Copyrights Terms and Derivative versus Transformative Use

IM 350: Intellectual Property Law and New Media

September 15, 2015

Hot News! Let’s Go Crazy!

• http://www.latimes.com/local/lanow/la-me-ln-video-suit-20150914-story.html

Copyright Tom W. Bell 2008, used with permission

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Trend of Maximum U.S. General Copyright Term

Copyright Term

• For works created from January 1, 1978 onward:– Term begins the moment a work is “fixed in a

tangible medium of expression”– Life of the author plus 70 years– If work-made-for-hire or anonymous work, 95

years from publication or 120 years from creation, whichever is shorter

Fair Use Factors

• (1) the purpose and character 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 substantiality 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.

Back to Let’s Go Crazy

• Lenz v. Universal Music, 13-16106 and 13-16107, (9th Cir. Sept. 14, 2015)– Does a copyright owner have to consider whether

the use of its work is a “fair use” before sending a takedown notice under the DMCA?

– Answer – Yes.– Outcome – The Dancing Baby’s Mom gets to take

her suit against Universal to trial.

Derivative v. Transformative

• Why does it matter?– A copyright owner owns the right to control who

can create derivative works based on the copyrighted work.

– A copyright owner does not own the right to control who can create transformative works.

What is a “derivative work”?

• Based on or derived from one or more already existing works

• Examples:– translations, musical arrangements,– motion picture versions of literary material or plays, art

reproductions,– abridgments, and condensations of preexisting works– a “new edition” of a preexisting work in which the

editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.

What is “transformative use”?

• “whether the new work merely supersede[s] the objects of the original creation or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is `transformative.'"

• Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)

Michael Kienitz v. Sconnie Nation, LLC and Underground Printing-Wisconsin, LLC, No. 13-3004

(7th Cir. Sept. 15, 2014).

Mayor Soglin T-Shirt Design

LIEBOWITZ v. PARAMOUNT PICTURES137 F.3d 109 (2nd Cir. 1998)

Demi Moore Leslie Nielsen

Shepard Fairey v. A.P.

Cariou v. Prince, 714 F. 3d 694 (2nd Cir. 2013)

Recycled Paper v. New Line Cinema

Here Come the Sharks!

Here Come the Sharks!

Derivative or Transformative?

The End