Intellectual property

Copyright law and what itmeans to a working journalist

Constitutional considerations

• Copyright is included in Article I, Section 8– “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”

Constitutional considerations

• Copyright is included in Article I, Section 8– “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”

• Where have we heard this before?

Constitutional considerations

• Copyright is included in Article I, Section 8– “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”

• Where have we heard this before?• Article 6: Free press versus fair trial

Purpose of copyright

• Encourage creativity for the benefit of all

Purpose of copyright

• Encourage creativity for the benefit of all

• Purpose is lost when copyright term is extended too far

Purpose of copyright

• Encourage creativity for the benefit of all

• Purpose is lost when copyright term is extended too far

• Elred v. Ashcroft upheld decades-long terms

What can’t be copyrighted?

• Information and ideas, as opposed to a specific expression of those ideas

What can’t be copyrighted?

• Information and ideas, as opposed to a specific expression of those ideas

• Titles

What can’t be copyrighted?

• Information and ideas, as opposed to a specific expression of those ideas

• Titles• Compilations of works with no creative

value– Feist Publications v. Rural Telephone Service Co.

(1991)

Who holds copyright?

• Individual creator when he or she is self-employed

Who holds copyright?

• Individual creator when he or she is self-employed

• Client when relationship is “work for hire”

Who holds copyright?

• Individual creator when he or she is self-employed

• Client when relationship is “work for hire”• Visions of online profits have tilted the

balance against freelancers’ rights

Fair use

• Allows you to use a small part of a copyrighted work without getting permission or paying compensation

Fair use

• Allows you to use a small part of a copyrighted work without getting permission or paying compensation

• Especially valuable in criticism– Text excerpts– Sound clips– Song lyrics– Art shows

Four elements

• Purpose and character of use– Nonprofit, educational, and “transformative”

uses (such as parody) are more likely to be protected by fair use than commercial uses

Four elements

• Purpose and character of use• Nature of the copyrighted work

– “Expressive” works such as fiction, poetry and music are less likely to be covered by fair use

– Unpublished works are less likely to be covered by fair use

– Out-of-print works are more likely to be covered by fair use

Four elements

• Purpose and character of use• Nature of the copyrighted work• Amount and “substantiality”

– Not done by word count; based more on whether the heart of the work was taken

– Gerald Ford’s memoirs a good example– Boston.com’s copying of GateHouse headlines

and ledes

Four elements

• Purpose and character of use• Nature of the copyrighted work• Amount and “substantiality”• Effect on market

– Most important factor– If copyright holder can be shown to have lost

money, fair use is less likely to be recognized

Harper & Row v. Nation

• All four factors cut against The Nation

Harper & Row v. Nation

• All four factors cut against The Nation

• Economic effect was especially clear

Harper & Row v. Nation

• All four factors cut against The Nation

• Economic effect was especially clear

• A good decision? Or was journalism about a former president being punished?

The “Pretty Woman” case

Roy Orbison 2 Live Crew

Campbell v. Acuff-Rose

• Parody enjoys strong First Amendment protection

Campbell v. Acuff-Rose

• Parody enjoys strong First Amendment protection

• Is 2 Live Crew’s remake of “Oh, Pretty Woman” “transformative”?

Campbell v. Acuff-Rose

• Parody enjoys strong First Amendment protection

• Is 2 Live Crew’s remake of “Oh, Pretty Woman” “transformative”?

• Justice Souter says yes

MGM v. Grokster

• In Sony v. Universal, the Court ruled that the VCR was legal

MGM v. Grokster

• In Sony v. Universal, the Court ruled that the VCR was legal

• Napster and similar services were shut down because of massive copyright violations

MGM v. Grokster

• In Sony v. Universal, the Court ruled that the VCR was legal

• Napster and similar services were shut down because of massive copyright violations

• Grokster survived for a time because it lacked a central server

MGM v. Grokster

• In Sony v. Universal, the Court ruled that the VCR was legal

• Napster and similar services were shut down because of massive copyright violations

• Grokster survived for a time because it lacked a central server

• Lost because of “inducement theory”