Copyright Law
Ronald W. Staudt
Class 16
October 22, 2013
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:
(1) to reproduce the copyrighted work in copies or
phonorecords;
Infringementanalytical framework
Arnstein v. Porter
Facts – Begin the Beguine & The Lord is
My Shepard
Prima Facie case
1. ownership
2. copying
3. improper appropriation
Infringement
analytical framework
Arnstein v. Porter
Prima Facie case
2. COPYING proved by
Defendant’s admission or
Circumstantial evidence: Access + similarity
if no similarity then no amount of evidence of
access will prove copying
if evidence of access & similarity, then trier of fact
with experts and dissection
If striking similarity may not need to prove access
Prima Facie case
Arnstein v. Porter
3. IMPROPER APPROPRIATION
Lay observer– no experts or dissection
Striking similarity can do double duty but
proof of improper appropriation need not
be enough to prove copying.
Often called “Substantial similarity”
• Quality and quantity of expression
• Different from “probative similarity”
Proof of copying
Bright Tunes Music Corp
He’s So Fine v. My Sweet Lord
Unconscious copying
V.
Proof of Copying
Price v. Fox
 Facts?
 Ownership established
 Similarity
“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
 Reasonable 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
 the speed at which he wrote his screenplay,
 the timing of the appearances of certain similarities between the two works, and
 the relationships he had with WMA employees who either actually had access or had a
reasonable possibility of access to the Thomas Work.”
Circumstantial proof of
copying
 How Deep is Your Love?
(Selle v. Gibb) 7th Circuit
v.
 Feelings (Gaste v. Kaiserman) 2d Circuit
 Phantom Song (Repp v. Webber)
and Ty’s Squealer
Resolved 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—
 Celebrity v. Survivor
 Even if copying were shown, defendants …copied no more than
elements typical to the genre… ?
Proving that copying infringed:
improper appropriation
 Does “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
 Church Picnic, Silver Slugger, Beastie Boys and the Bridgeport rule
Peter Pan test for improper appropriation
“…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.”
Improper Appropriation or
Infringing Copying
 Cases on infringing copying and merger:
Herbert Rosenthal Jewelry v. Kalpakian
Satava v. Lowry
ETS v. Katzman
Infringing Copying or
Improper Appropriation
Herbert Rosenthal Jewelry v. Kalpakian
Bee pins- gold encrusted with jewels
What lawyers can “conceive of” does matter!
Unconscious copying
Merger?
We come back to copyrightability!
Infringing Copying or
Improper Appropriation
Improper Appropriation or
Infringing Copying
ETS v. Katzman
Facts
Not exact copying but “strikingly similar”
Others claimed to be “recognizable paraphrase”
Same concept in same order not protected
Ginsburg suggestion that “idea” is a legal conclusion
Nichols v. Universal–
the abstractions test.
Facts
P author of play Abie’s Irish Rose
• Religion, twins and multiple marriage
D produced Cohens and the Kellys
• Money, inheritance, marriage and twins
“The right cannot be limited literally to the text else a
plagiarist would escape by immaterial variations.”
Block in situ- fragmented literal similarity
Abstract of the whole- comprehensive nonliteral similarity
“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
Skeleton – expression/idea
Characters – more development = more protection
Application of these principles-- infringing copying??
Sheldon v. Metro-Goldwyn
Pictures
 Facts
 P’s play “Dishonored Lady” about Madeleine Cary
Moreno, Farnborough, strychnine
 P’s play based on book about Madeleine Smith- news
 Lowndes wrote book about Letty & Ekebon & arsenic
 D produced movie “Letty Lynton” based on book
Renaul & Darrow & strychnine
 D denies using play, DJ agrees D took only ideas
 Keats and independent creation
 Public domain relevant to © work only on issue of infringement –
makes D’s denial of copying more plausible
 Copying, infringing copying, unconscious copying, perjury
 Cary is like Letty of the movie, not Smith or book!--595
 Plot, details, incidents of movie track the play!—596
 “…a play may be pirated without using the dialogue…
 …”no plagiarist can excuse the wrong by showing how much of his
work he did not pirate…”