Copyright III Class Notes: January 29, 2003 Law 507 | Intellectual Property | Spring 2003 Professor Wagner

1/29/032Law 507 | Spring 2003 Today’s Agenda 1. The rights of copyright owners.

1/29/033Law 507 | Spring 2003 The Rights of Copyright Owners The exclusive rights of copyright owners: 1.The right to make copies 2.The right to make derivative works 3.The right to distribute copies 4.The right to publicly perform or display 5.(Moral rights)

1/29/034Law 507 | Spring 2003 The Right to Make Copies Basic components of copyright infringement: 1.Copying 2.Improper Appropriation Arnstein v Porter (2nd Cir. 1946) What evidence is necessary to show copying? oDirect evidence? oCircumstantial evidence? –Note the sliding scale analysis... oIs intent an element of copying? (Or of infringement?)

1/29/035Law 507 | Spring 2003 The Right to Make Copies Nichols v Universal Pictures (2nd Cir. 1930) What test does the court use? Note the 9th Circuit analysis: oObjective test: sort out the © from the rest oSubjective test: analyze similarity of © parts How much must be taken to infringe? What is the proper standard by which to analyze similarity?

1/29/036Law 507 | Spring 2003

1/29/037Law 507 | Spring 2003 Right to Make Copies Steinberg v Columbia Pictures (SDNY 1987) Why doesn’t the court separately analyze copying and improper appropriation? oRecall... circumstantial evidence of copying: –Access –Similarity

1/29/038Law 507 | Spring 2003 Right to Prepare Derivative Works Anderson v Stallone (CD Cal 1989) Why is Anderson’s work a derivative work? Can Anderson keep the copyright for the non-copied portions of the work? 1.Do we need to protect derivative works? (Won’t standard infringement suffice?) 2.Does the derivative work right create incentives? (Good or bad?) 3.Why allow Stallone to take Anderson’s entire work?

1/29/039Law 507 | Spring 2003 Right to Distribute Copies 17 USC 106(3): © owners have the exclusive right to distribute their works Important limitation: first sale doctrine (FSD) The FSD allows a lawful owner of a particular copy to determine what happens to that copy Typically the copy must stay in the same formConsider: Does the FSD swallow the distribution right? Is this right necessary? (Won’t distribution infringe the right to make copies?)

1/29/0310Law 507 | Spring 2003 Public Performance & Display Rights Public performance: if it moves (movies, plays, dances, readings, etc.) Making the work perceivable Public display: if it is still (photos, paintings, sculptures, etc.) Display is allowed “where the copy is located” Note: no public performance rights for analog sound recordings (but a right in the musical compositions)

1/29/0311Law 507 | Spring 2003 Public Performance & Display Rights What is “Public”? Open to those beyond family and social acquaintances Any sort of broadcasting Limits on Public Performance/Display Rights Public interest exceptions Compulsory licenses

1/29/0312Law 507 | Spring 2003 Moral Rights Visual Artists Rights Act of 1976: Right to claim authorship Right to prevent use of artist’s name Some rights related to modification/destruction Note that other theories (trademark, etc.) are also used to try to establish moral rights

1/29/0313Law 507 | Spring 2003 Next Class Copyright IV Fair Use