To summarize two previous posts, copyright ownership and works made for hire, copyright is owned by the author upon the author’s fixation of the creative idea.  An author hired to create for another is still the owner of the copyright absent meeting the criteria for a work that made “for hire.”  The controlling case on this point is discussed herein.

The Supreme Court in Community for Non-Violence v. Reid, 490 U.S. 730 (1989) set forth the criteria for a work made for hire. The nonprofit association, the Community for Creative Non-Violence (CCNV) brought action against sculptor James Reid to establish copyright ownership of the sculpture “Third World of America.” CCNV hired Reid to create a statue for an event with the intent of affixing the resulting statue to a base created by CCNV. Reid agreed to create the work and this rendered the two pieces into an indivisible and interdependent whole. After the event CCNV wanted the statue to travel to different states to be part of different exhibits and Reid would not allow it. (One of the six exclusive rights of a copyright owner is the right to display.)  Reid objected to CCNV’s proposed means of display of the statue and asserted his alleged copyright ownership of the sculpture.  CCNV also alleged copyright ownership based on the position that Reid was an employee who created the sculpture within his scope of employment.  The U.S. Supreme Court held that the sculptor was an independent contractor and not an employee of the nonprofit, therefore the statue was not a work for hire. Ultimately, although Reid was found to be an independent contractor, and the work was not made for hire, upon remand, the 6^thdistrict court held that CCNV and Reid might be joint authors of the statue since the statue and the base were attached and an indivisible whole and thus co-owners of the copyright. The U.S. Supreme Court affirmed that decision.

In coming to this decision and determining whether the statue was a work for hire, the Court first looked at whether or not Reid was an employee under agency law. He was deemed to be an independent contractor for the following reasons: (1) Reid worked in his studio in a different city than that of CCNV (2) His involvement with the company lasted for less than two months (3) He had absolute freedom as to when and how long to work (4) He was paid a sum that was dependent upon completion of the sculpture (5) He had the discretion to hire and pay for assistance in the completion of the project, and (6) He was not on CCNV’s payroll, nor was he provided with any employee benefits.

An independent contractor owns the copyright to their work unless the work is deemed a work made for hire.  The Court then analyzed whether the work was made for hire. In order for a work to be made for hire in this situation, it must meet four criteria. First, the work must fall within one of the nine statutorily enumerated categories of work that are eligible to be specially ordered or commissioned as works made for hire. (See Works Made for Hire post)  In this case, the work in question was a sculpture and did not fall within the nine categories of eligible works. Moreover, a work made for hire agreement must be in signed writing evidencing an express agreement that a work is “made for hire.”  In this case, the two parties entered into an oral agreement, and there was no written contract. Accordingly, Reid’s statue was not considered a work made for hire.

In the years since the Supreme Court’s decision, district courts of appeal have addressed the question of independent contractor versus employee in many contexts.  Some factors will be significant in virtually every situation:  (1) the hiring party‘s right to control the manner and means of creation; (2) the skill required; (3) the provision of employee benefits; (4) the tax treatment of the hired party; and (5) whether the hiring party has the right to assign additional projects to the hired party.  Factors three and four receive great weight in every analysis.

In conclusion, the copyright in a work created by an independent contractor, absent a signed “work for hire” agreement relating to one of nine specific categories of works (or an absent assignment) is not the property of the hiring party.  Rather, the work is considered by the law to have been authored by the independent contractor.

In order to be subject to copyright, a work must contain a minimum level of creativity.   A related post covers what is not protected by copyright.

In  Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991), the Supreme Court held that the benchmark of copyright protection is creative originality versus the amount of labor invested into a work.  In that case, the plaintiff, Rural Telephone Service Company, Inc. “Rural,”  provided phone service to several small Kansas communities and by state regulation, was responsible for issuing an annual telephone directory. Plaintiff’s directory was copyrighted as a whole and comprised of both yellow and white pages. The yellow pages held revenue-generating advertisements, while the white pages contained its subscribers’ names, addresses and phone numbers. The defendant, Feist Publications, Inc. “Feist,” was a publishing company that created a directory far larger and more widespread than the plaintiff’s community directory. Feist distributed its directory free of charge and generated revenue through its ads in the yellow pages. Unlike the other telephone service providers in the vicinity who provided directories pursuant to regulation, Rural would not grant a license to Feist for white pages’ information in its directory.  Feist then reproduced Rural’s white pages without consent. Rural sued Feist for copyright infringement. Using the standard of the amount of labor invested into a work, the 10^th district court found that Feist was guilty of copyright infringement. The Supreme Court reversed the decision and held that copied information did not meet the minimum standard of creativity required for a work to be granted copyright protection. Feist was allowed to reproduce the white pages without consent.  Rural held no copyright in the pages because they lacked the minimum level of creativity.

In coming to its decision, the Supreme Court considered that the copied information was factual.  Facts cannot be copyrighted because they have no original authorship. Although facts cannot be copyrighted, the compilation of a set of facts may be eligible for copyright protection, if it meets a minimum level of creativity. In the sense of a directory, it might meet a minimum level as the author ultimately chooses where the facts are placed, how they are displayed and in what order they are arranged. If there is some creativity, copyright protection exists for the formatting of the facts, not the facts themselves,  and the facts cannot be protected by association with the original compilation. However, in the Feist case, Rural did nothing creative with the formatting of the information.  It merely listed the information in alphabetical order by name, which does not meet a minimum level of creativity. Since Rural’s white pages lacked the requisite originality, Feist’s use of the listings did not constitute infringement.

For a case where a compilation was entitled to copyright protection by Lee Anne LeBlanc on appeal, see Sethscot Collection v. Drbul, 669 So. 2d 1076 (Fla. 3^rd DCA, 1996).  In that case, the arrangement of facts met the level of minimum creativity required for copyright.

The most recent posts have looked at the Doctrine of Fair Use and the educational guidelines incorporated into it. The original guidelines, known as the Classroom Guidelines, were factored into the Copyright Act of 1976, and allow educators to reproduce certain types of and portions of work to be used in a learning environment.

Although the Classroom Guidelines allow a certain amount of leniency within the Doctrine of Fair Use, the guidelines do not trump the requirements of fair use, nor do they overpower the rights of the original copyright holder.

The case below is an older, but strong example of the Doctrine of Fair Use overriding the Classroom Guidelines. Note, the courts may choose to follow the guidelines, but must ultimately rule in such a manner that favors the four criteria used to determine fair use set forth in §107 of the Copyright Act.

In the case, Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991), the defendant, Kinko’s Graphics Corp., decided to create its own set of low-cost course packets to sell to students by photocopying materials that were obtained from college professors. However, the for-profit copying service did so without the proper permissions and without paying the licensing fees that accompanied the material in the course reading lists. Here, the plaintiffs were a group of publishers who held copyrights for some of the material that was being used in the defendant’s course packets. Kinko’s claimed that its reproduction of the material was fair use, as the course packets were for educational purposes.

In this case, the court opted not to adopt the Classroom Guidelines as a legal standard and used evaluated each of the four fair use criteria individually, even though Kinko’s asserted fair use because of the educational nature of the packets.

For the first factor, which concentrates on the purpose and nature of the use, the court examined whether the material was being used in a commercial or non-commercial manner. It found that the use was commercial, as Kinko’s intended to profit from the work, and it was not used in a non-profit or educational nature. Moreover, the court also looked at the transformative nature of the work, and whether or not the defendant further developed the original work in some way. Again, it determined that the use was not transformative as the defendant simply photocopied the pre-existing material to create the course packets.

For the second factor, which concentrates on the nature of the copyrighted work, the court examined the originality and creativity of the original work being reproduced. The court found that this factor weighed in favor of fair use since the material that the defendant was reproducing was mainly factual. The reading lists being reproduced focused mainly on fields of study and did not meet the minimum level of creativity. However, if the original work had contained a unique or one-of-a-kind element this factor may not have weighed in favor of fair use.

For the third factor, which concentrates on the amount and substantiality of the portion used in relation to the copyrighted work as a whole, the court examined whether the material being reproduced was essential to the original work. It found that Kinko’s was reproducing most essential portions of the main works. Because the defendant was recreating course packets for a lower cost, it had to reproduce the most important portions of the original works in order to give the students an effective discounted option. Therefore, the court found that this factor weighed against a finding of fair use, even though the defendant was not copying the works in their entirety, it was copying the most critical portions.

For the fourth factor, which concentrates on the effect of the use upon the potential market for or value of the copyrighted work, the court examined whether the reproduction of the copyrighted works would encroach on the original creators’ rights. In this case, the court found that the reproduction was indeed affecting the rights of the original creators, as students were purchasing the discounted course packets, made by Kinko’s, instead of the full-priced packets originally created. Since the reproduction was hindering the monetary sales generated from the original works, the court found that this factor weighed against a finding of fair use.

In conclusion, three of the four factors weighed against a finding of fair use and the court ruled in favor of the plaintiffs.

While it is important for copyrighted work to be shared for certain purposes, it is the job of the courts to ensure that an original copyright owner will not be hindered by the reproduction of the work, in a commercial or non-commercial setting. In this case, specifically, the three factors that weighed against a finding of fair use were far greater than the one that supported fair use. Simply because the defendant was selling its products to students, did not automatically make it an educational use. When looking at the bigger picture, the Guidelines were set forth for educators to expand the knowledge of their students without hindering the original creators of the works being used. In this case, educational material was being used in a for-profit manner which did hinder the original creators because their sales were being negatively impacted in the marketplace.

As mentioned in the last post, this post will take a look at the TEACH Act, which is an extension of fair use in an educational setting. However, before further examining the Act, it is important to note that the Act is an extension of the Fair Use Classroom Guidelines.

The Classroom Guidelines were set forth in §107 of The Copyright Act of Oct. 19, 1976 and set the minimum standards of fair use for reproducing copyrighted material in non-profit educational institutions. These guidelines allow educators to copy certain portions and amounts of work for in-class use as an educational tool. Yet, as thorough as these guidelines were for in-class use, they did not account for online learning, which was not yet created. On Nov. 2, 2002, President Bush signed the TEACH Act into law. TEACH stands for Technology, Education and Copyright Harmonization, and furthers the Classroom Guidelines into online-learning environments.

Although the TEACH Act provides more freedom when using copyrighted work, there are still requirements that must be met in order for an educational institution to qualify for the exemptions provided under the Act. The main requirements are as follows: (1) The institution must be an accredited, non-profit educational institution. (2) Use of the copyrighted work must be for supervised educational activities. (3) The use must be limited to a set number of students enrolled in a specific course. (4) The use must be for real-time classes or pre-recorded sessions. (5) The use cannot include the transmission of textbook materials, which means one textbook cannot be bought and then copied for distribution. As an aside, the purpose of allowing digitization of work is not to harm the sale of copyrighted work, as that would be in violation of the Doctrine of Fair Use. (6) The institution must have clear and publicized copyright policies, which are to inform students that the work may be copyright, and all copyrighted online work must have a notice of copyright. (7) The institution must implement technological measures to ensure compliance with the policies above, and the measures must go further than password protection. Some measures may include user and location authentication through IP verification, print-disabling and cut-and-paste blocking. See 107th Congress H.R. 2100 Sect. 487

While the TEACH Act creates certain leniencies, its purpose is to allow remote students to have the same educational resources as in-person students. The Act does not supersede the Doctrine of Fair Use or any pre-existing digital licensing agreements.

Previous posts on the subject of copyright have discussed who the author of a work is, what is protected by copyright, what is not protected by copyright and the benefits of copyright notice.

This post will take a look at the Doctrine of Fair Use. This is a widely important section of copyright law because it helps to shield an original author of a work fixed in a tangible medium from copyright infringement.

According to the U.S. Copyright Office, “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” As stated in 17 USC §§107 – 120, the circumstances include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. It is, however, important to note that there are certain provisions in §106 and §106A that may preclude the Fair Use Doctrine.

When discussing fair use, §107 sets forth a set of four criteria that are to be evaluated when determining whether or not a certain use is fair or not. The four criteria are as follows:

• Purpose and character of use: This factor considers whether the use is commercial versus non-commercial (such as nonprofit and/ or education purposes). When examining this first criterion, the court studies how the third party is using the copyrighted work. Often, the courts are more likely to find fair use if the work is being used in nonprofit, educational and other non-commercial settings. That being said, this does not automatically mean that fair use in one of these settings will automatically be found without first balancing the other three factors listed below. Moreover, when examining this factor, courts look at whether a work is being used in a “transformative” manner. When referring to “transformative” use, this means that the third-party user of the copyrighted work has added to or further developed the original work.
• Nature of the copyrighted work: When looking at the nature of the copyrighted work, the courts assess the level of creativity or originality of the copyrighted work. This means that the more unique a work is, the less likely the courts are to find fair use. Therefore, courts may be less likely to find fair use for the unauthorized use of a one-of-a-kind novel, movie or book versus a technical manual or news article. As was explained in a previous post, certain things, such as instructions, may not be copyrighted, but the elements that make it unique may be. In this way, it is more likely for a court to find fair use for a work that is less unique.
• Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Courts consider both the quantity of the work being used and the quality as well. On the surface, a court is less likely to find fair use if a large portion of the copyrighted material is used, versus a small portion. However, in some situations, a court may find fair use if a third-party uses the entire copyrighted text, but it may not find fair use of even the smallest portion of the section is determined to be the “heart” of the work. In short, this factor works to protect the essence of a copyrighted work.
• Effect of the use upon the potential market for or value of the copyrighted work: The fourth and final criterion for determining fair use steps away from the work itself, and it looks outward into the marketplace. As explained in an early post, one of the benefits of copyright notice is that it acts as notice of ownership to the public. This means that if a work is unlawfully reproduced or copied, the original owner may claim copyright infringement. So, the courts use this factor to determine how the third-party user is using the copyrighted work, and if there is a chance that it may encroach upon the original author’s rights, such as monetary sales from the work. Aside from the effect on the marketplace in a monetary manner, the courts also must look at the safety of the widespread public. If there is a chance that the unauthorized use of the work could cause substantial harm to the public, the courts would be less likely to find fair use.

Though these are the four factors courts use to determine fair use, these criteria are not the only information used in every case. Because each case has a different set of facts, the courts must look at each case on a case-by-case basis. There is no set amount of work that determines fair use. This is also mentioned in the third factor of the test regarding the amount and substantiality of the work being used. The courts may find fair use of 100 hundred pages in one case but may not find fair use of one page in another. The intent of the Fair Use Doctrine is to protect the rights of the original author, while not restraining the public from learning or benefitting from a previously copyrighted work. A later post will delve into the TEACH Act, which is an extension of fair use in an educational setting.

As discussed in the last post, Copyright exists automatically in an original work of authorship as soon as it is fixed in a tangible medium.

Copyright refers to the six exclusive rights granted to the author of an original work, which are protected by U.S. law. However, again, as discussed, those rights can be enhanced and there are many benefits to registering a copyright with the U.S. Copyright Office. This post will discuss the duration of copyright registration, and the various amendments which have been made regarding a copyright’s duration, given the time of publication.

The first post covering copyrights briefly went through the duration of copyright protection for works created on or after Jan. 1, 1978, which encompasses all works registered under the current law, the Copyright Act of 1976. This post will take a closer look at how copyright registrations are affected given their registration date, and what amendments have been enacted since the current law took effect.

There are two separate Copyright Acts, the Act of 1909 and the Act of 1976. While the current law, the Act of 1976, retains the same system as the previous one, there are certain changes. This discussion will begin with the current Act for the sake of relevancy.

There are two separate categories for works that secured federal statutory protection on or after Jan. 1, 1978, which is the date that the current Act was amended. The first category is for works that were created on or after Jan. 1, 1978, and the second category is for works that were in existence but not published or copyrighted on Jan. 1, 1978. The amendment establishes a single copyright term and distinguishes different methods for calculating the duration of copyright. Starting with the first category, for a single author, the Act automatically protects a work that is created and fixed in a tangible medium of expression on or after Jan. 1, 1978, from the moment of creation through the author’s life, plus an additional 70 years. For a “joint work prepared by two or more authors who did not work for hire,” the protection lasts for 70 years after the last surviving author’s death. The duration of copyright protection for works made for hire, anonymous and pseudonymous is the same. The duration of the protection in all three cases is 95 years from first publication, or 120 years from creation, whichever length of time is shorter. However, if the author’s identity of an anonymous work is later revealed in Copyright Office records, the term of protection is the author’s life plus 70 years, similar to a single-author work.

The works in the secondary category, which pertains to those that were in existence but not published or copyrighted prior to the amendment, are intrinsically protected by federal copyright protection. For these works, the protection is calculated the same as for those in the first category. The difference is that works in this category are guaranteed at least 25 years of statutory protection. The law specifically states that “in no case would a copyright in a work in this category have expired before Dec. 31, 2002.” Moreover, if a work in this category was published before Dec. 31, 2002 term is extended another 45 years, or through the end of 2047.

Focusing now on the Copyright Act of 1909, the federal standards for copyright duration are very different than in the current Act because of the renewal term within the 1909 Act. During this Act, federal copyright protection began on the date that a work was published, or for unpublished works, on the date of registration. Unlike the current Act which guarantees protection for an author’s life plus 70 years, or 95 or 120, depending on the authorship, the earlier Act provided protection for a term of 28 years from the date it was first secured. During the final year of the term, the copyright was eligible for renewal. If renewed, it was extended for a second term of 28 years. If a copyright was not renewed, its federal copyright protection would expire during the first term, at the end of the 28^th and final year.

For copyrights that were still in existence when the current Act came to be, the 1998 Copyright Term Extension Act increased the previous renewal term by 20 years. Therefore, protection for works secured during the Copyright Act of 1909 has been increased from 56 years, two terms of 28 years, to 95 years, which is a first-term plus a renewal term of 67 years. Therefore, when applying the standards set forth in the Extension Act, all works published in the U.S. before Jan. 1, 1923, are in the public domain.

In conclusion, under the current Copyright Act of 1976, all registered works created on or after Jan. 1, 1978, are protected for the duration of the author’s life plus 70 years, 95 years or 120 years depending on the authorship. Therefore, unlike the rules set forth in the previous Copyright Act of 1909, there is no need to renew a copyright term after 28 years. However, the current Act states that all terms of copyright will run the end of the calendar year in which they expire. For more information regarding the specifics of the amendments made to the 1909 Act, visit https://www.copyright.gov.