1. Copyrights Terms and Derivative versus Transformative Use
IM 450: Intellectual Property Law and New Media
Day 6

2. Hot News! Let’s Go Crazy! Story :
Video:

3. Copyright Term For works created from January 1, 1978 onward:
Term begins the moment a work is “fixed in a tangible medium of expression”
Life of the author plus 70 years
If work-made-for-hire or anonymous work, 95 years from publication or 120 years from creation, whichever is shorter

4. Trend of Maximum U.S. General Copyright Term
Copyright Tom W. Bell 2008, used with permission

5. Potential Closing of the Public Domain
Is the term too long?
Does it stifle creativity or support investment?
Why so out of whack compared to patent term?
Must we lock down all materials in favor of 10-15% that have viable economic value?

6. Fair Use Factors
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

7. Trouble with the Factors/Test
No set logic(s) determining
How many factors have to “win” to carry the ruling
Relative importance of the factors
Application of the tests across judges and cases

8. Back to “Let’s Go Crazy”
Lenz v. Universal Music, and , (9th Cir. Sept. 14, 2015)
Does a copyright owner have to consider whether the use of its work is a “fair use” before sending a takedown notice under the DMCA?
Answer – Yes.
Outcome – The Dancing Baby’s Mom gets to take her suit against Universal to trial.

9. Derivative v. Transformative
Why does it matter?
A copyright owner owns the right to control who can create derivative works based on the copyrighted work.
A copyright owner does not own the right to control who can create transformative works.
At this point, the two principles are very often at odds

10. What is a “derivative work”?
Based on or derived from one or more already existing works
Examples:
translations, musical arrangements,
motion picture versions of literary material or plays, art reproductions,
abridgments, and condensations of preexisting works
a “new edition” of a preexisting work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.

11. What is “transformative use”?
“whether the new work merely supersede[s] the objects of the original creation or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is `transformative.'"
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) [rapping around “Pretty Woman”]

12. “I’ll know it when I see it!”
Star Wars Fan Game Shut Down by Electronic Arts
In a sad but unsurprising move, Electronic Arts and Lucasfilm shut down Galaxy in Turmoil, a fan-built [EA sponsored] spiritual successor to the classic Star Wars: Battlefront series.
and yet Fan Sites thrive and the rights holders often leave them be:

13. Michael Kienitz v. Sconnie Nation, LLC and Underground Printing-Wisconsin, LLC, No (7th Cir. Sept. 15, 2014). Transformative Fair Use
Mayor Soglin
T-Shirt Design

14. LIEBOWITZ v. PARAMOUNT PICTURES 137 F. 3d 109 (2nd Cir
LIEBOWITZ v. PARAMOUNT PICTURES 137 F.3d 109 (2nd Cir. 1998) Transformative Fair Use
Demi Moore
Leslie Nielsen

15. Cariou v. Prince, 714 F. 3d 694 (2nd Cir
Cariou v. Prince, 714 F. 3d 694 (2nd Cir. 2013) Fair use, but maybe muddied the waters
The 2nd Circuit reversed in part, vacated in part and remanded, holding that, contrary to the standard applied below, there is no requirement that the new work comment in some way on the earlier work or popular culture for it to be deemed transformative.

16. Here Come the Sharks!

17. Here Come the Sharks! Figurines for sale

18. We don’t think she’d win if it went to trial.
“Katy Perry's Lawyers Have Told a Guy to Stop Selling Left Shark Figurines”
Katy Perry’s lawyers have issued a cease-and-desist demand to a man selling 3D-printed models of Left Shark from the singer’s Super Bowl half time show.
Feb 05, 2015
We don’t think she’d win if it went to trial.

19. Derivative or Transformative?
Who owns the copyright on the tattoo? What if the tattoo is on a celebrity and shows up in a video game or movie or on TV?

20. Solid Oak LLC v NBA 2K16
On February 1,2016 the producers of NBA 2K16, a basketball video game, were sued in the Southern District of New York by Solid Oak Sketches LLC (“Solid Oak”) over claims that the game infringed tattoo copyrights. Solid Oak owns the rights to the tattoos on a number of NBA players and claims that the video game has infringed on eight of their copyrights by displaying the tattoos of LeBron James and Kobe Bryant without authorization

21. The End