Category: Copyright

Joint Authorship – Are You Getting Your Due Credit?

Friday, 17 August, 2012 11:54 Written by Dan Pierron 0 Comments
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Rogers and Hammerstein.  Abbot and Costello.  Timbaland and, well, everyone.  When two or more people come together to make with the intent to beautiful music, or whatever, together, that usually gives rise to a joint work to which those parties who contributed to its creation have an interest in.  However, often one or more of the authors is not aware of their rights, or wrongly believes the actually have no rights.  Let’s clear the air a little bit.

 

 

A joint work is created when two or more authors collaborate in the creation of a work with the intent both to create a unified work and to be co-authors.  Additionally, each author must make more than a minor contribution to the work.  In some jurisdictions, each contribution must be independently copyrightable in and of itself.

Every joint author has an undivided interest in copyright of a joint work, all rights that come with copyright ownership.  That means each joint author is free to make reproductions or derivative works, distribute, perform,, play, or transmit the work.  However, each joint author has a duty to account to (read: share profits with) all other joint authors for any profits reaped from use of the copyright, such as licensing.

Of course, all of this is in the absence of an agreement between the joint authors.  A common situation is a “work for hire,” where all creative contributions of everyone who is “hired” becomes the property of another.  If an agreement between the parties does not include such a specific requirement, a number of factors will be considered, including  the provision of employee benefits, the tax treatment of hired party, the skill required in the performing the creative work, the right of the hiring party to control manner and means of creation, and the right of the hiring party to assign new projects.

The moral of the story?  Unless you like unwelcome surprises, it is best to set the expectations of everyone involved in the creation of a creative work before any work gets done by getting it down in writing.

The First Sale Doctrine – A Nightmare to the Copyright Abolitionists

Friday, 27 July, 2012 11:06 Written by Mark Malek 3 Comments
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By: Mark R. Malek

For weeks now I have been going round and round with some folks on twitter about the legitimacy of copyright law. Of course, this prompted me to write some articles proving why they are wrong (see the articles here, here and here).  As you can imagine, that did not stop the discussion.  Why would a voice of reason, or any rational thought at all stand in the way of their ridiculous musings.

I think I got to the bottom of some of what they are preaching.  It took me a while, but it is funny how their entire argument revolves around a lack of understanding of copyright law.  The argument that was getting irresponsibly made was that once they had obtained a copy, it was their “right” to do whatever they want with it.

This is somewhat backpedaling from the original argument of “I have a RIGHT to copy.”  That argument was simply intolerable, which is why I remained engaged with them.  Another part is that we are both clearly bullheaded about this topic, and I am just not going to let them have the last word – especially not when that word is egregiously wrong!  There clearly is not “right” to copy.  Ok, that is a broad statement.  There can be a right to copy, but you have to pay for that right.  There is no “natural right” to copy (yes, that is another one of their ridiculous arguments).

Let’s assume that the copyright abolitionist has obtained a copy of a work of art by lawful means.  For this group, that is a stretch, but that is the only way that I am able to explain the first sale doctrine of copyright law.  So now that they have obtained a copy of the work of art by lawful means, i.e., paid for the song and downloaded it off of iTunes, or went to Barnes & Noble and purchased a book, etc., I would actually agree that they have the right to use that copy… and only that copy!  Can they resell that copy?  Absolutely!  That is why I am able to purchase used books at garage sales.

The line is blurred in the digital age though.  These nincompoops (yeah – I’m bringing that one back) think it is ok to retain a digital copy of the work on their hard drive and distribute as many copies of the work as they want.  That is simply not the case.  Let’s consider this – how much do you think it truly costs a group like the Dave Matthews Band to create an entire album?  It is not as though five guys sat around a campfire one night, hammered out a few songs and recorded them.  There are months and months of writing and experimenting with different types of rhythms and lyrics, followed by months in a studio trying to get just the right version of the song recorded.  That studio time costs money, the instruments cost money, the band has to eat and live somewhere during the production, then the songs have to get distributed to radio stations and the band has to make appearances in order to promote the songs, and on and on and on.  I’d be surprised if it took less than $2 or $3 million to accomplish the feat of bringing a hit album to the market.  And yet, somehow, you are able to purchase this compilation of songs on a CD (or download it from iTunes) for $12.

That is the beauty of copyright law.  Copyrights allow artists like the Dave Matthews Band to readily create hit albums, but control how the music is distributed so that they can recoup the costs and make profits on the song.  If I buy a CD and I am tired of listening to it (highly unlikely) then, pursuant to the first sale doctrine, I am free to sell it or give it away to someone, but I cannot retain a copy of that music on my computer.  The dawn of digital files is where the problem lies.  Now, to help the copyright abolitionist make his argument, I would agree that if you paid the Dave Matthews Band $3million for the CD, then you have bought all the rights to the album and all the songs, and it is your right to do with it what you want.  Copyright law, however, appreciates that people who do not have $3million (me for example) may still like to hear the wonderful tunes of the Dave Matthews Band and this is the way to make it affordable for me to hear their music.

To summarize, the first sale doctrine is the answer to the copyright abolitionist’s theory.  That is what provides them the right to do what they want to with a copy that they have rightfully obtained.  The problem they have with it is that they want to retain copies and distribute even more.  The hole in their theory is that they cannot understand that they have only lawfully obtained one copy.  That does not give you the right to turn your one copy into hundreds of copies.

 

 

Blurring the Lines Between Copyright and Patent

Friday, 20 July, 2012 05:00 Written by Mark Malek 5 Comments
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By: Mark R. Malek

A couple of weeks ago, I wrote an article about overenforcement of copyrights.  In that particular article, I gave the example of a software copyright case (at least it was filed in Federal Court as a software copyright case) where the attorney was trying to argue everything but copyright.  Of course, he lost.

In that case, the attorney continuously argued that since my client’s software performed the same function, it must have infringed the copyright on his client’s software.  He could not have been further from correct, as was evident in the summary judgment that was awarded in favor of my client.  In short, copyright does not protect function.  Copyright, by definition, provides the author of an original work various rights to exploit that work and to prevent others from exploiting the original work without authorization for a fixed period of time (yes, I will write about the “fixed” period of time and how it magically extends every so often). I expect to receive several comments from the copyright abolitionists that I have been arguing with lately.  To see my previous articles on trying to figure out the arguments of the copyright abolitionists, click here and here.  Don’t worry, I’ll get back to proving why the copyright abolitionists cannot articulate an argument that makes any sense whatsoever soon.

Back to the issue at hand – why did this attorney so blur the lines between patents and copyrights? Short answer – there was likely a competence issue.  Another possibility, however, is that both copyright and patents can be used to protect software.  Copyrights, however, only protect the authorship and artistic expression that is the result of software, whereas patents protect the function that the software carries out.  For example, the actual lines of code used to write the software are copyrightable, and the expression of the software on the screen, e.g., a website design and layout, is also copyrightable.

The function that the software carries out, however, is not copyrightable.  Instead, that is protectable by patents.  Although this is a simplistic example, software that provides a function of linking several users together so that they can purchase and sell items in an on-line setting (eBay) may be patentable.  In other words, an application directed to patentable subject matter could be written that protects the function of an on-line auction system.  The issue there, however, is that something so broad would never in a million years be allowed.  There is so much software out there, and so many people that are developing software that the amount of prior art is tremendous.  That is why folks who are embarking on the software patent process need to understand that such patent applications are extraordinarily expensive and, if allowable, will only cover limited scope.  Gone are the days of preposterously broad software patents.  I believe that is one of the advantages of software patents – it is not as though a patent will be allowed for something as broad as an on-line auction site.  Instead, a patent that could possibly be allowed on software would need to include several details and be narrowly tailored to the specific unique and non-obvious function that the software carries out.

Therefore, to unblur the lines between copyrights and patents, just remember one simple rule.  Under no circumstance is function protectable using copyright.

 

Gotye Parody – Is This Infringement?

Tuesday, 17 July, 2012 21:27 Written by danieldavidson 1 Comment
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By Daniel Davidson

It is very likely that you have an opinion regarding the U.S. Supreme Court’s recent ruling on the POTUS’ health care law.  It is very likely that you have expressed your opinion in some way, be it through a Facebook post, tweet, or talking over the water cooler.  For one conservative, her opinion of Judge Roberts’ alleged political flip to vote in favor of the health care bill is being voiced through parody.

The conservative Media Research Center intern, Kathleen Burch, has made her dissatisfaction of the Supreme Court’s, blaming it on Roberts, decision known through her parody of Gotye’s “Somebody That I Used to Know.”

Now, let’s play a game of hypotheticals.  Gotye, or Wouter De Backerh, is unpleased that a conservative based group is using his creative work to convey their message.  He contacts his lawyer and asks what he can do to have the parody removed.  We can now assume that he contacts an intellectual property attorney whose ears should ring when he hears Gotye say “parody.”

In this instance, the copyrighted work being parodied, “Somebody That I Used to Know,” is not protected by the Copyright Law.  This is so thanks to Fair Use under Section 107 of the Copyright Act and Campbell v. Acuff-Rose Music Inc. (the case involving 2 Live Crew remaking Roy Orbison’s “Pretty Woman”).  In determining whether a use of a song, or copyrighted work, is in fact a parody, the court would weigh the following:

  1. the purpose of the parody (often expressive criticism) and whether the work is “transformative” (adds something new to the copyrighted song);
  2. the nature of the parody (expression and creativity);
  3. the amount of the copyrighted song found in the parody; and
  4. the effect the parody has on the market value of the original song.

Should the parody fall within these safe havens, a claim of copyright infringement would fail.

It is very possible that Kathleen Burch’s parody would withstand any copyright infringement claim.  So, for now, enjoy the politically motivated parody.  Cheers.

OH CANADA AND THE COPYRIGHT LAW

Friday, 13 July, 2012 17:07 Written by danieldavidson 0 Comments
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By Daniel Davidson

The Supreme Court of “Oh Canada” has begun its reform of copyright law in the country.  On Thursday, the justices dropped their decisions concerning copyright royalties for song and video game downloads from the internet.  Additionally, they decided on whether or not streaming music online is subject to compensation for the copyright holder.

The big decision came when the Court determined that video game distributors did not have to pay royalties for the music included in the video game.  The Society of Composers, Authors and Music Publishers of Canada positioned that the distributors selling these video games online needed to be paying their dues.  This, even after the music artists were receiving compensation from the video game developers.  The Court reasoned that a download and a stream differ saying, “Although a download and stream are both ‘transmissions’ in technical terms … they are not both ‘communications’ for the purposes of the Copyright Act. This is clear from the (Copyright) board’s definition of a stream as a transmission of data that allows the user to listen or view the content at the time of transmission and that is not meant to be reproduced.”

If the Court didn’t rule this way, the distributors of the online video games would have to pay a royalty, for the music within the video game, each time the game was downloaded.

Another decision by the same Court was that royalties do not need to be paid by music retailers for the brief previews of music they provide.  There previews can be found at online retailers like iTunes and Amazon.com.  The Court reasons that, “Short, low-quality previews do not compete with, or adversely affect, the downloading of the works themselves. Instead, their effect is to increase the sale and dissemination of copyrighted musical works.”

Is this a step in the right direction for the Canadian Copyright Laws?  It is obviously in the eye of the beholder, i.e. consumer, distributor, retailer, or artist, whether this Court made the right decision.  Cheers.

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