Jun 18 2010

Copyright Law (3 units)

Copyright law forms the foundation of the entertainment and other industries.

This course is an in-depth study of United States copyright law and its protection of the intangible property rights of authors. Among the topics covered are subject matter, ownership, duration, economic rights of copyright owners, moral rights of artists, licensing, infringement, fair use and protection of digital materials. Basic concepts and statutory rules will be examined and applied to various issues that arise in the entertainment, art, communication, and information industries, particularly those issues affected by digital technology. The course will analyze the transfers of rights, the international role of United States copyrights and conflict of laws.

COURSE OBJECTIVES - click to expand

  • At the completion of the Copyright Law course, the student will:
  • be able to determine whether a work is protected by federal copyright by analyzing whether the work has been fixed in a tangible medium of expression, whether it is the result of independent creation and whether the work contains a sufficient degree of creativity;
  • be able to utilize Learned Hand’s “Abstraction Test” as a tool to discern the difference between an unprotected idea and protected expression;
  • know how to apply the merger doctrine and what arguments to make concerning copyrightability according to the majority of jurisdictions that apply the broader “jeweled bee” approach, as opposed to the minority of jurisdictions that provide for no copyright protection;
  • be able to identify works that fall within the “literary works” category of copyrightable subject matter;
  • be able to determine the scope of protection afforded the contents of conversations, as well as to distinguish between unprotected facts or research, and nonfacts that may be deserving of copyright protection;
  • be able to utilize Learned Hand’s “Abstraction Test” as a tool to predict whether nonliteral elements of a protected work copied by a defendant will held to be protectable elements of the protected work, or unprotected plot points, stock situations, stock characters and stereotypes;
  • know the three basic applications of the concept known as “scene a faire” and how to structure an argument that will influence a court to apply the concept or dismiss the applicability of the concept;
  • know how to tell the difference between a graphic character and a literary character and the types of arguments that may be successful in persuading a court to grant or deny copyright protection to the character;
  • be able to distinguish between the literal and nonliteral elements of a computer program and the impact such a determination has on the copyright protection offered to the computer program;
  • be able to dissect the copyrightable aspects of a computer program’s graphic user interface, both in terms of individual elements and as a compilation;
  • know the process of reverse engineering a computer program and whether the steps of that process constitute copyright infringement;
  • be able to identify a “useful article” and whether the utilitarian functions contained in a sculptural work can be separated from the work’s ornamental aspects, utilizing a variety of tests used by different jurisdictions;
  • be able to distinguish between a musical work and a sound recording, apply the proper type of license for each to be used in an audiovisual work and know the limited copyright protections offered to pre-1972 sound recordings;
  • be able to identify the different copyright protection offered to pantomimes and choreographic works under the 1976 Copyright Act, from the protection available under the 1909 Copyright Act.
  • be able to differentiate the copyright protection available to structures prior to December 1, 1990, and the increased protection provided to structures built after that date;
  • be able to determine the existence of new elements in a derivative work and whether those elements meet the creativity standards that apply to such works;
  • be able to advise various levels of government as to the existence and scope of copyright protection for works created by officers, employees and independent contractors – and be able to determine whether a work constitutes an “edict of government;”
  • be able to determine whether a work created by a foreign author can be protected by United States copyright law and will be able to apply the process by which the work of a foreign author that lost its United States copyright due to the enforcement of copyright formalities can be restored.  As part of that process, the student will be able to identify viable reliance parties and counsel them as to how to avoid copyright infringement;
  • know how to determine whether the creator of a work was an employee acting within the scope of her employment or an independent contractor and whether the hiring party or the creator is deemed the author of the work;
  • know the arguments that can make a sound recording, photograph, musical composition or computer program a work made for hire;
  • be able to draft a personal service contract in such a way that insures that the hiring party owns the resulting copyright;
  • be able to counsel clients who are co-owners of the copyright in a work as to their rights to use the work, their ability to license or assign the copyright and their obligations to account to co-owners for any profits;
  • be able to draft a grant of rights clause that addresses the scope of geographic use, temporal duration, the specific rights being granted and, if warranted, a new technology clause;
  • be able to counsel clients regarding the termination of grants of copyright, the specific dates of the termination window, the mechanics of drafting the termination notice, the practical results of terminating the grant and the opportunities to exploit the copyright post-termination;
  • be able to determine whether a particular use of a work constitutes a publication of that work and the ramifications of such a finding;
  • know how to register a copyright with the Copyright Office, including considerations concerning the description of the work, identification of ownership, date of publication and whether the work is a derivative work;
  • know how the reproduction right can be infringed and the types of licenses used to prevent a claim of infringement, including synchronization, master use and mechanical licenses;
  • be able estimate whether a client would be held liable for the unauthorized creation of a derivative work in a given jurisdiction;
  • be able to apply the first sale doctrine to a given redistribution of a work;
  • be able to determine whether a given use of a work constitutes a performance of that work;
  • know how the public display and digital transmission rights can be infringed and the exceptions or compulsory licenses contained in the Copyright Act that excuse what would otherwise constitute an infringement;
  • know whether a client’s work is a work of visual art protected by the Visual Artists Rights Act;
  • know what it takes to successfully sue for copyright infringement and be able to determine whether her client is a copyright owner who has standing to bring a copyright infringement action;
  • be able to apply liability theories of direct infringement and secondary infringement to the unauthorized uses of copyrighted works on the Internet;
  • know the four factor approach to the fair use defense, analyze the facts of a given situation pursuant to those factors and provide an estimate as to how a court would determine each factor’s analysis;
  • be able to assess the four factors that determine the availability of injunctive relief in a copyright infringement lawsuit, taking into account the special considerations of timing, marketing and concern for such an injunction constituting an unconstitutional prior restraint; and
  • be able to analyze various state causes of action under the two element statutory preemption test that is set forth in the Copyright Act and thus be able to advise clients as to whether a particular legal claim should be filed in state court or federal court.

GRADING POLICY - click to expand

  • The grade in this course is based upon three 10 point multiple choice quizzes given at regular intervals throughout the course (each quiz counting for 10% -- for a total of 30% of your course grade), non-graded “hands-on problems” in preparation of each live class, and an open-book final exam (for a total of 70% of your course grade).
  • The multiple choice quiz questions require the student to show knowledge of the applicable statutory and case law and to apply that law to a specific fact situation.
  • In preparation for each live class, students are required to submit a memo to the professor containing the analysis of each assigned problem in advance.  Although these problems are not graded, they are required.  Failure to provide a timely memo, prepared in good faith, will result in a deduction of one grade increment from the student’s final grade for the course.
  • The final examination is open-book.  “Open-book” means that students may use any of the assigned course materials as well as their own notes and outlines that they have created themselves from course materials.  The final examination consists of an essay question which is weighted as follows: 30% on knowledge of the applicable law; 60% on the application of the law to the new facts that the student had not yet encountered; and 10% on the student’s ability to communicate his/her analysis under time constraints.