7/25/2019 CR notes

1/5

Work of ction v. work of fact

When work is work of non-ction as opposed to ction, there is moreroom for copying and still no infringing than we would if it was a workof ction.

Government Works (still part of copyrightable subject matterWorks created under federal government contract

!ederal "gency may choose case by case#$. no copyright%. copyright stays with contractor&. copyright assigned to government'. contractor keeps copyright but grants gov agency

a noneclusive license

)*+ G/"01*23 04"0 " 5"0+ 67 819"0 201013 "2+

" "+*80+ 67 G*92)20 120* "W5opyrighting laws:9eeck v. 3outhern 6uilding 5ode 5ong.

+ude takes +;s codes and uses them as law of the land.5ourt held that there is no 5 in the model codes.

"uthorship#

indsay v. )3 0itanic

"ndrien v. southern ocean cty8 conceded idea of the work, and + gave work to someone else to do.

G2" /# "uthor < party W4* "50/"7 5"03 thework, person who 0"23"03 04 1+" 120* " !1=+, 0"2G16=8331*2 entitled to copyright protection.

4e alleged that he gave camera crew directions, he edited thetapes, he instructed the camera crew in details of eecution,even though he didn;t do it himself, he is the author>

5ourt says mere transcriber is not the author.Works that are commissioned (employee?employerrelationship considered work for hire.

Work for 4ire# commissional works

$. 5ontribution to a collective work%. 8art of a motion picture or audiovisual work&. 0ransaltion'. 3upplementary work

7/25/2019 CR notes

2/5

@. 5ompilationA. 1nstructional tetB. 0estC. "nswer material for a testD. "tlas

7ou need signed paper clearly stating it is a work for hire.Work for hire$. 5reated within corporate contet (but not limited to it%. !oundations and 8rofessional corporations&. *utsourcing

*nly applicable in two circumstancesmployment contet#

Work prepared by employee within the scope ofemployment

5ommisioned work#*ne of types of works listed in 3ection $E$(% "2+

agreement in writing

1s there an employment relationship:1f it doesn;t fall uner employment relationship, does it fall

under one of the categories under state, and if so was there a writtenagreement stating that it was work for hire.

0est for work for hire (5529ight to control"ctual control

What actually happened when the work was created

+id hiring party actually wield control over the productionof the object.

"gency test# various factors0ort liabilityWas it an independen contractor, was he an agent: Who isresponsible if agent committed tort.

3alaried employee3upreme court said the "gency test is the best test# 5ourt applies thistest

G*9212G /# whether there is an employee employerrelationship

"gency testight of control, ta treatment, actual control,benets, skill reFuired, ownership of tools, whetherhiring party has right to assign additional projects,location and duration of work, method of pay,whether work is part of regular business of hiringparty.

Why "gency test:

7/25/2019 CR notes

3/5

$. 5onsistent interpretation of statutory language# awork prepared by an employee within the scope ofhis or her employmentH.

a. 1f they used actual control and ight tocontrol, then too many commission works

would be considered works for hire.%. 5ompromise

&. 8redictability

2egaive joint work doctrineWhere a person

)akes creative contribution1ntending that contribution to be part of an integrated

whole

6ut fails to Fualify as joint author0hat person is not a sole author of the creative contribution

either.

5hanneled "uthorship/rantia !oundation v. )aaherra

)aaherra argument2o copyright without human author1f anyone is the author, it is the medium who spoke

the words!our elements of joint authorship

1ntention5ontribution1nseparable or interdependent parts*f unitary whole

Would interview be joint work:7es>

3omething about being a mastermind in the %ndand Dthcircuit (addedstringent inFuiry is met joint status also met.

3ection $EA. ight to make copies (reproduction right0o reproduce the copyrighted work in copies or phonorecords

4ow do we know if a copy has been made using digitaltechnology:

ets say youre an artist making a portrait of a youngwoman that becomes popular, 1 put something similar on my website.

1n order for you to prevail what do you have to prove:What are the elements for a prima facie case of

infringement through reproductionWhat must you prove to show copyright infringement

7/25/2019 CR notes

4/5

7ou own the copyright1 have made a copyH

What is a copy:1 copiedH from you

What if it was coincidence:

1 copied copyrightable epression"s opposed to ideas, facts, or non-original elements, or work you copiedfrom public domain.

1 am the one who made the copy I volitionalconduct

What if someone makes technology forcopy to appear: /nless there is volitionalconduct, they arent considered copiers.

)y copying is improperH (substantialsimilarity

0hink about situation where publisherprints book that author said is all his butlater nds out is completely plagiariJed.7ou are liable for copyright infringement,and you can go after the author for lying.

0est is substatnital similarity5opied Fualitativelyand Fuantitavelyenough (wait till later

8roper and improper appropriations

0hin protection4as to be almost identical

0hick protectionGeneral copy might beinfringement

What 8 does not have to prove#0hat + knowingly infringed0hat copied elements are a signicant part of +;s

work"pplying 5 law $ to digital contet

+oes posting on a website constitute making a copyH

)ust be material object, that is ed, and being ableto be communicated, either directly or with the aid ofa machine or device.

+enition of ed# suKciently permanent orstable to permit it to be perceived, reproduced,or otherwise communicated for a period ofmore than a transitory duration.

What about portrait being scanned online:

7/25/2019 CR notes

5/5

Well charges eist somewhere where server ismaking the copies and there for longer thantransitory period (long enough for someone tosee it and react

1. 5*871G04"6 3/6L50 )"00$. !1="01*2%. 1+" =8331*2 +154*0*)7&. !25 "*/2+ 1+"?=8331*2 +154*0*)7

". )erger doctrine6. !actual narrative I thin protectione

'. *1G12"107# independent creation plus modicum of creativity". 5reativity in productM sweat of the mind

@. !*) +0)12+ 67 !/2501*2 I ineligible

". )ethods of operation and processesM useful articlesA. 8*6) W*N3# 5haracters (ideaM sound recordings

(creativityB. 5"0G*3 *! W*N 04"0 " 8 3 121G16

11. "/04*3418