Copyright Infringement Intro to IP – Prof Merges

Arnstein v. Porter Cole Porter Standard for proving infringement

Procedural History District court granted defendant Porter’s Summary Judgment motion Can you guess why?

Standard for Infringement Copying Improper Appropriation

Element 1: Copying: P. 477 Proof of “access” or other circumstantial evidence of copying “Striking similarity” – “must be so striking as to preclude the possibility [of independent creation]”

Element 1: Copying Issue of fact Evidence here?

Copying facts here “Fantastic” evidence More objective evidence – Wide distribution of copyrighted work

Improper appropriation “substantial similarity” – versus “probative” similarity” (n. 1, p. 480) Effect on the “lay listener”, the ordinary audience member, is what counts But: expert witness testimony is admissible too

Judge Clark dissent Music is intellectual too; three- four- and five- note sequences are repeated in both compositions But this is not enough Arnstein v. Edward Marks, 12 note sequence infringed

Second v. 7 th Circuit on Access 2 nd : No evidence of access if there is enough similarity 7 th : Must show some evidence of access to support infringement case Posner reconciliation - ? P. 481

Nichols V. Universal Pictures (2d Cir. 1930) Did the film “The Cohens and the Kellys” infringe the play “Abie’s Irish Rose”?

NY Times Abie's Irish Rose: Review Published: May 24, 1922 The play has its little sermon that earned one of the heartiest bits of applause last night. Priest and rabbi, it appeared, also had met "over there." "I gave the last rites to many Jewish boys," said the fighting chaplain. "And I to many of your Catholic lads," the Jewish chaplain replied. "We're all on the same road, I guess, even though we do travel by different trains."

Judge Hand Opinion “It is of course essential to any protection of literary property, whether at common law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations.” -- p. 484

Types of infringement “block in situ” (in whole), vs. “an abstract of the whole”

Nichols : Abstractions test “Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out…there is a point in this series of abstractions where they are no longer protected.” [since they are idea]

Abstraction Test Abie’s Irish Rose – I. Jewish and Irish families – One wealthy, one not – Strangers to each other – A. Son and daughter marry – Twins born Cohens and Kellys – I. Jewish and Irish families – Both poor (at start) – Long-time enemies – A. Son and daughter marry – Single child born

Nichols Abstraction Test I. A. 1. a. b. c. i. B a. b. i. ii. II. I. A. 1. B II.

Nichols Abstraction Test I. A. 1. a. b. c. i. B a. b. i. ii. II. I. II.

Story - Main Idea Plot Outline Subplots General Characters and Scenes Text Specific Character Elements Levels Of Abstraction

Why are “high level” abstractions of plot not copyrightable? Ideas, not expression Theory of relativity, or evolution: basic ideas, too general to be protected Similar to section 101 of Patent Act...

“Character test” Can a character, standing independent from plot, be copyrighted? If so, how? And how far would that copyright reach?

“Stock Characters” Low-comedy ethnic characters Example of “scenes-a-faire” – standard “setups” or scenes Drunken Irishman, nosy neighbor, irritating mother in law, comic sidekick, etc etc

Play it Again, Sam

Ideas cannot be protected “[Plaintiff’s] copyright did not cover everything that might be drawn from her play; its content went to some extent into the public domain...”

Steinberg v. Columbia Pictures, Inc. – Problem 4-28 New Yorker cover, movie poster

Elements Ownership Copying – Access – Improper Appropriation

Analysis Lay Observer Common sense’ side-by-side comparison

Similarities and Differences 4 block view Details of distant city?

What do you compare? The whole of the copied portions of the Plaintiff’s work, including individually uncopyrightable elements like ideas and scenes a faire? OR only the copied portions that are copyrightable?

Sampling Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

Bridgeport Music

Bridgeport, compare to Beastie Boys – IPNTA 5 th p Sound recording (remixes) Versus musical composition De Minimis doctrine

The letters may have been taken more as a means of capitalizing on the interest in Salinger than in providing a critical study of the author. (Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987).

CONTU Report National Commission on New Technological Uses of Copyrighted Works, Final Report (1979) Basis for Copyright Act 1980 revisions

CONTU Report “[C]omputer programs, to the extent that they embody an author’s original creation, are proper subject matter of copyright.”

“[C]opyright protection for programs does not threaten to block the use of ideas or program language previously developed by others when that use is necessary to achieve a certain result. When other language is available, programmers are free to read copyrighted programs and use the ideas embodied in them in preparing their own works.” -- CONTU Report at 20.

“One is always free to make the machine do the same thing as it would if it had the copyrighted work placed in it, but only by one’s own creative effort rather than by piracy.” CONTU Report at 21.

The problem with copyright The line between unprotectable idea and protectable expression is (a) difficult to define, and (b) a crucial “policy fulcrum” under copyright law

Late 1980s, early 1990s Copyright Cases “Abstraction, filtration, comparison” test: Computer Associates Reverse engineering (fair use): Sega v. Nintendo “Thin” copyright – Apple v. Microsoft

The end of copyright’s effectiveness Peter S. Menell, An Epitaph for Traditional Copyright Protection of Network Features of Computer Software, 43 Antitrust Bull. 651 (1998)