Bench & Bar

MAR 2018

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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Works made for hire outside the employment context, on the other hand, must satisfy two requirements to be valid. First, the work must be the subject of a work for hire agreement signed by both parties. Second, the work must fall within one of nine enumerated work for hire categories set out in Section 101 of the Copyright Act: Because the categories are generally narrow ones, most types of works fall outside them. As a result, many intended "work for hire" agreements are ineffective in creating a valid work made for hire, and the copyright remains the property of the creator. Absent a valid work made for hire arrangement, there are other ways an author's copyright ownership may be transferred to a third party. Copyright is personal property subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property. e exclusive rights of a copyright owner (or any subset of those rights) may be transferred to someone else. e transfer is not valid, however, unless it is in writing and signed by the owner of the rights conveyed. On the other hand, non-exclusive transfers and permissions (such as a nonexclusive license), may be oral or even implied. WHAT COPYRIGHT FORMALITIES STILL EXIST? Chapter 4 of the Copyright Act governs notice and registration— two of the most commonly known formalities. Under current law, neither notice of copyright nor registration with the U.S. Copyright Office is required for protection. However both can confer certain advantages, especially in litigation. Copyright notice typically contains either the word "Copyright" or the copyright symbol ©, followed by the year of first publication and the name of the author (e.g., © 2018 John Smith). e advantages of providing copyright notice is that notice informs the public that the work is protected by copyright, identifies the author and year of first publication, and lessens a defendant's ability to claim innocent infringer status. Earlier versions of the Copyright Act required that notice be placed on a work when published. Works published prior to Jan. 1, 1978, entered the public domain if no notice was attached, and works published between Jan. 1, 1978, and March 1, 1989, were subject to a notice requirement that could be cured if initially omitted. e copyright status of those works remains governed by the law in effect at the time they were first published. As such, while notice is no longer required, it remains a critical issue for pre-1989 works. Registration of a copyright is accomplished by submission of the proper form and filing fee, along with a deposit of the copyrighted | MARCH/APRIL 2018 16 work, to the Copyright Office. More detailed information is avail- able from http://www.copyright.gov. While not required, there are critical advantages to registering one's copyright. First, registration is required to bring suit for infringement in federal court (which has exclusive jurisdiction over copyright cases). Second, registration prior to or within five years of first publication constitutes prima facie evidence of validity. Finally, and perhaps most importantly, a copyright plaintiff may recover statutory damages and attorney fees—two of a plaintiff 's most for - midable weapons—only if registration is made within three months of first publication of the work or prior to the defendant's first act of infringement. is last advantage is often determinative of whether it makes financial sense to pursue an infringer. WHAT ARE THE EXCLUSIVE RIGHTS OF A COPYRIGHT "OWNER"? e rights granted to a copyright owner are substantial. Subject to certain limitations, the owner has exclusive rights to reproduce, dis- tribute, publicly perform, and publicly display the protected work, as well as the exclusive right to prepare derivative works based on the work. ese exclusive rights, however, are subject to a number of statu- tory limitations set out in the Copyright Act. Two important and well-known limitations are the "fair use" and "first sale" doctrines. Section 107 states that the "fair use" of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, and research is not an infringing act. However, the statute does not define what comprises "fair use," leaving courts to resolve the issue case-by-case basis. e statute does state that four factors should be used in determining fair use: e subjective nature of the factors, however, means that they do not lend themselves to ready predictability. One usually knows with certainty whether something is "fair use" only at the end of costly litigation. In Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 566 (1985), the Supreme Court said that the fourth enumerated factor, the effect of the defendant's use of the infring- ing work on the potential market for the copyrighted work, is the most important factor. However, the four factors are, by the plain wording of the statute, non-exclusive, and the Supreme Court has made clear that none of the factors should be viewed in isolation. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994). One of the most well-known forms of fair use is parody. Calling something a parody, or the mere fact that a work may make light Features: 1) a contribution to a collective work; 2) a part of a motion picture or other audiovisual work; 3) a translation; 4) a supplementary work; 5) a compilation; 6) an instructional text; 7) a test; 8) answer material for a test; or 9) an atlas. (1) the purpose and charac- ter 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 substanti- ality 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. ART LAW, COPYRIGHT & TRADEMARK See Page 22 for Convention Details THE WAIT IS OVER!

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