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AAD 650, Unit 8: Intellectual Property 2

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UK Arts Administration

on 16 January 2014

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Transcript of AAD 650, Unit 8: Intellectual Property 2

Intellectual Property 2
Unit 8:
I. Fair Use
II. Joint Works
III. Works-for-Hire
IV. Copyright Infringement Actions
V. Moral Rights
VI. Economic Rights
The First Amendment:
READ: Jay-Z and Egyptian Moral Rights
http://legalblogwatch.typepad.com/legal_blog_watch/2011/05/rapper-and-business-mogul-shawn-carter-aka-jay-z-had-a-smash-hit-in-__-with-his-single-big-pimpin-the-song-features.html
READ: The Droit de Suite Dilemma
http://www.forbes.com/sites/abigailesman/2011/12/21/the-droit-de-suite-dilemma/
(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.
(1) a work prepared by an employee within the scope of his or her employment; or
1. The extent of control the “employer” has over the work.
2. The extent of control the “employer” has over the individual.
3. The status and conduct of the “employer.”
Widespread familiarity: meaning that the plaintiff can prove that his work was publicly known. For example, in the Harrisongs case you are reading, “He’s So Fine” was a popular hit, of which Harrison would have been aware when writing “My Sweet Lord.”
Indirect Access: meaning that the plaintiff can prove that a third party, somehow related to both the plaintiff and the defendant, had access to the work and is the party who provided it to the defendant. For example, perhaps the parties share an agent.
Direct Access: meaning that the plaintiff can prove that the defendant had personal access to the plaintiff's work. For example, in a co-writing relationship gone bad, one co-writer can prove that the other co-writer had access to his work while they were working together
Including:















literal or identical copying
the totality test
intrinsic test - a reasonable average person would think the works were the same
extrinsic test - expert testimony proves that aspects of the works are the same
pattern test - the sequence of plot and character is the same
abstractions from the whole: the Learned Hand test, at which some point on a continuum, too much of the original work is replicated in the infringing work
Lack of access to the work
Fair use
De minimis copying - meaning that such a small amount of the original was taken, it was a trivial infringement of copyright
The Right to Withdrawal
The Right to Create
The Right of Disclosure
The Right to Name Attribution
The Right to Integrity
The Right to Protect Against Excessive Criticism
“Promotion of Progress”
The nature of the work
Direct Access: meaning that the plaintiff can prove that the defendant had personal access to the plaintiff's work. For example, in a co-writing relationship gone bad, one co-writer can prove that the other co-writer had access to his work while they were working together
Indirect Access: meaning that the plaintiff can prove that a third party, somehow related to both the plaintiff and the defendant, had access to the work and is the party who provided it to the defendant. For example, perhaps the parties share an agent.
Widespread familiarity: meaning that the plaintiff can prove that his work was publicly known. For example, in the Harrisongs case you are reading, “He’s So Fine” was a popular hit, of which Harrison would have been aware when writing “My Sweet Lord.”
literal or identical copying
the totality test
intrinsic test - a reasonable average person would think the works were the same
extrinsic test - expert testimony proves that aspects of the works are the same
pattern test - the sequence of plot and character is the same
abstractions from the whole: the Learned Hand test, at which some point on a continuum, too much of the original work is replicated in the infringing work
literal or identical copying
the totality test
intrinsic test - a reasonable average person would think the works were the same
extrinsic test - expert testimony proves that aspects of the works are the same
pattern test - the sequence of plot and character is the same
abstractions from the whole: the Learned Hand test, at which some point on a continuum, too much of the original work is replicated in the infringing work
Lack of access to the work
Fair use
De minimis copying - meaning that such a small amount of the original was taken, it was a trivial infringement of copyright
Lack of access to the work
Fair use
De minimis copying - meaning that such a small amount of the original was taken, it was a trivial infringement of copyright
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