COPYRIGHT LAW 2001 Columbus School of Law The Catholic University of America Prof. Fischer Class 20 (MARCH 27, 2002)

GOALS FOR THIS CLASS To learn about infringement of the right of reproduction

WRAP-UP POINT: PUBLICATION UNDER ‘76 ACT Publication does not have an investive/divestive effect under the 1976 Copyright Act, but is still important in a number of ways, e.g. computing copyright term for works for hire (s. 302(c)), whether defense of fair use applies (s. 107), applicability of library exemptions (s. 108) etc..

WRAP-UP POINT: DEFINITION OF PUBLICATION “Publication” is defined in the 1976 act at s Basically, it codifies old 1909 law (never any definition in 1909 law)

WRAP-UP POINT: NOTICE Notice requirements under 1909 Act were quite strict. Failure to comply caused loss of copyright protection. Under 1976 Act prior to Berne Convention (works published before 3/1/89) there were cure provisions set out in sections 405/406 Now, under Berne regime, notice is optional but recommended

WRAP-UP POINT:DEPOSIT Under 1909 Act and under 1976 Act up to Berne, compliance with deposit requirements was a prerequisite for suit This is no longer the case, but you can still be fined for failure to deposit copies with the Library of Congress under s. 407

WRAP-UP POINT: REGISTRATION 2-tier registration system Registration is still a prerequisite for copyright suit for U.S. works (either first published in U.S. or, if unpublished, by U.S. author) Not a prerequisite for works that are non U.S. Berne works Incentives for timely registration: s No statutory damages/attorneys fees for infringement prior to registration

WRAP-UP POINT:RIGHT OF REPRODUCTION Right of reproduction is one of the exclusive bundle of rights of the copyright owner set out in section 106 of the Copyright Act of 1976 There are 2 ways a work can be reproduced: in COPIES or PHONORECORDS Both are defined in section 101 Works can be copied digitally

Establishing Infringement Arnstein v. Porter (2d Cir. 1946) What are As allegations? What is A’s evidence? What remedy is A seeking ? What procedural stage has this action reached? How does the majority rule?

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 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).

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”

DE MINIMIS COPYING Ringgold v. BET (2d Cir. 1997)

PETER PAN FABRICS, INC. (2d Cir. 1960) What does Learned Hand say about the test for substantial similarity?