Work of fiction v.

work of fact
When work is work of non-fiction as opposed to fiction, there is more
room for copying and still no infringing than we would if it was a work
of fiction.
Government Works (still part of copyrightable subject matter)
Works created under federal government contract
Federal Agency may choose case by case:
1. no copyright
2. copyright stays with contractor
3. copyright assigned to government
4. contractor keeps copyright but grants gov agency
a nonexclusive license
MODEL REGULATIONS THAT ARE CREATED BY PRIVATE ENTITIES AND
ARE ADOPTED BY GOVERNMENT INTO LAW
Copyrighting laws?
Veeck v. Southern Building Code Cong.
Dude takes Ds codes and uses them as law of the land.
Court held that there is no CR in the model codes.

Authorship:
Lindsay v. RMS Titanic
Andrien v. southern ocean cty
P conceded idea of the work, and D gave work to someone else to do.
GENERAL RULE: Author = party WHO ACTUALLY CREATES the
work, person who TRANSLATES THE IDEA INTO A FIXED, TANGIBLE
EXPRESSION entitled to copyright protection.
He alleged that he gave camera crew directions, he edited the
tapes, he instructed the camera crew in details of execution,
even though he didnt do it himself, he is the author!
Court says mere transcriber is not the author.
Works that are commissioned (employee/employer
relationship) considered work for hire.
Work for Hire: commissional works
1.
2.
3.
4.

Contribution to a collective work

Part of a motion picture or audiovisual work
Transaltion
Supplementary work

5. Compilation
6. Instructional text
7. Test
8. Answer material for a test
9. Atlas
You need signed paper clearly stating it is a work for hire.
Work for hire
1. Created within corporate context (but not limited to it)
2. Foundations and Professional corporations
3. Outsourcing
Only applicable in two circumstances
Employment context:
Work prepared by employee within the scope of
employment
Commisioned work:
One of types of works listed in Section 101(2) AND
agreement in writing
Is there an employment relationship?
If it doesnt fall uner employment relationship, does it fall
under one of the categories under state, and if so was there a written
agreement stating that it was work for hire.
Test for work for hire (CCNV)
Right to control
Actual control
What actually happened when the work was created
Did hiring party actually wield control over the production
of the object.
Agency test: various factors
Tort liability
Was it an independen contractor, was he an agent? Who is
responsible if agent committed tort.
Salaried employee
Supreme court said the Agency test is the best test: Court applies this
test
GOVERNING RULE: whether there is an employee employer
relationship
Agency test
Right of control, tax treatment, actual control,
benefits, skill required, ownership of tools, whether
hiring party has right to assign additional projects,
location and duration of work, method of pay,
whether work is part of regular business of hiring
party.
Why Agency test?

1. Consistent interpretation of statutory language: a

work prepared by an employee within the scope of
his or her employment.
a. If they used actual control and Right to
control, then too many commission works
would be considered works for hire.
2. Compromise
3. Predictability
Negaive joint work doctrine
Where a person
Makes creative contribution
Intending that contribution to be part of an integrated
whole
But fails to qualify as joint author
That person is not a sole author of the creative contribution
either.
Channeled Authorship
Urantia Foundation v. Maaherra
Maaherra argument
No copyright without human author
If anyone is the author, it is the medium who spoke
the words
Four elements of joint authorship
Intention
Contribution
Inseparable or interdependent parts
Of unitary whole
Would interview be joint work?
Yes!
Something about being a mastermind in the 2nd and 9th circuit (added
stringent inquiry is met) joint status also met.
Section 106. Right to make copies (reproduction right)
To reproduce the copyrighted work in copies or phonorecords
How do we know if a copy has been made using digital
technology?
Lets say youre an artist making a portrait of a young
woman that becomes popular, I put something similar on my website.
In order for you to prevail what do you have to prove?
What are the elements for a prima facie case of
infringement through reproduction
What must you prove to show copyright infringement

You own the copyright

I have made a copy
What is a copy?
I copied from you
What if it was coincidence?
I copied copyrightable expression
As opposed to ideas, facts, or nonoriginal elements, or work you copied
from public domain.
I am the one who made the copy volitional
conduct
What if someone makes technology for
copy to appear? Unless there is volitional
conduct, they arent considered copiers.
My copying is improper (substantial
similarity)
Think about situation where publisher
prints book that author said is all his but
later finds out is completely plagiarized.
You are liable for copyright infringement,
and you can go after the author for lying.
Test is substatnital similarity
Copied qualitatively
and quantitavely
enough (wait till later
Proper and improper appropriations
Thin protection
Has to be almost identical
Thick protection
General copy might be
infringement
What P does not have to prove:
That D knowingly infringed
That copied elements are a significant part of Ds
work
Applying CR law 1 to digital context
Does posting on a website constitute making a copy
Must be material object, that is fixed, and being able
to be communicated, either directly or with the aid of
a machine or device.
Definition of fixed: sufficiently permanent or
stable to permit it to be perceived, reproduced,
or otherwise communicated for a period of
more than a transitory duration.
What about portrait being scanned online?

Well charges exist somewhere where server is

making the copies and there for longer than
transitory period (long enough for someone to
see it and react)

I. COPYRIGTHABLE SUBJECT MATTER

1. FIXATION
2. IDEA EXPRESSION DICHOTOMY
3. FENCE AROUND IDEA/EXPRESSION DICHOTOMY
A. Merger doctrine
B. Factual narrative thin protectione
4. ORIGINALITY: independent creation plus modicum of creativity
A. Creativity in product; sweat of the mind
5. FORM DETERMINED BY FUNCTION ineligible
A. Methods of operation and processes; useful articles
6. PROBLEM WORKS: Characters (idea); sound recordings
(creativity)
7. CATEGORES OF WORK THAT ARE PER SE INELIGIBLE
II. AUTHORSHIP