§ III - SECTION 3: INTELLECTUAL PROPERTY
301. COPYRIGHT AS DEFINED BY THE LAWS, CODES AND REGULATIONS OF CALIFORNIA ET AL. (United States Code, Title 17, Section 102)
a) “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
1) “literary works;
2) “musical works, including any accompanying words;
3) “dramatic works, including any accompanying music;
4) “pantomimes and choreographic works;
5) “pictorial, graphic, and sculptural works;
6) “motion pictures and other audiovisual works;
7) “sound recordings; and
8) “architectural works.
B) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
Original works of authorship are protected by the Copyright Act. “Original” means only that the work was independently created by the author as opposed to copied from other works, and that it possesses at least some minimal degree of creativity. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.
302. COMPLICATIONS AND DERIVATIVE WORKS AND THE COPYRIGHTS PERTAINING TO THEM THEREIN
A derivative work is a work based on one or more preexisting works such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A derivative work recasts, transforms, or adapts an original work. A work consisting of editorial revisions, annotations, elaborations, or other modifications that, as a whole, represent and original work of authorship, is a derivative work.
(U.S.C. Title 17, Section 103)
“a) The subject matter of copyright as specified by Section 102 (ACS.C.C Title 1, Section 3(1), U.S.C. Title 17, Section 102) includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.”
c) A derivative work must be substantially different from the underlying work in order to be copyrightable.
d) Copyright protection is afforded to derivative works, but that protection is not afforded to the preexisting material within the work
e) TO QUALIFY AS A SEPARATE OR DERIVATIVE WORK, the work must constitute more than a minimal or trivial contribution.
303. COPYRIGHT INFRINGMENT
The Copyright Remedy Clarification Act provides that anyone who violates any of the exclusive rights of a copyright owner is an infringer. To establish infringement, two elements must be proven:
(1) ownership of a valid copyright, and
(2) copying of constituent elements of the work that are original.
If the defendant had access to the plaintiff’s copyrighted work and there are substantial similarities between the defendant’s work and the original elements of the copyrighted work and the defendant’s work was not independently created, the defendant is liable for copying. (See U.S.C.A Section 501, also North Coast Indust. v. Jason Maxwell Inc., 972 F.2d 1031, 1033 (9th Cir 1992) ) A showing of access and substantial similarity creates a presumption of copying; the defendant then has the burden to rebut or meet the presumption with evidence of independent creation.
b. Substantial Similarity
The plaintiff must show that the plaintiff’s and the defendant’s works are substantially similar in both the ideas and the expression of those ideas. There is no bright-line rule regarding substantial similarity. When a work contains both protectible and unprotectable elements, inquire must be made as to whether the protectible elements standing alone are substantially similar.
Some courts have argued that infringement only occurs when the total concept and feel of the works in question are substantially similar (Arnstein v. Porter, 2d Cir.1946). The Second Circuit has rejected the “total concept and feel” test.
305. FAIR USE
(U.S.C. Title 17, Section 107)
“The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(1) “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) “the nature of the copyrighted work;
(3) “the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) “the effect of the use upon the potential market for or value of the copyrighted work.
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.”
306. ACECOMBATSKIES [DOT] COM POLICY
ACECOMBATSKIES [DOT] COM respects all USER and MEMBER copyrights, and recognizes them as such.
1) POSTING NEW WORKS
a. Each MEMBER must control his or her own works.
b. Any new work posted by a member is assumed as having the same license granted for public use by NAMCO unless otherwise stated.
2) INSTANCES OF COPYRIGHT CONFLICT
a. If there is a question of copyright conflict between MEMBERS, the following will be analyzed:
1) License granted at the time of the acquiring of the image
2) Validity of a copyright as outlined in ACS.C.C Section 3 (303)(1).
3) Similarity of works in question as outlined in ACS.C.C Section 3 (304)(B)
4) The position the comparision of the works take in relation to ACS.C.C Section 3 (305) “Fair Use” clause.
b. If there is found to be copyright infringement, the infringing work will be taken down by either the MEMBER who POSTED it or THE STAFF or THE ADMINISTRATOR.
c. If any member is found at any time to be in violation of Copyright Code, he or she will be punished as THE STAFF and THE ADMINISTRATOR see due.
d. If, for any reason, a MEMBER posts an ORIGINAL work without declaring a license, the work will be held to the standards that current NAMCO original works are.
e. Any work posted before the date this takes effect, July 1st, 2006, will be held under all regulations in clause (d).
f. If for any reason, work is linked to on another website the license from that site will be treated firstly. If the work is not an original work or a Derivative work, then the work will be treated with the regulations outlined in clause (d).
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Media and Copyright Rules
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