COPYRIGHT AND PUBLISHING:

REVIEW
“Anyone who violates any of the exclusive
right of the copyright owner . . . is an
infringer of the copyright or right of the
author, as the case may be.”

17 U.S.C. § 501(a).
 A. What is Copyright?

It’s the law that gives a writer

exclusive rights, for a period of
time, in what the writer has
written. It protects original
works fixed in a tangible
medium of expression.

Chapter 17 of the United States

Code
 B. What is required for
something to be copyrightable?

2. Fixed in a “tangible medium

of expression”—fixed in a form
that is sufficiently “permanent
or stable so to permit it to be
perceived, reproduced, or
otherwise communicated for a
period of more than transitory
duration.”

i.e., they can be physically

touched and handled.
 B. What is required for
something to be copyrightable?

3. Original works of authorship

—independently created by the
author.

Joint Works are works “prepared

by two or more authors with
the intention that their
contributions be merged into
inseparable or interdependent
parts of a unity whole.”
 B. What is required for
something to be copyrightable?

3. Original works of authorship—

independently created by the
author.

“Work made for hire” is a work

prepared by an employee within
the scope of the employment
relationship or a “work specially
ordered or commissioned for use
as a contribution to a collective
work . . . if the parties expressly
agree in a written instrument
signed by them that the work
shall be considered a work made
 B. What is required for
something to be copyrightable?

3. Original works of authorship—

independently created by the
author.

If joint owners, each owner

equally owns the copyright. If a
work made for hire, the party
that commissioned the work, or
the employer in an employer-
employee relationship, is the
owner of the copyright.
 C. What cannot be copyrighted?

1. Ideas, procedures, processes,

systems, methods of operation,
concepts, principles, or discoveries

2. Historical or scientific facts

3. Utilitarian or functional works

that do not contain any expression

4. Merger Doctrine—the idea and

the expression are merged or
inseparable

5. Titles and slogans

Anderson v. Stallone, 1989 WL 206431
(C.D. Cal. 1989)

“The precise legal standard this Court should apply

in determining when a character may be afforded
copyright protection is fraught with uncertainty. The
Second Circuit has followed Judge Learned Hand’s
opinion in Nichols v. Universal Pictures, 45 F. 2d 119
(2d Cir. 1930). Judge Hand set forth a test, simple in
theory but elusive in application, to determine when
a character should be granted copyright protection.
Essentially, under this test, copyright protection is
granted to a character if it is developed with enough
specificity so as to constitute protectable
expression.”
 D. The “Bundle” of Rights

1. The right to reproduce the

work

2. The right to distribute the

work

3. The right to prepare

derivative works based
upon the copyrighted
work

4. The right to publicly display

the work

5. The right to publicly perform

the work
E. How long are rights protected?

• If published before 1930 but

before 1978, it lasts for 95 years
from the date of publication.

• If published after January 1,

1978, then for the life of the
writer, plus 70 years. If multiple
writers, then the 70 years runs
from the death of the last
surviving author.

• If it’s work for hire, or was

published anonymously or under
a pseudonym, it lasts 95 years
from publication or 120 years
after creation, whichever is
shorter.
 F. When does it start?

You own a copyright in your

work the moment you fix it in a
tangible medium of expression.
The measure of time for which
it lasts begins, however, when
it is published – that is, made
available to the public on an
unrestricted basis.
 G. Why should I register my
copyright?

1. It’s the best public record

of copyright ownership

2. If you register within five

years of publication, the
registration is prima facie
evidence of the validity of your
copyright.

3. If you register within three

months of publication, or prior to
any infringement, you can
recover your attorney’s fees if
you prevail in an infringement
action.

4. It entitles you to statutory

 H. Public Domain

“The realm embracing property

rights that belong to the
community at large, are
unprotected by copyright or
patent, and are subject to
appropriation by anyone.”

Merriam-Webster
 H. Public Domain

1. The copyright has expired

2. The copyright owner failed

to follow copyright renewal
rules

3. The copyright owner

deliberately places it in the
public domain, known as
dedication

4. Copyright law does not

protect this type of work
a. Short phrases
b. Facts and theories
c. Chapter headings and
book titles
d. Merger doctrine (fact
No dispute that Amblin had access.
Issue is substantial similarity.

Two part test:

1. “extrinsic analysis” – is there a

similarity of ideas; refers to similarity of
expression, not merely similarity of
ideas or concepts.

Focus on the specific expressive

elements: “articulable similarities
between the plot, themes, dialogue,
mood, setting, pace, characters and
sequence of events” in the two works.
No dispute that Amblin had access.
Issue is substantial similarity.

Two part test:

2. “intrinsic analysis” – would an

ordinary reasonable person perceive a
substantial taking of the protected
expression.

The test must only consider those

elements of a work that are protectable.
“The party claiming infringement may
place no reliance upon any similarity in
expression resulting from unprotectable
elements.”
 I. Moral Rights: Droit Moral

Refers to the personal rights a

creator has in his or her work;
protects artistic integrity and
prevents alteration of an
artist’s work by others without
permission.
 17 U.S. Code §106A Rights of
certain authors to attribution
and integrity
(Visual Artists Rights Act)

“. . . The author of a work of

visual art (1) shall have the
right (A) to claim authorship of
that work, and (B) to prevent
the use of his or her name as
the author of any work of visual
art which he or she did not
create.
(2) shall have the right to
prevent the use of his or her
name as the author of the work
of visual art in the event of a
distortion, mutilation, or other
modification of the work which
 17 U.S. Code §106A Rights of
certain authors to attribution and
integrity
(Visual Artists Rights Act)

“(3) . . . shall have the right (A) to

prevent any intentional distortion,
mutilation, or other modification of
that work which would be
prejudicial to his or her honor or
reputation, and any intentional
distortion, mutilation, or
modification of that work is a
violation of that right, and (B) to
prevent any destruction of a work
of recognized stature, and any
intentional or grossly negligent
destruction of that work is a
violation of that right.”
Terry Gilliam, et al, v. ABC, 538 F.2d 14 (2d
Cir. 1976)

“American copyright law, as presently written, does not

recognize moral rights or provide a cause of action for
their violation. . . . Nevertheless . . . courts have long
granted relief for misrepresentation of an artist's work by
relying on theories outside the statutory law of
copyright, such as contract law . . . or the tort of unfair
competition.”
Terry Gilliam, et al, v. ABC, 538 F.2d 14 (2d
Cir. 1976)

“We find that the truncated version at times omitted the

climax of the skits to which appellants' rare brand of
humor was leading and at other times deleted essential
elements in the schematic development of a story line. .
. .the edited version broadcast by ABC impaired the
integrity of appellants' work and represented to the
public as the product of appellants what was actually a
mere caricature of their talents.”
The Rights herein granted include, without limitation,
the right to distribute, transmit, exhibit, broadcast, and
otherwise exploit the Picture produced pursuant to this
Agreement by any and all media and devices whether
now known or hereafter devised, and in any and all
markets whatsoever. Purchaser may, in his sole
discretion, make any and all changes in, additions to,
and deletions from the Property, combine it with
material created by others, alter the title of the
Property or use new title(s). Owner waives all rights
to “droit moral” and similar rights relating to the
Property and waives any additional payments which
may be required or imposed by any third party relating
thereto.

Sample language in
film option/purchase agreement
 Idea Protection

Grosso v. Miramax
383 F. 3d 965 (9th Cir. 2004)

“The contract claims turns not upon the

existence of a [copyright] but upon the
implied promise to pay the reasonable
value of the material disclosed.”
Elements of proof for copyright infringement:

1. Plaintiff owns a copyrighted creation.

2. Defendant, without authority, copied

original elements of it.
How to prove copying:

1. Defendant had access to plaintiff’s work.

2. Defendant’s work bears a “probative” or

“substantial similarity” to the plaintiff’s
work.

3. If you can’t prove “access,” then show

“striking similarity.”
Apply the “ordinary observer” test to
film/story infringement:

Would an “ordinary observer,” considering

themes, total concept, characters, plots,
moods, dialogue, setting, and sequence of
events, conclude that the defendant’s work
copied the plaintiff’s?
Apply the “lay audience” test to music
infringement:

“Whether defendant took from plaintiff’s

work so much of what is pleasing to the ears
of lay listeners who comprise the audience
for such popular music, that defendant
appropriated something which belongs to
the plaintiff.” Arnstein v. Porter, 154 F. 2d
464, 467 (2d Cir. 1946)
“A story has a linear dimension: it begins,
continues, and ends. If a defendant
copies substantial portions of a plaintiff’s
sequence of events, he does not escape
infringement by adding original episodes
somewhere along the line.”

Warner Bros. Inc. v.

American Broadcasting Cos.,
720 F. 2d 231, 241 (2d Cir. 1983)
Scenes a faire: “Elements that necessarily
follow from a common theme. . .”

“. . . Incidents, characters, or settings

which are, as a practical matter,
indispensable, or at least standard, in the
treatment of a given topic.”
“Elements such as drunks, prostitutes,
vermin and derelict cars would appear in
any realistic work about the work of
policemen in the South Bronx. . . Foot
chases and the morale problems of
policemen, not to mention the familiar
figure of the Irish cop, are venerable and
often-recurring themes of police fiction.”

Walker v. Time Life Films, Inc.,

784 F. 2d 44 (2d Cir. 1986)
Two part test for substantial similarity:

1. “extrinsic analysis” – is there a

similarity of ideas; refers to similarity of
expression, not merely similarity of
ideas or concepts.

Focus on the specific expressive

elements: “articulable similarities
between the plot, themes, dialogue,
mood, setting, pace, characters and
sequence of events” in the two works.
Two part test:

2. “intrinsic analysis” – would an

ordinary reasonable person perceive a
substantial taking of the protected
expression.

The test must only consider those

elements of a work that are protectable.
“The party claiming infringement may
place no reliance upon any similarity in
expression resulting from unprotectable
elements.”
Analysis must focus on the protectable
elements of a work, which do not
include historical facts or other public
domain materials, insufficiently
developed characters, or scenes a faire.
Limitations on exclusive rights:
Fair use

Notwithstanding the provisions of sections 106

and 106A, the fair use of a copyrighted work . . .
for purposes such as criticism, comment, news
reporting, teaching . . . Scholarship, or research
is not an infringement of copyright. In
determining whether the use made of a work in
any particular case is a fair use the factors to be
considered shall include:

(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.
“For the purposes of copyright law, the nub of
the definitions, and the heart of any parodist’s
claim to quote from existing material, is the
use of some elements of a prior author’s
composition to create a new one that, at least
in part, comments on that author’s work.”

“Parody needs to mimic an original to make

its point, and so has some claim to use the
creation of its victim’s (or collective victims’)
imagination, whereas satire can stand on its
own two feet and so requires justification for
the very act of borrowing.”
Sampling: Involves taking part of an
existing sound recording and
incorporating it into a new work.

Interpolation: Taking part of an existing

musical work (as opposed to a sound
recording) and incorporating it into a new
work.
“Thou shalt not steal.” Judge Kevin Thomas Duffy

Upright Music v.
Warner Bros.
Records, Inc.
780 F. Supp. 182
(S.D.N.Y. 1991)
 Judge Kevin Thomas Duffy
“. . . The defendants in this action for copyright
infringement would have this court believe that
stealing is rampant in the music business and, for
that reason, their conduct should be excused. The
conduct of defendants herein, however, violates not
only the Seventh Commandment, but also the
copyright laws of this country.”
Author Agent Publisher

Traditional Publishing
Triumvirate
 Traditional Publishing: The “Big
Five” Publishers

• Publisher takes all financial risk

• Publisher typically pays advance “against
royalties”
• Publisher pays royalty if advance is earned out
• In-house sales team works with major retailers
and wholesalers
• Generally requires an agent
• Publisher has final say on title and cover
design
• Typically has a print-run; may use print-on-
demand when stock runs low
• Provides some marketing
• Warranties/insurance
 Author

Agent
Marketing

Publisher/
Distributor

Traditional Publishing/Big Five

 Traditional Publishing/Non-Big Five
Publishers
• Pretty much same business model as Big Five
• Publisher takes all financial risk
• Publisher typically pays advance “against
royalties”
• Publisher pays royalty if advance is earned out
• Often work with distributors to sell to retailers
and wholesalers
• Generally require an agent
• Publisher has final say on title and cover design
• Typically has a print-run; may use print-on-
demand when stock runs low
• Provides some marketing
• Warranties/insurance
 Author

Agent
Marketing

Publisher/
Distributor Distributor

Traditional Publishing/Non-Big
Five
 Small/Indie Presses
• Typically don’t pay advances
• Typically don’t do print runs; do print-on-
demand
• Take on less financial risk than large
publishers; i.e., less cost in producing books
• May pay higher royalty rates than larger
publishers
• Typically sell through Amazon, Kobo,
Barnes & Noble, or other outlets; also
typically sell direct through own website
• Unlikely to achieve brick-and-mortar
distribution
• Usually do not require agent
• Provides some marketing
• Warranties/no insurance
 Author

Agent

Marketing

Distributor Publisher

Small/Indie Presses
 Self-Publishing
• Author has total responsibility for getting
book published, from start to finish
• Author bears all costs
• Author hires editor
• Author hires book designer
• Author hires cover designer
• Author is responsible for making sure all
legal clearances have been obtained
• Author handles copyright registration
• Author hires printer
• Author is responsible for marketing and sales
platforms
• Author keeps all revenues from sales
• Books may be print-on-demand or ebook,
although author may be quoted a price for a
print run of hard copies
 Editor Book
design
Book cover
$$$
$$$
$$$

Rights/ Marketing
clearances $$$
$$$
Author
Direct Book $$$
Sales Book
Production/
$$$ $$$ printing
$$$

Subsidiary Sales on e-
Rights Distribution platforms/Kobo,
Amazon,
Barnes & Noble
Self-Publishing
 Hybrid Press
• It’s a hybrid (Duh!)—somewhere in between
traditional publishing and self-publishing
• Defined as a publishing process in which both
the author and the publisher assume some
responsibility for production, distribution, and
sales of books
• Hybrid publishers exercise some discretion in
what they agree to publish
• Publisher, in effect, acts as a partner in the
process, including providing access to editors,
proofreaders, cover design professionals—all
for a fee, paid in advance by the author
• Most hybrids get their money from the fee; the
author receives all the payments made for book
sales, less any fee that might be charged by a
retailer such as Amazon
• Books may be print-on-demand or ebook,
although author may be quoted a price for a
print run for hard copies
 Author

Book cover Book design

Marketing
Rights/clearances $$$$$
Publisher

Direct Book
Sales Book Production

Subsidiary
Rights Sales on e-
platforms/Kobo,
Distribution
Amazon,
Barnes & Noble

Hybrid Press
 Vanity Press
• Author pays publisher to produce and publish
the book
• Vanity publishers are not selective in what
they agree to publish
• Fees may be higher than hybrid publishers
• Commercial publisher’s market is the general
public; vanity publisher’s market is the author
• Very little quality control
• Vanity publishers get their money from the
fee; the author receives all the payments
made for book sales, less any fees or costs
that might be charged by a retailer
• Books may be print-on-demand or ebook,
although author may be quoted a price for a
print run for hard copies of books
• Publisher is essentially a printer
• Vanity presses are generally viewed
unfavorably
 Editor
Book cover $$$
$$$
$$$ Book design

Rights/clearances $$$

$$$
Author
Marketing
Direct Book Sales

Subsidiary Rights $$$

$$$$$ $$$ Sales on e-

platforms/Kobo,
Book Amazon,
Production/printing Publisher
Barnes & Noble

Vanity Press
 Social Publishing
• Authors write, publish, and distribute their
work on social media platform directly for
readers
• Publication continues at will
• Can be on blog, FB or other social media
platform, website
• Author may set up a paywall
• Often done as serialization, to build
readership
• Fan fiction is an example; see The Writers
Coffee Shop story
• Material is “published” when distributed to
the public, so copyright issues apply
• Author typically bears all costs, if any, for
website or other platform
• Author is primarily responsible for marketing
and sales platforms
• Author keeps all revenues from sales
 Author

Internet Platform
Sales
Marketing

Public

Social