SoundScan-ing for posted data

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Nielsen SoundScan
Sent by: Associate General Counsel
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New York, NY, 10003-959, USA

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Answer: In order for material to be copyrightable, it must be original and must be in a fixed medium.

Only material that originated with the author can support a copyright. Items from the public domain which appear in a work, as well as work borrowed from others, cannot be the subject of an infringement claim. Also, certain stock material might not be copyrightable, such as footage that indicates a location like the standard shots of San Francisco in Star Trek IV: The Voyage Home. Also exempted are stock characters like the noisy punk rocker who gets the Vulcan death grip in Star Trek IV.

The requirement that works be in a fixed medium leaves out certain forms of expression, most notably choreography and oral performances such as speeches. For instance, if I perform a Klingon death wail in a local park, my performance is not copyrightable. However, if I film the performance, then the film is copyrightable.

Single words and short phrases are generally not protected by copyright, even when the name has been "coined" or newly-created by the mark owner. Logos that include original design elements can be protected under copyright or under trademark. Otherwise, words, phrases and titles may be protected only by trademark, however.

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Answer: "Proprietary" indicates that a party, or proprietor, exercises private ownership, control or use over an item of property, usually to the exclusion of other parties.

Where a party, holds or claims proprietary interests in relation to certain types of property (eg. a creative literary work, or software), that property may also be the subject of intellectual property law (eg. copyright or patents).

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Answer: Copyright protects original works of authorship fixed in a tangible medium. Copyright does not protect facts, ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. 17 U.S.C. ? 102(b). To the extent a copyrightable expression and uncopyrightable subject matter are inseparably linked (?merged?), copyright protection for the expression is generally unavailable.

These limits serve several purposes. First, they help make sure copyright does not burden creativity. If one could copyright not only the TV show "The West Wing," but also the idea of a story about a fictional President and his advisors, then many other creative works would be stifled. See Baker v. Selden, 101 U.S. 99 (U.S., 1880).

Second, these limits help ensure that copyright promotes and rewards creativity. Originality is required by the Constitution for copyright protection. Original in this sense only requires that the work be independently created with some creative effort; it is does not require that the work be novel or innovative. Facts and other discoveries do not meet this standard and are therefore not copyrightable. Feist Publications v. Rural Telephone, 499 U.S. 340 (1991).

Finally, these limits keep copyright from extending into other areas of intellectual property law. Procedures, processes, systems, and methods of operation are functional, useful inventions within the scope of patent law, and are therefore not copyrightable. Baker v. Selden, 101 U.S. 99 (U.S., 1880)

A few common examples of noncopyrightable subject matter include:

• Blank forms are not copyrightable because they are functional in nature. Baker v. Selden, 101 U.S. 99 (U.S., 1880) and 37 CFR 202.1(c)

• Copying a set of contest rules was deemed non-infringing because there were only a limited number of ways to express the rules. Thus, the non-copyrightable idea of the rules had merged with the expression (also described as "the merger doctrine"). Morrissey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir., 1967)

• Recipes and other ?mere listing of ingredients? are functional and not copyrightable. 37 CFR 202.1(a)

• Typefaces and ?mere variations of typographic ornamentation, lettering or coloring? are generally not copyrightable. 37 CFR 202.1(a) and (e)

• Stock characters or generic settings and themes may also be unprotectable.
  

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Answer: No. Copyright protects only original expression, not discovered facts. Creative selection and arrangement of facts is protected, but you can take the basic facts and rearrange them without infringing copyright. Thus the publishers of a telephone book cannot sue an online phone book publisher for copyright infringement, even if it took the first publishers considerable effort to collect the listings.

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Answer: No. If your use is fair, it is not an infringement of copyright -- even if it is without the authorization of the copyright holder. Indeed, fair use is especially important to protect uses a copyright holder would not approve, such as criticism or parodies. See Campbell v. Acuff-Rose Music, 510 US 569 (1994).

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Answer: The language used by Congress in Title 17, Section 107 specifically lists ?criticism, comment, news reporting, teaching, scholarship, and research? as examples of uses that might be protected under fair use. However, this list is non-exhaustive, and therefore a use not covered in one of the categories could nonetheless be successfully defended as a fair use. Conversely, not every use that falls within the listed categories will necessarily be found by a court to be fair. For example, not every use of another's work for research or educational purposes will be held to be a fair use. See Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156 (W.D.N.Y.1982).

In considering a fair use defense to a claim of infringement, a court will focus its inquiry on the specific facts of the individual case. Therefore, it is very difficult to predict with accuracy what a court will do until it engages in the inquiry. A court will almost always use the four factors listed by Congress as a guide in its inquiry. The four factors listed are:

FACTOR 1: THE PURPOSE AND CHARACTER OF THE USE
This factor considers whether the use helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public. The defendant must show how a use either advances knowledge or the progress of the arts through the addition of something new. The more transformative the use, the more likely it is to be fair, whereas if defendant merely reproduces plaintiff's work without putting it to a transformative use, the less likely this use will be held to be fair. Further, the more commercial defendant's use, the less likely such use will be fair.

FACTOR 2: THE NATURE OF THE COPYRIGHTED WORK
The more creative, and less purely factual, the copyrighted work, the stronger its protection. In order to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright?only their particular expression or fixation merits such protection. Second, if a copyrighted work is unpublished, it will be harder to establish that defendant's use of it was fair. See Salinger v. Random House, Inc., 650 F. Supp. 413 (S.D.N.Y. 1986), and in New Era Publications Int'l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988). One commentator noted that "the original author's interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses, [is to not] publish at all." While some argue that legal protection of unpublished works should come from the law of privacy rather than the law of copyright, Congress amended the Fair Use doctrine to explicitly note, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

FACTOR 3: THE AMOUNT AND SUBSTANTIALITY OF THE PORTION DEFENDANT USED
In general, the less of the copyrighted work that is used, the more likely the use will be considered fair. If, however, the defendant copied nearly all of, or the heart of, the copyrighted work, his or her use is less likely to be considered fair. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).

FACTOR 4: THE EFFECT OF DEFENDANT'S USE ON THE POTENTIAL MARKET OF THE COPYRIGHTED WORK
This factor is generally held to be the most important factor. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985). This factor considers the effect that the defendant's use has on the copyright owner's ability to exploit his or her original work. The court will consider whether the use is a direct market substitute for the original work. The court may also consider whether harm to a potential market exists. The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See Sony Corp. v. Universal City Studios, 464 U.S. 417, 451 (1984). It is important to note that courts recognize that some market harm may come from fair uses such as parodies or negative reviews, but that such market harm does not militate against a finding of fair use.

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Answer: As mentioned above, it is hard to predict what a court will do when presented with a fair use defense. However, in this case the answer depends in part on your purposes in copying. If you intend to archive the copies, the answer is probably no, while if you intend to use the copies in classroom instruction (without charging for the copies), the use may be fair.

In 1994 the Second Circuit Court of Appeals held that it was not a fair use for research scientists at Texaco to photocopy articles from various scientific and technical journals. Texaco argued, on behalf of its scientists, that the use was for the purpose of research, and therefore was fair under Section 107. But the court was not convinced. In reaching its decision, the court in Texaco ran through the four factor fair use analysis (see generally, what types of uses does the fair use doctrine protect? and introduction to this Chilling Effects topic). The court found that three of the four factors weighed against Texaco, and focused much of its opinion on the fourth factor, deciding that Texaco's use would have a significant impact on the potential market for the journal articles. Thus, in order to make copies of the articles, the research scientists at Texaco had to either pay for them or get express permission from the publishers. See American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994).

Further, use of another's work for classroom instruction purposes may be protected under a separate provision of the Copyright Act. Section 110 of the Copyright Act contains exemptions that provide nonprofit educational institutions the limited right to use copyrighted materials in face-to-face classroom settings. This section provides: "Notwithstanding the provisions of section 106, the following are not infringements of copyright: (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction . . . ."

Furthermore, the recently enacted "Technology, Education, and Copyright Harmonization Act" -- the TEACH Act -- amends Section 110 to exempt certain uses of copyrighted works in the context of distance education (beyond the context of face-to-face teaching). The TEACH Act sets forth in detail the terms and conditions on which nonprofit educational institutions may use copyrighted works in the context of distance education (such as via websites or other digital means) without permission.

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Answer: The fair use doctrine, as currently interpreted by the courts, probably would not entitle you to do so. Even though news items are factual and facts themselves are not protected by copyright, an entire news article itself is expression protected by copyright.

A court would apply the four factor fair use analysis to determine whether such a use is fair. In Los Angeles Times v. Free Republic, the court found that such a use was minimally -- or not at all -- transformative, since the article ultimately served the same purpose as the original copyrighted work. The initial posting of the article was a verbatim copy of the original with no added commentary or criticism and therefore did not transform the work at all. Although it is often a fair use to copy excerpts of a copyrighted work for the purpose of criticism or commentary, the copying may not exceed the extent necessary to serve that purpose. In this case, the court found that only a summary and not a complete verbatim copy of the work was necessary for the purpose of commentary and criticism.

The court also found that although the website solicited donations and advertised the services of another website, the overall nature of the website was non-commercial and benefited the public by promoting discussion of the issues presented in the articles on the website. However, the court found that the nontransformative character of the copying outweighed the consideration of its minimally commercial nature.

Finally, and most importantly, the court found that posting entire news articles on the website had an adverse market effect on the copyright owners.

See L.A. Times v. Free Republic, 2000 U.S. Dist. LEXIS 5669 (C.D. Cal. 2000).

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Answer: No. While you are free to report the facts and ideas embodied in another person's article or web page, copyright protects the expression ? the combination of words and structure that expresses the factual information ? but not the facts and ideas themselves.