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In a copyright infringement claim, the fair use defense is often raised. Fair use is an affirmative defense that stems from the United States Copyright Act, which provides at 17 USC Sec. 107:
"[T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include‐‐ (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." In copyright litigation, fair use is an affirmative defense, so the party raising it has the burden of proof and persuasion. Courts undertake a case‐by‐case analysis and consider each statutory factor weighing them together in light of the purposes of copyright, which is to protect authors. Courts are required to consider each factor, with the rule that some factors are more important than others, and the market impact factor being the single most important factor. Contact Mark D. Walters What is copyright?
Copyright is a form of protection grounded in the U.S. Constitution and granted by federal law for original works of authorship fixed in a tangible medium of expression. The law of copyright covers both published and unpublished works. What does copyright protect? Copyright, a form of intellectual property law that derives from the U.S. Constitution. Copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. However, copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. What are the copyright rights? Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
What is a derivative work? A derivative work is a a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. Common examples of a derivative work are sequel to a book or movie. How is a copyright different from a patent or a trademark? Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others. When is my work protected? A work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device. Do I have to register with your office to be protected? No. In general, copyright registration is voluntary. Copyright exists from the moment the work is created. You must register your copyright, however, if you wish to bring a lawsuit for infringement of a U.S. work. Why should I register my work if copyright protection is automatic? Copyright registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. I’ve heard about a “poor man’s copyright.” What is it? The practice of mailing a copy of your own work to yourself to prove creation date is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration. Is my copyright good in other countries? The United States has copyright relations with most countries throughout the world, and as a result of these agreements, we honor each other's citizens' copyrights. However, the United States does not have such copyright relationships with every country. Source: US Copyright Office Contact Mark D. Walters This week, the U.S. Supreme Court declined to review a case out of the 9th Circuit holding that the Batmobile is entitled to copyright protection. The case is DC Comics v. Towle, where DC Comics sued a California resident who was building and selling Batmobile replicas without DC Comic's authorization. For fans of Batman and copyright law, the court's discussion of the three-prong test to determine whether a character in a comic book, television program, or motion picture is entitled to copyright protection. Here is a passage from the 9th Circuit Court of Appeal's Opinion where the three-prong test is discussed: We read these precedents as establishing a three-part test for determining whether a character in a comic book, television program, or motion picture is entitled to copyright protection. First, the character must generally have “physical as well as conceptual qualities.” Air Pirates, 581 F.2d at 755. Second, the character must be “sufficiently delineated” to be recognizable as the same character whenever it appears. See Rice, 330 F.3d at 1175. Considering the character as it has appeared in different productions, it must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance. See Halicki, 547 F.3d at 1224. Third, the character must be “especially distinctive” and “contain some unique elements of expression.” Halicki, 547 F.3d at 1224. It cannot be a stock character such as a magician in standard magician garb. Rice, 330 F.3d at 1175. Even when a character lacks sentient attributes and does not speak (like a car), it can be a protectable character if it meets this standard. Halicki, 547 F.3d at 1224. A question that frequently comes up is "what is the difference between a trademark, patent and copyright? This post provides a quick understanding of the basics for trademarks, patents and copyright. Trademark - A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. The term "trademark" is often used to refer to both trademarks and service marks. Trademark law protects consumers from confusion as to the source of goods and services. Patent - A patent is a limited duration property right relating to an invention, granted by the United States Patent and Trademark Office in exchange for public disclosure of the invention. Patent law protects inventors. Copyright - A copyright protects works of authorship, such as writings, music, and works of art that have been tangibly expressed. Copyright law protects authors. The United States Patent and Trademark Office has created a video that also explains the differences between trademarks, patents and copyright. Contact Mark D. Walters If you own or run a company and have hiring authority over independent contractors, you need to know a few factoids about copyright law.
The first, purely interesting, factoid to know about copyright law, is that the source for copyright law derives from the United States Constitution. Article I, Section 8, Clause 8 of the United States Constitution, also known as the Copyright Clause or the Copyright and Patent Clause provides: "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." Thus, the idea behind the copyright law is to provide protection and incentives to authors to create useful "writings" such as literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture, and more recently the telecasting of NFL football games (GO HAWKS!), website, blogs, tweets, etc. The second factoid to know about copyright law is that copyright law protects original "works of authorship" that are "fixed in a tangible form of expression." Thus, if the content or work product is original and written down so you can hold it in your hands or see it with your eyes, it is protected by US Copyright Law. This copyright protection attaches the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device. The third factoid to know about copyright law is that copyright law applies even if the "author" does not file an application to register the copyright with the US Copyright Office. It's a good idea to register the copyright because additional protections are afforded to registered works as opposed to unregistered works, but it's not a requirement. The Fourth factiod to know about copyright law applies to ownership, and this is a biggie. The general rule of copyright ownership is that the person who authors the work owns the copyright. If there is more than one author of the work–a joint work–all of the authors own the copyright. However, the ownership rules and requirements are different depending on the employment or independent contractor status of the author.
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