What is the examination process of a copyright?

Is there a lot or a little?

There is very little examination in the copyright office. Typically you:

1) Submit form

2) Pay fee

3) Rule of Doubt applies (if they doubt that if you are actually entitled to the registration, they are not going to refuse it, you will get it).

4) Examination concerns formalities (primarily- i.e. did you check the right box, fill out the application accurately) and if the subject matter itself is copyrightable (i.e. not an idea).

What are the benefits of registration?

Is registration required?

There are a number of benefits that come along with registration of a copyright.

Registration is not required but it advisable.

1) It establishes a public record of a copyright claim

2) It is absolutely necessary to obtain remedies in an infringement suit. You can still file a lawsuit, but you won’t be able to get the remedies until you have the registration. Best practice is to have a registration before you file the suit.

3) If you register the work within five years of publication, it shows prima facie evidence of ownership.

4) If you make a registration within three months of publication and before you file suit, then you can sue for statutory damages. In copyright law this is a set amount of $150,000. So if your actual damages are really small (i.e. a dollar) but if the statutory damages are $150,000 then you could get the $150k.

5) If you have a copyright registration you can get a Registration with the customs service -allows your enforce it against other parties (you can impound and destroy goods that are protected by your copyright).

The registration is not needed to have rights but there are tons of benefits so it’s the best thing to register your copyright.

) It is absolutely necessary to obtain remedies in an infringement suit. You can still file a lawsuit, but you won’t be able to get the remedies until you have the registration. Best practice is to have a registration before you file the suit.

What is the copyright notice?

Is it a requirement in the US?

In Overseas?

This is the little circle in a c © (followed by the year) (followed by the name/corporation name)”

Today- copyright notice is not required under US law. No notice is totally fine. And if you don’t use the copyright notice there is no detriment to you at all.

However, you want to put the notice on your work b/c your works are easily transmittable worldwide and not all countries will allow enforcement without the notice so you want to make sure you can enforce it elsewhere.

What were the requirements for copyright notice in the past?

What changed this?

When did this occur?

Was there ever a way to fix a situation?

Copyright ntc used to be required before we adopted the Berne amendments.

The effective date of the Berne amendment that allows you not to use the © - 3/1/1989.

So after 3/1/1989 you don’t need the © to enforce your rights.

Before 1/1/1978 if you failed to include a copyright notice before this date, then your work automatically went to the public domain, your copyright was dead.

Between 1/1/1978 and 3/1/1989- you had the ability to fix failure to give copyright notice if it occurred during this interim period. And you could fix it. So for example if you had a copyright for a book and forgot to give notice then if you could try to give notice by sending stickers that said their was copyright then you could fix it as long as you tried. You didn’t actually have to be successful.

For test remember that all you really need to know is that during this interim period, you could fix the copyright – you don’t need to know how to fix it.

So if you have a 1960 work, and they forgot to affix the notice, then the copyright would have expired and been in the public domain. And then to determined if there’s infringement then you would want to determine if they renewed the copyright or if they failed to affix the copyright notice.

Interim period one (for voluntary renewal_ from 1/1/78- 1991.

Interim period two 1/1/1978 to 3/1/1989 is when to see if the affixed the notice and if they did not did they try to fix it.

The © (year) (name) is what you need to give notice. (greeting cards however don’t need to have the year) but for everything else, you need those three things

What happens if you include extra stuff aside from the required info to give notice?

What is this called?

Anything in edition to the three basic elements is referred to as surplusage. It doesn’t give you any additional rights but its just there as a determinant. The surplusage can have a real value in deterring people but it doesn’t give you any initial rights. You can include it if you would like but it’s not required.

How can you prove infringment?

Is it difficult?

© Infringement- to prove it= it’s very simple and straightforward. 1) Must show ownership (i.e. that you own it)

 2) Must be able to prove a violation of 1 of the exclusionary rights.  In order to show that there have been a violation of one of two elements:

A) Did the party during the infringement have access? _ Must show that the work is original to you. Therefore, if the party did not have access to your work then the work would be original is to them and not infringing to you.

B) They must have created something substantially similar- if a layperson would think that they are similar then they would be confusingly similar so the attorneys would go through a book and go through a point by point comparison and the jurors would have to make the determination.

Does an infringer have to prove access?

Can it be inferred?

You may have actual proof of access because you could prove that the purchased a copy of the book from Amazon or that you gave them a copy of the book.

More importantly, access can be inferred. So the closer the works are to each other, the more likely the person have access, so therefore if there are so many similarities that it’s obvious then you can infer that there was access. Because it’s unlikely by random chance that two people would come up with the exact same thing.

What is substantial similarity? 

How is it realted to access?

What about facts vs. fiction

For substantial similarity, if you are dealing with something that is factually based, then you are going to have a higher burden to prove that they are substantially similar. So if you have to write an assignment with the rest of your class on the civil war, most people would probably have to use the same facts so then they would have to be MORE similar than those not fact. So you would then look at the expression of the facts; arrangement.

Think about copyright infringement in the context of someone putting your notes on a copyright machine. And the closer it is to a copy then it’s closer to infringement.

Contributory infringement- you are causing another to infringe based on your actions. if you go to kinkos and have them make a copy of a book, then you have not directly copied and thus directly infringed but then you have contributed to the infringement and then you are liable because you have caused the infringement to occur. The liability is the same and in fact worse because you had the direct infringer (the party doing the infringement) b/c you have made two, not one infringers.

when you do the infringement yourself (i.e. you yourself make the copy of a book)

occurs in employer and employee infringement. So the employer becomes liable for infringement even though the employee is infringing he book

So if your teacher tells you to make a copy of a book- the teacher is the contributory infringer, so you are you if you go to kinko’s to ask to copy (kinkos is the direct) and then gtwon becomes the vicarious infringer because they are liable’s for prof’s action.

1) Contributory Infringement

2) Direct Infringement

3) Vicarious Infringement

The liability is joint and several- everyone is responsible for whatever the damages are. So if the author get’s a judgment for 1 million $ and there are four parties and then gtown and kinko’s would have to pay for the lions share of it. The court won’t care how you come up with $1 million  and then the parties can fight amongst themselves for who will pay the for the judgment.

1) One thing that is NOT a defense- is if you did not know you’re infringing. Therefore innocence is not a defense.  The court would just care if you had access and substantial similarity then you could prove infringement.

2) NOT a defense- paraphrasing (if you paraphrase, then you are still infringing- saying this pretty much just proves the owner’s thing was infringed)

3) NOT a defense- attribution- even if you attribute where you got it from, then you are still infringing and helped prove the owner’s case

What are actual defense to copyright infringement?

1) you don’t own this you can’t sue me (i.e. not original to you/ you copied it froms somewhere else)

2) This is original to me (I wrote it/it’s not substantially similar) and

3) I did not have access and so I couldn’t have infringed.

4) Fair use

1) The purpose and character of the use  (i.e. education purpose)- copy an article for an education purpose.

You could look at it and think is it commercial or non-commercial it is. If it’s non-commerical (religious, education) then the courts are more likely to say it’s ok. But if you’re making money off of it, then it wouldn’t be fair use

2) Nature of work

Is it a fictional work versus a non-fiction? If it’s non-fiction then it’s more likely to be fair use the facts for a purpose then you get much greater latitude to copy from the work. But for a fiction book it would be less likely to be fair use.

3) The amount of work copied- did you copy one paragraph of the entire thing? The less you copy the better off you are. The more you copy the worse off you are.

4) Economic impact- the courts will look to see what your economic impact you had on the original work. So if what you copied has completely devalued the work then it’s probably not fair but if it’s had no impact then it would be more likely to be fair use.

5) Whether or not the work is a true parody

use  (i.e. education purpose)- copy an article for an education purpose.

You could look at it and think is it commercial or non-commercial it is. If it’s non-commercial (religious, education) then the courts are more likely to say it’s ok. But if you’re making money off of it, then it wouldn’t be fair use

Is it a fictional work versus a non-fiction? If it’s non-fiction then it’s more likely to be fair use the facts for a purpose then you get much greater latitude to copy from the work. But for a fiction book it would be less likely to be fair use.

did you copy one paragraph of the entire thing? The less you copy the better off you are. The more you copy the worse off you are.

- the courts will look to see what your economic impact you had on the original work. So if what you copied has completely devalued the work then it’s probably not fair but if it’s had no impact then it would be more likely to be fair use.

For the amount, you don’t have to have that much if it’s something like famous music and is thus completely recognizable to everyone. This could be the same thing for a famous book where you used a line like “Frankly, my dear, I don’t give a damn” then it’s such a famous phrase that it might be copied.

To have fair use in a religious context, it has to be part of the furtherance or the religious activity, then it would probably be considered fair. But if you’re making money for the church off of it, then you are still engaging in a commercial activity and thus violating the copyright holders of a song you are playing at the church bbq fundraiser

So to determine fair use, you need to go through all the fair use facts.

What are parodies?

How do they related to fair use?

- the whole point of the parody is that you’re trying to make a social commentary on the original work and therefore enlighten the audience as to some aspect. So a lot of weird al’s songs are not parodies because they’re not providing any social commentary.

A parody must have some sort of comedy. Things that don’t make social commentary would be a derivative work and thus the party making the derivative work should be making royalties to the dominant holder. And the derivative work is subservient to the original work.

1) Damages ($)

2) Injection

3) Impound/destroy alleged infringing goods (or infringing goods once the determination is made)

4) There is a possibility of criminal penalties

5) Statutory damages.

To get statutory damages you must register it within 3 months of publication.

Government works are not copyrightable.

1) Protections the patterns on semiconductor chips and also the patterns (masks) that allows the patterns to go on the chip. The patterns on the chips are totally functional b/c it is the thing that is allows the chip to work but it’s still copyrightable even though functional things should not me.

(masks are kind of the blueprints on how to manufacture the chip)

Its term of protection is 10 years from publication (or first use)

(i.e. boat) 

It protects for the hull and the mold of the hull (the term is 10 years from publication). It protects the stripe (straights and chimes) on the hull is protectable under copyright law even though they are functional and make the boat work).

Computer Software- Software has a written part that is the code (aka source code/object code)-

Protects three things

1) The code is the written thing in the program. The code is the written work and is therefore protected under copyright law.

2) The appearance of the displays protected by the code- but it is something that you cannot see it anywhere written down because it’s governed by the code so you don’t see it when looking at the code,)

3) Characters/plots of games- the way videogames characters move behave etc. behave in a certain way, are protectable under copyright law even though they do not exist until the payer causes them to happen on screen.

So if you wanted to create a product like windows that is brand-new by doing the code from scratch but if it looks like windows then it would be infringement if it looks too much like windows because both the appearance and the code are protectable.

When we make a registration we are required to make a deposit of what is required to be protected under copyright law. For all works but software works you have to provide a copy (i.e. give the copyright office a copy of the book (

1) The deposit has to be the best edition available (i.e. if it’s typewritten that’s better than handwritten). And you have to give the whole thing 100%

2) For computer code you only give the first and last 25 pages of computer code