1. Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

2. Rights of Copyright Owners 17 U.S.C. §106 –“Subject to sections 107 through 122, the owner of the copyright … has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work … (2) to prepare derivative works … (3) to distribute copies … to the public … (4) … to perform the copyrighted work publicly … (5) … to display the copyrighted work publicly … (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission

3. Right to Reproduce Elements of infringement action –(1) Actual copying Independent creation is not infringing Factual issue for the jury –(2) Improper appropriation Perspective is the ordinary observer Did the copier copy “too much”?

4. Bright Tunes v. Harrisongs

5. Arnstein v. Porter Access Similarity Actual Copying Jury No Jury Striking Similarity No Similarity Arnstein Webber BeeGees Harrison

6. Actual Copying Methods of proof –Direct evidence –Circumstantial evidence (1) Access (2) Similarity Procedural issues –Issue of fact: for the jury –Expert testimony is often permitted –Reviewed on appeal for clear error

7. Improper Appropriation –Standard: “substantial similarity” –Perspective: intended audience Types of cases –Fragmented literal similarity Literal copying of portions of original –Comprehensive nonliteral similarity Non-literal copying of ideas, structure, plot, characters, etc.

8. Nichols v. Universal “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. “The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas,’ to which, apart from their expression, his property is never extended. “Nobody has ever been able to fix that boundary, and nobody ever can.”

9. Abstractions Test Idea Plot Outline Subplots, Characters Specific Scenes Text Not Protected Protected

10. Nichols v. Universal Idea Plot Outline Subplots, Characters Scenes Text Abie’s Irish RoseThe Cohens and the Kellys No copying No copying of protectible material Not protectible

11. Shakespeare v. Laurents Idea Plot Outline Subplots, Characters Scenes Text Romeo & JulietWest Side Story ?

12. Improper Appropriation Substantive issues –Standard is “substantial similarity” –Both quantitative and qualitative –Generally look to “ordinary observer” Sometimes modify if intended for a specialized market Procedural issues –Issue of fact: for the jury –Expert testimony generally not permitted –Reviewed on appeal for clear error

13. Steinberg v. Columbia

14. Infringing?

15. Copyrighting Styles

16. Sampling

17. Statutory Limits Statutory limits on reproduction right –Public library exceptions –Broadcast exceptions –Compulsory licensing for musical works –Audio Home Recording Act –Fair Use

18. Next Assignment Finish II.E (sections 2 through 4)