Can you state the difference between an idea and the expression of that idea? Don’t worry if it doesn’t slip off your tongue. This distinction is one of the most difficult areas of copyright law but far from academic because copyright law doesn’t protect ideas, but it does protect expressions of ideas. And this distinction remains key to technology copyright cases.
The unauthorized use of copyrighted material is more widespread and more immediately a part of our lives today than ever. We need only switch on our personal computers and open our Web browsers to encounter a new world of unauthorized reproductions. As unauthorized copying finds ever new media for testing the limits of legality, the doctrine of fair use scrambles to keep up.
How do you protect what’s yours from those who would completely ignore copyright protection? This is a question the family of famed Beat generation icon Neal Cassady has asked itself, as illegally copied photographs of Neal float around the Internet and the world. One way to get greater protection is to register the copyright. Taking this extra step is the difference between being able to sue for infringement and having to sit there and take it.
Yes, even politicians are subject to copyright law. California politician Chuck DeVore posted two videos parodying songs of the classic rock band Eagles as part of his 2010 U.S. Senate campaign. But the former Eagles frontman Don Henley and his fellow songwriters did not find it funny and sued DeVore for copyright infringement.
On the parties’ summary judgment motions, the district court judge held in part that the campaign videos did not constitute parody and thus violated the musician’s copyrights.
Am Law Daily reports that the parties settled for undisclosed terms, and that Henley and the other musicians received an apology, in which DeVore acknowledged that the
ruling in this case confirms that political candidates, regardless of affiliation, should seek appropriate license authority before they use copyrighted works.
In his exclusive interview with Copyrights & Campaigns, Henley celebrates his “moral victory” and says his motivation for the suit was “simply a matter of my copyrights being violated by music being used in a way it was never intended to be used.”
Although parody may be claimed as a fair use of a copyrighted work, the parody defense in copyright infringement cases is narrow. Its commercial character is only one factor to weigh in determining whether a use is a fair use; it does not, by itself, render the use unfair. Importantly, a parody must make a critical comment on the work it copied from. That an allegedly infringing work is or is not in bad taste is irrelevant to whether it constitutes a parody for fair use purposes; it is a question of law, not a matter of public majority opinion.
On copyright infringement, see California Business Litigation, chap 7 (Cal CEB 2002). For general information about intellectual property licensing, see Intellectual Property in Business Transactions, chap 5 (Cal CEB 2008). Check out the OnLAW Business Law Library to get both of these books and more.
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Social media — including Facebook and Twitter — has quickly become part of our daily lives. User generated content (UGC), including images, video, audio, and text, are uploaded everyday without thought as to whether it is protected under copyright law. But some are starting to ask questions on the limits of copyright in social media. Is a single “tweet” on Twitter entitled to protection? If not, what about a string of compiled tweets?