An employer must demonstrate the following to show a work was made for hire:
1) whether the work is of the type for which the author was hired to perform;
2) whether the design was created “substantially within the authorized time and space limits” of the job; and
3) it was “actuated, at least in part, by a purpose to serve” the employer’s interests.
A person infringes on a copyright if:
- There is valid ownership of copyright
- There is a copying
- Of protectable elements
An original work of authorship:
- Has a modicum of “creativity”
- An independent creation
- Fixed in a tangible medium
Tests of copying:
- Level of abstraction (how close to the source?)
- Pattern test (Sequence of Events & Interplay between characters)
- Total concept and feel (would the audience feel it is the same?)
Protectable elements:
- Not an idea or fact
2. Not an expression if it is one of the only limited ways of expressing something (the expression and the idea merge)
Provisions of the DMCA
- Takedown notice (process for creators to get their work taken down)
- Anti-circumvention provisions (liability for producers of digital lock breaking methods)
- Safe Harbors for Service Providers (Where a passive conduit)
Qualifying for a safe harbor under DMCA requires:
- Adopt and inform subscribers of policy to terminate repeat copyright infringers
- Adopt standard technical measures to identify copyright holders
- Designate an agent to receive take-down notices
Elements of contributory infringement for copyright infringement
- Knowing (knowledge or reason to know)
2. Materiality (contribution to the infringing conduct)
Vicarious liability for copyright infringement elements:
- Defendant has the right and ability to control AND
2. Defendant benefits financially from failing to control
Defense to secondary liability for infringement:
If an item is a staple article of commerce and is “capable of commercially significant noninfringing uses.” It need merely be capable of substantial noninfringng uses.
