1. Class 12 Copyright, Autumn, 2016 Rights under Section 106
11/9/2018
Class 12 Copyright, Autumn, Rights under Section 106
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
Ludwig & Hilde Wolf Teaching Scholar
The Law School
The University of Chicago

2. 106. Exclusive rights in copyrighted works
11/9/2018
106. Exclusive rights in copyrighted works
Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
November 9, 2018

3. 11/9/2018
106 (Cont.)
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
November 9, 2018

4. 11/9/2018
Limits on 106(1), (2) and (3)
Rights under 106(1), 106(2) and 106(3) do not depend on type of work, BUT …
Sec. 113 limits rights for pictorial, graphic and sculptural works
Sec. 114 limits rights for sound recordings
Sec. 115 limits rights for nondramatic musical works
Sec. 120 limits rights for architectural works
November 9, 2018

5. 11/9/2018
Limits on 106(1), (2) and (3)
Sec. 121 limits rights for nondramatic literay works for the blind or other persons with disabilities
November 9, 2018

6. 11/9/2018
106 (Cont.)
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works,
to perform the copyrighted work publicly
November 9, 2018

7. 11/9/2018
106 (Cont.)
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work,
to display the copyrighted work publicly;
November 9, 2018

8. 106. Exclusive rights in copyrighted works
11/9/2018
106. Exclusive rights in copyrighted works
Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
November 9, 2018

9. 11/9/2018
101: Derivative Work
A “derivative work” is a work based upon one or more preexisting works,
such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.
November 9, 2018

10. 11/9/2018
101: Derivative Work
A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
November 9, 2018

11. Substitutes and Complements
11/9/2018
Substitutes and Complements
Substitutes
Would I buy product X instead of product Y?
E.g., would I buy the picture book of beanie babies instead of an actual beanie baby?
Complements
Would I buy product X with product Y?
E.g., would exposure to a beanie baby book increase beanie baby sales?
November 9, 2018

12. 11/9/2018
Lee v. A.R.T. Co.
Core Facts
Annie Lee sells art notecards and lithographs to Deck the Walls
Deck the Walls sells those to A.R.T. Co.
ART glues cards to tiles, resells tiles
Lee sues ART alleging that ART is creating a derivative work, in violation of Sec. 106(2). Who wins?
November 9, 2018

13. 11/9/2018
The Card on a Tile
Hypo
Lee creates notecard and claims copyright
Lee glues card to tile and claims copyright on the card-on-a-tile
How many copyrights does she get? Does this eliminate competition in one medium?
November 9, 2018

14. Analysis Answer Clear copyright on notecard As to card-on-a-tile
11/9/2018
Analysis
Answer
Clear copyright on notecard
As to card-on-a-tile
103(b): The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work
November 9, 2018

15. Analysis What is contributed by the author of the card-on-a-tile?
11/9/2018
Analysis
What is contributed by the author of the card-on-a-tile?
103 deals with compilations and derivative works in parallel
Like Feist on compilations, gluing the notecard to a title lacks sufficient incremental originality
Can’t separately copyright card-on-a-tile
November 9, 2018

16. Do We Need More? No Copyright in Card-on-a-Tile
11/9/2018
Do We Need More?
No Copyright in Card-on-a-Tile
True for Lee, true for ART
Does the absence of copyrightability of the card answer the question as to whether Lee can block ART?
November 9, 2018

17. The BB Guide Hypo Impermissible derivative work?
11/9/2018
The BB Guide
Hypo
I collect info on actual BB sales
I publish info on those sales and make statements about likely market conditions
No pictures
Impermissible derivative work?
November 9, 2018

18. 11/9/2018
Answer No
Causally related to Beanie Babies but that isn’t enough to create a derivative work
Just info about facts
Facts aren’t copyrightable (Feist, 102(b)) and these are “real” facts—Stinky sold for $25 in 2005—and not “cultural” facts of SAT variety
November 9, 2018

19. BBs Collector’s Guide Hypo I collect info on actual BB sales
11/9/2018
BBs Collector’s Guide
Hypo
I collect info on actual BB sales
I publish info on those sales and make statements about likely market conditions
I add pictures per a license from Ty
November 9, 2018

20. BB Collector’s Guide Ty’s Licensing Impermissible derivative work?
11/9/2018
BB Collector’s Guide
Ty’s Licensing
Forbids licensees to reveal that they are licensed by Ty
Requires statement:
“This publication is not sponsored or endorsed by, or otherwise affiliated with Ty, Inc. All Copyrights and Trademarks of Ty Inc. are used by permission. All rights reserved.”
Impermissible derivative work?
November 9, 2018

21. License-Free Guide with Pictures
11/9/2018
License-Free Guide with Pictures
Hypo
I collect info on actual BB sales
I publish info on those sales and make statements about likely market conditions
I add pictures w/o permission from TY
Impermissible derivative work? Should it matter whether Ty has licensed others to add pictures to their guides?
November 9, 2018

22. Beanie Baby Photographs
11/9/2018
Beanie Baby Photographs
Hypo
I take photographs of Beanie Babies and sell them
Is this
a copy of the original work?
an impermissible derivative work?
November 9, 2018

23. Answer Yes PIL concedes photograph of Beanie Baby is derivative work
11/9/2018
Answer
Yes
PIL concedes photograph of Beanie Baby is derivative work
November 9, 2018

24. For the Love of Beanie Babies
11/9/2018
For the Love of Beanie Babies
Situating the Book
Fun pictures of beanie babies with light text
Impermissible derivative work?
November 9, 2018

25. 11/9/2018
Answer
Yes
November 9, 2018

26. 106. Exclusive rights in copyrighted works
11/9/2018
106. Exclusive rights in copyrighted works
Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: …
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
November 9, 2018

27. The First-Sale Doctrine
11/9/2018
The First-Sale Doctrine
109(a)
Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
November 9, 2018

28. 11/9/2018
November 9, 2018
The Castaway

29. The Castaway: Copyright Page
11/9/2018
November 9, 2018
The Castaway: Copyright Page

30. Selling the Book Core Facts
11/9/2018
Selling the Book
Core Facts
Bobbs-Merrill sells The Castaway with the reservations notice beneath the copyright statement in each copy of the book
Macy’s is selling the book for 89 cents
Macy’s bought the book from wholesalers; everyone knew of the notice; no contracts regarding sales price
November 9, 2018

31. Reading Sec. 4592 From the Opinion
11/9/2018
Reading Sec. 4592
From the Opinion
“Sec Any citizen of the United States or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statute, statuary, and of models or designs intended to be perfected as
November 9, 2018

32. Reading Sec. 4592 From the Opinion
11/9/2018
Reading Sec. 4592
From the Opinion
“works of the fine arts, and the executors, administrators, or assigns of any such person, shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same.” U.S. Comp. Stat. 1901, p
November 9, 2018

33. 11/9/2018
Meaning?
Says the Court
“In our view the copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose, by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of contract.”
November 9, 2018

34. 11/9/2018
Meaning?
Says the Court
“To add to the right of exclusive sale the authority to control all future retail sales, by a notice that such sales must be made at a fixed sum, would give a right not included in the terms of the statute, and, in our view, extend its operation, by construction, beyond its meaning, when
November 9, 2018

35. 11/9/2018
Meaning?
Says the Court
“interpreted with a view to ascertaining the legislative intent in its enactment.”
November 9, 2018

36. November 9, 2018

37. Organizing Secondary Markets
11/9/2018
Organizing Secondary Markets
Three Situations
Sequential ownership (used books, used MP3s?)
One owner, many users (rental markets)
One owner, many users (libraries)
November 9, 2018

38. 11/9/2018
[SC: Author’s Guild]
November 9, 2018

39. 11/9/2018
Source:
November 9, 2018

40. 101: Perform To “perform” a work means
11/9/2018
101: Perform
To “perform” a work means
to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.
November 9, 2018

41. 101: Display To “display” a work means
11/9/2018
101: Display
To “display” a work means
to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.
November 9, 2018

42. 101: Publicly To perform or display a work “publicly” means‑‑
11/9/2018
101: Publicly
To perform or display a work “publicly” means‑‑
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
November 9, 2018

43. 11/9/2018
101: Publicly
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
November 9, 2018

44. 101: Transmit To “transmit” a performance or display
11/9/2018
101: Transmit
To “transmit” a performance or display
is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.
November 9, 2018

45. 11/9/2018
106 (Cont.)
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works,
to perform the copyrighted work publicly
November 9, 2018

46. 11/9/2018
“That any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photographs or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and his executors, administrators, or assigns,”
1870 Copyright Act (2nd General Revision)
November 9, 2018

47. 11/9/2018
“shall, upon complying with the provisions of this act, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others; and authors may reserve the right to dramatize or to translate their own works.”
1870 Copyright Act (2nd General Revision)
November 9, 2018

48. The Cassilis Engagement (1907)
11/9/2018
November 9, 2018
The Cassilis Engagement (1907)

49. The Cassilis Engagement (1907)
11/9/2018
November 9, 2018
The Cassilis Engagement (1907)

50. Building a Search Engine
11/9/2018
Building a Search Engine
Hypo
Google wants to provide search services
Sets up service in which web pages will be indexed unless page opts out
Indexing means copying text and creating thumbnails of images
Copyright issues?
November 9, 2018

51. November 9, 2018

52. Understanding Perfect10
11/9/2018
Understanding Perfect10
What is the case about?
Given that Perfect10.com can opt out of the Google crawl and Google will respect that, what is the issue?
Should we treat thumbnail images and in-line link images differently?
November 9, 2018

53. Display, Distribution and Derivative Works
11/9/2018
Display, Distribution and Derivative Works
Three Questions
Who displays an image? The server where it is stored? The entity providing the html code to invoke the presentation of the image? The creator of the browser? The person who clicks the link? Someone else? Any? All?
Same questions re distribution
Is an in-line linked page a derivative work?
November 9, 2018