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17.0 Preliminary Instruction—Copyright

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This chapter is being reviewed in light of comments solicited by the Committee from the public.

 17.0 PRELIMINARY INSTRUCTION—COPYRIGHT

 The plaintiff, [name of plaintiff], claims ownership of a copyright and seeks damages against the defendant, [name of defendant], for copyright infringement. The defendant denies infringing the copyright [and] [contends that the copyright is invalid] [asserts an affirmative defense, e.g., that it made a fair use of the work]. To help you understand the evidence in this case, I will explain some of the legal terms you will hear during this trial.

 

DEFINITION OF COPYRIGHT 

The owner of a copyright has the right to exclude any other person from reproducing, distributing, performing, displaying, using, or preparing derivative works from the work covered by copyright for a specific period of time. 

A copyrighted work can be a literary work, musical work, dramatic work, pantomime, choreographic work, pictorial work, graphic work, sculptural work, motion picture, audiovisual work, sound recording, architectural work, computer program, or a mask work fixed in semiconductor chip products. 

Facts, ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries cannot themselves be copyrighted. 

The copyrighted work must be original. An original work that closely resembles other works can be copyrighted so long as the similarity between the two works is not the result of copying. 

 

[COPYRIGHT INTERESTS] 

[The copyright owner may [transfer] [sell] [convey] to another person all or part of the owner’s property interest in the copyright, that is, the right to exclude others from reproducing, distributing, performing, displaying, using, or preparing derivative works from the copyrighted work. To be valid, the [transfer] [sale] [conveyance] must be in writing. The person to whom a right is transferred is called an assignee.] 

[The copyright owner may agree to let another person exclusively reproduce, distribute, perform, display, use, or prepare a derivative work from the copyrighted work. To be valid, the [transfer] [sale] [conveyance] must be in writing. The person to whom this right is transferred is called an exclusive licensee. The exclusive licensee has the right to exclude others from [using the rights granted in the license].] 

 

[HOW COPYRIGHT IS OBTAINED] 

[Copyright automatically exists in a work the moment it is fixed in any tangible medium of expression. The owner of the copyright may register the copyright by delivering a copy of the copyrighted work to the Copyright Office. After determining that the material deposited constitutes copyrightable subject matter and that certain legal and formal requirements are satisfied, the Register of Copyrights registers the work and issues a certificate of registration to the copyright owner.] 

 

PLAINTIFF’S BURDEN OF PROOF 

In this case, the plaintiff, [name of plaintiff], contends that the defendant, [name of defendant], has infringed the plaintiff’s copyright. The plaintiff has the burden of proving by a preponderance of the evidence that the plaintiff is the owner of the copyright and that the defendant copied original elements of the copyrighted work. Preponderance of the evidence means that you must be persuaded by the evidence that it is more probably true than not true that the copyrighted work was infringed. 

 

PROOF OF COPYING 

To prove that the defendant copied the plaintiff’s work, the plaintiff may show that the defendant had access to the plaintiff’s copyrighted work and that there are substantial similarities between the defendant’s work and the plaintiff’s copyrighted work. 

 

LIABILITY FOR INFRINGEMENT 

One who [reproduces] [distributes] [performs] [displays] [uses] [prepares derivative works from] a copyrighted work without authority from the copyright owner during the term of the copyright infringes the copyright. 

[Copyright may also be infringed by [vicariously infringing] [contributorily infringing].] 

 

[VICARIOUS INFRINGEMENT] 

[A person is liable for copyright infringement by another if the person has profited directly from the infringing activity and had the right and ability to supervise or control the infringing activity, whether or not the person knew of the infringement.] 

 

[CONTRIBUTORY INFRINGEMENT] 

[A person is liable for copyright infringement by another if the person knows or should have known of the infringing activity and [induces] [or] [materially contributes to] the activity.]

 

[DEFENSES TO INFRINGEMENT]

[The defendant contends that there is no copyright infringement. There is no copyright infringement when [the defendant independently created the challenged work] [the defendant made fair use of the copyrighted work by reproducing copies for criticism, comment, news reporting, teaching, scholarship, or research] [the plaintiff abandoned ownership of the copyrighted work] [the plaintiff misused the copyright by requiring its exclusive use or preventing the development of competing products] [the plaintiff granted the defendant an implied license to use the plaintiff’s copyrighted work] [the defendant, as an owner of the plaintiff’s copyrighted work, resold the plaintiff’s work after the plaintiff made the first sale].] 

 

Comment 

See generally 17 U.S.C. §§ 101, et seq