Post on 07-Aug-2015
transcript
Deconstructing a Copyright License
UNH Creative Works Symposium
April 29, 2015
Kimberly A.W. Peaslee, Ph.D.Intellectual Property Attorney
Upton & Hatfield, LLP
Timothy E. Benoit-LedouxLicensing Manager, UNHInnovation
Copyright
◦ Copyright Basics
Standard Clauses
Pro-Licensor clauses
Pro-Licensee clauses
Wrap Up
Overview
Copyright
Federal Registration v. Common Law rights
Enhanced damages for prompt registration
Protects only original and creative expression, not the underlying content
Must be “fixed”
Bundle of rights
◦ copy, distribute, perform, display, creation of derivative works
Term (e.g. life + 70 years for individual)
Copyright Basics
Where?
◦ Library of Congress – Copyright Office – www.copyright.gov
◦ No State copyrights
When?
◦ pre or post “publication” can determine the scope of protection
What?
◦ Most can be submitted electronically, but some must be sent in as hard copies or in duplicate
How much?
◦ Electronic submissions $35-85 in fees per item
Copyright Registration Process
Multifactor balancing test:
◦ Fair Use defense to infringement is available for criticism, comment, news reporting, teaching, scholarship and research, etc.
◦ First Amendment balancing
Courts must consider, at least:
◦ Purpose and character of the use
◦ Nature of the work
◦ Amount and substantiality
◦ Effect of the use
◦ Anything else?
Fair Use in Copyright – a defense to infringement
Standard Clauses
License Grant
Representations/Warrantees
Delivery
Royalties/Payments
Termination/Remedies
General Provisions (Choice of Law, Integration, etc.)
Standard Clauses
Who
◦ Is it assignable?
What
◦ Type of work (text, visual, music, etc.)
◦ Copy, distribute, publicly display, publicly perform, create derivative works
Where/What languages?
How long
◦ Months, years, …
Field of Use
◦ For print media, e-books, online, for a particular project, etc.
License Grant
Who? What? Where/What languages?
License Grant - Deconstruction
How long?
License Grant - Deconstruction
Ownership
◦ Authority
Original Work
Work is not in public domain
Indemnification
◦ If work infringes others’ rights
No conflicting licenses
Representations/Warranties
Representations/Warranties - Deconstruction
Quality
Timing
Provisions if not in proper form or by a certain time
◦Who can make necessary changes?
◦Who bears the cost?
Clearance of copyright within work
Editor's revisions?
Delivery
Quality & Timing
Delivery - Deconstruction
Provisions if not in proper form or by a certain time
Delivery – Deconstruction
Clearance of copyright within work
Delivery – Deconstruction
Editor’s revisions?
Delivery – Deconstruction
When do they start?
◦ Is there an advance?
◦What if the publisher never publishes?
How long do the payments last?
How are they calculated?
◦ Are certain copies not counted? How many?
◦ Are costs deducted?
Access to records
Royalties/Payments
When do they start?
◦ Is there an advance?
◦What if the publisher never publishes?
Royalties/Payments - Deconstruction
How long do the payments last?
How are they calculated?
Royalties/Payments - Deconstruction
How are they calculated?
Royalties/Payments - Deconstruction
Access to records
Royalties/Payments - Deconstruction
For Breach (for cause)
◦Non-delivery
◦Non-publication
With notice
◦ Either party?
At date certain?
Does it renew?
Expiration/Termination
For Breach (for cause)
◦Non-delivery
◦Non-publication
Expiration/Termination - Deconstruction
With notice/At date certain?
Expiration/Termination - Deconstruction
For Breach
◦Non-delivery
◦Non-publication
With notice
◦ Either party?
At date certain?
Remedies
Choice of Law
Integration/Severability
Notice
Modification
Dispute Resolution
Insurance
Others…
General Provisions
Choice of Law
Integration/Severability
General Provisions - Deconstruction
Notice
General Provisions - Deconstruction
Modification
Dispute Resolution
Insurance
Others…
General Provisions - Deconstruction
Pro-Licensor Clauses
Record copyright
Retain right to: create derivative works, approve modifications, etc.
Set time for performance by publisher
Include e-books in copy count
Direct enforcement efforts?
Limit giveaways?
Shorter Term with benchmarks
Pro-Licensor Provisions
Change of Control provisions?
No commitment for future works
Pro-Licensor Provisions
Pro-Licensee Clauses
Right to create derivative works
No set date for performance
Unlimited giveaways
Carve out for e-books
Approval of changes at Licensor’s expense
No liquidated damages (no enhanced fee if they go outside scope of license)
Pro-Licensee Provisions
Wrap Up
Thank you!Please feel free to contact me with any questions.
Kimberly A. W. Peaslee, Ph.D.kpeaslee@uptonhatfield.com
(603) 224-7791
This presentation is for informational purposes only and does not in any way establish an attorney-client relationship between you and any attorney involved in preparing and/or making this presentation. Nothing contained in this presentation constitutes legal advice. Please consult a licensed attorney for specific legal advice relating to any or all of the subjects discussed herein. All of the information contained herein is subject to change at any time. Upton & Hatfield, LLP shall not be held liable for any losses or damages arising from the use of any information contained in this presentation.