I have a question regarding copyright infringement

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Latest post Mon, May 1 2017 3:17 PM by jv1597. 47 replies.
  • Sat, Apr 29 2017 7:23 PM In reply to

    • DOCAR
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    Re: I have a question regarding copyright infringement

    I forget to mention 17 USC 505 which provides for attorneys fees to the prevailing party.  So, after you spend tens of thousands of dollars on your attorney to defend you, if you lose, you get to pay the tens of thousands of dollars the plaintiff spent on their attorney.  Which is why sites such as youtube, pull the infringing material down rather than fight it.

  • Sun, Apr 30 2017 8:43 AM In reply to

    • jv1597
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    Re: I have a question regarding copyright infringement

    I don't mean to argue with anyone, I'm just trying to clear some details up for the sake of discussion.  The app is a good idea, but licensing is probably workable for it, so it's not a big deal, but I found some discrepencies in the practice that I was trying to bring out here.

    1) I understand what common law is all about, but it doesn't really cover anything up, as far as I can tell it's just another way of articulating the principals with respect to copyright enough to pass a judgment based on opinion.

    2) I don't understand what you meant by a copyright not having to be registered.  I've always know the copyright process as being closely similar to the patenting process, which requires submittal of the application, registration, and certification, for use in a court of law as proof of patent (the same with copyright).

    3) I IMO, the subject matter and scope of copyright subsists in accordance with the principal which defines the fixation of the embodiment of a work in a copy or phonorecord as a tangible medium of expression, by or under the authority of the author, sufficiently permanent or stable to permit it to be perceived, reproduced, distributed, or otherwise communicated for a period of more than transitory duration of the performance of the work.

    And so, the granting of rights to performance of a work to the licensor acts as a tariff to accessibility of the work, and is constituently indicative of improper jurisdiction.

    So IMO, the performance of a work that's not fixed, and is not sufficiently permanent or stable to permit it to be perceived, reproduced, distributed, or otherwise communicated for a period of more than transitory duration of the performance of the work is constituently indicative of fair use.

    4) So I think I've narrowed this issue, concerning the subsistence of copyright jurisdiction respective of performance, to improper jurisdiction, based on the period of transitory duration of performance of the work.

    So rights to performance should be taken out of the picture, as it is more lexically sound with respect to streaming applications, and popular franchise by consumers in light of free streaming over the internet.

  • Sun, Apr 30 2017 12:38 PM In reply to

    • jv1597
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    Re: I have a question regarding copyright infringement

    I forgot one last thing:

    Rights to display work out, as long as the displays the copyright owner wants protected are copyrighted individually.  The copyright protects every aspect of the display sequentially, or non-sequentially, but every individual copyrighted display is protected as one set.

    IE:

    Display props at a movie theater:

    One, or more life-size cardboard movie posters, showing a frame image of a movie printed on the surface of the poster, with one or more miniature video screens showing slide images of the movie.

    So the whole display is a non-sequential display of images from the movie, being that the image on the poster might be found at the middle of the movie, and the images shown on the video screens are from various different points along the movie timeline, and shown in random order as well.

     

  • Sun, Apr 30 2017 6:23 PM In reply to

    • DOCAR
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    Re: I have a question regarding copyright infringement

    1)  I don't think you do.  United States law (except Louisiana) is based on English common law which existed for hundreds of years before statutes were adopted. It is also called judge based law, because it relies on presidential decision by judges to establish what is law.  For copyright protection, you sued for infringement and could recover damages, ie lost profits, unpaid royalties, etc that you could prove.

    2)  It is very simple, a copyright exists as a work is created.  The work does not need to be registered to be copyrighted, it is as it is created under common law.  If you want the additional protection granted in the copyright statute, ie statutory damages which are granted without addtional proof after the copyright infringement is proven.  two times the standard royalties can also be awarded.  As well as attorney's fees you would register the copyright.

    3) while this is your opinion, that does not make it the law, which it is not.  What good would a copyright do a playwright if anyone could perform his play with paying for a license? Fair use usually is involved in reviews, parodies and in brief descriptions of the work for another purpose.  Never for use to make money.

    4)  I have not idea what this means

    Be advised, if you go on your own and are sued for copyright infringement, you have to hope the plaintiff's attorney doesn't get a hold of this thread (which has happened in criminal cases) because it would take him 75% of the way to proving intentional infringement and $150,000 in statutory damages and attorney's fees.

     

  • Sun, Apr 30 2017 6:26 PM In reply to

    • DOCAR
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    Re: I have a question regarding copyright infringement

    You do understand that when a movie theater wants to show a movie, they contract with the movie company for a license or in today's market, 3 licenses, one each for 3D, IMAX and regular. Included in that license that they pay for is a right to advertise the movie and the use of posters, signage etc. So I am not sure this is a good  analogy.

  • Mon, May 1 2017 1:01 AM In reply to

    Re: I have a question regarding copyright infringement

    jv1597:
    2) I don't understand what you meant by a copyright not having to be registered.  I've always know the copyright process as being closely similar to the patenting process, which requires submittal of the application, registration, and certification, for use in a court of law as proof of patent (the same with copyright).

    Patents are significantly differnent from copyright in a number of ways. One of those is how the right is created. For a patent, the inventor must submit his design or idea to the U.S. Patent and Trademark Office (USPTO). It examines the application and decides whether to grant or deny the requested patent.

    But for a copyright, it is very different. A work is protected by copyright from the moment it is created. The copyright statute states this directly. “Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death.” 17 U.S.C. § 302. Registration of the work offers some extra benefits for the copyright holder but is not required to obtain the copyright. The U.S. Copyright Office says that expressly in its publication Copyright Basics.“The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright.” (Bolding added.)

    So, if I draw a picture on a piece of paper I have copyright protection the moment that art appears on the paper. I do not need to file anything with the U.S. Copyright Office to get that copyright. I may register that work with the Copyright Office if I want and doing that will give me some extra benefits that I would not have if I didn't register it, but I still get most of the protection of the copyright law for my picture even if I do not register the work.

    jv1597:
    And so, the granting of rights to performance of a work to the licensor acts as a tariff to accessibility of the work, and is constituently indicative of improper jurisdiction.

    The Copyright law gives to the copyright holder a number of rights with respect to the protected work. Among them is the right to control the performance of the work. Specifically, 17 U.S.C. § 106(4) states “the owner of copyright under this title has the exclusive rights to do and to authorize any of the following...in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly.”

    Thus, the copyright holder of a movie has, among other rights, the exclusive right to perform the film and the exclusive right to authorize performance of the film. § 106(5) gives to the copyright holder also the exclusive right to display or to authorize display the work. That being the case, no one may perform or publicly display the film without the consent of the copyright holder. That consent is typically obtained by getting a license from the copyright holder, and the copyright holder may charge a fee for that license. There is nothing illegal about that. It is certainly not extortion as you claimed earlier. Licensing of copyrights and paying fees for that happens every day and no one has ever been prosecuted for extortion or some other crime simply for charging a fee to license a work for which the person holds the copyright.

    jv1597:
    4) The penalty for performance of a copyrighted work is restriction/removal of the performance.

    If someone violates the rights of the copyright holder, the copyright holder may indeed sue for an injunction to prevent the infringement (removing it from a web site, for example). However, the holder may also sue for money damages for the infringement. 17 U.S.C. § 504. But in order to sue for infringement, the holder must first register the work. 17 U.S.C. § 411(a). The registration may be done after the infringement occurs, but if the registration is done after the infringement occurs the holder may only sue for actual damages. By contrast, if the registration is done before the infringement occurs, the holder has the option to sue for statutory damages and to collect attorneys fees, too. 17 U.S.C. § 412.

    So it is important to understand the role of registration here. Registration does not create the copyright. Instead, the copyright arises when the work is created, e.g. I draw my picture on that sheet of paper. I don't have to register that work to get the protection for my picture. But if you use my picture without my authorization I will need to register it before I can sue you for infringement. By registering after you have infringed on my copyright I am limited to suing for the actual damages suffered from the infringement. If I had registered it before you infringed on it, I could choose statutory damages (if that would get more than actual damages) and I could get my attorneys fees from you, too, if I win. The key here though is that if you infringe on my copyright you still are liable for the damages that result, whether or not I have registered the work prior to your infringement. It just a question of how much I can get from you.

    DOCAR:
    Copyright exists as a matter of common law.

    While I agree with much of what DOCAR has said in this thread, I disagree with his statement that copyright exists as a matter of common law. It did at one time, but no longer. The copyright statutes expressly say that the copyright statutes preempt most other law related to copyright, including common law. 17 U.S.C. § 301 states:

    “(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.”

  • Mon, May 1 2017 1:23 AM In reply to

    • DOCAR
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    Re: I have a question regarding copyright infringement

    Thanks for the clarification, its been quite a few years since I took that intellectual property class (which was before 1978).

  • Mon, May 1 2017 10:27 AM In reply to

    • jv1597
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    Re: I have a question regarding copyright infringement

    Taxagent,

    I found this from the codes you posted in 17 U.S.C. at 17 U.S.C. Code 408 - Copyright Registration in General...

    (a)Registration Permissive.—

    At any time during the subsistence of the first term of copyright in any published or unpublished work in which the copyright was secured before January 1, 1978, and during the subsistence of any copyright secured on or after that date, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section, together with the application and fee specified by sections 409 and 708. Such registration is not a condition of copyright protection. 1) This paragraph along with the rest of the code at the source clearly indicates the difference between a secured copyright, and an optional secondary registration procedure.  The deposit mentioned in the paragraph refers to the work in question. 2) A copyright can only be secured by first applying for it through the copyright office. 3) With respect to rights over performance/display, I wasn't misunderstanding, I was merely contesting for the sake of perspective. 4) With respect to law suits against infringers, agian I'm not misunderstanding, that's what the courts have the right to do at this time, by means of common law, but that practice is not entirely clear of extortion.  Basing a judgement on opinion, is extortion, there's no question about it, especially when it concerns money. 5) As far as copyright subsisting as a matter of common law... From the "Subject Matter and Scopy of Copyright" source: § 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. The Opinion of the Court subsists as a matter of Common Law.  Copyright does not subsist as a matter of Common Law, it subsists as the subject matter and scopy of copyright.
  • Mon, May 1 2017 10:27 AM In reply to

    • jv1597
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    Re: I have a question regarding copyright infringement

    Taxagent,

    I found this from the codes you posted in 17 U.S.C. at 17 U.S.C. Code 408 - Copyright Registration in General...

    (a)Registration Permissive.—

    At any time during the subsistence of the first term of copyright in any published or unpublished work in which the copyright was secured before January 1, 1978, and during the subsistence of any copyright secured on or after that date, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section, together with the application and fee specified by sections 409 and 708. Such registration is not a condition of copyright protection. 1) This paragraph along with the rest of the code at the source clearly indicates the difference between a secured copyright, and an optional secondary registration procedure.  The deposit mentioned in the paragraph refers to the work in question. 2) A copyright can only be secured by first applying for it through the copyright office. 3) With respect to rights over performance/display, I wasn't misunderstanding, I was merely contesting for the sake of perspective. 4) With respect to law suits against infringers, agian I'm not misunderstanding, that's what the courts have the right to do at this time, by means of common law, but that practice is not entirely clear of extortion.  Basing a judgement on opinion, is extortion, there's no question about it, especially when it concerns money. 5) As far as copyright subsisting as a matter of common law... From the "Subject Matter and Scopy of Copyright" source: § 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. The Opinion of the Court subsists as a matter of Common Law.  Copyright does not subsist as a matter of Common Law, it subsists as the subject matter and scopy of copyright.
  • Mon, May 1 2017 10:27 AM In reply to

    • jv1597
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    Re: I have a question regarding copyright infringement

    Taxagent,

    I found this from the codes you posted in 17 U.S.C. at 17 U.S.C. Code 408 - Copyright Registration in General...

    (a)Registration Permissive.—

    At any time during the subsistence of the first term of copyright in any published or unpublished work in which the copyright was secured before January 1, 1978, and during the subsistence of any copyright secured on or after that date, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section, together with the application and fee specified by sections 409 and 708. Such registration is not a condition of copyright protection. 1) This paragraph along with the rest of the code at the source clearly indicates the difference between a secured copyright, and an optional secondary registration procedure.  The deposit mentioned in the paragraph refers to the work in question. 2) A copyright can only be secured by first applying for it through the copyright office. 3) With respect to rights over performance/display, I wasn't misunderstanding, I was merely contesting for the sake of perspective. 4) With respect to law suits against infringers, agian I'm not misunderstanding, that's what the courts have the right to do at this time, by means of common law, but that practice is not entirely clear of extortion.  Basing a judgement on opinion, is extortion, there's no question about it, especially when it concerns money. 5) As far as copyright subsisting as a matter of common law... From the "Subject Matter and Scopy of Copyright" source: § 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. The Opinion of the Court subsists as a matter of Common Law.  Copyright does not subsist as a matter of Common Law, it subsists as the subject matter and scopy of copyright.
  • Mon, May 1 2017 10:36 AM In reply to

    • jv1597
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    Re: I have a question regarding copyright infringement

    DOCAR,

    Once again, you're being deflective, I'm merely contesting present day common practice.

    They sue for money for damages, court costs, etc..., but I don't think it's correct in practice, unless there's distribution involved.

    I was just outlining the way a display should be protected, in contrast to how it's protected at present.

    I think the copyright owner should have to copyright every display individually as a set of props, devices, etc..., in order to have protection for them, sequentially, or non-sequentially.

     

  • Mon, May 1 2017 10:54 AM In reply to

    • DOCAR
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    Re: I have a question regarding copyright infringement

    They sue for money for damages, court costs, etc..., but I don't think it's correct in practice, unless there's distribution involved.

    In many cases you are right, they send a cease or desist letter and it stops,  If it doesn't they sue.  Because it is relatively easy to get damages, most people cease.  If someone repeatedly does this, they are more likely to be sued.  by the way, how would anyone know there was a copyright violation if it wasn't distributed?

    You are entitled to feel that the law should be one way or the other, but realize that is not the way it is and wishing it were so, won't make it that way.

    And the section of the statute that you quoted three times, says exactly what Tax Agent said.

  • Mon, May 1 2017 10:56 AM In reply to

    Re: I have a question regarding copyright infringement

    jv1597:
    what else would copyright infringement entail?

    Simple:  "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be."  17 U.S.C. section 501(a) (emphasis added).  Stated differently.  The owner of a copyright has the exclusive right to do the things mentioned in the statute.  If you're not the owner or a licensee and you do any of those things, then you're an infringer.

     

    jv1597:
    In response to the third quote, I was just trying to determine whether a "part" in a copyrighted novel would be considered to be a word in a novel, or a sentence, and whether a part in a movie would be considered to be a singular movie frame, or a set of multiple frames of a movie.

    The copyright extends to the entire work and all constituent parts.  If you're asking if there is an amount that is do small that unauthorized use wouldn't infringe the copyright, the answer is maybe.

     

    jv1597:
    So I figured copyrights protect the works the producer needs protected, as with movie trailers.  So they would be copyrighted separately to be protected specifically, to allow for fair use of the rest for streaming.

    A movie trailer may indeed have a separate copyright from the movie itself, but the trailer would be a derivative work.  As far as fair us, that's a completely separate issue.

  • Mon, May 1 2017 11:56 AM In reply to

    Re: I have a question regarding copyright infringement

    jv1597:
    How can you protect a copyrighted material if it has yet to be copyrighted officially?

    This question makes no sense - in part because the word "copyright" is not properly used as a verb.  As I believe has already been explained, "[c]opyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression."  17 U.S.C. section 102(a).  "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."  17 U.S.C. section 101.

    Thus, there is no such thing as "copyright[ing] [something] officially" (or otherwise).  When people speak of "copyrighting" something, they are typically talking about registering a copyright, but registration (while highly beneficial) is not a prerequesite to copyright protection.

     

    jv1597:
    You can't film a movie part of the way, and claim copyright protection without copyrighting it first.

    Wrong.

     

    jv1597:
    A copyright grants exclusive rights to the licensor, whereas a license only allows for one, or more backup copies of the consumer's purchased copyrighted material for personal use, not for distribution

    There are a great many types of copyright licenses.

     

    jv1597:
    Copyright is just what the term implies, rights with respect to copying

    Ummm...no.  There's a lot more to it than that.

     

    jv1597:
    So you can't sue anyone for money, for having used a phrase in your novel on a liquor advertisement.

    Sure I can.  Anyone can sue anyone for anything.  Whether a suit such as you described would depend on the specific facts.

     

    jv1597:
    All the copyright owner can do is have it removed, etc..., without consideration of the impact the infringement has on the market pertaining to the copyrighted material, unless there is some form of distribution involved.

    The owner of a registered copyright may recover, as an alternative to actual damages, statutory damages of between $750 and $30,000 per infringement, 17 U.S.C. section 504(c)(1), and attorneys' fees.  17 U.S.C. section 505.

    Your app could be a relative failure, but you still could end up liable for six or seven figures of damages.

  • Mon, May 1 2017 11:57 AM In reply to

    Re: I have a question regarding copyright infringement

    DOCAR:
    Copyright exists as a matter of common law. The statute merely grants additional protections when it is registered.

    That's not correct at all.  Copyright law is entirely a creature of statute.  There is no common law copyright.

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