WRAP UP: Termination

• Know the difference between s. 203 and s. 304(c)

WRAP-UP: FORMALITIES

• Trend: reduction in importance in formalities

COPYRIGHT LAW 2004

Columbus School of Law

The Catholic University of America

Prof. FischerMarch 17 2004

TEST FOR GENERAL PUBLICATION

• In MLK case p. 391 of CB

• 1. If tangible copies of the work are distributed to the general public in such a manner as allows the public to exercise dominion and control over the work.

• 2. If the work is exhibited or displayed in such a manner as to permit unrestricted copying to the general public.

A Procedural note on MLK case

• Remember that this is at the summary judgment stage.

• Court reverses district court’s grant of summary judgment to CBS

• But 11th Circuit notes that there is some evidence supporting a general publication, just not enough to establish, beyond any genuine issue of material fact, that Dr. King made a general publication of his speech

ACADEMY OF MOTION PICTURE ARTS & SCIENCES V. CREATIVE

HOUSE PROMOTIONS, INC. (9th Cir. 1991

• Was distribution of Oscar statues without copyright notice prior to 1941 a general publication?

• Why or why not?

• NOTE THE COPYRIGHT NOTICE ON THIS MORE MODERN OSCAR!

PUBLICATION UNDER 1976 ACT

• NOW THERE IS A DEFINITION

• Why do we still care about publication now that copyright arises from “creation” of works?

• What does this say about distribution of photograph records after 1/1/78?

Publication: Section 101

• The distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance or public display, constitutes publication. A public performance or display of a work does not itself constitute publication.

WHY DOES PUBLICATION MATTER NOW?

WHY DOES PUBLICATION MATTER NOW?

• Examples: • Section 107 (fair use)• Section 108 (library exemptions)• Section 302© and (e) duration of protection for

anonymous/pseudonymous/works for hire• Section 303 (duration for unpublished works)• Section 407 (mandatory deposit for published

works)

CHANGES TO NOTICE REQUIREMENTS IN 1976 ACT

(PRE-BERNE)

• Prior to Berne could you omit copyright notice and not lose copyright protection for the work?

• What provision(s) of the Copyright Act is relevant?

• What if you made mistakes in the notice?

EFFECT OF OMISSION

• 405(a)(1) no divesting effect if notice omitted from a relatively small number of copies or phonorecords

• 405(a)(2) of the Copyright Act provides that an omission of copyright notice is excused if: registration for the work has been made before or is made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered ...(this probably doesn’t apply if deliberate omission)

BERNE CHANGES NOTICE REQUIREMENTS

• The Berne-implementation amendments changed the 1976 Act to eliminate copyright notice as a precondition to copyright protection.

• To what works do the Berne amendments apply?

NOTICE AFTER BERNE

• If you want to put a copyright notice on a work what must it consist of?

• Where should you put the notice?

• Do you have to put notice on?

• How about for phonorecords?

• What incentives are there in the law to include a copyright notice?

Meaning of “copy [or phonorecord] to which a defendant . . . had access”

• In 401(d) and 402(d)

• BMG v. Gonzalez, 430 F.3d 888 (7th Cir. 2005)

Registration and Deposit Under 1909 Act

• Was registration optional?

Registration and Deposit Under 1909 Act

• Was registration optional? Up until last year of first term. It became mandatory for renewal of works first published before 1964.

• Was it a prerequisite for infringement suits?

Registration Under 1909 Act

• Was it a prerequisite for infringement suits? Yes, for infringement during both initial and renewl term

• Deposit was also a prerequisite for suit under the 1909 Act and pre-BCIA 1976 Act.

DEPOSIT REQUIREMENTS

• NOTE THAT BERNE PRIMARILY AFECTED PUBLICATION NOT DEPOSIT/REGISTRATION REQUIREMENTS

• What is the mandatory deposit requirement for the Library of Congress? See section 407

• What is the effect of section 408(b)? How does it differ from the deposit required under section 407?

REGISTRATION

• Who can register a work?• What works can be registered?• When can you register?• What’s the purpose of the registration fee? ($30

more for works)• How do you register? See Form TX (for non

dramatic literary works at CB p. 409)• Do you have to register to sue for infringement?• What incentives exist to register? See s. 410(c),

412

Corbis Corp. v. Amazon.com, 351 F.Supp.2d 1090 (W.D.Wash. 2004)

• Does a pending copyright registration confer federal subject matter jurisdiction over a copyright infringement claim?

Corbis Corp. v. Amazon.com, 351 F.Supp.2d 1090 (W.D.Wash. 2004)

• Does a pending copyright registration confer federal subject matter jurisdiction over a copyright infringement claim? No, on plain language of s. 411(a)