Copyright Law Ronald W. Staudt

Class 16October 22, 2013

Sect 106(1) Reproduction

Right

Subject to sections 107 through 120 [17 USCS Sects. 107-120], the owner of copyright under this title [17 USCS Sects. 101 et seq.] has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

Infringement-

analytical framework

Arnstein v. Porter

Facts – Begin the Beguine & The Lord is My

Shepard

Prima Facie case

1. ownership

2. copying

3. improper appropriation

Infringement

analytical frameworkArnstein v. Porter

Prima Facie case

2. COPYING proved by

Defendant’s admission or

Circumstantial evidence: Access + similarityif no similarity then no amount of evidence of access will prove copying

if evidence of access & similarity, then trier of fact with experts and

dissection

If striking similarity may not need to prove access

Arnstein v. Porter

3. IMPROPER APPROPRIATION

Lay observer– no experts or dissection

Striking similarity can do double duty but proof of improper

appropriation need not be enough to prove copying.

Often called “Substantial similarity”•Quality and quantity of expression •Different from “probative similarity”

Prima Facie case

Proof of copying

Bright Tunes Music Corp He’s So Fine v. My Sweet Lord Unconscious copying

V.

Proof of CopyingPrice v. Fox

Facts? Ownership established Similarity

“After examining both works and reading the evidence in the light most favorable to plaintiffs, I conclude that a jury could reasonablyfind that the two works contain similarities that are probative of copying.”

plot similarities,

character names and characteristics

Reasonable possibility of access through a particular chain of events or link :“…a reasonable jury could conclude that there is a reasonable possibility that Thurber had

access to the Thomas Work given the evidence of the speed at which he wrote his screenplay, the timing of the appearances of certain similarities between the two works, and

the relationships he had with WMA employees who either actually had access or had a reasonable possibility of access to the Thomas Work.”

Circumstantial proof of copying How Deep is Your Love? (Selle v. Gibb) 7th

Circuit v.

Feelings (Gaste v. Kaiserman) 2d Circuit

Phantom Song (Repp v. Webber) and Ty’s Squealer Resolved by Judge Posner in Ty:

This discussion shows how the tension between Gaste and Selle can be resolved and the true relation between similarity and access expressed. Access (and copying) may be inferred when two works are so similar to each other and not to anything in the public domain that it is likely that the creator of the second work copied the first, but the inference can be rebutted by disproving access or otherwise showing independent creation—

Celebrity v. Survivor Even if copying were shown, defendants …copied no more than

elements typical to the genre… ?

Proving that copying infringed:improper appropriation

Does “substantial similarity” imply copying of a substantial amount of material?De Minimis and copyright –three approaches1. Trivial infringement2. Insufficient quantify of expression taken to satisfy the third element

of the p.f. case- not improper appropriation3. Part of fair use

Church Picnic, Silver Slugger, Beastie Boys and the Bridgeport rule

Peter Pan test for improper appropriation “…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.”

Improper Appropriation or Infringing Copying

Cases on infringing copying and merger:

Herbert Rosenthal Jewelry v. Kalpakian

Satava v. Lowry

ETS v. Katzman

Infringing Copying or Improper Appropriation

Herbert Rosenthal Jewelry v. Kalpakian Bee pins- gold encrusted with jewels What lawyers can “conceive of” does

matter! Unconscious copying Merger?

We come back to copyrightability!

Infringing Copying or Improper Appropriation

Improper Appropriation orInfringing Copying

ETS v. Katzman

Facts Not exact copying but “strikingly similar” Others claimed to be “recognizable

paraphrase”Same concept in same order not protected

Ginsburg suggestion that “idea” is a legal conclusion

Nichols v. Universal– the abstractions test.

Facts P author of play Abie’s Irish Rose

• Religion, twins and multiple marriage D produced Cohens and the Kellys

• Money, inheritance, marriage and twins

“The right cannot be limited literally to the text else a plagiarist would escape by immaterial variations.”

Block in situ- fragmented literal similarity Abstract of the whole- comprehensive nonliteral similarity “Upon any work ***a great number of patterns of increasing generality

will fit equally well, as more and more of the incident is left out

Skeleton – expression/idea Characters – more development = more protection

Application of these principles-- infringing copying??

Sheldon v. Metro-Goldwyn Pictures

Facts P’s play “Dishonored Lady” about Madeleine Cary

Moreno, Farnborough, strychnine P’s play based on book about Madeleine Smith- news Lowndes wrote book about Letty & Ekebon & arsenic D produced movie “Letty Lynton” based on book

Renaul & Darrow & strychnine D denies using play, DJ agrees D took only ideas

Keats and independent creation Public domain relevant to © work only on issue of infringement – makes D’s denial of copying more plausible Copying, infringing copying, unconscious copying, perjury

Cary is like Letty of the movie, not Smith or book!--595 Plot, details, incidents of movie track the play!—596

“…a play may be pirated without using the dialogue… …”no plagiarist can excuse the wrong by showing how much of his work he did not pirate…”