Copyright Infringement “Subject to sec6ons 107 through 122, the owner of copyright under this 6tle 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 deriva6ve works based upon the copyrighted work;” 17 U.S.C. § 106 Copyright Infringement “(3) to distribute copies . . . ; (4) . . . to perform the copyrighted work publicly; (5) . . . 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.” 17 U.S.C. § 106 Copyright Infringement •  Two steps: •  Copying •  Improper Appropria6on Copyright Infringement -­‐-­‐ Copying •  Arnstein v. Porter •  Porter alleged to have copied three of Arnstein’s works Copyright Infringement -­‐-­‐ Copying •  Copying is a balance of: •  Access •  Striking similarity •  Sliding scale (lack of one makes up for the other) •  Evidence of access in Arnstein? •  Evidence of striking similarity in Arnstein? Copyright Infringement -­‐-­‐ Copying •  “AWer listening to the composi6ons … we find similari6es; but , or permit the inference, that defendant copied. The similari6es, however, similari6es did not result from coincidence.” (p. 522) that the Copyright Infringement -­‐-­‐ Copying •  Is evidence of one enough? •  2nd v. 7th Circuit •  Do we favor objec6ve v. subjec6ve evidence? •  What about “unconscious” copying? Copyright Infringement -­‐-­‐ Copying •  Selle v. Gibbs Copyright Infringement -­‐-­‐ Improper •  Ask whether copied protectable material •  Is it improper copying? •  Types of cases •  Fragmented literal similarity • Literal copying of por6ons of original •  Comprehensive nonliteral similarity • Non-­‐literal copying of ideas, structure, plot, characters, etc. Copyright Infringement -­‐-­‐ Improper •  Arnstein v. Porter •  not a literal copy – differences •  “The ques6on is whether the defendant took from plain6ff'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 plain6ff” (p. 522) •  lay listener/ordinary audience member test Copyright Infringement -­‐-­‐ Improper •  Arnstein v. Porter – dissent •  “The only thing definitely men6oned seemed to be the repe66ve use of the note e, in certain places by both plain6ff and defendant” (p. 523) •  “Thus one may look to the total impression to repulse the charge of plagiarism where a minute ‘dissec6on’ might dredge up some points of similarity” (Id.) •  Music is intellectual •  What is the concern? Copyright Infringement -­‐-­‐ Improper •  Nichols v. Universal Pictures Copyright Infringement -­‐-­‐ Improper •  Abie’s Irish Rose 1.  Jewish and Irish Families 2.  One wealthy, one not 3.  Strangers to each other 4.  Son and daughter marry 5.  Twins born •  Cohens and Kellys 1.  Jewish and Irish Families 2.  Both poor (at start) 3.  Long-­‐6me enemies 4.  Son and daughter marry 5.  Single child born Copyright Infringement -­‐-­‐ Improper •  Nichols v. Universal Pictures •  “In the two plays at bar we think both as to incident and character, the defendant took no more—assuming that it took anything at all—than the law allowed.” (p. 529) •  “stock figures” (p. 530) Copyright Infringement -­‐-­‐ Improper Story -­‐ Main Idea Plot Outline Subplots General Characters and Scenes Specific Character Elements Text Copyright Infringement -­‐-­‐ Improper •  Nichols v. Universal Pictures •  “Upon any work, and especially upon a play, a great number of palerns of increasing generality will fit equally well, as more and more of the incident is leW out…there is a point in this series of abstrac6ons where they are no longer protected.” •  “Nobody has ever been able to fix that boundary . . . .” Copyright Infringement -­‐-­‐ Improper