A copyright owner has a right to reproduce the work in copies or phonorecords.
Copying in Fact
Direct or circumstantial evidence may establish this element. Circumstantial requires proof of access and similarity.
Improper appropriation requires substantially similarity between the two works. Substantial similarity results when the defendant has copied protected expression rather than unprotected ideas. Courts often consider the total concept and feel of the works in deciding improper appropriation.
A copyright owner has a right to distribute her copyrighted work to the public. The right applies when a physical copy is sold, given, or lent to someone without restriction.
Someone who lawfully owns a physical copy of a copyrighted work may transfer ownership (or possession) of that copy without violating the copyright owner’s right of distribution.
Related to the distribution right, a copyright owner may exclude others from importing copies of her work into the United States. However, this right is subject to the first sale doctrine.
Rights in a Copyright
Infringement occurs when a defendant makes an unauthorized copy.
Two elements must be established:
(1) copying in fact;
(2) improper appropriation.
First Sale Doctrine
A copyright owner has a right to publicly display and publicly perform her work.
Display & Performance
Meaning of Public
A performance or display must be public to be infringing. Public means that the display or performance occurs in a physical location that is either (a) open to the public, or (b) where a substantial number of persons are gathered. Also, the performance or display is public if it occurs through a transmission to either (a) or (b).
The public display right does not apply to the display of a work at the physical place where work (or its copy) is located.
The public performance and display rights do not apply in a variety of situations set by statute, including face-to-face teaching in a classroom and religious services at a place of worship, among others.
Limitations on Rights
There are five rights in a copyright:
(1) the right to reproduce the work;
(2) the right to prepare derivative works;
(3) the right to make a public distribution;
(4) the right to make a public performance; and
(5) the right to make a public display.
A defendant who creates a work that is substantially similar to the copyrighted work does not infringe if the defendant creates his work independent of the copyrighted work.
A copyright owner has a right to prepare derivative works. A derivative work is a work that is based upon a preexisting work(s) and is in someway recast, transformed, or adapted.
The public performance right for a sound recording applies only in the context of digital audio transmission.
Sound Recording Exception
Philip writes a novel. Without Philip’s permission, Connie makes a movie that is based on the novel. Connie is careful not to use any actual verbiage from Philip’s novel. Although she adds in an extra scene, it is apparent that her movie employs the same unique characters and unique plot elements that are in the novel. She then shows the movie across in various theatres. Very few people attend the movie.
Question: Which copyright right(s) has Connie infringed?
Mary owns a copyright in a comic book that she created. She licenses Comic Sales Inc. (CSI) to sell them to the public. CSI sells ten of Mary’s comic books to Eric. Unfortunately, Eric also steals three of her comic books from CSI. Eric then sells the thirteen comic books on eBay. Reggie purchases all thirteen.
Question: Has either Eric or Reggie directly infringed any of Mary’s copyright rights?
Dirk is in charge of an entertainment night for his local church congregation. For that night, he decides to play a popular recent movie, using the DVD that he owns, as the entertainment for the evening. The event is a great success, well attended by members of the congregation and many of their friends.
Question: Has Dirk infringed a copyright?
Betty buys a sculpture from Sue, who is the sculptor. Betty displays the sculpture at a museum. Betty also transmits a live stream of the sculpture to her own personal website (which no one ever visits) for anyone to view.
Question: Has Betty infringed Sue’s copyright in the sculpture?
In 2003, Brigham creates a song that has a catchy tune. He releases the song later that year and it is played through the country on various radio stations. While listening to one of those stations, Joseph notices that Brigham’s song is very similar to his own. Joseph created his own song in 2002. He has yet to perform it for any audience.
Question: Has Brigham infringed Joseph’s right of reproduction?
Wilford creates a painting of a nature scene that is present at a state park. After admiring his painting, Beatrice goes to the same nature scene and creates a painting based on her observation of the scene, which happens to be substantially similar Wilford’s painting.
Question: Has Beatrice infringed Wilford’s right of reproduction?
Gabriel creates a play. After seeing the play, Noah seeks to create a similar play. Noah copies the general plot line—boy meets girl; boy loses girl; boy gets girl. He also copies several stock characters (e.g., a villain; a hero; parents of boy and girl; a comedy relief). Noah admits to this copying.
Question: Has Noah infringed Gabriel’s right of reproduction?
Answer to Question 4
Connie likely infringed the rights of reproduction, the right to prepare derivative works, and the right to publicly perform the work.
With respect to right of reproduction, Connie copied Philip’s unique plot and character elements, and in doing so, she appears to have improperly appropriated protected elements of Philip’s work (even though she did not use any of the actual verbiage in the book).
With respect to the right to prepare derivative works, her work reflects a recasting of the original novel. The movie rendition of the novel is an express example in the Copyright Act of a derivative work.
With respect to the right of public performance, Connie infringes because she shows the movie in a place that is open to the public. The fact that few people attend is of no consequence.
Answer to Question 5
Eric has infringed Mary’s right of distribution with respect to the three comic books that he stole from CSI. The three comic books that he stole from CSI are not authorized copies (because they are stolen), so CSI is liable for selling them to members of the public on eBay. The ten comic books that Eric purchased from CSI are authorized copies, so with respect to those ten, the first-sale doctrine protects him from infringing the right of distribution.
Reggie has not infringed any right. The mere act of purchasing an infringing copy does not infringe any of the exclusive rights.
Answer to Question 6
Yes. Dirk has infringed the right of public performance held by the copyright owner of the movie. Dirk publicly performed the movie when he played it for the congregation. There were more than a substantial number of people gathered, and moreover, the place that he played it was likely open to the public given that many friends attended.
Answer to Question 7
Yes. Betty’s transmission of the sculpture over the internet constitutes a public display. The fact that no one has actually visited Betty’s website is irrelevant because she has made the transmission to a place where the public may receive the transmission. However, Betty’s display of the sculpture to the public at the museum does not infringe Sue’s right of public display. In that situation, the public viewing of the sculpture occurs where the actual physical sculpture is located.
Note that the fact that Betty has purchased the sculpture as a physical object does not imply that Sue has transferred any copyright to Betty. Betty has purchased only right to the object—not to the copyright that the work embodies.
Answer to Question 1
Not likely. Unless Brigham admits to copying Joseph’s song, Joseph would need to establish copying in fact through circumstantial evidence. The evidence must establish both access and similarity. Although the two songs are similar, there is apparently no way that Brigham gained access to Joseph’s work, for Joseph has not yet even performed the work publicly. Because Joseph cannot establish copying in fact, his claim for infringement of the right of reproduction would fail.
Answer to Question 2
No. Although Beatrice has observed Wilford’s painting, she does not base her work on that painting. Beatrice has not copied Wilford’s painting. At most, she has copied the idea of his painting: a rendition of a particular scene. Beatrice merely expresses her own rendition of that actual scene.
Answer to Question 3
Not likely. Although Gabriel can establish copying in fact through direct evidence (Noah admits to the copying), Gabriel cannot likely establish improper appropriation. Noah appears to copy elements of Gabriel’s story that do not receive copyright protection. The plot line that Noah copies is fairly abstract, as are the characters. Noah therefore appears to have copied only unprotected ideas. He has not likely committed improper appropriation. He has not likely infringed the right of reproduction.
In 2000, Rodney creates a poem that is truly awe inspiring. A few months later, and without knowing about Rodney’s poem, Reba creates a poem that is identical to Rodney’s poem. Rodney then publishes his poem in 2001. Reba publishes her poem in 2002.
Question: Has Reba infringed Rodney’s copyright?
Answer to Question 8
No. Reba’s poem represents an independent creation. Although the poems are identical, Reba did not base her poem on Rodney’s poem. There can be no infringement.