Copyright Law Ronald W. Staudt

Class 10October 1, 2013

Overview

Quick look at characters & sound recordings

Initial ownership- intellectual v. muscularLindsay

Works made for hire: Economic conceptCCNV v. ReidTeachers exception

Characters

Nichols - the Hand formula- “specificity test”

Warner Bros - Sam Spade- “constitute the story being told”

Anderson – Rocky IV

Silverman v. CBS any other physical features adequately described in the

pre-1948 radio scripts may be copied even though those characteristics are visually apparent in the television films or tapes.

MGM v. Honda?

Nimmer on Copyright 2.12

The issue of whether a character from a work of fiction [can be protected] apart from the story in which such character appears, is in a sense more properly framed as relating to the degree of substantial similarity required to constitute infringement rather than in terms of copyrightability per se.

Cartoons & Comics Gaiman v. McFarlaneThe story!What did Gaiman do?Scenes a faire & stock

charactersSam Spade?Literary v. graphic

expression

Sound Recordings & Musical Works

Definitions Sound recording Phonorecord Musical work

Newton v. Diamond –

Substantial similarity & filtration

What is the dissent’s main point?

Newton composes song “Choir”

Then he plays and records “Choir”

$5000 ECM

$1000

Beastie Boys sample 6 seconds of Choir

use it 40 timesin Pass the Mic

Sound recording rights only

Ownership Initial ownership- intellectual v. muscular

Lindsay

Works made for hire: Economic conceptCCNV v. ReidTeachers exceptionSound recordings

§ 201.  Ownership of copyright

(a) Initial ownership. Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work.

***

Lindsay v. R.M.S. Titanic

“Defendants first argue that plaintiff cannot have any protectable right …[because he] did not himself actually photograph the wreckage. This argument, however, does not hold water.”

17 USC 101

A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author…

Andrien? Geshwind?

Authorship as an Economic Concept:Works Made for Hire

§ 201.  Ownership of copyright

***(b) Works made for hire. In the case of a work

made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

***

Authorship as an Economic Concept:Works Made for Hire

A "work made for hire" is--    (1) a work prepared by an employee within the scope of his or her employment; or    (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. ***

Who is an employee?

CCNV v. Reid Facts Conflict in the circuits: 4 tests

right to control actual control common law agency formal salaried employees

Control tests and 2 parts of 101 Legislative History Predictability

CCNV v. Reid (cont.) Applying the test- agency factors (“…right to control the manner and means by which the

product is accomplished.”) Source of tools Location of work Duration of relationship Discretion over hours of work Method of payment Hiring of assistants Is work part of regular business of hiring party Is hiring party a business Provision of employee benefits Tax treatment of hired party Skill required Right to control manner and means of creation Right to assign new projects

Joint Authorship Questions p. 315- especially #3 on 316

Employee Created Works

Aymes v. Bonelli- softwareMartha Graham School - dance

Within the scope of employment-software Avtec—no Cramer--yes Genzmer--yes Miller--yes Roeslin--no Quinn--no

Works for Hire

Teacher Exception

Timing of Contract for 9 categories Schiller & Schmidt v. Nordisco

Corp- writing must precede creation Playboy Enterprises v. Dumas-

agreement must precede creation