1. Class 11 Copyright, Autumn, 2016 Proof of Copying and Infringement
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Class 11 Copyright, Autumn, Proof of Copying and Infringement
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
Ludwig & Hilde Wolf Teaching Scholar
The Law School
The University of Chicago

2. 11/14/2018
101: Phonorecords
“Phonorecords” are
material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
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3. 11/14/2018
101: Phonorecords
“Phonorecords” are
The term “phonorecords” includes the material object in which the sounds are first fixed.
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4. 101: Sound recordings “Sound recordings” are works
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101: Sound recordings
“Sound recordings” are works
that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.
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5. Special Rules Sound Recordings See also Back next Thursday
Pre 2/15/1972 in state copyright system (301(c))
See also
Section 114
Section 115
Back next Thursday
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6. 102. Subject matter of copyright: In general
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102. Subject matter of copyright: In general
(a)
… Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
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7. 102 (Cont.) (4) pantomimes and choreographic works;
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102 (Cont.)
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
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8. 106. Exclusive rights in copyrighted works
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106. Exclusive rights in copyrighted works
Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
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9. 11/14/2018
106 (Cont.)
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
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10. 11/14/2018
106 (Cont.)
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
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11. Creating a Poem I Hypo Do I have a copyright in the poem?
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Creating a Poem I
Hypo
In my office, on paper, word by word, I create a poem
I stop writing and declare my poem completed
Do I have a copyright in the poem?
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12. 11/14/2018
Answer
Answer
Sure
102(a): Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
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13. 11/14/2018
Creating a Poem II
Hypo
In my office, speaking into a tape recorder, word by word, I create a poem
I stop dictating and declare my poem completed
Do I have a copyright in the poem? Is the tape recording a distinct copyright object?
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14. Answer As to the poem, sure 102(a) embraces a media neutrality idea
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Answer
As to the poem, sure
102(a) embraces a media neutrality idea
The poem is fixed on the taped and can be perceived from the tape with the aid of a machine or device
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15. Answer Understanding Fixation
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Answer
Understanding Fixation
The poem is no less “fixed”—fully specified and defined—on tape than it was on paper
The fact that it didn’t exist before I started to dictate doesn’t matter; that was true of the paper as well
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16. Answer See Legislative History
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Answer
See Legislative History
“This broad language is intended to avoid the artificial and largely unjustifiable distinctions, derived from cases such as White-Smith Publishing Co. v. Apollo Co., 209 U.S. 1 (1908), under which statutory copyrightability in certain cases has been made to depend upon the form or medium in which the work is fixed.”
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17. Answer See Legislative History
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Answer
See Legislative History
“Under the bill it makes no difference what the form, manner, or medium of fixation may be—whether it is in words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia, whether embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form, and whether it is capable of perception directly or by means of any machine or device ‘now known or later developed.’”
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18. Answer As to the sound recording
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Answer
As to the sound recording
Statute treats that as separate copyright object
“Sound recordings” are works that result from the fixation of a series of musical, spoken, or other sounds
But poem continues to exist as separate literary work, just as it did when it was “recorded” on paper
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19. Answer As to the sound recording
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Answer
As to the sound recording
While sound recording is a separate copyright object with, perhaps, a different author, the sound recording as work will be either a copy of the underlying work—the poem—or a derivative work of that poem
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20. 11/14/2018
Creating a Tune I
Hypo
In my office, on paper, note by note, I create a new song (just notes, no words)
I stop writing and declare my song completed
Do I have a copyright in the new song? Is there a sound recording?
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21. Answer
Q1: Yes
Assuming minimal originality, this will qualify as a musical work covered by 102(a)(2)
Q2: No
Requires sounds and no sounds so far
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22. 11/14/2018
Creating a Tune II
Hypo
At home, sitting at the piano, note by note, I create a new song (just notes, no words) and I record that song as I play it
I stop playing, turn off the recorder and declare my song completed
Do I have a copyright in the new song? Is there a sound recording?
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23. Answer
Q1: Yes
Fixation is media neutral; no preference for paper vs. recording device
There was no preexisting work in either version of the hypo; it was created note by note in both cases
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24. Answer
Q1: Yes
The definition of fixation focuses on whether the work is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration”
The recording should work
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25. Answer
Q2: Yes
This is a classic sound recording.
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26. 11/14/2018
Bouchat: The Pictures
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27. Arnstein v. Porter 154 F.2d 464 (2d Cir. 1946) Play the Music
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Arnstein v. Porter
154 F.2d 464 (2d Cir. 1946)
Play the Music
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28. November 14, 2018

29. November 14, 2018

30. Arnstein v. Porter Access + Similarities
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Arnstein v. Porter
Access + Similarities
“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.’
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31. 11/14/2018
Arnstein v. Porter
Even Without Evidence of Access if Strikingly Similar
“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.”
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32. Arnstein v. Porter What is the Relevant Audience?
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Arnstein v. Porter
What is the Relevant Audience?
“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.”
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33. Bright Tunes v. Harrissongs
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Bright Tunes v. Harrissongs
420 F. Supp. 177 (S.D.N.Y. 1976)
Play the Music
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34. The Songs Component Motifs A: B: B (with grace note):
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The Songs
Component Motifs
A: B:
B (with grace note):
Source:
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35. The Songs He’s So Fine My Sweet Lord AAAABBwgBB AAAABBwgB
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The Songs
He’s So Fine
AAAABBwgBB
My Sweet Lord
AAAABBwgB
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36. The Songs Accessing He’s So Fine My Sweet Lord
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The Songs
Accessing He’s So Fine
At or near the top of the charts in the US and the UK in 1963
My Sweet Lord
Recorded in 1970
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37. Understanding Copying
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Understanding Copying
Should we have a …
Bad person theory of copying?
This would require something like intent or recklessness; presumably knowing copying
A substitution theory of copying?
If thing doesn’t compete with original, not a copy
Or a replication theory of copying?
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38. Understanding Copying
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Understanding Copying
A use theory of copying?
Any use, whether knowing or not, suffices to make a copy
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39. The Creative Process at Work and Copying
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The Creative Process at Work and Copying
Says the Court
“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”
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40. The Creative Process at Work and Copying
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The Creative Process at Work and Copying
“appealing to a prospective listener; in other words, that this combination of sounds would work. Why? Because his subconscious knew it already had worked in a song his conscious mind did not remember.”
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41. The Creative Process at Work and Copying
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The Creative Process at Work and Copying
“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.”
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42. The Creative Process at Work and Copying
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The Creative Process at Work and Copying
“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.”
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43. Blurred Lines Summary Judgment Order (30 Oct 2014)
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44. Blurred Lines Summary Judgment Order (30 Oct 2014)
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45. Blurred Lines Summary Judgment Order (30 Oct 2014)
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46. Blurred Lines Summary Judgment Order (30 Oct 2014)
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47. Blurred Lines What does all of that mean?
Need to separate musical composition embodied in sheet music registered with copyright office from composition embodied in recording
Only sheet music composition in issue
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48. Blurred Lines Key Consequences for how evidence presented
Don’t go listen to
Instead go listen to this
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49. Blurred Lines Creating Blurred Lines Pharrell’s deposition
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50. Blurred Lines Jury Instruction # 26
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51. Blurred Lines Jury Instruction # 27
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52. Blurred Lines Jury Instruction # 30
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53. Blurred Lines Jury Instruction # 42
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54. Blurred Lines Jury Instruction # 43
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55. Blurred Lines Jury Instruction # 43
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56. Blurred Lines Jury Instruction # 43
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57. Back to the Music The Presented Versions The Full Sound Recordings
Here
The Full Sound Recordings
Got to Give It Up
Blurred Lines
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58. Appellant Brief (23 Aug 2016)
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59. Appellant Brief (23 Aug 2016)
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60. Appellant Brief (23 Aug 2016)
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