1. Copyright Law Ronald W. Staudt Class 16 October 22, 2013

2. Sect 106(1) Reproduction Right Subject to sections 107 through 120 [17 USCS Sects. 107-120], the owner of copyright under this title [17 USCS Sects. 101 et seq.] has the exclusive rights to do and to authorize any of the following:[17 USCS Sects. 107-120] (1) to reproduce the copyrighted work in copies or phonorecords;

3. Infringement- analytical framework Arnstein v. Porter Facts – Begin the Beguine & The Lord is My ShepardBegin the Beguine Prima Facie case 1. ownership 2. copying 3. improper appropriation

4. Infringement analytical framework Arnstein v. Porter Prima Facie case 2. COPYING proved by Defendant’s admission or Circumstantial evidence: Access + similarity x if no similarity then no amount of evidence of access will prove copying x if evidence of access & similarity, then trier of fact with experts and dissection x If striking similarity may not need to prove access

5. Arnstein v. Porter 3. IMPROPER APPROPRIATION x Lay observer– no experts or dissection x Striking similarity can do double duty but proof of improper appropriation need not be enough to prove copying. x Often called “Substantial similarity” Quality and quantity of expression Different from “probative similarity” Prima Facie case

6. Proof of copying zBright Tunes Music Corp yHe’s So Fine v. My Sweet Lord yUnconscious copyingUnconscious copying V.

7. Proof of Copying Price v. Fox Price v. Fox zFacts? zOwnership established zSimilarity “After examining both works and reading the evidence in the light most favorable to plaintiffs, I conclude that a jury could reasonably find that the two works contain similarities that are probative of copying.” plot similarities, character names and characteristics zReasonable possibility of access through a particular chain of events or link : “…a reasonable jury could conclude that there is a reasonable possibility that Thurber had access to the Thomas Work given the evidence of xthe speed at which he wrote his screenplay, xthe timing of the appearances of certain similarities between the two works, and xthe relationships he had with WMA employees who either actually had access or had a reasonable possibility of access to the Thomas Work.”

8. Circumstantial proof of copying zHow Deep is Your Love? (Selle v. Gibb) 7 th Circuit v.How Deep is Your Love zFeelings (Gaste v. Kaiserman) 2d CircuitFeelings zPhantom Song (Repp v. Webber) and Ty’s Squealer yResolved by Judge Posner in Ty: This discussion shows how the tension between Gaste and Selle can be resolved and the true relation between similarity and access expressed. Access (and copying) may be inferred when two works are so similar to each other and not to anything in the public domain that it is likely that the creator of the second work copied the first, but the inference can be rebutted by disproving access or otherwise showing independent creation— zCelebrity v. Survivor yEven if copying were shown, defendants …copied no more than elements typical to the genre… ?

9. Proving that copying infringed: improper appropriation zDoes “substantial similarity” imply copying of a substantial amount of material? De Minimis and copyright –three approaches 1.Trivial infringement 2.Insufficient quantify of expression taken to satisfy the third element of the p.f. case- not improper appropriation 3.Part of fair use zChurch Picnic, Silver Slugger, Beastie Boys and the Bridgeport rule zPeter Pan test for improper appropriation y“…the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.”

10. Improper Appropriation or Infringing Copying zCases on infringing copying and merger: yHerbert Rosenthal Jewelry v. Kalpakian ySatava v. Lowry yETS v. Katzman

11. Infringing Copying or Improper Appropriation zHerbert Rosenthal Jewelry v. Kalpakian yBee pins- gold encrusted with jewels yWhat lawyers can “conceive of” does matter! yUnconscious copying yMerger? xWe come back to copyrightability!

12. Infringing Copying or Improper Appropriation

13. Improper Appropriation or Infringing Copying ETS v. Katzman yFacts yNot exact copying but “strikingly similar” yOthers claimed to be “recognizable paraphrase” xSame concept in same order not protected yGinsburg suggestion that “idea” is a legal conclusion

14. Nichols v. Universal– the abstractions test. yFacts xP author of play Abie’s Irish Rose Religion, twins and multiple marriage xD produced Cohens and the Kellys Money, inheritance, marriage and twins y“The right cannot be limited literally to the text else a plagiarist would escape by immaterial variations.” xBlock in situ- fragmented literal similarity xAbstract of the whole- comprehensive nonliteral similarity x“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 ySkeleton – expression/idea yCharacters – more development = more protection yApplication of these principles-- infringing copying??

15. Sheldon v. Metro-Goldwyn PicturesMetro zFacts yP’s play “Dishonored Lady” about Madeleine Cary xMoreno, Farnborough, strychnine yP’s play based on book about Madeleine Smith- news yLowndes wrote book about Letty & Ekebon & arsenic yD produced movie “Letty Lynton” based on bookLetty Lynton xRenaul & Darrow & strychnine yD denies using play, DJ agrees D took only ideas zKeats and independent creation zPublic domain relevant to © work only on issue of infringement – makes D’s denial of copying more plausible zCopying, infringing copying, unconscious copying, perjury yCary is like Letty of the movie, not Smith or book!--595 yPlot, details, incidents of movie track the play!—596 z“…a play may be pirated without using the dialogue… z…”no plagiarist can excuse the wrong by showing how much of his work he did not pirate…”