Copyright Infringement II
Intro to IP – Prof Merges
2.23.09
Nichols V. Universal Pictures (2d Cir.
1930)
• Did the film
“The Cohens
and the Kellys”
infringe the
play “Abie’s
Irish Rose”?
NY Times
Abie's Irish Rose: Review
Published: May 24, 1922
The play has its little sermon that earned one of
the heartiest bits of applause last night. Priest
and rabbi, it appeared, also had met "over
there." "I gave the last rites to many Jewish
boys," said the fighting chaplain. "And I to many
of your Catholic lads," the Jewish chaplain
replied. "We're all on the same road, I guess,
even though we do travel by different trains."
Judge Hand Opinion
• “It is of course essential to any protection of
literary property, whether at common law or
under the statute, that the right cannot be
limited literally to the text, else a plagiarist
would escape by immaterial variations.”
• -- p. 484
Types of infringement
• “block in situ” (in whole), vs.
• “an abstract of the whole”
Nichols : Abstractions test
“Upon any work, and especially upon
a play, a great number of patterns of
increasing generality will fit equally
well, as more and more of the
incident is left out…there is a point
in this series of abstractions where
they are no longer protected.” [since
they are idea]
Abstraction Test
• Abie’s Irish Rose
• Cohens and Kellys
– I. Jewish and Irish
families
– I. Jewish and Irish
families
– One wealthy, one not
– Both poor (at start)
– Strangers to each other
– Long-time enemies
– A. Son and daughter
marry
– A. Son and daughter
marry
– Twins born
– Single child born
Nichols Abstraction Test
I. A. 1. B. 1. 2. II.
I. A. 1. a. b. c. i. B. 1. 2. a. b. i. ii. II.
Nichols Abstraction Test
I. II.
I. A. 1. a. b. c. i. B. 1. 2. a. b. i. ii. II.
Levels Of Abstraction
Story - Main Idea
Plot Outline
Subplots
General Characters and Scenes
Specific Character Elements
Text
Why are “high level” abstractions
of plot not copyrightable?
• Ideas, not expression
• Theory of relativity, or evolution: basic ideas,
too general to be protected
• Similar to section 101 of Patent Act . . .
“Character test”
• Can a character, standing independent from
plot, be copyrighted?
• If so, how? And how far would that copyright
reach?
“Stock Characters”
• Low-comedy ethnic characters
• Example of “scenes-a-faire” – standard
“setups” or scenes
• Drunken Irishman, nosy neighbor, irritating
mother in law, comic sidekick, etc etc
Play it Again, Sam
Ideas cannot be protected
• “[Plaintiff’s] copyright did not cover
everything that might be drawn from her
play; its content went to some extent into the
public domain . . .”
• P. 486
SHELDON V. MGM (1936)
• Does the motion
picture “Letty
Lynton”infringe the
play “Dishonored
Lady”?
• How would you
distinguish this case
from Nichols?
• Note the judge is the
same: Learned Hand
Sheldon v. Metro-Goldwyn Pictures Corp.
Factual Story
Play(P)
Book
Movie(D)
Madeleine
L’Angelier
G-Man+20
Moreno
Farnborough
Brennan
McLean
Ekebon
G-Man+20
Renaul
Darrow
Public
Domain
Copyrighted
work
Owned by D
Alleged
Infringing
Work
Access
Access
Owned by D
Substantial
Similarity
Prong One
Prongs One
and Two
Prongs One
and Two 20
Steinberg v. Columbia Pictures,
Inc.
• New Yorker cover, movie poster
Elements
• Ownership
• Copying
– Access
– Improper Appropriation
Analysis
• Lay Observer
• Common sense’ side-by-side comparison
Similarities and Differences
• 4 block view
• Details of distant city?
What do you compare?
• The whole of the copied portions of the
Plaintiff’s work, including individually
uncopyrightable elements like ideas and
scenes a faire?
• OR only the copied portions that are
copyrightable?
Sampling
• Bridgeport Music, Inc. v. Dimension Films,
410 F.3d 792 (6th Cir. 2005).
Bridgeport Music
George Clinton: The Funkadelics
NWA
The letters may have been taken more as a
means of capitalizing on the interest in
Salinger than in providing a critical study of
the author. (Salinger v. Random House, 811
F.2d 90 (2d Cir. 1987).