Internet Law
October 20,
1999
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FutureDontics 1998 U.S. Dist. LEXIS 2265
Marobie-FL, Inc
1997 U.S. Dist. LEXIS
18764
Reference
Material from 17 USCS and Copyright Basics
§ 102. Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in
original works of authorship fixed in any tangible medium of expression, now
known or later developed, from which they can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a machine or device.
Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work.
Copyright protects "original works of
authorship" that are fixed in a tangible form of expression. The fixation
need not be directly perceptible so long as it may be communicated with the aid
of a machine or device. Copyrightable works include the following categories:
·
(1) literary works;
·
(2) musical works, including any accompanying words
·
(3) dramatic works, including any accompanying music
·
(4) pantomimes and choreographic works
·
(5) pictorial, graphic, and sculptural works
·
(6) motion pictures and other audiovisual works
·
(7) sound recordings
·
(8) architectural works
These categories should be viewed broadly. For
example, computer programs and most "compilations" may be registered
as "literary works"; maps and architectural plans may be registered
as "pictorial, graphic, and sculptural works."
Several categories of material are generally not
eligible for federal copyright protection. These include among others:
·
Works that have not been fixed in a tangible
form of expression, (for example, choreographic works that have not been
notated or recorded, or improvisational speeches or performances that have not
been written or recorded)
·
Titles, names, short phrases, and slogans; familiar
symbols or designs; mere variations of typographic ornamentation, lettering, or
coloring; mere listings of ingredients or contents
·
Ideas, procedures, methods, systems, processes,
concepts, principles, discoveries, or devices, as distinguished from a
description, explanation, or illustration
·
Works consisting entirely of information
that is common property and containing no original authorship (for example:
standard calendars, height and weight charts, tape measures and rulers, and
lists or tables taken from public documents or other common sources)
§ 101.
Definitions
Except as otherwise provided in this title, as used in this title, the
following terms and their variant forms mean the following:
An "anonymous work" is a work on the copies or phonorecords of which
no natural person is identified as author.
An "architectural work" is the design of a building as embodied in
any tangible medium of expression, including a building, architectural plans,
or drawings. The work includes the overall form as well as the arrangement and
composition of spaces and elements in the design, but does not include
individual standard features.
"Audiovisual works" are works that consist of a series of related
images which are intrinsically intended to be shown by the use of machines or
devices such as projectors, viewers, or electronic equipment, together with
accompanying sounds, if any, regardless of the nature of the material objects,
such as films or tapes, in which the works are embodied.
The "Berne Convention" is the Convention for the Protection of
Literary and Artistic Works, signed at Berne, Switzerland, on September 9,
1886, and all acts, protocols, and revisions thereto.
The "best edition" of a work is the edition, published in the United
States at any time before the date of deposit, that the Library of Congress
determines to be most suitable for its purposes.
A person's "children" are that person's immediate offspring, whether
legitimate or not, and any children legally adopted by that person.
A "collective work" is a work, such as a periodical issue, anthology,
or encyclopedia, in which a number of contributions, constituting separate and
independent works in themselves, are assembled into a collective whole.
A "compilation" is a work formed by the collection and assembling of
preexisting materials or of data that are selected, coordinated, or arranged in
such a way that the resulting work as a whole constitutes an original work of
authorship. The term "compilation" includes collective works.
A "computer program" is a set of statements or instructions to be
used directly or indirectly in a computer in order to bring about a certain
result.
"Copies" are material objects, other than phonorecords, in which a
work is fixed by any method now known or later developed, and from which the
work can be perceived, reproduced, or otherwise communicated, either directly
or with the aid of a machine or device. The term "copies" includes
the material object, other than a phonorecord, in which the work is first
fixed.
"Copyright owner", with respect to any one of the exclusive rights
comprised in a copyright, refers to the owner of that particular right.
A work is "created" when it is fixed in a copy or phonorecord for the
first time; where a work is prepared over a period of time, the portion of it
that has been fixed at any particular time constitutes the work as of that
time, and where the work has been prepared in different versions, each version
constitutes a separate work.
A "derivative work" is a work based upon one or more preexisting
works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art reproduction,
abridgment, condensation, or any other form in which a work may be recast,
transformed, or adapted. A work consisting of editorial revisions, annotations,
elaborations, or other modifications which, as a whole, represent an original
work of authorship, is a "derivative work".
A "device", "machine", or "process" is one now
known or later developed.
A "digital transmission" is a transmission in whole or in part in a
digital or other non-analog format.
To "display" a work means to show a copy of it, either directly or by
means of a film, slide, television image, or any other device or process or, in
the case of a motion picture or other audiovisual work, to show individual
images nonsequentially.
An "establishment" is a store, shop, or any similar place of business
open to the general public for the primary purpose of selling goods or services
in which the majority of the gross square feet of space that is nonresidential
is used for that purpose, and in which nondramatic musical works are performed
publicly.
A "food service or drinking establishment" is a restaurant, inn, bar,
tavern, or any other similar place of business in which the public or patrons
assemble for the primary purpose of being served food or drink, in which the
majority of the gross square feet of space that is nonresidential is used for
that purpose, and in which nondramatic musical works are performed publicly.
A work is "fixed" in a tangible medium of expression when its
embodiment in a copy or phonorecord, by or under the authority of the author,
is sufficiently permanent or stable to permit it to be perceived, reproduced,
or otherwise communicated for a period of more than transitory duration. A work
consisting of sounds, images, or both, that are being transmitted, is
"fixed" for purposes of this title if a fixation of the work is being
made simultaneously with its transmission.
The "Geneva Phonograms Convention" is the Convention for the
Protection of Producers of Phonograms Against Unauthorized Duplication of Their
Phonograms, concluded at Geneva, Switzerland, on October 29, 1971.
The "gross square feet of space" of an establishment means the entire
interior space of that establishment, and any adjoining outdoor space used to
serve patrons, whether on a seasonal basis or otherwise.
The terms "including" and "such as" are illustrative and
not limitative.
An "international agreement" is--
(1) the Universal Copyright Convention;
(2) the Geneva Phonograms Convention;
(3) the Berne Convention;
(4) the WTO Agreement;
(5) [Caution: This paragraph takes effect upon the entry into
force of the WIPO Copyright Treaty with respect to the United States, as
provided by § 105(b)(1) of Act Oct. 28, 1998, P.L. 105-304, which appears as a
note to this section.] the WIPO Copyright Treaty;
(6) [Caution: This paragraph takes effect upon the entry into
force of the WIPO Performances and Phonograms Treaty with respect to the United
States, as provided by § 105(b)(2) of Act Oct. 28, 1998, P.L. 105-304, which
appears as a note to this section.] the WIPO Performances and Phonograms
Treaty; and
(7) any other copyright treaty to which the United States is
a party.
A "joint work" is a work prepared by two or more authors with the
intention that their contributions be merged into inseparable or interdependent
parts of a unitary whole.
"Literary works" are works, other than audiovisual works, expressed
in words, numbers, or other verbal or numerical symbols or indicia, regardless
of the nature of the material objects, such as books, periodicals, manuscripts,
phonorecords, film, tapes, disks, or cards, in which they are embodied.
"Motion pictures" are audiovisual works consisting of a series of
related images which, when shown in succession, impart an impression of motion,
together with accompanying sounds, if any.
To "perform" a work means to recite, render, play, dance, or act it,
either directly or by means of any device or process or, in the case of a
motion picture or other audiovisual work, to show its images in any sequence or
to make the sounds accompanying it audible.
A "performing rights society" is an association, corporation, or
other entity that licenses the public performance of nondramatic musical works
on behalf of copyright owners of such works, such as the American Society of
Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and
SESAC, Inc.
"Phonorecords" are material objects in which sounds, other than those
accompanying a motion picture or other audiovisual work, are fixed by any
method now known or later developed, and from which the sounds can be
perceived, reproduced, or otherwise communicated, either directly or with the
aid of a machine or device. The term "phonorecords" includes the
material object in which the sounds are first fixed.
"Pictorial, graphic, and sculptural works" include two-dimensional and
three-dimensional works of fine, graphic, and applied art, photographs, prints
and art reproductions, maps, globes, charts, diagrams, models, and technical
drawings, including architectural plans. Such works shall include works of
artistic craftsmanship insofar as their form but not their mechanical or
utilitarian aspects are concerned; the design of a useful article, as defined
in this section, shall be considered a pictorial, graphic, or sculptural work
only if, and only to the extent that, such design incorporates pictorial,
graphic, or sculptural features that can be identified separately from, and are
capable of existing independently of, the utilitarian aspects of the article.
For purposes of section 513, a "proprietor" is an individual, corporation,
partnership, or other entity, as the case may be, that owns an establishment or
a food service or drinking establishment, except that no owner or operator of a
radio or television station licensed by the Federal Communications Commission,
cable system or satellite carrier, cable or satellite carrier service or
programmer, provider of online services or network access or the operator of
facilities therefor, telecommunications company, or any other such audio or
audiovisual service or programmer now known or as may be developed in the
future, commercial subscription music service, or owner or operator of any
other transmission service, shall under any circumstances be deemed to be a
proprietor.
The term "financial gain" includes receipt, or expectation of
receipt, of anything of value, including the receipt of other copyrighted
works.
A "pseudonymous work" is a work on the copies or phonorecords of
which the author is identified under a fictitious name.
"Publication" is the distribution of copies or phonorecords of a work
to the public by sale or other transfer of ownership, or by rental, lease, or
lending. The offering to distribute copies or phonorecords to a group of
persons for purposes of further distribution, public performance, or public
display, constitutes publication. A public performance or display of a work
does not of itself constitute publication.
To perform or display a work "publicly" means--
(1) to perform or display it at a place open to the public or
at any place where a substantial number of persons outside of a normal circle
of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or
display of the work to a place specified by clause (1) or to the public, by means
of any device or process, whether the members of the public capable of
receiving the performance or display receive it in the same place or in
separate places and at the same time or at different times.
"Registration", for purposes of sections 205(c)(2), 405, 406, 410(d),
411, 412, and 506(e), means a registration of a claim in the original or the
renewed and extended term of copyright.
"Sound recordings" are works that result from the fixation of a
series of musical, spoken, or other sounds, but not including the sounds
accompanying a motion picture or other audiovisual work, regardless of the
nature of the material objects, such as disks, tapes, or other phonorecords, in
which they are embodied.
"State" includes the District of Columbia and the Commonwealth of
Puerto Rico, and any territories to which this title is made applicable by an
Act of Congress.
A "transfer of copyright ownership" is an assignment, mortgage,
exclusive license, or any other conveyance, alienation, or hypothecation of a
copyright or of any of the exclusive rights comprised in a copyright, whether
or not it is limited in time or place of effect, but not including a
nonexclusive license.
A "transmission program" is a body of material that, as an aggregate,
has been produced for the sole purpose of transmission to the public in
sequence and as a unit.
To "transmit" a performance or display is to communicate it by any
device or process whereby images or sounds are received beyond the place from
which they are sent.
A "treaty party" is a country or intergovernmental organization other
than the United States that is a party to an international agreement.
The "United States", when used in a geographical sense, comprises the
several States, the District of Columbia and the Commonwealth of Puerto Rico,
and the organized territories under the jurisdiction of the United States
Government.
For purposes of section 411, a work is a "United States work" only
if--
(1) in the case of a published work, the work is first
published--
(A) in the United States;
(B) simultaneously in the United States and another
treaty party or parties, whose law grants a term of copyright protection that
is the same as or longer than the term provided in the United States;
(C) simultaneously in the United States and a foreign
nation that is not a treaty party; or
(D) in a foreign nation that is not a treaty party,
and all of the authors of the work are nationals, domiciliaries, or habitual
residents of, or in the case of an audiovisual work legal entities with
headquarters in, the United States;
(2) in the case of an unpublished work, all the authors of
the work are nationals, domiciliaries, or habitual residents of the United
States, or, in the case of an unpublished audiovisual work, all the authors are
legal entities with headquarters in, the United States; or
(3) in the case of a pictorial, graphic, or sculptural work
incorporated in a building or structure, the building or structure is located in
the United States.
A "useful article" is an article having an intrinsic utilitarian
function that is not merely to portray the appearance of the article or to
convey information. An article that is normally a part of a useful article is
considered a "useful article".
The author's "widow" or "widower" is the author's surviving
spouse under the law of the author's domicile at the time of his or her death,
whether or not the spouse has later remarried.
[Caution: This paragraph takes effect upon the entry into force of the WIPO
Copyright Treaty with respect to the United States, as provided by § 105(b)(1)
of Act Oct. 28, 1998, P.L. 105-304, which appears as a note to this section.]
The "WIPO Copyright Treaty" is the WIPO Copyright Treaty concluded at
Geneva, Switzerland, on December 20, 1996.
[Caution: This paragraph takes effect upon the entry into force of the WIPO
Performances and Phonograms Treaty with respect to the United States, as
provided by § 105(b)(2) of Act Oct. 28, 1998, P.L. 105-304, which appears as a
note to this section.] The "WIPO Performances and Phonograms Treaty"
is the WIPO Performances and Phonograms Treaty concluded at Geneva,
Switzerland, on December 20, 1996.
A "work of visual art" is--
(1) a painting, drawing, print, or sculpture, existing in a
single copy, in a limited edition of 200 copies or fewer that are signed and
consecutively numbered by the author, or, in the case of a sculpture, in
multiple cast, carved, or fabricated sculptures of 200 or fewer that are
consecutively numbered by the author and bear the signature or other
identifying mark of the author; or
(2) a still photographic image produced for exhibition
purposes only, existing in a single copy that is signed by the author, or in a
limited edition of 200 copies or fewer that are signed and consecutively
numbered by the author.
A work of visual art does not include--
(A) (i) any poster, map, globe, chart, technical
drawing, diagram, model, applied art, motion picture or other audiovisual work,
book, magazine, newspaper, periodical, data base, electronic information
service, electronic publication, or similar publication;
(ii) any merchandising item or advertising,
promotional, descriptive, covering, or packaging material or container;
(iii) any portion or part of any item described in
clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this
title.
A "work of the United States Government" is a work prepared by an
officer or employee of the United States Government as part of that person's
official duties.
A "work made for hire" is--
(1) a work prepared by an employee within the scope of his or
her employment; or
(2) a work specially ordered or commissioned for use as a
contribution to a collective work, as a part of a motion picture or other
audiovisual work, as a translation, as a supplementary work, as a compilation,
as an instructional text, as a test, as answer material for a test, or as an
atlas, if the parties expressly agree in a written instrument signed by them
that the work shall be considered a work made for hire. For the purpose of the
foregoing sentence, a "supplementary work" is a work prepared for
publication as a secondary adjunct to a work by another author for the purpose
of introducing, concluding, illustrating, explaining, revising, commenting
upon, or assisting in the use of the other work, such as forewords, afterwords,
pictorial illustrations, maps, charts, tables, editorial notes, musical
arrangements, answer material for tests, bibliographies, appendixes, and
indexes, and an "instructional text" is a literary, pictorial, or
graphic work prepared for publication and with the purpose of use in systematic
instructional activities.
The terms "WTO Agreement" and "WTO member country" have the
meanings given those terms in paragraphs (9) and (10), respectively, of section
2 of the Uruguay Round Agreements Act [19
USCS § 3501].