Law 633: Copyright Reference & News

Last modified 4/23/18

University of Michigan Law School
Law 633

Copyright Law

4 hours - Jessica Litman

Click HERE for news

Required Texts:

Julie E. Cohen, Lydia Pallas Loren, Ruth Gana Okediji & Maureen A, O'Rourke, COPYRIGHT IN A GLOBAL INFORMATION ECONOMY (4th edition 2015)

2017 Case Supplement (available as a free download here or here)

A copy of the Copyright statute available to purchase (for $39) here or (for $12) here; available to download for free (but you will need to print it out, and it’s long) here or here; and available to read online here

The authors of your Casebook maintain a website keyed to the book at www.coolcopyright.com, with useful resources and updates.

Copyright reference sources on the Internet:

Here is a modest collection of additional reference sources available on the World Wide Web. Each of them includes links to further sources, some of which are more reliable than others. Don't believe everything you read.

The copyright statute: Title 17 of the US Code (current as of January, 2017)

United States Copyright Office homepage
- Another copy of the copyright statute (current as of December, 2011) and recently enacted amendments
- The Compendium of Copyright Ofice Practices (3d edition 2017)
- Archive of Copyright Office Review Board decisions in administrative appeals of registration refusals
- Fair use index
- Recent Copyright Office Studies:
  - Copyright and the Music Marketplace (February 2015)
  - Orphan Works and Mass Digitization (June 2015)
  - The Making Available Right in the United States (February 2016)
  - Section 1201 of Title 17
  - Software Enabled Consumer Products (December 2016)
  - Resale Royalties: An Updated Analysis (December 2013)
  - Copyright Small Claims (September 2013)
  - List, with links, of current, ongoing studies
- House Report 94-1476, accompanying the 1976 Copyright Act (1976)
- Copyright Law Revision Studies (1955-1960)
House Judiciary Committee U.S. Copyright Review (with public comments)

Primary Sources on Copyright: 1450 to 1900

Professor Laura Gassaway's Chart: "When Works Pass Into the Public Domain"

Terry J. Carroll’s 2002 Copyright F.A.Q.

Rob Kasunic's Copyright Law and Litigation Resource (including a copy of the 1909 Copyright Act)

Authors Alliance Guides:

Spider Robinson's 1983 short story: Melancholy Elephants

U.S. Government Executive Branch resources:
- U.S. Department of Justice Intellectual Property Task Force
- White House Office of the U.S. Intellectual Property Enforcement Coordinator
- U.S. Department of Commerce Internet Policy Task Force 2013 Green Paper on Copyright Policy, Creativity and Innovation in the Digital Economy with links to comments submitted in response to the Report, and 2016 White Paper on Remixes, First Sale, and Statutory Damages
- U.S. National Intellectual Property Rights Coordination Center("Protection is Our Trademark")
- U.S. Trade Representative Office of Intellectual Property and Innovation
Resources hosted by universities:
- USC/Columbia Music Copyright Infringement Resource collection of MIDI files, MP3 files, and partial scores from songs involved in infringment cases
- Stanford University Library Copyright & Fair Use Site
- Stanford University Library Copyright Renewal Database
- Columbia Law School's KeepYourCopyrights.org resource for creators
- yin and yang: The University of Michigan Library Copyright Information site and the University of Michigan Digital Copyright Compliance site
- Duke Law School Center for the Study of the Public Domain
- George Mason University Center for the Protection of Intellectual Property
- Harvard Berkman Center’s Lumen project
- Berkeley Law Scholarship Repository: Copyright Principles Project: Directions for Reform (2010)
- University of Pennsylvania Digital Library Online Books Page: Information about the Catalog of Copyright Entries
- University of New Hampshire IP Mall Copyright Collection
- University of Nottingham Center for Research Communications

Resources posted by NGOs and other organizations interested in copyright
- Authors Alliance Issues for Authors
- The Authors Guild: Where We Stand
- BSA-The Software Alliance: Studies and Research
- The Center for Copyright Information: Resources and Frequently Asked Questions about the Copyright Alert System and the Independent Review Program
- Computer & Communications Industry Association
- Copyright Clearance Center: Learn About Copyright
- Creative Commons
- Electronic Frontier Foundation: Teaching Copyright Curriculum
- Free Software Foundation: Resources
- Future of Music Coalition: Education, Research and Advocacy for Musicians
- International Federation of the Phonographic Industry: Resources and Reports
- Knowledge Ecology International: Publications and Research Notes
- Library Copyright Alliance
- International Intellectual Propert aAlliance: Studies and Reports
- The Public Domain Review
- SoundExchange: Advocacy

International Copyright Resources

The World Intellectual Property Organization

The Berne Convention for the Protection of Literary and Artistic Works
The WIPO COPYRIGHT TREATY
The WIPO PERFORMANCES AND PHONOGRAMS TREATY
Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled
WIPO Lex (searchable database of national IP laws)

Wittem Project Model European Copyright Code
EBLIDA (European Bureau of Library, Information and Documentation Associations)
EU Copyright Office
European Commission Communication: Towards a more modern, more European copyright framework (December 9, 2015)

Comparative Copyright Resources

Australian Copyright Council
Australian Digital Alliance
Canadian Intellectual Property Office Copyrights page.
Lehman, Lee & Xu's Intellectual Property Laws and Regulations in China
Government of India Copyright Office
Japan Copyright Research and Information Center
U.K. Intellectual Property Office
The U.K. government’s Nancy and the Meerkats educational IP videos for children

Copyright Law & Policy Blogs

(I warrant neither quality nor accuracy. If you explore these blogs, you will find a wide range of views on whether copyright law is essential to any just society, more trouble that it is worth, or something in between. Only some of the blogs are written by lawyers. Find one that speaks to you and check it weekly.)

Copyright Office Blog: Copyright —Creativity at Work
Techdirt
Rebecca Tushnet’s 43(b)log
Terry Hart’s Copyhype
The 1709 Copyright Blog
Jonathan Bailey’s Plagiarism Today
DisCo (Disruptive Competition Project)
Future of Music Coalition Future Blog
The Fashion Law blog
Michael Geist’s Tech Law Topics Blog
Chris Castle’s Music Technology Policy blog
TorrentFreak
Music Law Updates blog
Creative Commons weblog
David Newhoff’s The Illusion of More
Infojustice.org
The MTTLR Blog
Copyright Alliance Blog
Kluwer Copyright Blog
Bill Rosenblatt’s Copyright and Technology blog
Creative Future blog
YouTube Creator blog
Teleread
The Trichordist
Ellen Seidler’s Vox Indie
That Song Sounds Like
You Thought We Wouldn't Notice
Stop Stealing Photos wall of shame
Bill Patry's Copyright Blog archive (2005-09)
Jennifer Rothman’s Roadmap to the Right of Publicity

News about copyright-affected industries

Ars Technica
Billboard
Complete Music Update
Digital Music News
Hollywood Reporter (especially the THR Esq. blog)
Publishers Weekly
Variety

Thoughtful documentary films about copyright law

Citizen 3.0 (2010) (127 minutes)
Copyright Criminals (2009)(53 minutes)
Good Copy Bad Copy (2007)(59 minutes)
Before the Music Dies (2006) (90 minutes)
The Internet’s Own Boy: The Story of Aaron Swartz (2014)(105 minutes)
Downloaded (2013) (107 minutes)
RiP! A Remix Manifesto (87 minutes)

Organizations and businesses heavily involved in copyright:

A sampling of Internet sites raising copyright questions:

Academia.edu
Archive of Our Own
calvin and hobbes: The Search Engine, by Mike Yingling
CopySense Network Appliance
Covered
The Dash, by Linda Ellis (scroll down)
DJ Earworm
Garfield minus Garfield
The Gluten-Free Museum
The Hawkeye Initiative
HowItShouldHaveEnded.com and How It Should Have Ended YouTube Channel
The Indigo Book
InfinityBox Press
Internet Archive
Kickstarter: Story Surgeon — The App for Fixing Someone Else’s Book
Barry Kite’s Aberrant Art
Monolith
Musicless Music Videos
MyVidster
The Office Time Machine
Open Access Button
Pack Rat Studios
The Parody Project
The Pirate Bay
Public.Resource.Org
Pogo’s movie remixes on YouTube
Prevuze (Days of Our Lives spoilers)
Rapidgator.net
ReDigi (via archive.org)
ResearchGate
Sci-Hub (Elsevier prevailed upon some domain name registrars to block Sci-Hub’s domain names. This link is to an archived version of the site, courtesy of archive.org’s "Wayback Machine")
Semaphore Press
Senuti
StarWars Uncut
Steven Soderbergh’s Re-Edit of 2001: A Space Odyssey
Telebubby Fun Land
Professor David Touretzky’s Gallery of CSS Descramblers
Unglue.it
VidAngel
Warriors of the Empire
WhereToWatch.com
WhoSampled?
Wikipedia

NEWS & OTHER INTERESTING THINGS...

4/23/18 -- The 9th Circuit has issued its opinion in PETA v. Slater (the Naruto monkey selfie case). The majority concludes that non-human animals lack statutory standing to sue under the Copyright Act.

4/9/18 -- The Music Modernization Act is scheduled for mark-up by the House Judiciary Committee on Wednesday, April 11, at 10:00 a.m. The most recent version of the bill is here.

4/12/18 Update -- The House Judiciary Committee voted unanimously to report the bill to the full House for a vote.

4/6/18 -- Adi Shankar posts short "bootleg" fan films on his Bootleg Universe YouTube channel, including his own and other filmakers’ unauthorized takes on popular culture. Last month, he posted Kenlon Clark’s Mr. Rogers Movie: A War Hero, which imagines Fred Rogers in his dressing room recalling a stint as a soldier in Vietnam that may or may not be a figment of his imagination. Family Communications (the company that owns Mr Rogers' copyrights) filed a copyright takedown notice. Read Sam Gutelle’s story for TubeFilter. Then watch the Producer-Directory commentary about making the fan film.

4/4/18 -- In 1956, 20th Century Fox released the film, Anastasia, starring Ingrid Bergman as a young woman who claimed to be Anastasia Romanov. The film was based on a stage play, written by Marcelle Maurette. Maurette licensed the film rights in her script to Fox, but retained all rights to produce the script on stage. In 1997, Fox released an animated film, Anastasia, telling essentially the same story with the addition of songs composed by Lynn Ahrens and Stephen Flaherty, a vengeful ghost of Rasputin, and a talky bat named Bartok. About ten years ago, Ahrens, Flaherty, and playwright Terrence McNally secured a license from Fox to adapt the animated film into a Broadway musical. Anastasia The New Musical opened last year on Broadway to tepid reviews. The stage version includes new songs and loses both Rasputin and Bartok the bat. The heirs of Marcelle Maurette filed a copyright infringement suit against McNally. McNally moved for summary judgment, claiming that his musical is not substantially similar to Maurette’s play. On Monday, the district court denied the motion, ruling that while many of the similarities between the stage play and the musical derived from historical facts and scenes a faire, other similarities between the works do not, and those similarities preclude a grant of summary judgment. Read Ashley Cullins’s story for the Hollywood Reporter.

4/2/18 -- Solid Oak Sketches purchased the copyrights in tattoos from the tattoo artists, and then sought to collect license fees from the video game company behind the NBA2K games (which feature images of real NBA basketball players with their tattoos). When negotiations failed to lead to a license agreement, Solid Oak filed a copyright infringement suit. Defendant filed a counterclaim seeking a declaratory judgment that its use of the tattoos was either de minimis use or fair use. On Friday, the district court ruled that because the appearance of the tattoos during game play is affected by the choices that each player makes, it was inappropriate to determine whether the use was either fair or de minimis at this stage of the lawsuit. Read Eriq Gardner’s story for the Hollywood Reporter.

4/2/18 --The Copyright Office has announced the creation of a new division in the Office: The Copyright Modernization Office. (I delayed posting this item for a couple of days because I wasn’t positive that it was not an April Fools joke. -- JDL)

3/27/18 -- The Federal Circuit has issued its latest opinion in Oracle’s appeal of the judgment entered on the jury verdict on remand from the decision in the casebook at page 229. Recall that, on remand, the jury found that Google’s copying of the declaring source code from the Java APIs was fair use under section 107. The Federal Circuit holds that "Google’s use of the Java API packages was not fair as a matter of law..." The opinion reverses the district court decision denying Oracle’s motion for judgement as a matter of law, and remands he case for a third trial to assess damages. Read the opinion.

3/21/18 -- A divided 9th Circuit panel has released its opinion in the Blurred Lines case, mostly affirming the decision below. Judge Jacqueline Nguyen dissented. Read Eriq Gardner’s story for the Hollywood Reporter.

3/15/18 -- Michael May, a Jamaican songwriter who performs under the name of Flourgon, has filed a copyright infringement suit against Miley Cyrus, claiming that Cyrus’s hit recording, We Can’t Stop, was copied from May’s 1988 song, We Run Things. Read Winston Cook-Wilson’s story for Spin. (Scroll down for the Complaint.)

3/15/18 -- Fashion retailer H&M posted a series of videos promoting its "New Routine" men’s sportswear line, including this one, in which a model wearing a $35 pair of sports shorts walks up a graffiti-decorated wall. Revok, the artist who created the graffiti, sent H&M a cease and desist letter, claiming that the ads infringed his copyright in the art. H&M has now filed suit, seeking a declaration that Revok "does not own or possess any copyright rights in certain graffiti that was painted on New York City property without the permission of the city of New York." Read Julie Zerbo’s blog post for The Fashion Law.

2/21/18 -- In December, Disney filed a copyright infringement suit against RedBox, claiming that by splitting up Disney Blu Ray-DVD-digital download combo packs and renting or selling the elements separately, Redbox was commiting contributory copyright infringement. Redbox counterclaimed for copyright misuse. (See pages 748-59 of the Casebook for an explanation of copyright misuse). Yesterday, federal district court judge Dean Pregerson denied Disney’s motion for a preliminary injunction on the ground that the overreaching terms of the license agreement accompanying the digital download service constitute copyright misuse. (The judge did, however, agree with Disney that Redbox’s transfer of the digital download codes was not permitted by the first sale doctrine.) Read Eriq Gardner’s story for the Hollywood reporter.

4/10/18 UPDATE -- Disney has revised the terms of its digital download license, and claims that it has purged it of the copyright misuse identified by Judge Pregerson. It filed a renewed motion for a preliminary injunction, asking the judge to enter the injunction before it releases the Black Panther combo pack in May. Read Eriq Gardner’s story for the Hollywood Reporter. (Scroll down for the text of the motion).

2/16/18 -- Justin Goldman snapped a photograph of NFL quarterback Tom Brady and uploaded it to his Snapchat account. Other people saw the photo and uploaded it to Reddit and then to Twitter. A least 10 news organizations embedded an image of a tweet including Goldman's photograph in online news reports speculating that Brady was assisting the New England Celtics in efforts to recruit basketball player Kevin Durant. None of the sites stored a copy of the tweet on its own server; rather they caused the image to appear by including HTML code containing the address of the image on Twitter’s server. (Compare Google's actions in the Perfect 10 case described in the Casebook at page 399.) Goldman filed suit against the news organizations for violation of his section 106(5) public display right. The district court rejected the server test applied in Perfect 10. The judge held that by pasting lines of codes containing Twitter embed instructions into their articles, defendants took active steps to accomplish the public display of Goldman’s photo, and violated his public display right. Read Eriq Gardner’s story for the Hollywood Reporter or Mike Masnick’s blog post for Techdirt.

3/22/18 Update -- Judge Forrest has certified her ruling for an interlocutory appeal. Read Bill Donahue’s post for Law 360.

2/15/18 -- Although the Berne Convention requires the US to protect authors’ moral rights, Congress has enacted moral rights protection only for paintings, drawings, sculptures and other works of visual art in the Visual Artists Rights Act [VARA] codified in section 106A. The most interesting recent VARA cases have involved street art painted on the exterior of abandoned buildings, whose owners seek to tear down or renovate the buildings but cannot do so without destroying the art. (See, for example, this story.) 5Pointz was a noted site for graffiti and aerosol art painted on abandoned warehouses in Brooklyn. When the owner of the buildings began plans to tear them down to construct luxury condominums, 21 of the artists sued to enforce their rights under VARA to prevent the destruction of their works or to be given the opportunity to remove them at the artists’ expense. After the court announced that it was denying the artists motion for a preliminary injunction but would hold the building owner liable for damages if the plaintiffs prevailed on their VARA claims, the building owner had all of the art painted over with whitewash, and then proceeded with his plans to demolish the warehouses. Earlier this week, the judge awarded the artists $6,750,000 in damages for willful violations of VARA. Read Alan Feuer’s story for the New York Times. I've posted the opinion here; it includes color images of 49 of the destroyed works.

2/14/18 -- Sean Hall, the copyright owner and coauthor of the song, Playas Gon’ Play, sued Taylor Swift, claiming that the chorus of Swift’s song, Shake It Off, included lyrics copied from Playas Gon’ Play. (The chorus of Hall’s song features the lyrics, " Playas, they gonna play / And haters, they gonna hate / ;" the chorus of Swifts song features these similar lyrics: "Cause the players gonna play, play, play, play, play / And the haters gonna hate, hate, hate, hate, hate / ".) Yesterday, Judge Fitzgerald granted Swift’s motion to dismiss Hall’s Complaint, ruling that "the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and uncreative to warrant protection under the Copyright Act." Read Ashley Cullins’s story for the Hollywoood Reporter.

2/13/18 -- R. Spencer Balentine wrote a screenplay about a streewise young man in his 20s who is recruited to join an international secret spy organization. Balentine entered his screenplay, The Keepers, into a screenplay contest, where it became a finalist for the prize of being adapted into a commercially-published graphic novel. He sent a copy of the screenplay to the commercial publisher, which had entered into a partnership with Marvel Comics. Last week, Balentine filed suit against 20th Century Fox, alleging that the film Kingsmen: Secret Service (which purports to be adapted from a different Marvel comic) is an infringing copy of that screenplay. Read Ashley Cullins’ story for the Hollywood Reporter.

1/30/18 -- Digital Music News has an article by Paul Resnikoff reproducing and analyzing the new Facebook contract for music publishers and songwriters.

1/29/18 -- The Copyright Royalty Board has announced a rate hike for the section 115 statutory license for online music streaming services. Read Ed Christman’s story for Billboard.

1/29/18 -- In 2016, filmakers who had been unable to secure affordable synchronization licenses to use the protest song,We Shall Overcome, in their films filed suit against the song’s music publisher and copyright owner, seeking a declaration that the registered copyright protected a new instrumental arrangement, but did not protect the melody and lyrics, which were copied from a public domain spiritual, We Will Overcome, and that the publisher had registerted the copyright fraudulently. The publisher moved to dismiss the complaint. Judge Denis Cote denied the motion, ruling that the filmmakers had plausibly alleged both that the lyrics in the registered song lack originality and that the registration of the song, which omitted any reference to the preexisiting spiritual, had been fraudulent. On Friday, the publisher announced that it had reached a settlement in the case, in which it conceded that the song, We Shall Overcome, is in the public domain. Read Eriq Gardner’s story for the Hollywood Reporter.

1/11/18 -- The Hollywood Reporter’s Eriq Gardner reports that Australian songwriters Sean Carey and Beau Golden have filed a copyright infringement suit against Tim McGraw, Faith Hill, and Ed Sheeran, alleging that the recently released song The Rest of Our Life is a blatant copy of their 2014 song, When I Found You. Scroll down to the bottom of Gardner’s post to read the Complaint.

1/11/18 -- Netflix, Amazon, and the major Hollywood studios filed suit on Wednesday against the maker of the Dragon Box, a set-top box streaming device, for intentionally inducing mass copyright infringement. Variety’s Gene Maddox has posted the complaint.

1/8/18 -- The members of Radiohead have accused Lana Del Rey of plagiarizing her song, " Get Free" from the Radiohead song, "Creep." Read Derek Hawkins’s story for the Washington Post (which notes the following irony: when Radiohead released "Creep," composers of the Hollies song, "The Air That I Breathe," filed suit for copyright infringement. Radiohead settled the suit by giving writing credit to the composers of the Hollies song.)

1/3/17 -- Law 360’s Bill Donahue has posted his annual list of copyright cases to watch in 2018.

1/2/18 -- The end of 2017 brings with it a variety of articles and blog posts reviewing the past year’s copyright news. You can read a sampling here, here, here, and here. You might also be interested in posts about what works did and did not enter the public domain on January 1 of this year, and why, and why it matters.

12/11/17 -- Osama Fahmey sued Jay-Z for including a sample from Baligh Hamdi’s Khosara Khosara in the recording of Big Pimpin’. Hamdi had assigned the copyright in the song, but claimed that he retained moral rights under Egyptian law that prohibited the use of the sample in a song that glorified drug trafficking and misogyny. The trial court that Fahmey could not assert moral rights under the US copyright statute, and dismissed the suit. Fahmey appealed, arguing that he is suing for a violation of what US law calls his right to make derivative works, which, under Egyptian law, he could not have validly transferred. On December 8, the Court of Appeals for the 9th Circuit heard oral argument on Fahmey's appeal. You can watch the oral argument here or listen to it here.

12/7/17 -- Disney sells its most popular movies (like Frozen, Rogue One, and Dr. Strange) in "Blu-Ray Combo Packs" that include a DVD, a Blu-Ray disk, and a code to permit owners of the combo-pack to download a single digital copy of the film. Redbox rents physical DVDs and Blu-Ray disks from kiosks. Recently, Redbox has purchased combo packs and repackaged the DVD, Blu-Ray disk, and digital code separately. It then rents both the DVD and the Blu Ray disk from its kiosks, and sells the repackaged digital download code to a single buyer. Disney insists that digital codes are not transferable, and has sued Redbox for copyright infringement. Read Eriq Gardner’s story for the Hollywood Reporter.

1/29/18 Update: Redbox has counterclaimed for copyright misuse. Read Eriq Gardner’s story for the Hollywood Reporter.

Bills in the 115th Congress:

H.R. 192, Direct Broadcast Satellite Expansion Act
H.R. 881 and S. 2625, Allocation for Music Producers Act
H.R. 890, Copyright Office for the Digital Economy Act
H.R. 905, You Own Devices Act
H.R. 1695 and S. 1010, Register of Copyrights Selection and Accountability Act
H.R. 1836, Fair Play Fair Pay Act
H.R. 1914, Performance Royalty Owners of Music Opportunity To Earn Act
H.R. 3301 and S. 2393, CLASSICS Act
H.R. 3350, Transparency in Music Licensing and Ownership Act
H.R. 3427 and S. 1701, Fair Access to Science and Technology Research Act
H.R. 3945, CASE Act
H.R. 4706, and S. 2334, Music Modernization Act
S. 2559, Marrakesh Treaty Implementation Act (another copy)

Return to the syllabus

Send an email message to me at jdlitman -at- umich.edu

University of Michigan Law School Law 633