COPYRIGHT LAW 2006
Columbus School of Law
The Catholic University of America
Prof. Fischer
Class 22 Infringement
November 3, 2008
WRAP-UP: FORMALITIES
• Historical trend: reduction in importance in
formalities, especially notice and
publication
INFRINGEMENT
• In this unit, we learn about all of the
exclusive rights in the bundle of rights
owned by the copyright owner (see s. 106)
• We start with the “right of reproduction”
in 106(1) - right to reproduce the
copyrighted work in copies or
phonorecords
Infringement:
• See Section 501 defining infringer as
“anyone who violates any of the exclusive
rights of the copyright owner as provided in
sections 106 through 122”
• If owner of chattel in which work embodied
refuses to permit author access to chattel in
order to exercise her exclusive rights, is that
an infringement of copyright?
Infringement:
• If owner of chattel in which work embodied
refuses to permit author access to chattel in
order to exercise her exclusive rights, is that
a copyright infringement?
• No - see Frasier v. Adams-Sandler (4th Cir.
1996)
Section 106
• Gives owner of copyright EXCLUSIVE
rights “to do and to authorize” any of the
following . . .
• (1) to reproduce the copyrighted works in
copies or phonorecords
• Does “authorization” include contributory
infringement?
• What is a “copy”
COPIES
• See definition of copy in section 101
• Recall copy requirement for fixation
• Digital copying - courts have consistently
held that it’s still copying even if the work
gets broken up into bits in the process of
packet switching
Matthew Bender & Co. v. West
Publishing Co. (2d Cir. 1998)
• West - premier reporter of judicial decisions
in U.S.
• Official reporter for a few jurisdictions
• De facto reporter for federal cases, many
states
• Are judicial opinions subject to copyright
protection? Why or why not?
West
• What did Matthew Bender do that West
claimed was an infringement of copyright?
• Did the court find a copyright
infringement?
• Why or why not?
INFRINGEMENT
• Of the right to reproduction
• There is a 2 step test for infringement (see
Arnold v. Porter)
• 1. COPYING
• 2. UNLAWFUL APPROPRIATION
COPYING
• Copying may be (rarely) proved by D’s
admission that she copied
• Or by circumstantial evidence from which
copying can be inferred (access) AND
sufficient similarity between the works to
prove copying
• If no similarity exists between the works, no
evidence of access will prove copying
• If access/similarity, court can use expert
evidence/dissection to determine copying
• If no evidence of access, need STRIKING
SIMILARITY to prove copying
UNLAWFUL
APPROPRIATION
• Only arises if copying has been proved
• Question - has defendant taken so much
from P’s work that he wrongfully
appropriated?
• Test is that of the ordinary observer, not
experts
• Dissection and expert evidence not
admissible (irrelevant)
AUDIENCE DETERMINING
SUBSTANTIAL SIMILARITY
• Can this be a specialized audience (such as
children) where the work is intended by the
author for a particular market? See Lyons
Partnership L.P. v. Morris Costumes, Inc.
(4th Cir. 2001), Dawson v. Hinshaw (4th Cir.
1990). –CB pp. 514-515
BRIGHT TUNES V.
HARRISONGS (1976)
The Chiffons: “He’s So Fine”
• Recorded in 1962
• Top hit in England and
U.S.
BRIGHT TUNES V.
HARRISONGS
• Subconscious copying
• Is that infringement?
• What if Harrison played the notes of the
motifs A and B in “He’s so Fine” backwards
and published the song? Does this infringe
Bright Tunes’ copyright in “He’s So Fine”?
• SEE ALSO Three Boys Music Corp. v.
Bolton (9th Cir. 2000)
STRIKING SIMILARITY
• Is there a split in the circuits on this issue?
SELLE V. GIBB (7th Cir. 1984)
• http://www2.bonet.co.
id/cpr/MIDI/POP/beeg
ees/00index.html
• What is the issue?
• What is the court’s
holding? Why?
REPP v. WEBBER (2d Cir. 1997)
• What is the issue for
the Second Circuit?
TY V. GMA (7th Cir. 1997)
• Did GMA’s “Preston
the Pig” infringe Ty’s
“Squealer”
Price v. Fox Entertainment Group,
Inc. (S.D.N.Y. 2007)
• What must a plaintiff show to permit the
jury to infer that the works’ similarities
result from copying?
SUBSTANTIAL SIMILARITY
• One of the most difficult questions in
copyright law
Issue of substantial similarity: DE
MINIMIS COPYING
• Basic issue: did the D
copy protected
expression?
• Ringgold v. BET (2d
Cir. 1997)
Peter Pan Fabrics v. Martin Weiner
Corp. (2d Cir. 1960)
• “Obviously no principle can be stated as to
when an imitator has gone beyond copying
“the idea’ and has borrowed its
“expression.” Decisions must therefore
inevitably be ad hoc.
HERBERT ROSENTHAL v.
KALPAKIAN (9th Cir. 1971)
MERGER DOCTRINE
• Herbert Rosenthal Jewelry Corp. v.
Kalpakian (2d Cir. 1971)
• What is the merger doctrine?
• What is its relationship to infringement?
• How did it apply in this case?
NON-LITERAL COPYING
• In Nicholls v. Universal Pictures (2d Cir.
1930), Judge Learned Hand made clear that
non-literal copying could be actionable.
• He stated that copyright “cannot be limited
literally to the text, else a a plagiarist would
escape by immaterial variations”.