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Federal Internet Law & Policy
An Educational Project

Copyright

 Dont be a FOOL; The Law is Not DIY


"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" - Constitution Section 8

"Whenever a copyright law is to be made or altered, then the idiots assemble." - Mark Twain

The Basics

First, the basics. What is a copyright?

A copyright is a government created property right of limited duration [Duration of Copyright] for creative works. [Constitution]

A copyright protects original creative works in fixed tangible form. [17 U.S.C. § 102(a)]

"Originality is both a statutory and constitutional requirement" for copyright protection. Mid America Title Co. v. Kirk, 59 F.3d 719, 721 (7th Cir. 1995). "Originality" is not an onerous standard, but it does require both independent creation by the author and a "minimal level of creativity." Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir. 2011) (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). When it comes to literary works, "the necessary degree of `originality' is low, and the work need not be aesthetically pleasing to be `literary.'" Am. Dental Ass'n v. Delta Dental Plans Ass'n, 126 F.3d 977, 979 (7th Cir. 1997). But "common, trite, and clichéd language conveying ideas generally expressed in a limited number of ways are unprotectable." Peters, 776 F. Supp. 2d at 750; see Allen v. Destiny's Child, 06 C 6606, 2009 WL 2178676 (N.D. Ill. July 21, 2009) ("Phrases and expressions conveying an idea typically expressed in a limited number of stereotyped fashions are not subject to copyright protection."). -- PERSONAL KEEPSAKES, INC. v. PERSONALIZATIONMALL. COM, INC., Dist. Court, ND Ill. Sept. 24, 2013

It been established that "[s]hort phrases and expressions . . . are not protected by copyright." Peters v. W., 776 F. Supp. 2d 742, 750 (N.D. Ill. 2011) aff'd, 692 F.3d 629 (7th Cir. 2012). Additionally, text that is "merely a `short phrase or expression' . . . hardly qualifies as an `appreciable amount of original text.'" Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 711 (7th Cir. 1972). -- PERSONAL KEEPSAKES, INC. v. PERSONALIZATIONMALL. COM, INC., Dist. Court, ND Ill. Sept. 24, 2013

Peters v. W., 776 F. Supp. 2d 742, 750 (N.D. Ill. 2011) aff'd, 692 F.3d 629 at 634-35 (7th Cir. 2012) (ubiquity of aphorism "that which doesn't kill me makes me stronger" rebuts inference of copying); id. at 636 (analogizing generally to models as a shorthand for beauty is commonplace in our society and hence a factor for determining coincidental similarity); Johnson v. Gordon, 409 F.3d 12, 24 (1st Cir. 2005) (use of common harmonic progression not probative of copying); Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140, 144 (2d Cir. 1998) (affirming district court's conclusion that phrase "you've got to stand for something or you'll fall for anything" was too common to support inference of copying); Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 720 (9th Cir. 1976) ("Evidence of similar musical phrases appearing in prior works is also logically relevant to rebut the inference of copying. Such evidence demonstrates that the musical language was of such ordinary and common occurrence that the probability of independent, coincidental production was great."). - PERSONAL KEEPSAKES, INC. v. PERSONALIZATIONMALL. COM, INC., Dist. Court, ND Ill. Sept. 24, 2013

It must be in tangible form - but tangible forms are very broad. These include such things as webpages, emails, blogs, and webcasts. Copyrights attached immediately upon creation.

Material does not need to be published and it does not need to have a copyright notice on it (although both add additional copyright benefits - note that material that is "published" is subject to mandatory deposit with the Library of Congress) [LOC 7d].

Not everything is covered: facts, ideas, procedures, and collections of information are not copyrightable. [17 U.S.C. § 102(b)] [LOC 31] [Novak v Warner Bros ("historical facts are not protected by copyright")]. Databases are generally not copyrightable although if the data is arranged in a unique of specific way, that arrangement might be copyrightable.

A copyright is not a single right but rather is a bundle of several rights, each of which is unique. These are the rights to

  • reproduction,
  • derivative works,
  • distribution,
  • public performance,
  • public display, and
  • digital transmission of sound recordings.

    • 17 U.S.C. § 106 (2006); Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336 (codified as amended in scattered sections of 17 U.S.C.).

    The acquired right to utilize copyrighted material under one of these rights does not imply the right to use it under another (for example, purchasing a copy for home performance does not give the possessor the right to perform the material at a theater).

    Term:

    Bono "Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress." Rep. Mary Bono Mack, Congressional Record (105th Congress, 2nd Session), Vol. 144,, No. 139, October 7, 1998, p. H9952.

    Copyrights last for the life of the author plus 70 years; [17 U.S.C. 302] [Eldred] after that the material in theory becomes a part of the public domain and may be used and copied freely.

    Notices

    Copyright notices are not required but are useful in preventing claims of innocent infringement and giving notice of the copyright owner. A proper copyright notice consists of (1) the symbol ©, (2) the year of first publication, and (3) the name of the owner of the copyright. The notice is to be positioned so as to "give reasonable notice of the claim of copyright" which as a matter of custom has come to be the little bitty fine print on the bottom of webpages. Copyright owners may use copyright notices without permission from or interaction with the Copyright Office. [LOC 4]

    Enforcement

    In order to establish a case of copyright infringement, a party must establish two things:

    1. that the party owns the copyright in the first place and
    2. that one of the above described rights has been infringed.

    Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991); Lexmark Int'l, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004)

    A party can make a case for direct vicarious, or contributory infringement [Harlan].

    courts have generally found that, where ISPs act passively as conduits for content created by third parties, they cannot be held liable for direct copyright infringement [Netcom]

    Before a lawsuit based on infringement can be initiated, the copyright must be registered with the Copyright Office at the Library of Congress. [Enforcement] "A certificate of registration from the U.S. Register of Copyrights constitutes prima facie evidence of the validity of a copyright." Wildlife Exp. Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 507 (7th Cir. 1994) (citing 17 U.S.C. § 410(c)).

    An Internet service, that might otherwise be held liable under copyright law, may be protected from liability pursuant to the Digital Millennium Copyright Act.

    Violations of copyright law are also enforced by the Computer Crime and Intellectual Property Section of the Department of Justice. [17 U.S.C. § 506(a) ; 18 U.S.C. § 2319]

    Sound Recordings

    The Copyright Act was amended in 1971 to include sound recordings (think music), Congress expressly extended federal copyright protection only to recordings "fixed" on February 15, 1972 or after. The Act expressly provided that "[w]ith respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this Title until 2067." [UMG Recs. Inc. v. Escape Media Group, Inc., 2013 NY Slip Op 2702 - NY: Appellate Div.,1st Dept. April 23, 2013] See implications for DMCA.

    Derived From: Copyright Policy: Creativity and Innovation in the Digital Economy, The Department of Commerce Internet Policy Task Force, July 2013

    Sound recordings were not granted federal copyright protection until 1972, and then copyright owners were granted only a limited set of rights: reproduction, distribution, and adaptation.36 Unlike owners of other works including musical compositions, they did not enjoy a right to control and be compensated for the public performance of their works.

    In 1995, Congress partially remedied this discrepancy by providing such a right, but limited to the digital context. The Digital Performance Right in Sound Recordings Act (DPRA) created a new exclusive right for owners of sound recordings to perform their works publicly by means of a digital audio transmission.38 Congress determined that a digital performance right was necessary in recognition of the fact that “digital transmission of sound recordings is likely to become a very important outlet for the performance of recorded music in the near future.” [S. REP. 104-128, at 14 (1995)]

    The digital performance right was qualified by a number of restrictions, most notably the creation of a statutory license for certain categories of non-interactive transmissions.[17 U.S.C. § 114(d)(2)] This statutory license has fostered the growth of Internet radio (or webcasting) and satellite radio. The royalty rates are set by the Copyright Royalty Board, subject to statutorily defined standards.41

    As the market for digital transmission of sound recordings continues to mature, and streaming becomes an increasingly important means of enjoying music, questions have been raised as to different obligations for different types of services using sound recordings, and disparities in rate-setting standards for those digital services that are subject to the statutory license.42 Of particular concern in the context of the growing digital audio market is the fact that there is still no public performance right when sound recordings are used by over-the-air FCC-licensed broadcasters. As a result, over- the-air broadcasters enjoy a competitive advantage over emerging digital services.

    For over thirty years, the Administration and Copyright Office have made repeated calls to create a public performance right for the broadcasting of sound recordings.43 Apart from the inability to obtain compensation in the United States, this omission has had a real impact on revenues received from abroad. While broad public performance rights are enjoyed by owners of sound recordings in most other countries, U.S. sound recording owners and performers have been unable to collect remuneration for the broadcasting of their works in those countries, due to the lack of reciprocal protection here.44

    References

    Public Domain

    "The public domain is not a place. A work of authorship is in the "public domain" if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner." LOC FAQs Definitions

    A Fair(y) Use Tale

    U.S. Government Copyrights (Public Domain)

    Steal government works (just like this website does)! US Government works are in the public domain; the feds cannot prohibit you from copying government created works. [17 U.S.C. § 105]. Think of it this way. In a government of the people and for the people, the content created is the people's. Democracy is benefited when government material is widely disseminated. Thus, if the government has produce material of interest or use to you, take it, use it, be happy (but be careful, I said copyright, not trademark - certain agencies do not take kindly of unauthorized or counterfeit uses of their seals or other trademarks. You cannot, for example, use the seal of the Department of Veterans Affairs without the permission of the Secretary of the Department - also, note that it is government content that is not copyrighted; the government may be using third party sources that is copyrighted.).

    Note, however, there is some stuff you should not swipe. First, just because it is published by the government on a website or in a report does not mean it was created by the government and therefore in the public domain; a lot of graphics and other material used by the feds are licensed from private copyright owners and remain under copyright protection - of course, the trick is, how do you know. Second, badges, identification cards, and insignia may not be copied. [18 USC s 701]

    See also

    Databases

    Derived From: Snap-On Business Solutions, Inc. v O'Neil and Associates, Case No. 5:09-CV-1547, Slip p. (ND Ohio April 16, 2010)

    "An entity may claim a valid copyright in a compilation, such as a computer database. See 17 U.S.C. §§ 102 & 103. As the Copyright Act indicates, however, “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, and does not imply any exclusive right in the preexisting material.” Id. § 103(b). In Feist, the Supreme Court held that a “factual compilation is eligible for copyright if it features an original selection or arrangement of facts, but the copyright is limited to the particular selection or arrangement. In no event may copyright extend to the facts themselves.” 499 U.S. at 350-51."

    Applying Feist, courts have given copyright protection to computer databases containing facts otherwise in the public domain. See, e.g., Assessment Techs. of Wis., LLC v. WIREdata, Inc., 350 F.3d 640, 643 (7th Cir. 2003) (finding that developer of copyrighted software had valid copyright in database compilation of real estate information because "no other real estate assessment program arranges the data collected by the assessor in these 456 fields grouped into these 34 categories, and because this structure is not so obvious or inevitable as to lack the minimum originality required"); Madison River Mgmt. Co. v. Business Mgmt. Software Corp., 387 F. Supp. 2d 521 (M.D.N.C. 2005) (extending copyright protection to database containing telephone customer information where database imposed new structure on raw data and made "metadata enhancements"); but see Matthew Bender & Co. v. West Publ'g Co., 158 F.3d 674, 681 (2d Cir. 1998) (finding uncopyrightable certain enhancements made to judicial opinions in database, including, "(i) arrangement of information specifying the parties, court, and date of decision; (ii) the selection and arrangement of the attorney information; (iii) the arrangement of information relating to subsequent procedural developments . . .; and (iv) the selection of parallel and alternative citations”).

    . . .

    In determining what aspects of the [ACME] database the [PLAINTIFF] copyright protects, the Court must "filter out the unoriginal, unprotectible elements-elements that were not independently created by the inventor, and that possess no minimal degree of creativity." Kohus v. Mariol, 328 F.3d 848, 855 (6th Cir. 2003). The Court applies various doctrines of copyright law in this filtering process, including the doctrines of merger and scenes a faire. Id. at 855-56; Lexmark, 387 F.3d 535

    Under the doctrine of merger,

    Where the "expression is essential to the statement of the idea," . . . or where there is only one way or very few ways of expressing the idea, . . . the idea and expression are said to have "merged." In these instances, copyright protection does not exist because granting protection to the expressive component of the work necessarily would extend protection to the work's uncopyrightable ideas as well. . . .

    Lexmark, 387 F.3d at 535 (citations omitted). Similarly, the Court must filter out scenes a faire, "elements that are dictated by external factors such as particular business practices." Id. In the computer context: "[T]he doctrine means that the elements of a program dictated by practical realities . . . may not obtain protection." Lexmark, 387 F.3d at 535-36.

    Google Book Settlement

    Derived From: Kate M Manuel, The Google Book Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law?, CRS June 6, 2009

    "The Google Book Search Library Project, announced in December 2004, raised important questions about infringing reproduction and fair use under copyright law. Google planned to digitize, index, and display "snippets" of print books in the collections of five major libraries without the permission of the books' copyright holders, if any. Authors and publishers owning copyrights to these books sued Google in September and October 2005, seeking to enjoin and recover damages for Google's alleged infringement of their exclusive rights to reproduce and publicly display their works. Google and proponents of its Library Project disputed these allegations. They essentially contended that Google's proposed uses were not infringing because Google allowed rights holders to "opt out" of having their books digitized or indexed. They also argued that, even if Google's proposed uses were infringing, they constituted fair uses under copyright law.

    "The arguments of the parties and their supporters highlighted several questions of first impression. First, does an entity conducting an unauthorized digitization and indexing project avoid committing copyright infringement by offering rights holders the opportunity to "opt out," or request removal or exclusion of their content? Is requiring rights holders to take steps to stop allegedly infringing digitization and indexing like requiring rights holders to use meta-tags to keep search engines from indexing online content? Or do rights holders employ sufficient measures to keep their books from being digitized and indexed online by publishing in print? Second, can unauthorized digitization, indexing, and display of "snippets" of print works constitute a fair use? Assuming unauthorized indexing and display of "snippets" are fair uses, can digitization claim to be a fair use on the grounds that apparently prima facie infringing activities that facilitate legitimate uses are fair uses?

    "On October 28, 2008, Google, authors, and publishers announced a proposed settlement, which, if approved by the court, could leave these and related questions unanswered. However, although a court granted preliminary approval to the settlement on November 17, 2008, final approval is still pending. Until final approval is granted, any rights holder belonging to the proposed settlement class-which includes "all persons having copyright interests in books" in the United States- could object to the agreement. The court could also reject the agreement as unfair, unreasonable, or inadequate. Moreover, on July 2, 2009, the U.S. Department of Justice confirmed that it is investigating whether the terms of the proposed settlement violate antitrust law.

    Hearings

    Papers

    Articles

  • Copyright Office slams Google Book deal, Google opens up, Ars Technica 9/17/2009
  • 11th-Hour Filings Oppose Google's Book Settlement, NYT 9/10/2009
  • Public Knowledge Opposes Google Book Search Court Settlement, PK 9/10/2009
  • Resistance to Google book deal builds as Google woos Europe, Ars Technica 9/10/2009
  • Extending notice on the Google Book Search settlement, Google 4/28/2009
  • Google Books Settlement, orphan works, and foreign works, Law Library 2009
  • Does Google own your content?, CNET 8/29/2007
  • "The Audacity of the Google Book Search Settlement," Pamela Samuelson