UNHInnovation Creative Works Symposium session: Deconstructing a Copyright License slide deck Presenters: Kim A.W. Peaslee, Upton & Hatfield and Tim Benoît-Ledoux, UNHInnovation

1. UNH Creative Works Symposium
April 29, 2015
Kimberly A.W. Peaslee, Ph.D.
Intellectual Property Attorney
Upton & Hatfield, LLP
Timothy E. Benoit-Ledoux
Licensing Manager, UNHInnovation

2.  Copyright
◦ Copyright Basics
 Standard Clauses
 Pro-Licensor clauses
 Pro-Licensee clauses
 Wrap Up

4.  Federal Registration v. Common Law rights
 Enhanced damages for prompt registration
 Protects only original and creative expression, not the
underlying content
 Must be “fixed”
 Bundle of rights
◦ copy, distribute, perform, display, creation of derivative works
 Term (e.g. life + 70 years for individual)

5.  Where?
◦ Library of Congress – Copyright Office – www.copyright.gov
◦ No State copyrights
 When?
◦ pre or post “publication” can determine the scope of protection
 What?
◦ Most can be submitted electronically, but some must be sent in as
hard copies or in duplicate
 How much?
◦ Electronic submissions $35-85 in fees per item

6.  Multifactor balancing test:
◦ Fair Use defense to infringement is available for criticism,
comment, news reporting, teaching, scholarship and research,
etc.
◦ First Amendment balancing
 Courts must consider, at least:
◦ Purpose and character of the use
◦ Nature of the work
◦ Amount and substantiality
◦ Effect of the use
◦ Anything else?

8.  License Grant
 Representations/Warrantees
 Delivery
 Royalties/Payments
 Termination/Remedies
 General Provisions (Choice of Law, Integration, etc.)

9.  Who
◦ Is it assignable?
 What
◦ Type of work (text, visual, music, etc.)
◦ Copy, distribute, publicly display, publicly perform, create derivative
works
 Where/What languages?
 How long
◦ Months, years, …
 Field of Use
◦ For print media, e-books, online, for a particular project, etc.

10.  Who?
 What?
 Where/What languages?

11.  How long?

12.  Ownership
◦ Authority
 Original Work
 Work is not in public domain
 Indemnification
◦ If work infringes others’ rights
 No conflicting licenses

14.  Quality
 Timing
 Provisions if not in proper form or by a certain time
◦ Who can make necessary changes?
◦ Who bears the cost?
 Clearance of copyright within work
 Editor's revisions?

15.  Quality & Timing

16.  Provisions if not in proper form or by a certain time

17.  Clearance of copyright within work

18.  Editor’s revisions?

19.  When do they start?
◦ Is there an advance?
◦ What if the publisher never publishes?
 How long do the payments last?
 How are they calculated?
◦ Are certain copies not counted? How many?
◦ Are costs deducted?
 Access to records

20.  When do they start?
◦ Is there an advance?
◦ What if the publisher never publishes?

21.  How long do the payments last?
 How are they calculated?

22.  How are they calculated?

23.  Access to records

24.  For Breach (for cause)
◦ Non-delivery
◦ Non-publication
 With notice
◦ Either party?
 At date certain?
 Does it renew?

25.  For Breach (for cause)
◦ Non-delivery
◦ Non-publication

26.  With notice/At date certain?

27.  For Breach
◦ Non-delivery
◦ Non-publication
 With notice
◦ Either party?
 At date certain?

28.  Choice of Law
 Integration/Severability
 Notice
 Modification
 Dispute Resolution
 Insurance
 Others…

29.  Choice of Law
 Integration/Severability

30.  Notice

31.  Modification
 Dispute Resolution
 Insurance
 Others…

33.  Record copyright
 Retain right to: create derivative works, approve
modifications, etc.
 Set time for performance by publisher
 Include e-books in copy count
 Direct enforcement efforts?
 Limit giveaways?
 Shorter Term with benchmarks

34.  Change of Control provisions?
 No commitment for future works

36.  Right to create derivative works
 No set date for performance
 Unlimited giveaways
 Carve out for e-books
 Approval of changes at Licensor’s expense
 No liquidated damages (no enhanced fee if they go
outside scope of license)

38. Please feel free to contact me with any questions.
Kimberly A. W. Peaslee, Ph.D.
kpeaslee@uptonhatfield.com
(603) 224-7791
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