Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

17 U.S.C. § 102 (a) Copyright protection subsists,… in original works of authorship fixed in a tangible medium of expression, …. Works of authorship include the following categories: –(1) literary works; –(2) musical works, …; –(3) dramatic works; –(4) pantomimes and choreographic works; –(5) pictorial, graphic, and sculptural works; –(6) motion pictures and other audio visual works; –(7) sound recordings; and –(8) architectural works

Compilations Definition: “work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” Examples: academic journals, certain encyclopedias, musical compilations, factual compilations Main issue is originality

Roth v. United Card Roth Greeting CardUnited Greeting Card

Ownership 17 U.S.C. § 201(a) –(a) “Copyright … vests initially in the author or authors of the work” –(b) “In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author …, and unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights ….”

Work for Hire 17 U.S.C. § 101: Work for hire: –(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 …, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”

“Employee” Possible definitions –Employer retains right to control –Employer actually exercises control –Common law agency definition –Formal, salaried employee

Work for Hire Factors to consider for employee –Right to control work being performed –Skill required –Source of instrumentalities and tools –Location of work –Duration of relationship –Right to assign additional projects –Hired party’s discretion –Payment method –Role in hiring and paying assistants –Whether in the regular business –Payment of employee benefits, taxes

Work for Hire 17 U.S.C. § 101: Work for hire: –(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 compilation, as an instructional text, …, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”

Work for Hire Work for Hire vs. Assignment –Term Work for Hire: 120 years from creation or 95 from publication Assignment: life of the author + 70 years –Termination Work for Hire: no right to terminate Assignment: right to terminate assignment after 35 years

Joint Works 17 U.S.C. § 201(a) –(a) “Copyright … vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work.” 17 U.S.C. § 101 –“A ‘joint work’ is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole”

Aalmuhammed v. Lee

Collective Work Definition: “A ‘collective work’ is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” Issues –Copyright in each contribution is a separate copyright –In absence of agreement, collective work owner acquires only right to reproduce and distribute each contribution as part of the collective work and any revision

Duration 17 U.S.C. § 301 –“Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death.”

Duration Terms for different types of works –Individual authors: life + 70 years –Anonymous works, pseudonymous works, works for hire: 95 years from publication or 120 years from creation, whichever is earlier –Joint works: life + 70 years for last surviving author Term extends to end of calendar year

Duration History –1790: 14 initial + 14 renewal = 28 total –1831: 28 initial + 14 renewal = 42 total –1909: 28 initial + 28 renewal = 56 total –1976: life + 50 = approx. 80 total –1998: life + 70 = approx. 100 total

Duration Created after 1/1/78 –Date: from creation –Term: life + 70 … Published –Date: from publication –Term: 28 initial + 67 renewal (automatic) Published –Date: from publication –Term: 28 initial + 67 renewal (must renew) Published prior to 1923 –Public domain

Copyright Term Extension Arguments against –Little incentive impact for future works –No incentive impact for existing works –Prevents works from entering public domain Arguments for –Harmonization with other countries –Incentive to preserve and distribute works

Eldred v. Ashcroft Challenge to copyright term extension –Violates Copyright Clause “Promote progress” “Limited times” –Violates 1 st Amendment Court rejected both arguments –Congress given much deference under copyright clause –1 st amendment addressed by copyright doctrine Idea/Expression doctrine Fair Use

Transfer 17 U.S.C. § 201(d) –(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance … –(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights …, may be transferred as provided by clause (1) and owned separately…

Termination Post 1978 transfers - 17 U.S.C. § 203 –Can be effective during 5 year period, 35 years from original transfer –Notice between 2 and 10 years from effective date Pre 1978 transfers - 17 U.S.C. § 304(c) –Can be effective during 5 year period after expiration of original 56 year term under 1909 Act or 75 year term under 1976 Act (general rule)

Termination Important Limitations –Does not apply to works for hire –Derivative work exception Can still continue to use derivative work under grant But cannot prepare new works

Administrative Read through II.E.1 – Reproduction Right