Content Rights for Creative Professionals. Copyrights and Trademarks in a Digital Age

282 Pages·2002·14.465 MB·English

by  Arnold P. Lutzker (Auth.)

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Library of Congress Cataloging-in-Publication Data
Lutzker, Arnold l?
Content rights for creative professionals : copyrights and trademarks in a digital age /
Arnold I? Lutzker.-Znd ed.
p. cm.
Rev. ed. of Copyrights and trademarks for media professionals . c1997.
Includes bibliographical references and index.
ISBN 0-240-80484-8 (pbk : acid-free paper)
1. Copyright-United States. 2. Trademarks-Law and legislation-United States. 3. Mass media-
Law and legislation-United States. I. Lutzker, Arnold P. Copyrights and trademarks for media
professionals. 11. Title.
KF2994 .L88 2002
346.7304'82-dc2.1 2002073879
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For Mom
Preface to the Second Edition
In the five years since I began work on the first edition (entitled Copyright and
Trademark for Media Professionals), much has happened to the world of copyrights
and trademarks. I wanted to explore some of the tensions that led to reform
as well as explain the changes that occurred and their impact on intellectual
property rights in a second edition. Most notably, Congress passed the Digital
Millennium Copyright Act (DMCA), the most comprehensive law reform in a
generation, and extended the term of copyrights 20 years. On behalf of five
national library associations, I was able to play a role in the passage of legislation
that will shape the treatment of digital content by copyright law for years to come.
The legislation not only established new rules to address the problems for online
service providers like AOL and the telephone companies, but it also introduced
several new legal concepts, including a prohibition on the circumvention of
technological measures designed to control access to works.
Left hanging in the balance was the relationship of the Internet to distance
education, the method by which the students log on and learn. The complex issues
of distance education were the subject of intense debate during consideration of
the DMCA, with no formal resolution occurring in 1998. It took a report from the
Copyright Office and leadership by two committed senators to fashion a com-
promise that all interested parties have agreed to. This reform has the prospect of
having an enormous impact on education in the coming years. However, the final
bill is so complex in structure and language that educators, students, and content
owners will need guidance in how to interpret its standards.
During the past five years, the Internet has burst fully onto the scene, crest-
ing a veritable revolution, not only in the way people communicate but also in
the approach to ownership and use of content. A metaphor for the change is the
story of Napster, the extraordinary music file-sharing technology that attracted
upward of 40 million (mainly youthful) users by early 2000. These music hunters
appeared oblivious to the concerns of copyright owners of recordings that were
being shared without any recompense to those copyright owners. The fact that
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x Preface to the Second Edition
the price of CDs offended the sensibilities of many teenage buyers made Napster
a natural ally of those who believed that traditional copyright law could not apply
in cyberspace. However, after a legal assault based on very old-fashioned notions
of ownership and exclusive rights, the upstart was brought to its knees.
The dot-coms also brought change to the world of trademark. The ease with
which one could apply for and obtain a Web address made specious claims to
words and phrases a simple method to attract online users to their sites. New
systems for deciding conflicting claims to www.xxx.coms were instituted, includ-
ing a mechanism for international arbitration to resolve cross-border disputes. All
this happened amid the frantic boom and bust of Internet stocks on the NASDAQ.
Also, I wanted this book to appeal to a wider circle of readers. While the first
edition focused throughout on media professionals, I believe that the topics and
contents can have utility and interest for many others. Freelance authors, photo-
graphers, librarians, and educators (teachers, administrators, and students), in
particular, need a better understanding of how the law of intellectual property
affects their work and their thinking.
So, at the start of the new millennium, I decided to return to the topic of copy-
rights and trademarks. This edition has a new and more accessible title, Content
Rights for the Creative Professional. My goal is to help professionals-those serious
about the creation or use of works, words, phrases, and images, and the transla-
tion of ideas into form and substance-discover what they need to know about
their ownership and use and give them the tools to apply in practice. Novels and
short stories, biographies and news articles, photographs and drawings, films
and multimedia works, sculptures and paintings, songs and dances, words, logos,
and catchphrases are the subjects of our work.
The book is an update, not a total rewrite. It discusses many of the important
changes of the past few years and offers new, practical features like a glossary,
helpful hints, and some visuals. Also included is a CD-ROM with full text of
relevant laws, cases, and original source materials to help those wishing to explore
issues in greater detail. Let the games begin!
Prefuce to the First Edition
We are in the midst of a media revolution. There are more ways for people to com-
municate than ever before-television and radio, cable and satellite, telephone
and cellular, newspapers and magazines, the Internet. Each means of reaching an
audience has one ultimate goal: providing viewers, listeners, or readers with
content-news and information, entertainment and opinions. More than at any
time in our history, the value of content has skyrocketed. Whether it is box office
favorites, news reports of special events, reruns of TV sitcoms, home videos, or
scribblings on e-mail, people covet the content they own and seek new outlets for
releasing it. Thus, while the channels of communication are expanding, it is what’s
on those channels that reflects their ultimate value.
This book explains, for those in the media and those who care about com-
munications, what they need to know about content. It takes the laws of intel-
lectual property (1P)-copyright and trademark-and translates them into plain
English. It helps answer those puzzling questions about what can be used on the
air or in print, and who really owns photographs, videos, storylines, and titles.
While these IP laws can be confusing, they are central to the media’s effective
operation. From program direceors to advertisers, from scriptwriters to online
access providers, from stringers to students, from home videocamophiles to Hol-
lywood directors, the rules that we have set up to regulate the way we create and
use content affect us all. Those on the front lines, whose jobs are to put programs
and information together, are under the greatest stress. This book adds measures
of understanding regarding the legal principles that shape our most precious com-
modity, the fruit of our intellect.
For creators and users of programming and content-which is just about
everyone these days-the laws of copyrights and trademarks are the rules by
which we organize the products of our intellectual efforts. These laws are
challenged by an electronic system of communication that makes the ability to
copy and disseminate, as well as to alter without a hint, simple and universal. At
the same time, there are major realignments taking place among the owners of the
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xii Preface to the First Edition
media industries. Alliances between telephone and cable companies and acquisi-
tions of television networks by movie studios are making current headlines. The
passage of the 1996 telecommunications law reform has been lauded as one of the
most significant legislative accomplishments of the Clinton administration. What
are the economic forces driving these changes, and how will they affect what we
see and hear on the media? The pivotal element is content. With the knowledge
you gain from this book, you will be better equipped to face the coming challenges
in communications.
About the Author
Arnold P. Lutzker practices copyright, trademark, Internet, entertainment, and art
law. He counsels on issues of ownership and exploitation of intellectual property
and assists clients in matters of selection and registration, licensing, infringement
and effective management, and exploitation of copyright and trademark portfo-
lios. He has special expertise in the copyright and trademark issues that surround
the print and electronic media, television and film production, the Internet, mul-
timedia, information infrastructure, and intellectual property policy.
In 30 years of private practice, Mr. Lutzker has advised many media compa-
nies, including Cox Enterprises, Multimedia Entertainment, Newhouse Broad-
casting, USA Networks, Home Shopping Network, and Gannett Co., Inc. Since
1994, he has represented a consortium of five national library associations regard-
ing copyright and Internet issues. He has also counseled numerous colleges and
universities, including Ohio State, Arkansas, and Wisconsin, about intellectual
property law and assisted institutions in establishing licensing programs. He has
served as outside counsel to UDV (Diageo), handling trademark matters for the
company's famous brands that include J&B, Ouzo #12, and Malibu.
A successful advocate, Mr. Lutzker has won U.S. Court of Appeals cases
involving the cable copyright compulsory license, video monitoring, and trade
dress. For the library associations, he filed amici briefs in the U.S. Supreme Court
in The New York Times v. Tasini and National Geographic Society v. Greenberg (work-
for-hire cases) and Eldred 'v. Ashcroft (the legal challenge to the Copyright Term
Extension Act). He has also handled multimillion dollar copyright royalty claims
for the producers of Donahue and Sally Jesse Raphael television shows and routinely
counsels clients on music rights and clearances.
In the legislative and policy area, he advised the Directors Guild of America
in connection with its effort to protect classic American movies and to secure
residuals for directors. He has prepared prominent witnesses (notably Steven
Spielberg, George Lucas, Woody Allen, Jimmy Stewart, Milos Forman, and Martin
Scorcese) for hearings before House and Senate committees. In the Digital Mil-
xiii
xiv About the Author
lennium Copyright Act debate, he represented library and educational interests.
He was chief negotiator for these associations on bills dealing with Online Service
Provider limitation on liability, Copyright Term Extension, Fair Use, Distance Edu-
cation and Database. Among legislation he has worked on are the following: The
Satellite Home Viewers Act (1987), The Berne Treaty Implementation Amend-
ments (1988), The National Film Preservation Act (19881, The Digital Millennium
Copyright Act (1998), The Copyright Term Extension Act (1998), and The TEACH
Act (2002).
In the arts, since 1988 he has served as General Counsel of the Cultural
Alliance of Greater Washington, a nonprofit service organization comprised of
more than 300 arts organizations and civic institutions. He is a member of the
Board of Directors of the Washington, DC, International Film Festival and was
special legal advisor to the American Russian Cultural Cooperation Foundation
and its touring art exhibition, Jewels of the Romanovs: Treasures of the Russian lmpe-
rial Court. Mr. Lutzker is cofounder of Palace Arts Foundation and organized its
critically acclaimed touring exhibition, Palace of Gold & Light: Treasures from the
Topkapi, Is tan bu I.
He also is cofounder of three commercial ventures, Interstar Releasing (a the-
atrical motion picture production and distribution company that was sold to West-
inghouse’s Group W Division), Cineports International (a broadband startup that
will provide on a streaming, subscription basis movies from more than a dozen
countries), and Entera Entertainment (an entertainment company specializing in
Spanish- and Hispanic-themed music, television programs, and film).
He is the author of two other books, Copyrights and Trademarks for Media Pro-
fessionals, (Focal Press, 1997) and Legal Problems in Broadcasting (Great Plains Uni-
versity Press, 1974); a video, Copyrights: The Internet, Multimedia, and the Law
(Taylor Communications, 1997); The Primer on the Digital Millennium Copyright
Act; and numerous articles on copyright and trademark issues. Prior to estab-
lishing Lutzker & Lutzker LLP, he was a partner in the Washington firms of Fish
& Richardson, P.C. and Dow, Lohnes & Albertson, and was legislative counsel to
Congressman Jonathan B. Bingham. He graduated City College of New York
(1968, magna cum laude) and Harvard Law School (1971, cum laude).
Chapter 1
Overview of Copyright:
The Big Picture
We begin with an overview of the texture of copyright. What is it and why every-
one, particularly creative professionals and those who work with content in the
media and education-those whose job is to communicate-should have a firm
footing in copyright. Aside from an understanding of principles, our goal is to
impart information to help with judgment calls. Each book or article, every pho-
tograph, video, or CD raises questions that touch on copyright. Because commu-
nication is instantaneous and ever more interactive, one cannot be paralyzed by
uncertainty about what content can be used to teach, to share, to exploit. So we
explain the traffic lights of the law-the green light that tells you when the road
is clear to ”go,” the yellow light that urges ”caution,” and that red bugger that
hollers “hold up, there’s a problem here.”
What makes copyright fascinating from a legal perspective is that it involves
the tension between two bedrock constitutional principles. Article I, Section 8
instructs Congress to pass laws granting to authors exclusive rights to their writings
for limited times, while the First Amendment prohibits Congress from passing
laws that inhibit free speech. Copyright principles have been embodied in federal
laws since the founding of our nation. Every generation or two, they have been
updated to reflect technological developments, with the most recent major
changes coming in the Copyright Act of 1976 (we refer to this throughout as the
1976 Act) and the Digital Millennium Copyright Act of 1998 (DMCA). The 1976
Act was amended several times in focused ways between January 1,1978, the day
it took effect, and October 28, 1998, when the DMCA took effect. Still, the core
principles of the copyright law have remained the same. The statute
3
4 Copyright
Defines a copyrighted work and what is meant by exclusive rights in that work.
Sets forth a term of years during which the author can commercially exploit
the copyrighted work.
Governs the ways in which copyrighted works are owned and can be
transferred.
Provides penalties for those who would take an author’s copyrighted work
without permission.
Establishes limited exceptions so that important public policies can be
advanced.
The tension with the First Amendment still persists, and in the age of cyber-
space, it is more acute. How many times has it been said, ”The Internet has no
rules?” As this new medium evolves and electronic transmissions confront copy-
right barriers, the tension becomes palpable on the information superhighway.
Rules of the road exist, but they are being resisted. We delve into that conflict and
see how the challenges are being addressed.
Traditional media-radio, television, cable, even the venerable newsprint-
have had to grapple with copyright principles from their start. Even with decades
of experience, confusion reigns in many quarters. ”How far can one go in using
the works of another?” is an age-old question. Let’s put this in perspective by
some ”fact patterns.” They have been drawn from my practice and the pages of
our daily newspapers.
Setting the Stage
1. A radio manager has had a long-running dispute with Arbitron (ARB), one of
the leading firms that rate the popularity of programs. ARB measures audi-
ences for radio programs and issues reports. Then, radio stations rely on the
data to price the value of their air time for advertisers. But our radio manager
felt his station consistently paid a king’s ransom price for the diary numbers.
Fed up, he decides not to renew the ARB contract. As luck would have it,
when the very next ARB report is released, his station is credited with moving
up five slots and is top rated in drive time (the prime time for radio, when
most people drive to or from work). He obtains a copy of the diary report
from his ad agency and highlights of the market numbers are printed in ”the
trades,” specialized magazines that cater to radio and advertising executives.
Determined to make a splash, his sales department prepares a chart based on
the report, comparing the station’s ARB ratings data with all competitors. The
report is sent to 300 advertisers in the market. When ARB’S representative
calls to complain, the red-faced manager asks his staff, “Any problem?”