But if the poem appeared within that copyrighted work, would it have been possible for Marks to have copyrighted it later?
Vernor argued that the key factor is whether the software customer is entitled to retain possession of their copy of a copyrighted work indefinitely.
But the publishers cite another factor in fair-use analysis: the amount of the copyrighted work that is used in the creation of the new one.
Economic theory says that in a competitive market, the cost of a pizza, like the cost of a copyrighted work, will fall to its marginal cost.
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As everyone knows, copyright laws exist to protect owners of the copyrighted work from having their music or films downloaded without paying their rightful owner a royalty fee.
Among other defenses, ReDigi tried to rely on the first-sale doctrine, which provides that once a copyrighted work is sold, that work can be distributed through resale.
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The AP's supporters also said Meltwater's service does not amount to "fair use" because it copies material without alteration, does not aid the public good and damages the market for copyrighted work.
This axiomatic principle is easy to state but can be difficult to apply in the context of fictional characters because a properly copyrighted work does not mean every element of the work is protected.
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The court analyzed and applied four fair use factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole, and (4) the effect of the use on the potential market for the original work.
Broadcasters will not deliberately try to make life more difficult for viewers and listeners in the digital age of personal video recorders and IPTV, but they will have to work with content owners who are lobbying hard to protect their copyrighted assets through, for example, automatic expiry on programmes.
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