Copyright Law
Boston College Law School
March 25, 2003
Infringement - Direct - 1
Direct Infringement
• Elements of claim
– Ownership of valid copyright
– Infringement
• (1) Actual copying
– (i) Access
– (ii) Similarity
• (2) Improper appropriation
– Substantial similarity
Bright Tunes v. Harrisongs
Actual Copying
Webber
Striking Similarity
Ty
BeeGees
Harrison
Similarity
Arnstein
Yes
No
No Similarity
Access
Ty v. GMA
Hypo
• Facts
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Plaintiff is a ventriloquist, performs w/ dummy
Dummy uses phrase “You Got the Right One, Uh-Huh”
Has been performing since 1984
Elementary schools, job corp camps, 1984 World’s Fair
Mails info packets to corporate executives, including a Pepsi exec
In 1991, Pepsi launches massive ad campaign
Featuring Ray Charles, singing “You Got the Right one Baby, Uhhuh”
• Questions
– Sufficient evidence of actual copying?
– Sufficient to get before a jury?
Actual Copying
• Procedural issues
– Issue of fact: for the jury
– Expert testimony is often permitted
– Reviewed on appeal for clear error
Improper Appropriation
• 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.
Nichols v. Universal
• Learned Hand:
– “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.”
Abstractions Test
Not Protected
Idea
Plot Outline
Subplots, Characters
Specific Scenes
Text
Protected
Nichols v. Universal
Abie’s Irish Rose
Not protectible
No copying of
protectible
material
No copying
The Cohens and the Kellys
Idea
Plot Outline
Subplots, Characters
Scenes
Text
Shakespeare v. Laurents
Romeo & Juliet
?
Idea
Plot Outline
Subplots, Characters
Scenes
Text
West Side Story
Improper Appropriation
• Different Approaches
– Subtractive Approach
– Totality Approach
• “Total concept and feel”
• Extrinsic and intrinsic tests
• Procedural Aspects
– Issue of fact for jury
– Expert testimony generally not allowed
– Generally reviewed on appeal for clear error
Assignment for Next Class
• Start VII.A. - Infringement
– Read through Steinberg