Copyright Law Ronald W Staudt Class 14 October

Copyright Law Ronald W. Staudt Class 14 October 15, 2013

TV Broadcasters Take Aereo IP Fight To Supreme Court Law 360, Los Angeles (October 11, 2013, 8: 07 PM ET) -- ABC and the other major television broadcasters urged the U. S. Supreme Court on Friday to overturn a Second Circuit decision denying them an injunction in their copyright infringement suit against Aereo Inc. , saying the online service undercuts billions of dollars' worth of investments in their programming. The broadcasters asked the high court to rule whether a company publicly airs a copyrighted TV program when it retransmits a broadcast of the program to thousands of paid subscribers online, according to their petition for writ of certiorari. The Second Circuit previously ruled that its 2008 decision known as Cablevision, which held that a remote-storage digital video recorder system didn't infringe broadcasters' public performance right, applied to the Aereo suit. The broadcasters — including Fox Broadcasting Co. , NBC Studios LLC, American Broadcasting Cos. Inc. and CBS Broadcasting Inc. — argued to the Supreme Court that other judges have been cracking down on similar online services, creating a conflict in the courts. Services such as Aereo could disrupt the long-standing arrangement in which third parties have to get permission from broadcasters before rebroadcasting their programs, the petitioners claimed.

Class overview – z Overview of Duration & Renewal z Termination y. Overview y. Scorpio Music S. A. v. Willis y. Marvel v. Simon y. Pooh, Lassie and Steinbeck z Renewals and Derivative Works y Stewart v. Abend y Russell v. Price

Duration – simplified overview z 1909 act- © arises when author publishes a work with proper copyright notice. y © lasts for 28 years from publication y © can be renewed for a new 28 year term in 27 th year of the first term y From creation to publication, State C/L protects author’s right of first publication. z 1976 act (1/1/1978) – © arises when author fixes work in tangible medium of expression y Unitary term of life + 50, now life plus 70 y No renewal, but termination possible after 35 years of transfer y State C/L copyright preempted

Transition issues: Categories of works on 1/1/1978 z 1/1/1978 y. Works previously published w/o notice y. Works published w/notice prior to 1923 (1978 - 56 years) y. Works published w/notice in 1923 & after x. All about renewal! y. Works created but not published x. All about compensation for losing perpetual State C/L copyright

Duration under the 1976 Act & CTEA z Works created after 1977 or unpublished before 1978 y Section 302 - life + 70, joint authors-survivor + 70, works for hire - shorter of 95 or 120 y Section 303 - pre 1978 works lose c/l © & get 302 or 2002+ if published by 2002 at least 2047. z Works first published under the 1909 Act y Section 304 - 28 + Renewal x. Renewal is a new estate • Author if living, then spouse or children, executor, next of kin x 1976 renewal extended to 47 years x 1992 automatic renewals x 1998 Sonny Bono Act- renewal 67 years z Works in Public Domain prior to 1978 y 1994 --Sect 104 A --NAFTA + Uruguay Round--restores © in some foreign works, reliance parties protected z P. 435 & Professor Gassaway’s table & Circular 15 a

Quick Overview of Renewal rights under 1909 and Sect. 304 of 1976 acts z. Unique form of property z. Assignable by author or others? z. Presumptions about grants and renewal z. Widow and children’s shares

Termination of transfers Scope of the right to terminate. Who can terminate? When can a grant be terminated? What is the effect of the termination?

Termination of transfers § 203. Termination of transfers and licenses granted by the author (a) Conditions for termination. In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise executed by the author than by will, is subject to termination under the following conditions: (1) In the case of a grant executed by one author, termination of the grant may be effected by that author or, if the author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s termination interest. In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it; … *** (5) Termination of the grant may be effected notwithstanding any agreement to the contrary

Scorpio Music v. Willis (Supplement p 34 -40) YMCA, In the Navy, Go West Lead singer Willis translates and writes lyrics- 2 or 3 joint authors Willis transfers to CSM then to Scorpio for 12 -20% royalty 1/2011 Willis serves Notice of Termination Scorpio argues: Work for hire- abandoned Termination fails without participation of joint authors text of 203(a)(1) controls when joint authors make individual grants of copyright interests If termination good Willis gets only 12 -20% like royalty deal

Marvel Characters, Inc. v. Simon 304(c) Termination of Transfers and Licenses Covering Extended Renewal Term. — In the case of any copyright subsisting in either its first or renewal term on January 1, 1978, other than a copyright in a work made for hire, the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it, executed before January 1, 1978, by any of the persons designated by subsection (a)(1)(C) of this section, otherwise than by will, is subject to termination under the following conditions: *** (5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.

Marvel Characters, Inc. v. Simon Facts: Publication of Captain America in 1940 Lawsuit about ownership of renewal term 1966 Settlement Agreement 1969 Termination notices in 1999 Cross claims for DJ re ownership Does 304(c) cover a settlement agreement entered long after work’s creation stipulating that a work was created for hire? Is the settlement agreement an “agreement to the contrary? ” District Court- unambiguous acknowledgement in settlement agreement controls

Marvel in the 2 d Cir z Res Judicata— 1976 Act creates new rights-extended term & termination right z Collateral Estoppel –bare stipulation unaccompanied by findings does not estop Simon from asserting ownership of termination right z Q: is a work for hire settlement agreement a 304(c)(5) “agreement to the contrary…” y Purpose of 305—add benefits to authors y Publishers cannot run an end run around 304 w/ WFH agreements- especially retroactive agreements subsequent to work’s creation y No equitable estoppel- Marvel can continue to exploit derivative works

Other Termination Issues z Pooh, Lassie and Steinbeck: y Early deal, then new deal… x. Is second deal “agreement to the contrary? ” z Gap grants: transfer before 1/1/1978 but creation after? z Derivative works exception: y “A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. ” 17 U. S. C 203(b)(1).