COPYRIGHT LAW 2006 Columbus School of Law The Catholic University of America Prof. Fischer Class 22 Infringement November 3, 2008

WRAP-UP: FORMALITIES Historical trend: reduction in importance in formalities, especially notice and publication

INFRINGEMENT In this unit, we learn about all of the exclusive rights in the bundle of rights owned by the copyright owner (see s. 106) We start with the “right of reproduction” in 106(1) - right to reproduce the copyrighted work in copies or phonorecords

Infringement: See Section 501 defining infringer as “anyone who violates any of the exclusive rights of the copyright owner as provided in sections 106 through 122” If owner of chattel in which work embodied refuses to permit author access to chattel in order to exercise her exclusive rights, is that an infringement of copyright?

Infringement: If owner of chattel in which work embodied refuses to permit author access to chattel in order to exercise her exclusive rights, is that a copyright infringement? No - see Frasier v. Adams-Sandler (4th Cir. 1996)

Section 106 Gives owner of copyright EXCLUSIVE rights “to do and to authorize” any of the following... (1) to reproduce the copyrighted works in copies or phonorecords Does “authorization” include contributory infringement? What is a “copy”

COPIES See definition of copy in section 101 Recall copy requirement for fixation Digital copying - courts have consistently held that it’s still copying even if the work gets broken up into bits in the process of packet switching

Matthew Bender & Co. v. West Publishing Co. (2d Cir. 1998) West - premier reporter of judicial decisions in U.S. Official reporter for a few jurisdictions De facto reporter for federal cases, many states Are judicial opinions subject to copyright protection? Why or why not?

West What did Matthew Bender do that West claimed was an infringement of copyright? Did the court find a copyright infringement? Why or why not?

INFRINGEMENT Of the right to reproduction There is a 2 step test for infringement (see Arnold v. Porter) 1. COPYING 2. UNLAWFUL APPROPRIATION

COPYING Copying may be (rarely) proved by D’s admission that she copied Or by circumstantial evidence from which copying can be inferred (access) AND sufficient similarity between the works to prove copying If no similarity exists between the works, no evidence of access will prove copying If access/similarity, court can use expert evidence/dissection to determine copying If no evidence of access, need STRIKING SIMILARITY to prove copying

UNLAWFUL APPROPRIATION Only arises if copying has been proved Question - has defendant taken so much from P’s work that he wrongfully appropriated? Test is that of the ordinary observer, not experts Dissection and expert evidence not admissible (irrelevant)

AUDIENCE DETERMINING SUBSTANTIAL SIMILARITY Can this be a specialized audience (such as children) where the work is intended by the author for a particular market? See Lyons Partnership L.P. v. Morris Costumes, Inc. (4th Cir. 2001), Dawson v. Hinshaw (4 th Cir. 1990). –CB pp

BRIGHT TUNES V. HARRISONGS (1976)

The Chiffons: “He’s So Fine” Recorded in 1962 Top hit in England and U.S.

BRIGHT TUNES V. HARRISONGS Subconscious copying Is that infringement? What if Harrison played the notes of the motifs A and B in “He’s so Fine” backwards and published the song? Does this infringe Bright Tunes’ copyright in “He’s So Fine”? SEE ALSO Three Boys Music Corp. v. Bolton (9th Cir. 2000)

STRIKING SIMILARITY Is there a split in the circuits on this issue?

SELLE V. GIBB (7th Cir. 1984) id/cpr/MIDI/POP/beeg ees/00index.html What is the issue? What is the court’s holding? Why?

REPP v. WEBBER (2d Cir. 1997) What is the issue for the Second Circuit?

TY V. GMA (7th Cir. 1997) Did GMA’s “Preston the Pig” infringe Ty’s “Squealer”

Price v. Fox Entertainment Group, Inc. (S.D.N.Y. 2007) What must a plaintiff show to permit the jury to infer that the works’ similarities result from copying?

SUBSTANTIAL SIMILARITY One of the most difficult questions in copyright law

Issue of substantial similarity: DE MINIMIS COPYING Basic issue: did the D copy protected expression? Ringgold v. BET (2d Cir. 1997)

Peter Pan Fabrics v. Martin Weiner Corp. (2d Cir. 1960) “Obviously no principle can be stated as to when an imitator has gone beyond copying “the idea’ and has borrowed its “expression.” Decisions must therefore inevitably be ad hoc.

HERBERT ROSENTHAL v. KALPAKIAN (9th Cir. 1971)

MERGER DOCTRINE Herbert Rosenthal Jewelry Corp. v. Kalpakian (2d Cir. 1971) What is the merger doctrine? What is its relationship to infringement? How did it apply in this case?

NON-LITERAL COPYING In Nicholls v. Universal Pictures (2d Cir. 1930), Judge Learned Hand made clear that non-literal copying could be actionable. He stated that copyright “cannot be limited literally to the text, else a a plagiarist would escape by immaterial variations”.