, not
the creator.
Transmit
Clause: Part of the 1976 Copyright Act that says a
broadcast network is performing when it transmits content; a local broadcaster
is performing when it transmits the network broadcast; and a cable television
system performs when it retransmits broadcast to its subscribers.
First-sale
doctrine: Once a copyright owner sells a copy of a work,
the new owner may possess, transfer or otherwise dispose of that copy without
the copyright owner’s permission.
Fair use: A
test courts use to determine whether using another’s copyrighted work without
permission is legal or an infringement.
Trademark: A
word, name, symbol or design used to identify a company’s goods and distinguish
them from similar products other companies make.
Circumvent: To go
around or bypass.
Important
Cases:
Metro-Goldwyn-MayerStudios Inc. v. Grokster Ltd. – Grokster was found guilty
because it intentionally and knowingly distributed copyrighted works to their
service clients.
American Broadcasting Companies Inc. v. Aereo Inc. – The court found
Aereo guilty of infringement as it distributed service of television programs
at the same time that they broadcasted. (The Digital Millennium Copyright Act).
Relevant
Doctrine:
Copyrights
& Patents
The Congress shall have the power 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.
The
1976 Copyright Act
Copyright protection applies to “original works of
authorship” that are “fixed in any tangible medium of expression”. The
given categories are suggested to be considered broadly. These include:
- Literary works
- Musical works, including any accompanying words
- Dramatic works, including any accompanying music
- Pantomimes and choreographic works
- Pictorial, graphic and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
Exclusive
Rights in Copyrighted Works
Holder of exclusive rights can:
- Reproduce the copyrighted work.
- Prepare derivative works based upon the copyrighted work
- Distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending.
- Perform the copyrighted work publicly in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures, as well as other AV works.
- Display the copyrighted work publicly in the case of literary, musical, dramatic, and choreographic works, pantomimes, pictorial, graphic or sculptural works, including the individual images of a motion picture or other AV work.
- Perform the copyrighted work publicly by means of a digital audio transmission in the case of sound recordings.
Infringing
Copyright
Plaintiff’s case:
- The work used is protected by a valid copyright.
- The plaintiff owns the copyright
- The copyright is registered at the Copyright Office
- Either:
- There is evidence the defendant directly copied the work, or
- The infringer had access to the work, and the two works are substantially similar.
Fair use
defense
- For what purpose was the copyrighted work used without permission?
- What was the nature of the copyrighted work that was used without permission?
- How much and what portion of the copyrighted work was used without permission?
- What effect did the unauthorized use have on the copyrighted work’s market value?
Transformative
Use (carries most weight in the Fair Use defense)
One of the primary defenses for fair use. The answer to two
questions should be yes in order for the defense to be successful.
- Has the material you have taken from the original work been transformed by adding new expression or meaning?
- Was value added to the original by creating new information, new aesthetics, new insights and understandings?
Types of
Marks
Fanciful marks: invented
marks.
Arbitrary Marks: words
that have ordinary meanings unrelated to the product or service.
Suggestive marks: marks
that suggest a product’s source/ business.
Descriptive marks: marks
that describe the product or service and leave little to a consumer’s
imagination.
Current
Issues/ Controversies:
One of the most famous cases of working against and with
the copyright law is Mickey Mouse and Disney’s work. Disney keeps extending the
copyright for Mickey Mouse’s character.
As for now, the copyright for the character has been extended
around five or six times, pushing for new reforms in the Copyright law. That is
where the Copyright Act of 1976 comes from – Disney’s efforts not to lose the
copyright for the famous mouse.
The newest expiration year is 2023, however, Disney will
probably try to call for new reforms in order to prevent Mickey Mouse from
entering the public domain.
The problem around this is that, most of the given reforms
in the Copyright Law originate from a single, but a powerful company, whose
tradition is the base of its revenue. Whether the established laws influence
others positively or negatively seems to be overlooked.
Some of these laws are influencing newer generations from
being able to create new work, as most of the copyrights are being extended. This
being said, the inability to work off of previous works angers many emerging creators
and artists.
My
Questions/ Concerns:
- How do minors who have access to the Internet, blogs, and other online works can be held liable for unknowingly performing infringement by using googled photos?
- How much power does the Berne Convention have, since it is fairly outdated compared to the development of the media, distribution of work, and the emergence of new work that might gain copyright?
References:
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