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Introduction to Copyright Law: The Charles Dickens of Law

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Introduction to Copyright Law: The Charles Dickens of Law

Copyright Law can be the Charles Dickens of the law. It can be the best of times; it can be the worst of times. It truly is A Tale of Two Scenarios. If the attorney handling the copyright matter for the client is well prepared, does the initial research, and understands the general principles, it will be the best of times—going from initial application through final issuance and, possibly, victory at trial. If the attorney handling the copyright matter is unprepared, does not conduct sufficient research ahead of time, or does not understand the general principles of copyright law, then it will be the worst of times. The initial application may result in rejection from the U.S. Copyright Office, or the attorney could find himself embroiled in protracted and, ultimately, unsuccessful copyright-infringement litigation. In this introduction to Copyright Law, we cover the basics from application through litigation in an effort to ensure the attorney practices Copyright Law in the best of times.

Presenters

Ken Kula
Senior Counsel
Buether Joe & Counselors, LLC.

Transcript

Ken Kula: Welcome to an introduction to copyright law, the Charles Dickens of law, by Quimbee. My name is Ken Kula. This presentation includes a number of course materials, including today's slides, complete with detailed presenter notes and references to outside websites. You can follow along with those slides, or simply sit back and enjoy our introduction to copyright law. Copyright law can be very straightforward, but it can also be very tricky. I often say that it is a Charles Dickens of law. It can be the best of times for an attorney, or it can be the worst of times.

  It truly is a tale of two scenarios. And whether it is the best of times or worst of times, depends strictly on an attorney's knowledge of copyright law, from creation of the copyrighted protected work, through proof of infringement of the work at trial. So let's keep the Charles Dickens' Tale of Two Cities theme going and visit some basic copyright law. This course we'll provide you with a basic understanding of general copyright law that you can use in areas of both transactional and litigation. Sticking with the Charles Dickens Tale of Two Cities theme, I will throw in some limited French words to help keep things interesting.

 Without further adieu, Let's begin. Introduction to the topic and presentations outline. Today's introduction to copyright law will focus on both general copyright law principles, as well as specific aspects of copyright litigation. We will talk about what copyrights protect, in contrast to other intellectual property, like trade secrets, trademarks, and patents. You will also learn how copyrighted works are protected. Next, we will discuss the various legal rights that every copyright holder possesses when he or she has a valid copyright on a body of work. The various and complicated durations of a copyright will be outlined. Bonjour. Once Monsieur Charles Darnay has a protected copyrighted work, he will inevitably want to use that work, and he will inevitably want to sue someone for copyright infringement. Thus, we must know the different aspects of copyright law. So let's continue.

  We will also discuss the basics involved with copyright litigation, including the prerequisites and benefits of registration, as well as the potential defense of fair use. We'll end with a review of the real-world case of Bond v. Blum, with Mr. Bond taking on the role of a Gaspard-like character from A Tale of Two Cities. Because the case of Bond v. Blum is an extremely interesting real-world case that discusses some of the basic principles of copyright law including fair use, I will provide just a teaser at this point, to pique your interest.

  In a nutshell, the case involves a man who murdered his father. He then wrote a book about it, and then the book was used as evidence in a subsequent family law case. Being the copyright holder, he was able to assert his copyright law protections. And since he was not the most scrupulous man, he decided to sue, basically everyone involved with the case, claiming copyright infringement. But we will talk much more about Bond v. Blum later on in this presentation, we are now going to move on to the topic of a copyright, from creation through litigation. We'll talk about what copyrights protect, and how. Copyrights are governed by the United States Copyright Office. Copyright law can be, as I've stated, very straightforward. But as I've also indicated, it can be very tricky. And that is why I often say that it's the Charles Dickens of law. At the sake of beating a dead, and as I've stated, it can be the best of times for an attorney, like C. J. Stryver, or it can be the worst of times, for the likes of Sydney Carton, even when he was sober.

  Truly a tale of two scenarios. The questions of what copyright law protects and how it protects, will be addressed first. Not surprisingly, some of the best information about copyright law comes directly from the US Copyright Office's website, at www.copyright.gov. According to that office, the government expects all its experts in copyright law to put forward the basic principles and understand them. In particular, "Copyright, a form of intellectual property law, protects original works of authorship, including literary, dramatic, musical and artistic works, such as poetry, novels, movies, songs, computer software, and architecture." This can all be found at www.copyright.gov, under the help section.

  Clearly, copyright covers a lot. But it does not protect everything. In particular, copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. That too comes from www.copyright.gov. For more basic and more detailed information, the copyright office provides the following, "Circular one, copyright basics, section; what works are protected," found at the website I've already cited. But at its core, copyright protects expression that is one, original to the person seeking protection, and two, fixed in a tangible medium of expression. Based on numerous inquiries to the copyright office, the following is a list of yes and no answers in response to the question, "Can I copyright..." fill in the blank.

  So I will go over each of these. A website dedicated to the storming of the Bastille. Oui, yes, you can copyright that. A domain name, www.stormingbastille.com? No. No, you can never copyright that. A recipe consisting of the mere listing of ingredients to make cake? No. A name, albeit of a band of revolutionaries, a wine shop, or a person like Dickens? No, that's similar to a domain name above. A title, slogan, or short phrase like, "Off with her head." No. Again, that is a title or slogan or short phrase is not copyrightable. How about architectural works, like the Palace of Versailes? Oui, yes, that can be copyrighted.

  Once one understands that most original works of authorship that are put into a fixed and tangible medium of expression can be protected under copyright law, the next natural question is, "How do I actually copyright it, or protect it?" The answer is quite simple, and may surprise you. Again, returning to the experts on copyright law, the US government, www.copyright.gov states, "Your work is under copyright protection the moment it is created and fixed in a tangible form that is perceptible either directly or with the aid of a machine or device." Consequently, the moment a man, like Ernest Defarge puts pen to paper to write his lovely and demure wife, like the enchanting, Madame Therese Defarge, a [foreign language 00:11:12], or love letter, it becomes protected by copyright. That is because each drippy, heartfelt sentence is an original literary work, albeit short, that was authored by the man, and by him writing it, he fixed it into a tangible form that was perceptible to his love and others.

  There, you have it. I bet you did not realize that you were such a prolific author and possessor of so many literary works that are copyright protected. So, to stress, everything that is written that is original and put into a fixed format is instantaneously copyright protected. So let's talk about the copyright holder's exclusive rights granted under the Copyright Act. Once one becomes a bonafide author of copyrighted work, one may ask, "What does that give me?" The right step copyright protection bestows upon the copyright owner are quite extensive. Section 106 of Title 37 of the United States Code provides those rights.

   It provides the copyright owner, author, or otherwise, with the exclusive right to do or authorize the following: one, to reproduce the copyright work in copies or phone records. Two, to prepare derivative works based upon the copyrighted work. A derivative work being something that is derived from the first work. Three, to distribute copies or phone records of the copyrighted work to the public by sale or other transfer of ownership< or by rental lease or lending. Four, in the case of literary, musical, dramatic and choreographic works, pantomimes and motion pictures, and other audio visual works, it gives you the right to perform the copyrighted work publicly. And in the case of literary, musical, dramatic and choreographic works, pantomimes and pictorial, graphic or sculptural works, including the individual images of a motion picture or other audio visual works, it gives you the right to display the copyrighted work publicly. And six, in the case of sound recordings, like this presentation, to perform the copyright work publicly by means of a digital audio transmission.

  Those are the six rights that every copyright holder is bestowed, based on 17 United States Code Section 106. Now focusing on the words I just emphasize, reproduce, prepare derivative works, sell, perform, display, transmit, it should be clear that the copyright owner is granted the exclusive right to basically do anything it wants to do with its copyrighted work. For example, the copyright owner or its authorized agent, is the only one who can copy the work without fear of an infringement action. Similarly, such an entity is the only one who may legally and properly sell copies of the copyright protected work. If the copyrighted work is able to be performed or displayed, for example a dance or a painting, then the copyright owner or its authorized agent is only one who can and perform or display the work in public.

  Similarly, if the copyrighted work is a sound recording, music or lyrics, then the recording of that sound can only be transmitted in public by the copyright owner or its authorized agent. Finally, once one is recognized as the copyright owner of a work, regardless of what type of work it is, that copyright owner or its authorized agent, is the only entity that is permitted legitimately, to prepare derivative works of the copyrighted work. "A derivative work is a work based on, or derived from one or more already existing works." Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments and condensations of existing work. That again comes from www.copyright.gov.

  That is why if Charles Dickens wrote A Tale of Two Cities today, neither you, I, nor anyone else, can simply read it and then write our own story using Dr Alexandre Manette, Lucie Menette, Miss Pross, and the other characters, and place them in and around Paris and London, and try to make our own million dollars off the story. Charles Dickens, as the copyright owner, would have the exclusive right to write new stories that are derived from his previous novel. As can be seen, the exclusive rights granted under copyright law are extensive and powerful rights. But they only last for a certain period of time. And so next we'll talk about the duration of copyright protection, which I call the Madame Defarge of copyright law.

  It may not be a stretch to say that the most complex part of copyright law and possibly the ugliest part of copyright law hence the Madame Defarge reference, is determining the number of years for which any particular copyrighted work is protected. This is my contention, because although the beginning of copyright protection is a singular and simple thing, the moment original creation is fixed in a tangible form, the end is not. The end of copyright protection is multifaceted and complicated. It may depend, for example, on whether the copyright owner is a person. It may depend on whether the copyright owner is a company, or the government. It may depend on whether the author is alive or dead. It may depend on whether the work was created for someone else, whether the work was published, registered, or created outside the United States of America. And it may depend on whether the work is a sound recording, or something else.

  There are many factors that go in to determining the duration of copyright protection. So let's look a little closer at the Madame Defarge of copyright law. Instead of going through each scenario, I will present the highlights and general rules. For more detailed information or special circumstances, I direct you to some of the best webpages that I have found summarizing this information, which also happens to be the product of the closest law school to my hometown, Cornell University Libraries: Copyright Information Center at httpswww.copyright.cornell.edu/public domain. A very informative website that you should go to for more detailed information. But I'll go over the basics and then you can go into details on your own. And once you start hearing some of the basics, you'll understand why this is such a complicated, and can be considered ugly aspect of copyright law.

  So let's talk about a copyrighted work that has never been published, or never been registered with the US Copyright work. So, for works that were never published or never registered works of a known author, it's simple. Life of the author plus 70 years after the death to the author. So, just to emphasize that, for never published or never registered works of a known author, it's life of the author plus 70 years after the death of the author. But let's move on. Talking about works, never published or never registered works for an anonymous author, or a pseudonymous work, or work made for hire, or when the author's date of demise is known, then it is not 70 years, but 120 years from the date of creation. That's the work's creation, not the biblical sense.

  So let's talk again about that. We're talking about a work that was never published, never registered with the copyright office, and it's either an anonymous author, someone we don't know the name, it's a pseudonymous work, meaning that it was published by someone using a fictitious name, it was a work made for hire, or when the author's dated demise, death is not known. Then it's 120 years from the date of creation of the work. Moving on and getting even more complicated, for works registered or first published in the United States, the year the copyright protection ends depends on the year the publication occurred. So now we're talking about works that were actually registered with the US Copyright Office, or first published in the United States. So here's where we get into the real details. If the work was published before 1925, there's no protection, the copyright protections have expired.

  So if it's before 1925, no protection at all. You can use it without fear of infringement. Now what about from 1925 through 1977, but without a copyright notice? The little circle C that you always see. Again, no protection this time, because there was a failure to comply with the required formalities, i.e. providing the copyright notice. But that is only from 1925 through 1977, without a copyright notice. Let's move on to other more detailed nuances. From 1978 to March 1st, 1989, very particular dates, but the work is without a notice, no copyright notice, and without subsequent registration with the copyright office within five years. Again, no protection, no copyright protection because there's failure to comply.

  Now let's talk about a work that from 1978 to March 1st, 1989, with without notice, but with subsequent registration within five years with the copyright office. Then we have some production, we're back to our 70 years after the death of the author. So that's for works, 1978 to March 1st, 1989, doesn't have a copyright notice, but it was subsequently registered within five years. So the protections last for 70 years after the death of the author. What if the work is of a corporate authorship, the company puts it out? Well, then it's obviously not 70 years after the death of the author because the author is a company, and surprising probably to companies like Packard and maybe JC Penney, companies don't die. Then it would be 95 years from publication, or 120 years from creation, whichever expires first.

  Now let's go back to some dates. We're talking about 1925 through 1963, with a notice, but not renewed. Now, again, we're back to no protection, it's expired. The dates 1925 to 1963 with a notice, and renewed. Now we have 95 years after publication date. So those are the different scenarios under the years, 1925 to 1963, when we're talking about works that fall with a notice, but either renewed or not renewed. Moving on to works between 1964 and 1977, published, with a notice 95 years after publication. Back to the dates of 1978 to March 1st, 1989, created after 1977 and published, with copyright notice, then we have the protection for 70 years after the death of the author, and if the work is of a corporate authorship, we're back to the 95 years from publication or 120 years from creation, whichever expires first. Only a couple other scenarios to go through.

  1978 to March 1st, 1989, created before 1978 and first published with notice in the specified period, then it's the greater of the term of either December 31st, 2047, a date that will live in infamy. December 31st, 2047. That's when it'll expire, or 70 years after the death of the author, or if we're talking about a work of corporate authorship, 95 years from publication, or 120 years from creation, whichever expires first. So that is very complicated. But we are not done, we have another date period. Now, we're in March 1st, 1989 through 2002, and created after 1977. Then it's 70 years after the death of the author, you'll see that that is pretty much standard when we're talking about authors, known authors. And if the work is of a corporate authorship, then it's 95 years from publication, or 120 years from creation, whichever expires first.

  Now let's talk about March 1st, 1989, key date, through 2002, and created before 1978, and first published in this period. Then it's the greater the term of either December 31st, 2047 or 70 years after the death of the author, or if a work of corporate authorship, 95 years from publication, or 120 years from creation, whichever expires first. Almost done. After 2002, we go back to the 70 years after the death of the author, and if a work of corporate authorship, 95 years from publication, or 120 years from creation, whichever expires first. And then lastly, sound recordings are treated differently. Sound recordings published in the United States after March 1st, 1989, it's 70 years after death of the author, or if the work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation, but 2049 at the earliest.

   Now, if going over all that does not make you seriously consider volunteering for a trip to the guillotine, I don't know what would. Obviously the date copyright protection ends for a particular copyright work is highly fact and date dependent. For all the possible scenarios, and all the possible dates, and all the possible works, and all the nuances, again, I would recommend going to www.copyright.cornell.edu/public domain. It lays out every possible scenario that you would encounter. But let's talk now about the nitty gritty of enforcing your copyright through litigation, which is probably the more fun and informative part of the presentation.

   So, typically one enforces one's copyrighted work in one of two ways. First, a copyright holder often simply writes to an apparent infringer, and informs the infringer that it is improperly using a copyrighted work, and demands that the infringer stop. You may have received one of these letters. In the age of the worldwide web, this is very commonly done by Getty Images and other internet ubiquitous companies.

  The terms of the photo agency's cease and desist letters are normally pretty reasonable. For example, last time I checked, Getty Images' general policy is only to be put back in the position it would've been, but for the copyright infringement. This means they are only looking for the licensing fees that should have been paid for the time period the infringing photographs were on your website, and any additional cost of pursuing the matter. If you want to know more about copyright infringement and the internet, I would suggest an article blog by Mr. Timothy McCormack. It's found www.blog.seattle.com. And this particular article is Copyright Infringement Letter for Images on Your Website. And that was Timothy McCormack.

  Now you don't always just get cease and desist letters from a company asking you to stop using their copyrighted image. The second way of enforcement obviously is that a copyright holder can enforce its rights by bringing a copyright infringement action against the alleged infringer. There is however, a prerequisite to bringing a copyright infringement action against an alleged copier, registration. We've talked about that earlier, we're talking about it now. Registration with the US Copyright Office. As importantly, registration provides the copyright holder plaintiff, certain otherwise unavailable benefits. Each of those topics will be discussed before the subject of actual copyright infringement litigation is delved into, since these are prerequisites.

  So registering a copyright is a prerequisite to litigation. Registering a copyright, and the benefits of doing so are immense. The actual act of registering a work for copyright protection with the federal government may be one of the easiest things to accomplish in intellectual property law. One just has to submit a completed application form and a copy of the work to the copyright office, along with the required fee. That's it, nothing more. Generally, the submission can be electronic or via regular US mail. Nowadays, electronic is pretty standard and easy. The standard filing fee for an electronic registration is $65 for basic claims. However, the filing fee is only $45 if you register one work, not made for hire, and you are the only author and claimant.

  So for individual authors wanting to get copyright protection and registration so that they can possibly sue, the copyright office has made it as easy and as cheap as they can. The filing fee is only $45 if it's just one work, not made for hire, and you're the only author and claimant. Now, to access an electronic registration, just go to the copyright office's website at www.copyright.gov, and reviewing the listing of copyright office fees, you will note that paper filings are $125. So the copyright office is very much encouraging you to file electronic.

  So for more reasons than to just lower costs, an electronic registration is the preferred method. It simply requires the basic information related to the following things: the type of work, the title, the publication, the authors, the claimants, which may be different, any limitation of claims, rights and permissions, a correspondent address, a mail certificate, some special handling instructions, a certification and review submission. Those few things is all that is needed to fill it out electronically. Once online, it is a fairly easy and self-explanatory process with numerous drop down menus and helpful, as you go instructions. In all, registration of a work should not take much more than an hour, even for a first time registering. Less time than it takes to foolproof a croissant. Proofing, by the way, is an essential part of baking croissants that relies on yeast to create air pockets for the croissant's flakiness. So that's to foolproof a croissant.

  Moving on. Registration is not only quickly and easily done, it is extremely important, and as I alluded to earlier, it comes with a number of crucial benefits. This is particularly true when it comes to corporate enforcement through litigation. First, one must register a work, if one wants to bring a copyright infringement action. You can find this under circular one at the copyright basics at the website that I've already talked about, www.copyright.com. Second, "Registration establishes prima facie evidence of the validity of the copyright, and facts stated in the certificate when registration is made before or within five years of publication." So, that is important also, that once you create the work or publish the work, get it registered fairly soon, and that will provide prima facie evidence of validity. Third, "When registration is made prior to infringement or within three months after publication of a work, a copyright owner is eligible for statutory damages, attorney fees and costs." That may be the most important thing.

  So I'll say it again. When registration is made prior to infringement, or within three months after publication of a work, a copyright owner is eligible for statutory damages, so you don't have to prove any actual damages, attorneys' fees, which can be outrageous, and costs. So that is a very important reason to register your works. So, let's talk about filing the case and proving infringement. A copyright infringement action would be brought in federal district court, and is a rather straightforward claim. Copyright infringement claims have only two basic elements. One, is ownership of a valid copyright, And two, is copying of constituent elements of the work that are original. This comes from the case of Seven Arts Filmed Entertainment Ltd v. Content Media Corp, which can be found at 733 F.3d 1251, 9th Circuit case, 2013.

  So two, elements ownership of a valid copyright, and copying of constituent elements of the work that are original. So as you'll see, you don't have to copy everything, to infringe. Just copying of constituent elements of the work that are original. So let's talk about the first element. The first element, which is ownership of valid copyright, can be established by simply producing the certificate of registration from the copyright office for the work at issue. So, that element is typically not in dispute. You either have a certificate of registration or you don't have a certificate of registration, and that is typically the way to establish the first element.

  The second element is usually the crux of the case, and that is copying of constituent elements of the work that are original. Initially, the copying analysis poses a purely factual question, did the defendant actually copy plaintiff's work? Yes or no. The answer can be proved by direct or circumstantial evidence. A good case that discusses that is Boisson v. Banian Ltd, which can be found at 273, F.3d 262. Now, direct evidence of copying is obviously the best and the easiest for proving copying, and direct evidence of copying can be established through eyewitness testimony, "I saw him copying it," or a plaintiff's own admission, "I admit I copied it." So that is the easy way to establish it through direct evidence. In cases, which are most of them, lacking direct evidence of copying, indirect evidence suffices if, "The person who composed defendant's work had access to the copyrighted material, and there are similarities between the two works that are probative of copying." That comes from the Banian case as well.

  Thus, simply proving access to the copyrighted work and showing significant similarities between the two works, is sufficient to allow a fact finder to infer that the defendant copied the plaintiff's work. Similarities between works are, "Probative of copying," as the cases use it, if, "Under all the circumstances, they make independent creation unlikely." That comes from Laureyssens v. Idea Group 964 F.2d 131. You can also see a case called Odegard, Inc. v. Costikyan Classic Carpets, Inc, and that's at 963 F. Supp. 1328, out of the Southern District New York. And it indicated that similarities are, "Probative of copying," if they, "Would not be expected to arise if the works had been created independently."

  So, the balancing requirements for proof of access and probative similarities are inversely related, in the sense that the more compelling the evidence is regarding proof of access, the less compelling the evidence must be regarding probative similarities before actual copying can be properly inferred. So if you're suing your agent who had access to your works all the time, you'll probably have to put forward less evidence of the probative copying, because the access was so concrete than if it was someone just on the street that first you'd have to prove would have access to your work.

  Finally, the Copyright Act of 1976 provides that all civil actions to enforce one's copyright must be brought within three years after the claim accrued. So it's a fairly short statute of limitations, three years. One other important aspects of the access to work factor or element is that you don't have to actually know that you have access to the work. One of the best cases with regards to that is the case where George Harrison from the Beatles was sued for infringing the song, He's So Fine from the Chiffons with George Harrison's My Sweet Lord, and all they had to prove was that George Harrison had heard the song from the Chiffons, He's So Fine over the radio many times, and so therefore at least he had access to it through listening. And he admitted that he had heard the song many, many times before. And so it wasn't necessary to prove that he intentionally infringed the copyrights of the Chiffons.

  He just had to have access, and then they listened to the song, He's So Fine, versus My Sweet Lord, and saw there was evidence of probative similarities, which there were. So that's a very interesting case if you want to Google that sometime.

  So let's talk now about fair use and its application in litigation. I call this the, let them eat cake, defense. There may be no doctrine in the law that is more misunderstood than the doctrine of fair use in copyright law. In fact, it is so misunderstood, that is often misapplied by otherwise skilled lawyers in litigation. For that reason, I've dubbed it, the let them eat cake, defense. And that is because first, the term fair use is often misinterpreted, just like the original quote attributed to Marie Antoinette is often misinterpreted. The original quote of let them eat cake, does not actually translate to let them in eat cake, but it has come down through the years as, let them make eat cake. Second, fair use is almost a complete misnomer, kind of like let them eat cake quote itself.

  But you see, there's absolutely no historical evidence that Marie Antoinette ever said, "Let them eat cake," or anything like it in fact. In fact, the first person known to put the phrase, let them eat cake into print, thus copyrighted it, was the French philosopher, Jean-Jacques Rousseau. In particular, in book six of Rousseau's confessions, he relates a version of the story, attributing the quote, let them eat cake, which again, doesn't even translate to let them eat cake, to, "A great princess."

   Now, granted Maria Antoinette was a princess at the time, possibly great, depending on who you talk to, but at the time Rousseau wrote the book, about 1767, Marie Antoinette was but a child of 11 and the French revolution was decades away. Thus is unlikely that she was the princess Rousseau had in mind, but I digress. So hopefully a brief review of the fair use concept and its application in litigation will prevent the readers of these materials, and the people that are hearing this presentation from misunderstanding or misapplying the doctrine, like so many people have done with poor, tragic Marie Antoinette, and the misattributed and misunderstood quote, let them meet cake.

  So let's return to fair use in copyright and litigation. A works copyright protection is not unfettered. For example, it is limited by the doctrine of fair use. Pursuant to this doctrine, entities other than the copyright owner or its agents, are permitted to copy the otherwise protected material, in certain situations. The doctrine of fair use is strictly a creature of statute today. It's under Section 107 of Title 37 of the United States Code. And it states, "Not withstanding the provisions of Section 106 and 106 A, the fair use of a copyrighted work, including such use by reproduction and copies or phone records or by any other means specified by that section," and this is the key, "For purposes such as criticism, comment, news reporting, teaching, including multiple copies for classroom use, scholarship or research is not," I repeat, "Is not an infringement of copyright."

  And in concluding, what the section goes on to say is, "In interpreting whether the use made of a work in any particular case is a fair use, the factors to be considered shall include," and the section actually lists the factors, and they are one, the purpose and character of the use, including whether such use is of a commercial nature, or is for nonprofit educational purposes. Two, the nature of the copyrighted work, three, the amount and substantiality of the portion used in relation to the copyright work as a whole, and four, the effect of the use upon the potential market for or value of copyrighted work.

  So, the fact that a work is unpublished shall not itself bar a finding of fair use if such a finding is made upon consideration of the above four factors. So if you look at the four factors, we're talking about the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work, and the effect of the use upon the potential market for or value of the copyrighted work, they are all most aimed at making sure that the copyright holder is able to exploit his or her work for commercial gain. And if you are using it not for commercial gain, you are more likely to be found to be using it in a fair use sense. That all comes, again, from 37 United States Code Section 107.

  So as I was saying, looking over the statute, you will see and ask yourself immediately, "Where does litigation fall within those permitted exceptions?" We're talking about school use, comment, criticism. Well, obviously attorneys are often highly critical, they also comment on everything, and litigation is all about teaching and research, but none of those fair use examples appear to be exactly applicable to litigation. Doesn't really matter. The fact of the matter is that litigation does not fall squarely in line with those fair use examples, but that term, examples, is the key. A criticism, comment, news reporting, teaching, scholarship or research are just that. Those are but examples of fair use, and the courts have made it very clear that those are not the exclusive or only examples.

  So, in the last few minutes that we have, let's talk about fair use in the Bond case. Numerous courts have used the statutes for quoted factors, to unequivocally find that use of copyrighted works in litigation by copying them is fair, and thus not an infringement. One of the leading and most interesting cases on this issue is, as I've said before, Bond v. Blum. It can be found at 317 F.3d 385, it's a 4th Circuit case out of 2003. There, a copyrighted author brought a copyright infringement action based on the use of his manuscript. The manuscript was called Self-Portrait of a Patricide: How I got Away with Murder. And it was used in evidence in a contentious custody battle. Needless to say, the other side used that manuscript by making copies and filing it with the court, to argue that perhaps dad's house was not the best place for the children, since he's an admitted patricide, who killed his father and then wrote about it in a gloating manner.

  Ultimately, the 4th Circuit held that the doctrine of fair use protected the attorneys and their clients from claims of infringement through their use of the manuscript as evidence in the case, even though neither had obtained the author's, the murderer's permission to copy the work. The court based its decision on the fact that section 107, which we talked about just a few minutes ago, does not state that the examples of fair use or the factors for determining fair use provided in the statute, are exclusive. They are not. Indeed, the court found that they are merely illustrative. The court thoroughly assessed the factors, and concluded that defendant's copying, "Even the entire manuscript, does not undermine the protections granted by the Copyright Act, but only serves the important societal interest in having evidence before the fact finder." Again, that comes from the F. 3d 317 at page 387.

  And based there on, the court went on to state that, "Because the societal benefit of having all relevant information presented in a judicial proceeding is an important one, it should be furthered if doing so would not unduly undermine the author's rights regarding his creative work." That's page 396. And based there on, the court found no infringement. So because of the doctrine of fair use and opinions like Bond, attorneys should neither fear copyright infringement actions for using copies of documents in litigation, nor entertain the thought of suing a judge who decides against them by quoting language from their brief in the judge's memorandum and opinion.

  Now I say that and I'm sure you would say, "Who would ever do that?" But there actually is a case, or has been a case, where an attorney filed briefs, and the court ended up ruling against the attorney, and in the order that the judge issued, ruling against the attorney in the case, the judge obviously quoted from the losing attorney's brief. And the attorney, putting audacity aside, ended up suing the judge for copyright infringement, because the judge quoted without permission, arguments and sentences from the losing attorney's brief. But that was obviously a fair use, and there was no infringement action.

  So I highly encourage you to read the full Bond v. Blum case. It's a very interesting case, and the 4th Circuit goes through the elements of copyright infringement, and fair use, in some very good detail, and I cannot give it justice in the few minutes that are left in this presentation. So again, I encourage you, at the first opportunity, to go back and pull up 317 F.3d 385 out of the 4th Circuit and read the Bond v. Blum case about the man who wrote the book, Self-Portrait of a Patricide: How I Got Away with Murder, and then sued people involved for using it as evidence in a family custody suit.

  So, with the one minute that's left, I just want to reiterate that for the most important information that we've discussed, you can go to particularly two websites, and that would be www.copyright.gov, there there's an abundance of information on copyright law obviously. And you can also go to the Cornell Law School library website, because there's also a great deal of information about copyright law there. In addition, I encourage you to go to of the cases that I've discussed here and review them for various aspects. And finally, I highly, highly encourage you to go to Bond v. Blum and read that case in full. That concludes this presentation on copyright law, the Charles Dickens of law. I hope you enjoyed it, and learned a little bit of French history. Au revoir.


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