ATTACKING A COPYRIGHT QUESTION

I. Determine whether the work is copyrightable

a. Does the work fall into one of the 8 categories of works of authorship, which are copyrightable?
b. Or does it fall into one of the categories of uncopyrightable matter related to idea (102b)?
i. If it is a work of industrial or ornamental design, its uncopyrightable, but may get one of 4 other
forms of protection
c. Is the work a derivative work?
d. Is the work a compilation?
e. Is it fixed?
i. Unfixed works uncopyrightable federally, but possibly copyrightable in common law copyright
(e.g. California)
f. Is it original?
i. Does the work fall into the Merger Doctrine category
g. Is the work one embodied in useful objects?
i. If so, does it pass the separability test?
II. Determine who owns the copyright
a. Was the work created in the scope of employment?
b. Is it a joint work?
c. Is it a collective work?
d. Is it an orphan work?
e. Was there a transfer of ownership?
i. Exclusive transfer?, Assignment?, Non-Exclusive license?
ii. Was there are recordation of the transfer? (not required, but can help case)
III. Is the Copyright still valid?
a. What is the duration?
b. Has there been a renewal or was it automatically renewed?
c. Does restoration apply?
d. Has there been a termination of transfer
IV. Evaluate Notice of Copyright
a. Was the work published before 1978?
i. Was there adequate form of notice under 1909 Act?
b. Was the work published 1/1/19783/1/1989
V. What rights does the copyright owner have in this work?
a. Does the use in question fall into one of the limitations or exemptions from the right?
VI. Determine if there was an infringement of the copyright
a. Does the issue arise under copyright?
i. Determine whether this needs to be heard in state or fed. court
b. Are the 3 elements of infringement present?
c. Does it involve digital rights?
d. Was there notice? (registration, symbol, etc.) (though not required, makes case stronger)
i. Was there a recordation of the transfer?
e. Was this 3
rd
party liability?: contributory infringement? Vicarious infringement?
f. If there is infringement, the claim must include the 4 elements of a well pleaded infringement claim.
VII. Are there any defenses to this infringement?
a. Fair Use
b. Does the First Sale Doctrine Apply (See distribution right)
c. One of the best defenses is to say nothing but idea/concept was taken. doesnt protect idea
d. Interoperability?
VIII. What Remedies are available?
a. Has the 3-year statute of limitation passed?
i. Can it be extended?
IX. Are there state laws at issue here? Should the state laws be preempted?