Class 11 Copyright, Autumn, 2016 Proof of Copying and Infringement 11/14/2018 Class 11 Copyright, Autumn, 2016 Proof of Copying and Infringement Randal C. Picker James Parker Hall Distinguished Service Professor of Law Ludwig & Hilde Wolf Teaching Scholar The Law School The University of Chicago

11/14/2018 101: Phonorecords “Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. November 14, 2018

11/14/2018 101: Phonorecords “Phonorecords” are The term “phonorecords” includes the material object in which the sounds are first fixed. November 14, 2018

101: Sound recordings “Sound recordings” are works 11/14/2018 101: Sound recordings “Sound recordings” are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied. November 14, 2018

Special Rules Sound Recordings See also Back next Thursday Pre 2/15/1972 in state copyright system (301(c)) See also Section 114 Section 115 Back next Thursday November 14, 2018

102. Subject matter of copyright: In general 11/14/2018 102. Subject matter of copyright: In general (a) … Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; November 14, 2018

102 (Cont.) (4) pantomimes and choreographic works; 11/14/2018 102 (Cont.) (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. November 14, 2018

106. Exclusive rights in copyrighted works 11/14/2018 106. Exclusive rights in copyrighted works Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; November 14, 2018

11/14/2018 106 (Cont.) (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; November 14, 2018

11/14/2018 106 (Cont.) (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. November 14, 2018

Creating a Poem I Hypo Do I have a copyright in the poem? 11/14/2018 Creating a Poem I Hypo In my office, on paper, word by word, I create a poem I stop writing and declare my poem completed Do I have a copyright in the poem? November 14, 2018

11/14/2018 Answer Answer Sure 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. November 14, 2018

11/14/2018 Creating a Poem II Hypo In my office, speaking into a tape recorder, word by word, I create a poem I stop dictating and declare my poem completed Do I have a copyright in the poem? Is the tape recording a distinct copyright object? November 14, 2018

Answer As to the poem, sure 102(a) embraces a media neutrality idea 11/14/2018 Answer As to the poem, sure 102(a) embraces a media neutrality idea The poem is fixed on the taped and can be perceived from the tape with the aid of a machine or device November 14, 2018

Answer Understanding Fixation 11/14/2018 Answer Understanding Fixation The poem is no less “fixed”—fully specified and defined—on tape than it was on paper The fact that it didn’t exist before I started to dictate doesn’t matter; that was true of the paper as well November 14, 2018

Answer See Legislative History 11/14/2018 Answer See Legislative History “This broad language is intended to avoid the artificial and largely unjustifiable distinctions, derived from cases such as White-Smith Publishing Co. v. Apollo Co., 209 U.S. 1 (1908), under which statutory copyrightability in certain cases has been made to depend upon the form or medium in which the work is fixed.” November 14, 2018

Answer See Legislative History 11/14/2018 Answer See Legislative History “Under the bill it makes no difference what the form, manner, or medium of fixation may be—whether it is in words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia, whether embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form, and whether it is capable of perception directly or by means of any machine or device ‘now known or later developed.’” November 14, 2018

Answer As to the sound recording 11/14/2018 Answer As to the sound recording Statute treats that as separate copyright object “Sound recordings” are works that result from the fixation of a series of musical, spoken, or other sounds But poem continues to exist as separate literary work, just as it did when it was “recorded” on paper November 14, 2018

Answer As to the sound recording 11/14/2018 Answer As to the sound recording While sound recording is a separate copyright object with, perhaps, a different author, the sound recording as work will be either a copy of the underlying work—the poem—or a derivative work of that poem November 14, 2018

11/14/2018 Creating a Tune I Hypo In my office, on paper, note by note, I create a new song (just notes, no words) I stop writing and declare my song completed Do I have a copyright in the new song? Is there a sound recording? November 14, 2018

Answer Q1: Yes Assuming minimal originality, this will qualify as a musical work covered by 102(a)(2) Q2: No Requires sounds and no sounds so far November 14, 2018

11/14/2018 Creating a Tune II Hypo At home, sitting at the piano, note by note, I create a new song (just notes, no words) and I record that song as I play it I stop playing, turn off the recorder and declare my song completed Do I have a copyright in the new song? Is there a sound recording? November 14, 2018

Answer Q1: Yes Fixation is media neutral; no preference for paper vs. recording device There was no preexisting work in either version of the hypo; it was created note by note in both cases November 14, 2018

Answer Q1: Yes The definition of fixation focuses on whether the work is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration” The recording should work November 14, 2018

Answer Q2: Yes This is a classic sound recording. November 14, 2018

11/14/2018 Bouchat: The Pictures November 14, 2018

Arnstein v. Porter 154 F.2d 464 (2d Cir. 1946) Play the Music 11/14/2018 Arnstein v. Porter 154 F.2d 464 (2d Cir. 1946) Play the Music http://mcir.usc.edu/cases/1940-1949/Pages/arnsteinporter.html November 14, 2018

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Arnstein v. Porter Access + Similarities 11/14/2018 Arnstein v. Porter Access + Similarities “If there is evidence of access and similarities exist, then the trier of the facts must determine whether the similarities are sufficient to prove copying. On this issue, analysis (“dissection”) is relevant, and the testimony of experts may be received to aid the trier of the facts.’ November 14, 2018

11/14/2018 Arnstein v. Porter Even Without Evidence of Access if Strikingly Similar “If evidence of access is absent, the similarities must be so striking as to preclude the possibility that plaintiff and defendant independently arrived at the same result.” November 14, 2018

Arnstein v. Porter What is the Relevant Audience? 11/14/2018 Arnstein v. Porter What is the Relevant Audience? “The question, therefore, is whether defendant took from plaintiff's works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed, that defendant wrongfully appropriated something which belongs to the plaintiff.” November 14, 2018

Bright Tunes v. Harrissongs 11/14/2018 Bright Tunes v. Harrissongs 420 F. Supp. 177 (S.D.N.Y. 1976) Play the Music http://mcir.usc.edu/cases/1970-1979/Pages/brightharrisongs.html November 14, 2018

The Songs Component Motifs A: B: B (with grace note): 11/14/2018 The Songs Component Motifs A: B: B (with grace note): Source: http://ccnmtl.columbia.edu/projects/law/library/cases/case_brightharrisongs.html November 14, 2018

The Songs He’s So Fine My Sweet Lord AAAABBwgBB AAAABBwgB 11/14/2018 The Songs He’s So Fine AAAABBwgBB My Sweet Lord AAAABBwgB November 14, 2018

The Songs Accessing He’s So Fine My Sweet Lord 11/14/2018 The Songs Accessing He’s So Fine At or near the top of the charts in the US and the UK in 1963 My Sweet Lord Recorded in 1970 November 14, 2018

Understanding Copying 11/14/2018 Understanding Copying Should we have a … Bad person theory of copying? This would require something like intent or recklessness; presumably knowing copying A substitution theory of copying? If thing doesn’t compete with original, not a copy Or a replication theory of copying? November 14, 2018

Understanding Copying 11/14/2018 Understanding Copying A use theory of copying? Any use, whether knowing or not, suffices to make a copy November 14, 2018

The Creative Process at Work and Copying 11/14/2018 The Creative Process at Work and Copying Says the Court “What happened? I conclude that the composer, in seeking musical materials to clothe his thoughts, was working with various possibilities. As he tried this possibility and that, there came to the surface of his mind a particular combination that pleased him as being one he felt would be” November 14, 2018

The Creative Process at Work and Copying 11/14/2018 The Creative Process at Work and Copying “appealing to a prospective listener; in other words, that this combination of sounds would work. Why? Because his subconscious knew it already had worked in a song his conscious mind did not remember.” November 14, 2018

The Creative Process at Work and Copying 11/14/2018 The Creative Process at Work and Copying “Having arrived at this pleasing combination of sounds, the recording was made, the lead sheet prepared for copyright and the song became an enormous success. Did Harrison deliberately use the music of He’s So Fine? I do not believe he did so deliberately.” November 14, 2018

The Creative Process at Work and Copying 11/14/2018 The Creative Process at Work and Copying “Nevertheless, it is clear that My Sweet Lord is the very same song as He’s So Fine with different words, and Harrison had access to He’s So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.” November 14, 2018

Blurred Lines Summary Judgment Order (30 Oct 2014) November 14, 2018

Blurred Lines Summary Judgment Order (30 Oct 2014) November 14, 2018

Blurred Lines Summary Judgment Order (30 Oct 2014) November 14, 2018

Blurred Lines Summary Judgment Order (30 Oct 2014) November 14, 2018

Blurred Lines What does all of that mean? Need to separate musical composition embodied in sheet music registered with copyright office from composition embodied in recording Only sheet music composition in issue November 14, 2018

Blurred Lines Key Consequences for how evidence presented Don’t go listen to https://www.youtube.com/watch?v=fp7Q1OAzITM Instead go listen to this November 14, 2018

Blurred Lines Creating Blurred Lines Pharrell’s deposition November 14, 2018

Blurred Lines Jury Instruction # 26 November 14, 2018

Blurred Lines Jury Instruction # 27 November 14, 2018

Blurred Lines Jury Instruction # 30 November 14, 2018

Blurred Lines Jury Instruction # 42 November 14, 2018

Blurred Lines Jury Instruction # 43 November 14, 2018

Blurred Lines Jury Instruction # 43 November 14, 2018

Blurred Lines Jury Instruction # 43 November 14, 2018

Back to the Music The Presented Versions The Full Sound Recordings Here The Full Sound Recordings Got to Give It Up Blurred Lines November 14, 2018

Appellant Brief (23 Aug 2016) November 14, 2018

Appellant Brief (23 Aug 2016) November 14, 2018

Appellant Brief (23 Aug 2016) November 14, 2018