Professional Documents
Culture Documents
Copyright Law Outline and Case Bank
Copyright Law Outline and Case Bank
Copyrightability:...............................................................................................4
Originality/Creativity.....................................................................................4
Burrows Giles v. Sarony.............................................................................4
Bleistin v. Donaldson.................................................................................4
Kelly v. Chicago Park District.....................................................................4
Magic Marketing v. Mailing Services of Pittsburgh.....................................4
Associated Press v. Fairey..........................................................................5
Merger Doctrine............................................................................................5
Baker v. Seldon..........................................................................................5
Lotus v. Borland.........................................................................................5
Compilation..................................................................................................5
Feist v. Rural Telephone Service................................................................5
CCC v. Maclean..........................................................................................6
Satava.......................................................................................................6
Open Source v. Bikram..............................................................................6
Sweat of the Mind v. Sweat of the Brow....................................................7
Nash v. CBS...............................................................................................7
Standard for Originality for Derivative Works...............................................7
Sobhani v. @Radical Media, Inc.................................................................7
Batlin.........................................................................................................7
Alfred Bell..................................................................................................8
Alva Studios...............................................................................................8
Meshworks v. Toyota..................................................................................8
Ets-Hotkin v. Skyy Spirits...........................................................................8
Useful Articles...............................................................................................9
Pivot Points Mara Mannequin case...........................................................9
Inhale v. Starbuzz......................................................................................9
CHARACTERS..............................................................................................10
Anderson v. Stalone.................................................................................10
Warner Bros. v. CBS.................................................................................10
Gaiman v. McFarlane...............................................................................11
Klinger v. Conan Doyle............................................................................11
SOUND RECORDINGS..................................................................................11
Newton v. Diamond.................................................................................12
Bridgeport Music v. Dimension Films.......................................................12
Audio Home Recording Act......................................................................12
Government Works.....................................................................................13
Veeck v. Southern Building Code.............................................................13
content-based restrictions to copyrightability:...........................................14
Mitchell Bros case....................................................................................14
Authorship Status; Work for Hire................................................................14
Lindsey v. RMS Titanic.............................................................................14
CCNV v. Reid............................................................................................15
Joint Authorship..........................................................................................15
Gaiman v. McFarlane...............................................................................15
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Thomson v. Larson..................................................................................16
Aalmuhammed v. Lee..............................................................................16
Urantia Foundation v. Maheera................................................................16
Garcia v. Google......................................................................................17
Right to Make Copies.....................................................................................17
Defendant Copied.......................................................................................18
Cartoon Network v. Cablevision...............................................................18
Blackwell Publishing v. Excel Research Group.........................................18
Price v. Fox Entertainment Group............................................................19
Benay v. Warner Bros..............................................................................19
Bright Tunes Music v. Harrison.................................................................19
Arnstein v. Porter.....................................................................................20
De Minimus Copying...................................................................................20
Ringgold v. Black Entertainment Television.............................................20
Gottlieb v. Paramount Pictures................................................................20
Idea/Expression..........................................................................................21
Nichols v. Universal Pictures....................................................................21
Peter Pan Fabrics Case.............................................................................21
Kisch v. Ammirati.....................................................................................21
MERGER DOCTRINE:...................................................................................22
Herbert Rosenthal Jewelry v. Kalpakian...................................................22
Skyy Vodka Bottle Case...........................................................................22
Approaches to Substantial Similarity..........................................................22
Steinberg v Colombia Pictures.................................................................23
CBS v. ABC...............................................................................................23
Metcalf v. Boccho....................................................................................23
Swirsky v. Carey......................................................................................23
Funky Films v. Time Warner.....................................................................24
Colombia Pictures v. Miramax Films........................................................24
Derivative Works........................................................................................24
Micro Star v. FormGen.............................................................................24
Lee v. A.R.T. Co........................................................................................25
Futuredontics v. Applied Anagramics.......................................................25
Horgan v. Macmillan, Inc.........................................................................25
National Geographic v. Classified Geographic.........................................26
Sani Films Scenarios................................................................................26
Moral Rights...................................................................................................26
Gilliam v. ABC.............................................................................................26
Dastar v. 20th Century Fox..........................................................................27
Carter v. Hemsley Spear.............................................................................27
Public Distribution Right................................................................................27
London-Sire Records v. Does......................................................................28
First Sale Doctrine:.....................................................................................28
UMG Recordings, Inc. v. Augusto.............................................................28
Capitol Records, LLC. v. ReDigi, Inc.........................................................28
Right of Public Performance...........................................................................29
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ASCAP v. US :..............................................................................................29
Columbia Pictures v. Redd Horne................................................................29
Columbia Pictures v. Aveco.........................................................................29
On Command Video v. Columbia Pictures...................................................29
Fairness in Music Licensing Act of 1998:.....................................................29
Cartoon Network LP v. CSC Holdings, Inc....................................................29
ABC v. Aereo (2014):...................................................................................30
Right of Public Performance in Sound Recordingsthere isnt one............30
Right of Public Display...................................................................................30
Perfect 10, Inc. v. Amazon :........................................................................31
Fair Use..........................................................................................................31
Harper & Row Publishers v. Nation.............................................................31
Campbell v. Acuff-Rose...............................................................................32
Walt Disney Prods. V. Air Pirates:................................................................32
Castle Rock Entertainment v. Carol Publishing:..........................................32
Dr. Seuss Enters. v. Penguin Books.............................................................32
Leibovitz v. Paramount Pictures Corp.........................................................32
Suntrust Bank v. Houghton Mifflin Co.........................................................33
Bill Graham Archives v. Darling Kindersley Ltd...........................................33
Blanch v. Koons...........................................................................................33
Rogers v. Koons.........................................................................................33
Lennon v. Premise Media............................................................................34
Calkins v. Playboy Entertainment...............................................................34
Swatch Group v. Bloomberg.......................................................................34
Salinger v. Colting.......................................................................................34
Warner Bros. Entertainment Inc. v. RDR Books...........................................34
Gaylord v. US (Fed. Cir. 2010).....................................................................34
Cariou v. Prince (2d Cir. 2013):...................................................................34
Seltzer v. Green Day...................................................................................35
Kienitz v. Sconnie Nation LLC.....................................................................35
Perfect 10 v. Amazon..................................................................................35
Vanderhye v. iParadigms............................................................................35
Authors Guild v. HathiTrust :......................................................................35
Authors Guild v. Google :...........................................................................35
Fox v. Dish :................................................................................................36
A&M Recordings v. Napster.........................................................................36
BMG Music v. Gonzalez...............................................................................36
Princeton University Press v. Michigan Document Services........................36
Cambridge Univ. Press v. Patton.................................................................36
Third Party Liability........................................................................................37
Fonovisa Inc. v. Cherry Auction...................................................................37
Perfect 10 v. Amazon..................................................................................38
Perfect 10 v. Visa:.......................................................................................38
Sony v. Universal (1984):............................................................................38
A&M Records, Inc. v. Abdallah....................................................................39
A&M Records Inc. v. Napster, Inc................................................................39
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Copyrightability:
originalitymodicum of creativity
Originality/Creativity
Burrows Giles v. Sarony
1. (photographs are copyrightable)
a. D argued that photograph is not a writing, nor production of author
i. Because it was non-texual
b. Holding: photograph required creativity of the arrangement of the objects,
costumes, lighting etc. and is therefore afforded copyright protection contains
modicum of creativity
Bleistin v. Donaldson
(courts will not make judgment on quality of art)
c. Issue: D made copies of Ps posters
d. Holding; if the work meets the basic standing of art, the court does not look at the
PURPOSE for which the art was created (doesnt matter that purpose of posters
was for advertising)
i. Judges will not qualify the quality of the art, as long as there is a market
for the work, it will be afforded protection under copyright
Kelly v. Chicago Park District
(authors can only be humans)
e. P set up garden and planted specific wildflowers for installation
f. Holding: no protection because natural forces were constantly changing the
installation, therefore works that owe their forms to forces of nature are not
copyrightable
i. The creative expression must be the product of a human author, cannot be
left to intervening natural forces that change the expression (works owing
their form to natural forces are not copyrightable)
Magic Marketing v. Mailing Services of Pittsburgh
(single words/short phrases/basic shapes not copyrightable)
g. Issue: can words on an envelope be afforded copyright protection?
h. Holding: NO, despite low threshold of creativity, when expression is wholly the
product of functional considerations, it is not protectable
i. Holding otherwise would exclude competition from the market
Merger Doctrine
Baker v. Seldon
(merger doctrine : idea/expression dichotomy)
j. Issue: was accounting form copyrightable? Was Bakers system of accounting of
slight difference infringing?
k. Holding: NO, merger doctrine says that where there are only a limited number of
ways of expressing an idea, the expression will not be afforded copyright
protection
i. Ideas cannot be protected by copyright
ii. Blank Form Rule: account books, blank cards, and other forms that are
designed for recording information and do not in themselves convey
information are not subject to copyright protection
Lotus v. Borland
(merger doctrine idea/expression dichotomy)
l. Issue: Lotus computer program and Borland used Ps commands/macros to make
it easier for users to switch to using their program.
m. Holding: commands are uncopyrightable because of merger doctrine: command
hierarchy is not a method of operation
i. Merger doctrine applies only where the data is hard data, not where it has
been infused with taste or opinion; granting copyright in such a case
would prevent the free-flow of data
ii. Also blank form rule rationale- a tool for use rather than conveying
information
iii. Maybe more appropriate for patent protection: commands are method of
operation, not an expression itself
Compilation
Feist v. Rural Telephone Service
(originality in compilation of facts no copyright in facts, but can be copyright in compilation of
facts)
n. Feist copied Rurals white pages book and provided that info in their own white
pages book
o. Issue: whether rural selected, coordinated, or arranged these uncopyrightable
facts in an original way (to constitute a compilation of facts that is protected by
copyright law)
p. Holding: no, alphabetical order is standard, mundane and probably dictated by
state law, not by Rural (lacks Constitutionally-required modicum of creativity)
Section 102
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c. Sweat of the brow not afforded protection because doesnt involve any intellectual
creative contribution to the work
Nash v. CBS
(copyright estoppel factual v. fictional)
d. Nash had theory that Dillinger was, in fact, not killed and CBS came out with a
show copying Nashs theory
e. Issue: Was Nashs theory an expression protected by copyright when Nash
himself held out to the public that this theory was factual/nonfictional?
f. Holding: no copyright protection afforded to Nash.
iii. Fictional elements, or fictionalized versions of factual elements, of an
otherwise factual work are protectable under copyright law
iv. But EXCEPTION: copyright estoppel. Once an authors work has been
held out to the public as factual, the author-plaintiff cannot then claim that
the book is, in actuality, fiction and thus entitled to the higher protection
allowed to fictional works.
Alfred Bell
(traced (meso-tints) classic works and someone copied his meso-tints)
ix. Compare derivative work with underlying work and ask whether there is
MORE THAN A TRIVIAL VARIATION between them
1. So long as slight variation, can be protected by copyright (Alfred
Bell & dissent in Batlin)
Alva Studios
(miniature replicas that are exact copies of works)
x. Even if no creativity or variation in end product, derivative work is
sufficiently original so long as LABOR OR SKILL IN PROCESS OF
CREATION
1. Special skill and knowledge (equates to sweat of the mind) vs.
sweat of the brow (which is not afforded protection)
Meshworks v. Toyota
(digital model of Toyota car was made and Toyota used it in print and tv ads)
j. Issue: is the digital model afforded copyright protection? / Is Toyota not allowed
to use them for different purposes?
k. Holding: No copyright protection for model: in assessing the originality of a
work for which copyright is sought, we look only at the final product, not the
process, and the fact that intensive, skillful and even creative labor is invested in
the creation process does not guarantee its copyrightability
xi. There needs to be a substantial variation and that variation needs to be
aesthetic, not functional
Ets-Hotkin v. Skyy Spirits
(9th Circuit so substantial variation test)
l. Issue: Is the bottle copyrightable expression? Does a second photograph of a Skyy
bottle infringe on another Skyy bottle photograph?
m. Holding:
xii. No, because bottle is useful article
1. Aesthetic elements must be separable from its functional elements
xiii. 2nd photo does not infringe the first because there was a substantial
variation between the photographs based on the different lighting and
other artistic contributions (angle, perspective, etc.) Each photograph only
granted thin protection because of limited ways to photograph a bottle.
xiv. Thin copyright that only would have prevented exact copying because the
originality was so minimal and therefore Ds image was not infringed
Useful Articles
n. 2-d and 3-d works of fine, graphic, and applied art, photos, prints and art
reproductions, maps, globes, charts, diagrams, models, and technical
drawings, including architectural plans. Mechanical or utilitarian aspects
are not covered. Only design that can be identified separately from and
capable of existing independently of utilitarian aspects of article.
xxii. Artist created wire sculpture and company wanted to redesign it to enable
it to function as a bike rack; artist changed design accordingly
xxiii. Holding: not copyrightable because the ultimate design was determined by
functional considerations (authors intent was to create a functional useful
item)
CHARACTERS
r. Tests:
xxiv. Specificity:
1. The less developed the character, the less they can be copyrighted
a. Minor characters are more likely to receive copyright
protection under this test than under the story being told
test
xxv. Story being told:
1. Character can be copyrighted only if the character is the story
being told, not a not a chessman in the game of telling the story
Anderson v. Stalone
(Rocky Balboa Case 9th Circuit??)
xxvi. Plaintiff wrote a script for new Rocky movie and sued Stallone for using
parts of his script
xxvii. Holding: Stallone had copyright protection of his Rocky characters
because they were part of story being told
1. Writer infringed his characters, so Stallone cannot infringe the
script because there can be no copyright protection for derivative
works that infringe, including uses of copyrighted characters
without permission
Warner Bros. v. CBS
(9th Circuit over use of characters when having acquired story from the other studio)
xxviii. Warner Bros. bought some film rights from CBS but did not also buy the
exclusive rights to the characters therein
xxix. Holding: WB lost the claim because there was no provision in the
acquisition agreement relating to granting of rights to characters
xxx. EFFECT:
1. When buying story from authors, studios will put quitclaim clause
in the agmt to say they also own the rights to any characters within
the story whether or not they have enough specificity
2. WGA: Creators of characters are entitled to royalties if studios
want to use the characters for sequels/prequels/remakes
3. Trend is to give more protection to characters in TV/Film than to
give protection to characters in written works
Gaiman v. McFarlane
(comic book artist/ writer ; 7th Circuit)
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xxxi. Issue: Gaiman (writer) wanted joint authorship in comic book characters
because P had idea but D illustrated
xxxii. Holding: Characters in writings still leave a lot to the imagination whereas
graphic characters give a more detailed complete representation
1. Therefore even under specificity test, it will be less likely to grant
copyright protection to a written author than to the graphic author
xxxiii. Exception to joint-author test of contributing something independently
copyrightableboth contributors contributed something that was not
copyrightable expression, but together they created a copyrightable work
Klinger v. Conan Doyle
(7th Circuit; Judge Posner; Sherlock Holmes Case)
xxxiv. Issue: Did characters copyright protection expire when the first story
entered the public domain or does protection extend until the final work in
the series is completed where the author has altered the character in a
subsequent work?
xxxv. Holding:
1. Copyright protection over a character expires with the first work in
which the character appears;
2. new works in the series are considered derivative works so only
new original elements / character developments added since the
original are afforded copyright protection (protection begins anew,
but only for the character as further developed)
3. Policy (Posner):
a. More in the public interest to increase what is in the public
domain to inspire artists than to extend protection for a
single artists creation
b. Ruling otherwise would discourage creativity because it
would incentivize the author to continue writing about the
same characters instead of creating new works
xxxvi. Industry Response: Rightsholders seek to protect their characters through
Trademark to achieve longer protection term (outside of copyright
protection)
SOUND RECORDINGS
v. The work that results from the fixation in a tangible medium of expression of a
series of musical, spoken or other sounds (but not audiovisual works)
w. Must be original works of authorship and must be fixed in a phonorecord
x. Compulsory Licenses exist to make and publicly distribute phonorecords of
nondramatic musical works (only applies to the musical composition, not to the
sound recording nor to public performances)
i. The nondramatic musical work must have been:
1. previously recorded; and
2. the phonorecord distributed to the public under authority of the
copyright owner; and
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Government Works
y. Protection is not available for any work of the U.S. government or its
employees/officers
i. Only applies to US Gov, not state governments, though courts have long
held that state statutes, regulations, and judicial opinions are not
copyrightable
ii. Policy reasons:
1. Public taxes pay for the government workers
2. Public authorship
a. Democratie ountry govt is for the people, so government
employees are working for the people
b. Do not need copyright incentive to create the works its
for the public benefit
Veeck v. Southern Building Code
(5th Circuit)
iii. Issue: Is a private drafting of public documents/codes afforded copyright
protection?
iv. Holding: the law, whether its source being judicial opinions or statutes
ordinances or regulations, is not subject to federal copyright law.
1. Law only adopted the codes in the document, not the creative
elements that were included therein
2. Policy:
a. do not need copyright protection as incentive to create
these laws
b. once the codes are adopted by law, they enter the public
domain because citizens are authors of the law
v. Possible Exceptions: standardized codes for particular professions; there
are a few cases holding that classifications being created for the use by
doctors may be copyrightable even though the government has adopted it
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Joint Authorship.
ah. A joint work is a work prepared by two or more authors with the intention that
their contributions be merged into inseparable or independent parts of a unitary
whole.
i. Undivided equal interest.
ii. Exploitation of work without other authors consent.
iii. Pro rata share of profits.
iv. Duration life of last surviving artist + 70 years.
Gaiman v. McFarlane
7TH Cir.
v. Neither author contributed independently Posner: joint authorship was
given, otherwise it would be absurd to not grant authorship because
individual contributions were not by themselves copyrightable
Thomson v. Larson
2nd Cir.
vi. Whether Larson had joint authorship when hired as dramaturge for
Broadway musical Rent.
vii. Holding: court held that Larson never intended co-authorship. (intention is
what matters in 2nd circuit)
viii. Objective Criteria Factors to determine intention:
1. Decision-making authority
2. Billing/credits
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Defendant Copied
Cartoon Network v. Cablevision
(2nd Circuit; DVR case)
iii. Issue: Is Cablevisions DVR system of data storage on offsite servers of
copied programming a violation of Cartoon Networks right to make
copies?
iv. Holding: No, buffer data (RAM) are not copies because they do not meet
the transitory requirement:
1. Needs to be fixed (embodied in a medium of expression)
2. For more than a transitory duration (not long enough here but
were not sure how long is long enough)
a. Distinct from MAI where RAM not at issue but could last
until computer was turned off vs. 1.24 seconds
v. Also because customers are initiating the copying of buffer data onto a
hard drive and not Cablevision, cannot be held to be making the copies;
also customers are the ones initiating the transmissions to themselves by
choosing the specific programming to copy
vi. Distinct from Blackwell because:
1. The copy shop provided material to be copied, whereas in
Cablevision the customer chooses what content to copy which
Cablevision has no control over
2. Copyshop provides complete work to be copied Cablevision
merely provides service where the customer has to start copying at
beginning of program to get an entire work Cablevision merely
bundles channels
3. Blackwell technology is less sophisticated the copy shop
employees have to provide more direct assistance = more volition,
than Cablevision which provides an automated system should
that matter?
Blackwell Publishing v. Excel Research Group
(Michigan)
vii. Professor took some coursepacks to a copy shop and made available a
master copy for students to come and make copies for themselves
viii. Issue: whether the copy shop is infringing in the reproduction right of the
author
ix. Holding: yes, copy shop infringed
1. Had volitional conduct even though it was the students who, in
fact, were pushing the button to copy
2. Copy shop was in control of the master copy and made it available
for students and provided the elements needed to make the copies
on their premises
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xvii. Judges Frank and Hand: no summary judgment for defendant whenever
there is the slightest doubt about the facts
xviii. Judge Clark says summary judgment for D unless the P produces credible
evidence that would support verdict in Ps favor
xix. Arnstein alleged that Porter broke into his house and stole his music and
that his hit song had been number one on the charts
xx. Holding: court adhered to striking similarity standard and didnt find
infringement but had initially found them sufficiently similar to not
dismiss the case on summary judgment
De Minimus Copying
(defense to substantial similarity; might be considered relevant to the defense of fair use)
al. copying is trivial
am.below a quantitative threshold
an. substantial similarity requires that the copying is quantitatively and qualitatively
sufficient to support the legal conclusion that infringement has occurred
ao. 9th Circuit on music sampling: a use is de minimus only if the average audience
would not recognize the appropriation
ap. 6th Circuit on music sampling: There is no de minimus defense to copying of a
sound recording
Ringgold v. Black Entertainment Television
(2nd Circuit; poster in background of television episode)
i. Poster appeared for total of 26 seconds and at least 80% of the poster was
shown in the longest segment
ii. Issue: was the copying de minimus?
iii. Holding: The use was not de minimus
1. Brevity of segment and lack of focus lends to audience not being
able to recognize the poster BUT the theme of the poster was wellsuited for decoration of black church scene and was clearly visible;
2. Audience had enough time to recognize it and the poster helped
define the venue in which the scene was shot, so not de minimus
Gottlieb v. Paramount Pictures
(2nd Circuit; pinball machine used in background of What Women Want movie)
iv. Issue: was it de minimus
v. Holding: despite the brand/name being legible on the machine, the court
found there was no qualitative connection between the plaintiffs work and
the film (machine was just one of many items suggesting sporty theme in
the background, obscured the whole time, occupied less than 5% of frame)
AND the pinball was never fully visibleout of focus, blurred or
obscured.
1. Work must be sufficiently discernible (subject and style) to
establish qualitative connection; work must add/contribute to the
set. Presence of two dilutes presence of infringing pinball. Average
observer would not recognize the pinball designs as anything other
than generic designs in a pinball machine
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Idea/Expression
Nichols v. Universal Pictures
(2nd Circuit; copying of theatrical play)
vi. Nichols created a play in 1922 and Universal created a TV movie with 6
sequels (play about quarrel between jewish/irish fathers, marriage of
children, birth of grandchildren, reconciliation)
vii. Holding: court determined that the similarities amounted to copying of
ideas that were not copyrightable
1. The two plays corresponded in themes and basic plot points, but
did not result in copying of expression
2. Relevant question (Pattern test between abstractions of and original
work): Whether the ordinary observer, unless he set out to detect
the disparities, would be disposed to overlook them and regard
their aesthetic appeal as the same
viii. Levels of similarity that will be deemed copyright infringement of
expressions:
1. Fragmented literal similarity: literal copying or close paraphrasing
of dialogue or sentences
2. Comprehensive nonliteral similarity: copying a works overall
structure, plot line, sequence of plot incidents, and the like
Peter Pan Fabrics Case
(2nd circuit; if ordinary observer cant tell the difference, then infringement)
ix. Whether the ordinary observer, unless he set out to detect the disparities,
would be disposed to overlook them, and regard their aesthetic appeal as
the same
1. If we consider the aesthetic appeal, elements that are unoriginal
would be included/contribute, and the uses for which the design is
intended, the designs are sufficiently similar.
a. Opens the door for looking at protected and unprotected
elements
b. Overlooks variants irrelevant to the purpose for which the
design is intended (to be used for garments)
Kisch v. Ammirati
(2nd Circuit; two photographs taken at Village Vanguard with same background, lighting, mood,
etc.) pg 632 #4
x. The reproduction of a similar setting can be copying in fact so long as the
second photographer has seen the original and intended to recreate it
xi. Holding: enough similarities in tone and mood to leave the question open
for jury to determine whether there was infringement of copyrightable
expression; denied summary judgment for defendant)
MERGER DOCTRINE:
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xxv. Holding: court applies extrinsic test, finding that the protectable elements
standing alone were not substantially similar to those elements in Ds
work; court prevented discovery to help P demonstrate access occurred
because there were not enough similarities to even warrant the access
question
Colombia Pictures v. Miramax Films
(9th circuit; Michael Moore trailer for Big One and MIBII)
xxvi. Substantial similarity in the expression of an idea may appear from the
mood evoked by the work as a whole
xxvii. Holding:
1. Under extrinsic test, MIB trailer is substantially similar to the
expressive ideas in the TBO trailer. The trailers contain a virtually
identical theme, format, pace, sequence of events
2. Under intrinsic test: an ordinary viewers would consider the
trailers to be substantially similar based on the above comparisons
(collapsed intrinsic and extrinsic tests- given all the general
elements, protected or unprotected, the viewer may find the trailer
to be substantially similar)
aq. 2nd Circuit v. 9th Circuit approaches to summary judgment phase:
i. 2nd Circuit is less inclined to grant summary judgment for D than 9th
Circuit is when the protectable elements standing alone are not
substantially similar to allow for P to demonstrate that access was granted
1. Because 2nd Circuit takes broader total concept and feel review
of the works, rather than 9th circuits approach which applies more
rigorous extrinsic test, 2nd Circuit is more likely to permit inquiry
into whether there was access to the original work.
2. 9th Circuit applies inverse ratio rule to both
3. 2nd Circuit; broader view, looking at the whole picture (protected
and unprotected elements) if a jury might find that the work is
substantially similar we are not granting summary judgment.
Derivative Works
Micro Star v. FormGen
(9th Circuit; Duke Nukem Case)
ii. MicroStarr copied and collected levels created by users to create a
derivative work and sold them on a CD to the public
iii. Game users are impliedly licensed to create levels so they are not
infringing, but Micro Starr was not licensed to do so and cannot use this
implied license for commercial gain
iv. Issue: whether MicroStar is infringing Form Gens exclusive right to
prepare derivative works
v. Holding: MicroStar created an infringing derivative work because it
substantially incorporates protected material from the preexisting work
1. Made a comparison to creating sequels to the game
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Moral Rights
ar. Despite being a signatory to Berne Convention, American copyright law does not
recognize moral rights or provide a cause of action for their violation, since the
law seeks to vindicate the economic, rather than the personal, rights of authors.
i. DGA requires directors credit under name or pseudonym. If the film is
butchered, the aggrieved director may appeal to the Build to disown the
film by replacing his credit with a standard pseudonym, Alan Smithee.
Gilliam v. ABC
( 2nd Circuit; Monty Python Case)
ii. ABC deleted about of Monty Python scenes to insert commercials and
remove offensive scenes for US audience; was not authorized to do this
iii. Issue: whether an unauthorized derivative work constitutes a
misrepresentation of the original work in violation of Lanham Act
iv. Holding: Preliminary injunction was granted because substantial
likelihood that MP will succeed in proving infringiement of their
copyright by ABCs broadcast of edited versions of MP programs
1. Also likely that ABCs cuts to MP program constituted an
actionable mutilation of MPs work (deformation of the work)
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ASCAP v. US :
downloaded musical works are transmitted, but not publicly performed therefore does not
implicate ASCAP licensing
i. No contemporaneous perceptibility. Downloaded with intention of being
listened to at later time
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Fair Use
bh. Four Factors:
i. Purpose and character of the use
ii. Nature of the Copyrighted Work
iii. Amount and substantiality of the portion used in relation to the
copyrighted work as a whole
1. Both quantitative and qualitative
iv. Effect of the use on the potential market for value of the copyrighted work
bi. Market-Centered Approach:
i. Sony v. Universal (1984):
1. Purpose of use was time-shifting, not librarying, and therefore was
a non-commercial/personal use
a. Dicta: commercial use presumed to cause harm
b. Dicta: commercial presumption against fair use
2. Holding: sale of copying equipment does not constitute
contributory infringement if the product is widely used for
legitimate unobjectionable uses; merely capable of substantial noninfringing uses
Campbell v. Acuff-Rose
(1994): Market harm is weighed equally among factors, not most important. The more
transformative the use, the more you can take
3. Transformative: whether central purpose of the work is merely
superceding the original or adds something new with a further
purpose or different character altering the first with new
expression, meaning or message.
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Blanch v. Koons
(2d. Cir. 2006) : evidence of Ds subjective intent is used to determine what the expressive was
xvii. Obliterates the distinction between parody and satire
xviii. Issue: Whether there is a distinction between purpose of creation of
original and its use in the defendants
Rogers v. Koons
(2d Cir. 1992): Ds sculpture based on couple holding eight puppies not fair use
xix. Not a fair use because it was a commercial and satirical critique of
consumer society rather than parody.
xx. Found likelihood of future harm in market for photographers work
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xxiv. Bloombergs purpose was to make the materials available to the audience
that Swatch had explicitly excluded. News reporting favored fair use
Salinger v. Colting
(S.D.N.Y. 2009): granted injunction against Ds book that depicted Hauldon Caufield 60 years
later held not fair use
xxv. D made public statements that it was not a parody, but a tribute thus not
transformativenot enough merely to add new expression
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Perfect 10 v. Amazon
(9th Cir. 2007) Revisited : Googles display of thumbnails of Ps copyrighted images
xxxvii. Nature and character is transformative use because it serves a different
purpose or function from the original work ,
1. Also its function promotes goals of copyright law and serves the
interest of the public so this favors fair use
2. Transformative finding colors analysis of all other factors
xxxviii. Required proof of actual harm even of potential markets, even though
Perfect 10 markets thumbnail downloads for mobile
Vanderhye v. iParadigms
(4th Cir. 2009): turnitin plagiarism detection service was a transformative and thus fair use
xxxix. Considered function and purpose of storing entire copies of students
papersassignments vs. preventing plagiarism
1. Work need not be altered to be transformative
Fox v. Dish :
motion for preliminary injunction against Dishs autohop (skips over commercials) and
primetime anytime service (auto-records primetime programming) found no direct infringement
(Dish has not volitional conduct for making infringing copiescustomer responsible) and no
contributory liability based on user activity
xlii. Prime-time Anytime is fair use : Non-commercial according to Sony: timeshifting for private home use is a noncommercial nonprofit activity. Users
are not librarying
1. Therefore even copying whole programming does not militate
against FU
xliii. Atuohop: Elements that are skipped (commercials) do not implicate
copyright interest therefore fair use.
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xliv. Nature and character: considers whether the new work merely replaces the
object of the original creation or instead adds a further purpose or different
character
1. Merely retransmitted in a different medium, not transformative
2. Even indirect economic advantage is commercial: trading
infringing copies for other items is financially motivated
xlv. Materially impaired marketability of the work by offering free copies
1. Reduces audio CD sales
2. Raises barriers for P to enter market for digital downloads of music
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Perfect 10 v. Amazon
(9th Cir. 2007) Google sued for adsense program by which it earns money through visits to 3rd
party websites
vi. Holding: no vicarious liability because Google did not have a contractual
right to control third party websites from posting infringing material and
no practical means to police against them given the current technology
vii. Right to discontinue Adsense does not give Google right and ability to
stop infringement
viii. No contributory liability because computer system operator must have
actual knowledge about specific infringing material on its system and can
take simple measures to prevent further damage to copyrighted works and
yet continues to provide access to infringing works
Perfect 10 v. Visa:
sued for secondary liability for continuing to process credit card payments for websites that
infringed plaintiffs IP in spite of notices
ix. Credit card companies do not materially contribute because they have no
direct connection to actual infringement (copying) only provides payment
x. Ability to withdraw financial carrot does not create stick of right ability to
controlexerting financial pressure is not enough
xi. Dissent: payment is a necessary part of the transaction, no reason to
provide infringing material if no financial benefitrenders financial
service material contribution; also things there should be vicarious liability
because financial process is the trigger for distribution of infringing
material (practical ability not absolute right is the standard)
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