Copyright Law      for the Artist/Entrepreneur                 Frisina, LLCCreating Wealth Through Intellectual Property T...
You will learn:• Scope of rights• Acquiring a copyright• Copyright notices• Remedies for infringement• Defenses to infring...
Exclusive Right• A copyright holder has the exclusive right to:  – Reproduce the work  – Prepare derivatives  – Distribute...
Rights of Attribution and Integrity                             Copyright © 2007-2012 Frisina. LLC
Attribution and Integrity• Related but distinct from copyright• Rights of Attribution and Integrity   – The right to be cr...
Attribution and Integrity• “Qualified” works:   – Certain forms of visual art: e.g. original paintings, drawings, prints, ...
Attribution and Integrity• Term: life of the author• Not transferrable• Waivable  – only by a writing signed by the author...
Copyrights             Copyright © 2007-2012 Frisina. LLC
Copyrightable Subject Matter• “Original works of authorship fixed in any tangible medium  of expression” 17 U.S.C. 102(a)•...
Acquiring A Copyright• Requirements  – Creative work of authorship  – Fixation    • Accrual at the time of “fixation”; 17 ...
Registration• Why register?  – Requirement for access to the federal courts §411(a)  – Statutory damages, attorney’s fees ...
Registration• Requirements  –   Fee  –   Original work of authorship  –   Fixation in a tangible medium of expression  –  ...
Authorship• Effect on Term; § 302  – Assuming works made on or after Jan 1, 1978  – Generally     • life of the author +70...
Authorship• General rule:  – Creator is author• Works made for hire  – Exception to the general rule  – Contractor versus ...
Authorship• Contract works made for hire  – Requirements:    • 1) one of 9 categories specifically enumerated in §101, and...
Authorship• Agreements to assign future works  – At the time of hire• Copyright assignment agreements  – Contractors and e...
Copyright Notice• March 1, 1989  – For works made on or after March 1, 1989 notice is beneficial    but longer a requireme...
Copyright Notice• Effect  – Prevents innocent infringement defense     • Not less than $200  – Lack of notice does NOT inv...
Copyright Notice• Proper form  – [©, Copyright, or Copr.] [year first published] [author name]     • E.g. “© 2012 Frisina,...
Damages• Actual Damages  – Plaintiff only needs to prove gross revenue; 504(b)• Statutory Damages; §504(c)  – Electable at...
Criminal Liability• Applies in three general cases:  – Advantage or gain     • “Commercial advantage” or “private financia...
Defenses to Infringement• Fair Use §107  – Affirmative defense  – Deceptively simple analysis     • Analysis is actually c...
Defenses to Infringement• Fair Use §107 (cont.)  – Non-exclusive Four Factor Test (“shall include”)     • 1. purpose and c...
Defenses to Infringement• Statute of Limitations; § 507  – Civil actions: 3 years     • Generally measured from the date t...
Defenses to Infringement• Abandonment  – Requires a showing of intent     • e.g. destroying the only existing copy, or mak...
Defenses to Infringement• Misuse  – Relatively new     • Typically found in software cases  – Requires misconduct     • Co...
Defenses to Infringement• Fraud on the Copyright Office  – Obtaining registration by deceit  – Registration is rendered un...
Introduction                        Representative Sectors   Our mission is to create wealth for our clients through the  ...
Thank YouFor Further Information       www.frisinaip.com           Newsletters           IP Owl Blog           Slide Shows...
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Copyright Law for the Artist/Entrepreneur

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• Scope of rights
• Acquiring a copyright
• Copyright notices
• Remedies for infringement
• Defenses to infringement

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Copyright Law for the Artist/Entrepreneur

  1. 1. Copyright Law for the Artist/Entrepreneur Frisina, LLCCreating Wealth Through Intellectual Property TM Copyright © 2007-2012 Frisina. LLC www.frisinaIP.com
  2. 2. You will learn:• Scope of rights• Acquiring a copyright• Copyright notices• Remedies for infringement• Defenses to infringement Copyright © 2007-2012 Frisina. LLC
  3. 3. Exclusive Right• A copyright holder has the exclusive right to: – Reproduce the work – Prepare derivatives – Distribute copies – Perform publicly – Play sound recording publicly – Display publicly Copyright © 2007-2012 Frisina. LLC
  4. 4. Rights of Attribution and Integrity Copyright © 2007-2012 Frisina. LLC
  5. 5. Attribution and Integrity• Related but distinct from copyright• Rights of Attribution and Integrity – The right to be credited with the work, and the right to prevent being credited with a mutilation of the work that would reflect negatively on the author (17 U.S.C. 106A). Copyright © 2007-2012 Frisina. LLC
  6. 6. Attribution and Integrity• “Qualified” works: – Certain forms of visual art: e.g. original paintings, drawings, prints, sculptures – Excluded: e.g. audiovisual works, commercial works, works made for hire, reproductions of qualified works.• Registration not required to file suit for attribution and integrity; §411(a) Copyright © 2007-2012 Frisina. LLC
  7. 7. Attribution and Integrity• Term: life of the author• Not transferrable• Waivable – only by a writing signed by the author, and only to the extent expressly stated in the writing.• Remedies – Infringement: Injunction, impounding, damages/profits – No criminal liability; §506(f) Copyright © 2007-2012 Frisina. LLC
  8. 8. Copyrights Copyright © 2007-2012 Frisina. LLC
  9. 9. Copyrightable Subject Matter• “Original works of authorship fixed in any tangible medium of expression” 17 U.S.C. 102(a)• Exclusions 17 U.S.C. 102(b) – Ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries Copyright © 2007-2012 Frisina. LLC
  10. 10. Acquiring A Copyright• Requirements – Creative work of authorship – Fixation • Accrual at the time of “fixation”; 17 U.S.C. §102(a) Copyright © 2007-2012 Frisina. LLC
  11. 11. Registration• Why register? – Requirement for access to the federal courts §411(a) – Statutory damages, attorney’s fees § 412 – Prima facie validity § 410(c) Copyright © 2007-2012 Frisina. LLC
  12. 12. Registration• Requirements – Fee – Original work of authorship – Fixation in a tangible medium of expression – Deposit §407 • “best edition” – Published in the US, and – Best suited for the Library of Congress • Exceptions: burdensome, unfair, or unreasonable – Notice • No longer required Copyright © 2007-2012 Frisina. LLC
  13. 13. Authorship• Effect on Term; § 302 – Assuming works made on or after Jan 1, 1978 – Generally • life of the author +70 years – Anonymous, Pseudonymous, or work made for hire • The shorter of: – 95 years from first publication, or – 120 years from creation Copyright © 2007-2012 Frisina. LLC
  14. 14. Authorship• General rule: – Creator is author• Works made for hire – Exception to the general rule – Contractor versus employee • Applies to all employees and to some contractors • Important to clearly identify the relationship • Work for hire doctrine does not exist outside the United States Copyright © 2007-2012 Frisina. LLC
  15. 15. Authorship• Contract works made for hire – Requirements: • 1) one of 9 categories specifically enumerated in §101, and • 2) a writing signed by both parties Copyright © 2007-2012 Frisina. LLC
  16. 16. Authorship• Agreements to assign future works – At the time of hire• Copyright assignment agreements – Contractors and employees alike – Worldwide scope Copyright © 2007-2012 Frisina. LLC
  17. 17. Copyright Notice• March 1, 1989 – For works made on or after March 1, 1989 notice is beneficial but longer a requirement• Pre-March 1, 1989 – For works made before March 1, 1989 the law is more complicated – Critical question: date of original publication Copyright © 2007-2012 Frisina. LLC
  18. 18. Copyright Notice• Effect – Prevents innocent infringement defense • Not less than $200 – Lack of notice does NOT invalidate copyright Copyright © 2007-2012 Frisina. LLC
  19. 19. Copyright Notice• Proper form – [©, Copyright, or Copr.] [year first published] [author name] • E.g. “© 2012 Frisina, LLC” – “©” is preferable • Other forms may not be sufficient for infringement in non-English speaking countries• Placement – “affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright” Copyright © 2007-2012 Frisina. LLC
  20. 20. Damages• Actual Damages – Plaintiff only needs to prove gross revenue; 504(b)• Statutory Damages; §504(c) – Electable at any time before final judgment – $750-$30,000 “as the court considers just” – Willful: up to $150,000 – Innocent: not less than $200 Copyright © 2007-2012 Frisina. LLC
  21. 21. Criminal Liability• Applies in three general cases: – Advantage or gain • “Commercial advantage” or “private financial gain” – Value • Reproductions or distributions having a total retail value of $1000 or more during any 180 day period OR – Some distributions over computer networks Copyright © 2007-2012 Frisina. LLC
  22. 22. Defenses to Infringement• Fair Use §107 – Affirmative defense – Deceptively simple analysis • Analysis is actually complex and results are often unpredictable Copyright © 2007-2012 Frisina. LLC
  23. 23. Defenses to Infringement• Fair Use §107 (cont.) – Non-exclusive Four Factor Test (“shall include”) • 1. purpose and character of the use – Use “for purposes such as criticism, comment, news reporting, teaching…, scholarship, or research, is not infringement…” • 2. nature of the work – E.g. education versus purely entertainment value • 3. amount and substantiality of use compared to the work as a whole – Was the use more than necessary to satisfy the specific fair use purpose? • 4. effect of the use on economic value of the work – Often cited as the most important factor Copyright © 2007-2012 Frisina. LLC
  24. 24. Defenses to Infringement• Statute of Limitations; § 507 – Civil actions: 3 years • Generally measured from the date the plaintiff learned of infringement or could have learned of it through reasonable diligence. – Criminal actions: 5 years • Measured from the time the cause of action arose. Copyright © 2007-2012 Frisina. LLC
  25. 25. Defenses to Infringement• Abandonment – Requires a showing of intent • e.g. destroying the only existing copy, or making a statement dedicating the work to the public• Forfeiture – Occurs by operation of law. Intent is irrelevant. – Due to act or omission of copyright holder Copyright © 2007-2012 Frisina. LLC
  26. 26. Defenses to Infringement• Misuse – Relatively new • Typically found in software cases – Requires misconduct • Copyright holder tries to exclude others from more than the scope of his copyright – Example: copyright holder licenses software to licensee, and a term of the license agreement bars the licensee from using his own ingenuity to create software implementing the idea expressed in the licensor’s program. Lasercomb America Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990). Copyright © 2007-2012 Frisina. LLC
  27. 27. Defenses to Infringement• Fraud on the Copyright Office – Obtaining registration by deceit – Registration is rendered unenforceable Copyright © 2007-2012 Frisina. LLC
  28. 28. Introduction Representative Sectors Our mission is to create wealth for our clients through the • Chemicals strategic use of intellectual property. • Polymers • Pharmaceuticals We understand the challenges facing businesses in todays • Biotechnology economic environment, and strive to secure and monetize our • Biomedical clients’ intellectual assets. With over 15 years in innovation • Medical Imaging combined as a patent attorney and scientist, I am uniquely • Advanced Materials positioned to guide clients through the legal maze of intellectual • Nanotechnology property strategy facing start-ups and more established ventures.39 East Market Street Suite LL-1 • Semiconductors Akron, OH 44308 • Medical Instruments In addition to legal expertise and an unimpeachable commitment (330)777-0063 x100 • Medical Tests to quality, we offer our clients unparalleled value and security.dominic@frisinaip.com • Liquid Crystals Particularly, we have strategically invested in state-of-the-art www.frisinaip.com • Power Generation practice and intellectual property (IP) portfolio management • Fuel Cells systems. These systems enable us to intelligently analyze • Software clients’ IP holdings and suggest tactics to exploit strengths, • Internet Law identify and shore-up weaknesses, and generate income. • Business Methods Copyright © 2007-2012 Frisina. LLC
  29. 29. Thank YouFor Further Information www.frisinaip.com Newsletters IP Owl Blog Slide Shows Contact Me (330)338-0589 Direct dominic@frisinaip.com Copyright © 2007-2012 Frisina. LLC

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