Class 11 Copyright, Winter, 2010 Proof of Copying and Infringement Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago Copyright © Randal C. Picker. All Rights Reserved.

October 28, 2015Copyright © Randal C. Picker2 Arnstein v. Porter n 154 F.2d 464 (2d Cir. 1946) n Play the Music u orter.html orter.html

October 28, 2015Copyright © Randal C. Picker3 Arnstein v. Porter n Access + Similarities u “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.’

October 28, 2015Copyright © Randal C. Picker4 Arnstein v. Porter n Even Without Evidence of Access if Strikingly Similar u 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.”

October 28, 2015Copyright © Randal C. Picker5 Arnstein v. Porter n What is the Relevant Audience? u “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.”

October 28, 2015Copyright © Randal C. Picker6 How Dow We Know that We’ve Copied? n Hypo u GH writes song; believes it to be original u What should he do next? n How is an author supposed to be sure that he hasn’t copied? u Should we create a database of popular songs and search against that?

October 28, 2015Copyright © Randal C. Picker7 Bright Tunes v. Harrissongs n 420 F. Supp. 177 (S.D.N.Y. 1976) n Play the Music u risongs.html risongs.html

October 28, 2015Copyright © Randal C. Picker8 The Songs n Component Motifs u A: u B: u B (with grace note):

October 28, 2015Copyright © Randal C. Picker9 The Songs n He’s So Fine u AAAABBwgBB n My Sweet Lord u AAAABBwgB

October 28, 2015Copyright © Randal C. Picker10 The Expert Testimony n Footnote 11 u Even Harrison's own expert witness, Harold Barlow, long in the field, acknowledged that although the two motifs were in the public domain, their use here was so unusual that he, in all his experience, had never come across this unique sequential use of these materials. He testified: w “The Court: And I think you agree with me in this, that we are talking about a basic three-note structure that composer can vary in modest ways, but we are still talking about the same heart, the same essence?

October 28, 2015Copyright © Randal C. Picker11 The Expert Testimony w “The Witness: Yes. w “The Court: So you say that you have not seen anywhere four A's followed by three B’s or four? w “The Witness: Or four A's followed by four B’s.” w The uniqueness is even greater when one considers the identical grace note in the identical place in each song.

October 28, 2015Copyright © Randal C. Picker12 The Songs n Accessing He’s So Fine u At or near the top of the charts in the US and the UK in 1963 n My Sweet Lord u Recorded in 1970

October 28, 2015Copyright © Randal C. Picker13 Understanding Copying n Should we have a … u Bad person theory of copying? w This would require something like intent or recklessness; presumably knowing copying u A substitution theory of copying? w If thing doesn’t compete with original, not a copy u Or a replication theory of copying?

October 28, 2015Copyright © Randal C. Picker14 Understanding Copying u A use theory of copying? w Any use, whether knowing or not, suffices to make a copy

The Creative Process at Work and Copying n Says the Court u “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 appealing to a prospective listener; in other words, that this combination of sounds would work. Why? October 28, 2015Copyright © Randal C. Picker15

The Creative Process at Work and Copying u “Because his subconscious knew it already had worked in a song his conscious mind did not remember. 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. October 28, 2015Copyright © Randal C. Picker16

The Creative Process at Work and Copying u “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.” October 28, 2015Copyright © Randal C. Picker17

October 28, 2015Copyright © Randal C. Picker18 Harrison’s Take on the Work n Footnote 9 u “It is of interest, but not of legal significance, in my opinion, that when Harrison later recorded the song himself, he chose to omit the little grace note, not only in his musical recording but in the printed sheet music that was issued following that particular recording. The genesis of the song remains the same, however modestly Harrison may have later altered it. Harrison, it should be noted, regards his song as that which he sings at the particular moment he is singing it and not something that is written on a piece of paper.”

October 28, 2015Copyright © Randal C. Picker19 Bouchat n Core Facts u Bouchat creates drawings for possible Baltimore Ravens football team u March 28, 1996: B meets Moag, head of the Maryland Stadium Authority u April 1, 1996: B faxes drawings to Moag at the MSA

October 28, 2015Copyright © Randal C. Picker20 Bouchat u April 2, 1996: Modell, owner of the Ravens, meets with NFL properties about logo design u June 1996: Ravens unveil logo

October 28, 2015Copyright © Randal C. Picker21 [Ravens Home]

October 28, 2015Copyright © Randal C. Picker22 The Pictures

October 28, 2015Copyright © Randal C. Picker23 Proofing Infringement n Two Steps u Prove ownership of a copyright u Proof copying of protected elements

October 28, 2015Copyright © Randal C. Picker24 How Should We Prove … n Bouchat Was First?

October 28, 2015Copyright © Randal C. Picker25 Proof of Copying n Direct Evidence u “We copied it, because we had a right to do so.” n Indirect Evidence u Multiplicity of tests w Access + substantial similarity w Weak or minimal access evidence (perhaps none) and “striking similarity”

October 28, 2015Copyright © Randal C. Picker26 The Chain of Events n Step by Step u 1. Bouchat sends the fax and the Maryland Stadium Authority receives it u 2. MSA forwards it to Moag (chair of the MSA) at his Pratt St. office u 3. Modell sees/gets a copy of the drawing u 4. Modell forwards it to Rhonda Kim and/or Kurt Osaki of NFL Properties

October 28, 2015Copyright © Randal C. Picker27 How Should We Prove … n The Sending and Receipt of the Fax? u The Majority w The next day, Bouchat got permission from his supervisor to use the office fax machine in order to send his drawings to Moag at the Maryland Stadium Authority (MSA). Jan Drabeck, Bouchat’s immediate supervisor, showed Bouchat how to use the fax machine.

October 28, 2015Copyright © Randal C. Picker28 How Should We Prove … u The Dissent w Bouchat presented no witnesses who saw him send the fax; he submitted no confirmation sheet verifying that the facsimile transmission was successful; and he failed to produce any telephone records confirming the transmission.

October 28, 2015Copyright © Randal C. Picker29 How Should We Prove … w Moreover, the Deputy Director of M.S.A. testified that, following the initiation of this lawsuit, he conducted an investigation to determine whether M.S.A. had received Bouchat’s fax. Based on this investigation, he concluded that “[e]very member of [MSA] staff said they had no knowledge of this drawing.”

October 28, 2015Copyright © Randal C. Picker30 How Should We Prove … n The Forwarding of the Fax from MSA to Moag’s Pratt St. Office? u The Majority w Evidence was also introduced that the regular practice at the M.S.A. was to forward faxes for Moag to his Pratt Street office. The jury was thus entitled to conclude that the faxed drawing reached Moag at the Pratt Street office.

October 28, 2015Copyright © Randal C. Picker31 How Should We Prove … u The Dissent w Nevertheless, the majority approves of the additional inference—based exclusively on MSA’s general policy of forwarding correspondence to Moag—that M.S.A. sent the shield drawing to Moag’s law office. I disagree on this point; …

October 28, 2015Copyright © Randal C. Picker32 How Should We Prove … w Indeed, the only evidence produced at trial on this issue is inconsistent with the jury’s inference that the faxed drawing reached Moag. The office manager at Patton Boggs testified that an investigation of internal office files did not indicate receipt of any drawings from Bouchat. Likewise, when Moag was asked whether he recalled receiving any artistic submissions from Bouchat after their initial meeting, he replied, “No, I do not. I remember meeting Mr. Bouchat but I don’t remember receiving anything from him.”

October 28, 2015Copyright © Randal C. Picker33 How Should We Prove … n The Forwarding of the Fax from Moag to Modell? u The Majority w Defendants admit that Modell and other Ravens staff shared office space with Moag in the Pratt Street building, and that Modell’s own office was within “earshot” of Moag’s office. By proving that the drawings were transmitted to Moag, and that Modell shared the same office space with Moag, Bouchat proved that Modell had “access” to Bouchat’s drawing.

October 28, 2015Copyright © Randal C. Picker34 How Should We Prove … u The Dissent w While the majority regards an office policy as sufficient proof that M.S.A. forwarded the fax to Moag, it ignores Moag’s personal policy and practice to the contrary of not forwarding to the Ravens material sent to MSA.

October 28, 2015Copyright © Randal C. Picker35 How Should We Prove … w The undisputed evidence was that neither Modell nor any other Ravens official ever received Bouchat’s shield drawing. As the district court conceded, “There is no direct evidence specifically proving that the Shield Drawing fax was provided to Mr. Modell, and he generally denies any knowledge of such a fax.” w There is more. All witnesses from the Ravens organization categorically denied having received or viewed Bouchat’s shield drawing prior to creation of the Ravens shield logo.

October 28, 2015Copyright © Randal C. Picker36 How Should We Prove … n The Forwarding of the Fax from Modell to NFLP? u The Majority w The jury was entitled to infer that the NFL designers had access if a third party intermediary (Modell) with a close relationship to the alleged infringers (the NFL designers) had access. w Plus see * footnote on this

October 28, 2015Copyright © Randal C. Picker37 How Should We Prove … u The Dissent w The defendants introduced undisputed evidence inconsistent with the majority’s inference that Modell shared the drawings with someone at the NFLP. For instance, Mr. Cope testified that the Ravens did not forward any materials or drawings to the NFLP after March 18, 1996, approximately two weeks prior to Bouchat’s claimed date of access. Similarly, the undisputed evidence indicates that Bouchat’s shield drawing was not received by the NFLP in New York.

October 28, 2015Copyright © Randal C. Picker38 How Should We Prove … w Bruce Burke, the NFLP’s vice president and creative director, when asked whether he saw any of Bouchat’s drawings prior to the final selection of the Ravens logos, testified simply, “No, absolutely not.” J.A Similarly, Paula Guibault, the NFLP’s senior intellectual property counsel, when asked whether she had seen any of Bouchat’s drawings prior to the initiation of this lawsuit, replied, “No, I did not.” J.A And finally, both Kim and Osaki, the NFLP artists responsible for the design of the Ravens shield logo, testified unequivocally that they had never seen any drawings submitted by Bouchat.

October 28, 2015Copyright © Randal C. Picker39 Similarity and Access n Should some level of similarity reduce the need for other evidence of access? u The “strikingly” similar doctrine u If we do that, where does that leave independent creation?