Copyright Law Boston College Law School March 25, 2003 Infringement - Direct - 1

Direct Infringement Elements of claim –Ownership of valid copyright –Infringement (1) Actual copying –(i) Access –(ii) Similarity (2) Improper appropriation –Substantial similarity

Bright Tunes v. Harrisongs

Actual Copying Access Similarity Yes No Striking Similarity No Similarity Arnstein Webber BeeGees Harrison Ty

Ty v. GMA

Hypo Facts –Plaintiff is a ventriloquist, performs w/ dummy –Dummy uses phrase “You Got the Right One, Uh-Huh” –Has been performing since 1984 –Elementary schools, job corp camps, 1984 World’s Fair –Mails info packets to corporate executives, including a Pepsi exec –In 1991, Pepsi launches massive ad campaign –Featuring Ray Charles, singing “You Got the Right one Baby, Uh- huh” Questions –Sufficient evidence of actual copying? –Sufficient to get before a jury?

Actual Copying Procedural issues –Issue of fact: for the jury –Expert testimony is often permitted –Reviewed on appeal for clear error

Improper Appropriation –Standard: “substantial similarity” –Perspective: intended audience Types of cases –Fragmented literal similarity Literal copying of portions of original –Comprehensive nonliteral similarity Non-literal copying of ideas, structure, plot, characters, etc.

Nichols v. Universal Learned Hand: –“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. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas,’ to which, apart from their expression, his property is never extended. Nobody has ever been able to fix that boundary, and nobody ever can.”

Abstractions Test Idea Plot Outline Subplots, Characters Specific Scenes Text Not Protected Protected

Nichols v. Universal Idea Plot Outline Subplots, Characters Scenes Text Abie’s Irish RoseThe Cohens and the Kellys No copying No copying of protectible material Not protectible

Shakespeare v. Laurents Idea Plot Outline Subplots, Characters Scenes Text Romeo & JulietWest Side Story ?

Improper Appropriation Different Approaches –Subtractive Approach –Totality Approach “Total concept and feel” Extrinsic and intrinsic tests Procedural Aspects –Issue of fact for jury –Expert testimony generally not allowed –Generally reviewed on appeal for clear error

Assignment for Next Class Start VII.A. - Infringement –Read through Steinberg