💵Media Money Trail Unit 9 – Intellectual Property & Copyright in Media

What's the Deal with Intellectual Property?

• Intellectual property (IP) refers to creations of the mind, such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce
• IP is protected by law through patents, copyrights, and trademarks, which enable creators to earn recognition or financial benefit from their inventions or creations
• IP rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary, or artistic productions
• IP protection fosters an environment in which creativity and innovation can flourish, driving economic growth and enhancing quality of life
• IP rights are not indefinite; they are granted for a specific period of time, after which the creations enter the public domain and can be used freely by others
• IP law seeks to balance the interests of innovators and creators with the public interest, providing incentives for creation while ensuring access to knowledge and ideas
• The World Intellectual Property Organization (WIPO), a specialized agency of the United Nations, is dedicated to developing a balanced and accessible international IP system

Types of IP: Patents, Trademarks, and Copyrights

• Patents protect inventions and grant the inventor exclusive rights to make, use, and sell the invention for a limited period (typically 20 years from the filing date)
  • Utility patents cover new and useful processes, machines, articles of manufacture, or compositions of matter (pharmaceuticals, chemical compounds)
  • Design patents protect the ornamental design of a functional item (furniture, packaging)
• Trademarks protect words, phrases, symbols, or designs that identify and distinguish the source of goods or services (brand names, logos, slogans)
  • Trademarks help consumers identify the source of a product and protect a company's brand identity
  • Trademark rights can last indefinitely if the owner continues to use the mark in commerce and files the necessary maintenance documents
• Copyrights protect original works of authorship, such as literary, dramatic, musical, and artistic works (books, movies, songs, computer software)
  • Copyright protection arises automatically when a work is created and fixed in a tangible form
  • Copyright owners have the exclusive right to reproduce, distribute, perform, display, and create derivative works based on the original

Copyright Basics: What's Protected and For How Long?

• Copyright protects original works of authorship fixed in any tangible medium of expression, now known or later developed
• Works covered by copyright include literary works, musical works (including accompanying words), dramatic works (including accompanying music), pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works
• Copyright does not protect ideas, procedures, methods, systems, processes, concepts, principles, or discoveries
• Copyright protection begins as soon as a work is created and fixed in a tangible form; registration is not required but provides additional benefits
• For works created on or after January 1, 1978, copyright protection lasts for the life of the author plus 70 years
  • For joint works, the term is 70 years after the last surviving author's death
  • For anonymous works, pseudonymous works, and works made for hire, the term is 95 years from the year of first publication or 120 years from the year of creation, whichever expires first
• Works created before 1978 have different copyright terms depending on various factors, such as publication status and renewal

Fair Use: When Can You Use Someone Else's Stuff?

• Fair use is a legal doctrine that allows limited use of copyrighted material without permission from the rights holders for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research
• Four factors are considered in determining whether a use is fair:
  1. The purpose and character of the use, including whether it is commercial or for nonprofit educational purposes
  2. The nature of the copyrighted work (factual works are more likely to be considered fair use than creative works)
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for or value of the copyrighted work
• Examples of fair use include quoting excerpts in a review, using copyrighted material in a parody, or showing clips of a film in a classroom for educational purposes
• Fair use is a case-by-case determination, and there are no hard-and-fast rules; courts weigh all four factors in deciding whether a particular use is fair
• Transformative uses, which add new expression, meaning, or message to the original work, are more likely to be considered fair use (parodies, critiques)
• Fair use is an important limitation on copyright that helps balance the rights of creators with the public interest in access to information and freedom of expression

Digital Age Challenges: Streaming, Sharing, and Piracy

• The rise of digital technologies and the internet has created new challenges for copyright law, as it has become easier to reproduce, distribute, and share copyrighted works without permission
• Streaming services (Netflix, Spotify) have changed the way people consume media, raising questions about licensing, royalties, and the role of traditional distribution channels
• Peer-to-peer file sharing networks (Napster, BitTorrent) have enabled widespread unauthorized distribution of copyrighted works, leading to legal battles and efforts to combat piracy
• Social media platforms (YouTube, Facebook) have grappled with issues of user-generated content and the responsibility of platforms to police copyright infringement
• Digital rights management (DRM) technologies have been developed to control access to and use of digital works, but have also raised concerns about fair use and consumer rights
• The Digital Millennium Copyright Act (DMCA) of 1998 updated copyright law for the digital age, providing safe harbors for online service providers and prohibiting circumvention of DRM
• The music industry has been particularly affected by digital disruption, with declining sales of physical media and the rise of streaming services leading to new business models and revenue streams
• Piracy remains a significant challenge, with estimates suggesting that billions of dollars are lost annually due to unauthorized downloading and sharing of copyrighted works

IP in Media: Case Studies and Controversies

• The Google Books project, which aimed to digitize and make searchable the world's books, faced legal challenges from authors and publishers over copyright infringement (Authors Guild v. Google)
• The rise of user-generated content on platforms like YouTube has led to disputes over fair use and the responsibility of platforms to remove infringing content (Viacom v. YouTube)
• The music industry has pursued legal action against individual file-sharers, peer-to-peer networks, and streaming services over unauthorized distribution of copyrighted works (A&M Records v. Napster, MGM Studios v. Grokster)
• The use of copyrighted music in political campaigns has led to disputes between artists and candidates over permissions and endorsements (Jackson Browne v. John McCain)
• The practice of sampling in hip-hop music has raised questions about fair use and led to legal battles over unauthorized use of copyrighted sound recordings (Grand Upright Music v. Warner Bros. Records)
• Fan fiction and fan art communities have grappled with issues of copyright infringement and fair use, as they create works based on existing copyrighted characters and stories (Harry Potter fan fiction)
• The rise of streaming services has led to disputes over royalty rates and the equitable distribution of revenue to creators (Spotify's licensing deals with record labels)
• The use of copyrighted images and text in memes and social media posts has raised questions about fair use and the boundaries of online expression (Getty Images v. Stability AI)

Protecting Your Work: How to Copyright Your Creations

• Copyright protection arises automatically when an original work is created and fixed in a tangible medium, but registration with the U.S. Copyright Office provides additional benefits
  • Registration creates a public record of the copyright claim
  • Registration is necessary before filing an infringement lawsuit in court
  • If registration is made within three months of publication or prior to infringement, statutory damages and attorney's fees are available in court actions
• To register a copyright, submit an application, a nonrefundable filing fee, and a nonreturnable copy of the work to the Copyright Office
• Copyright notices, while not required, serve to inform the public that a work is protected and identify the copyright owner (© Year Author)
• Copyright owners can license their works to others, granting permissions and setting terms for use (exclusive or non-exclusive licenses, royalties)
• Copyright can be transferred or assigned to another party, but this must be done in writing and signed by the owner
• Copyright owners can take steps to monitor and enforce their rights, such as issuing takedown notices under the DMCA or pursuing legal action against infringers
• International copyright protection is governed by treaties such as the Berne Convention, which provides for automatic protection in member countries without the need for registration

The Money Side: Licensing, Royalties, and IP as Assets

• Licensing allows copyright owners to grant permissions and set terms for the use of their works by others, generating revenue through royalties or fees
  • Exclusive licenses grant rights to a single licensee, while non-exclusive licenses can be granted to multiple parties
  • Licensing terms can specify the scope of rights granted, the duration of the license, geographic restrictions, and payment structures
• Royalties are payments made to copyright owners for the use of their works, often based on a percentage of revenue generated or a fixed amount per unit sold or streamed
  • Mechanical royalties are paid for the reproduction and distribution of musical works (CDs, downloads)
  • Performance royalties are paid for the public performance of musical works (radio, streaming, live performances)
  • Synchronization royalties are paid for the use of musical works in audiovisual productions (films, TV shows, commercials)
• IP can be a valuable asset for individuals and companies, generating revenue through licensing, sales, or enforcement of rights
  • The value of IP assets can be assessed through various methods, such as cost, market, or income approaches
  • IP can be used as collateral for loans or investments, or as a bargaining chip in business negotiations and mergers
• Collective management organizations (ASCAP, BMI) help creators and copyright owners manage their rights and collect royalties for the use of their works
• The music industry has complex licensing and royalty structures, with multiple stakeholders (songwriters, publishers, performers, record labels) and revenue streams (mechanical, performance, synchronization)
• The rise of streaming has disrupted traditional licensing and royalty models in the music industry, leading to disputes over rates and revenue sharing