Intellectual Property
Boston College Law School
January 22, 2007
Copyright – Rights – Reproduction
Rights of Copyright Owners
• 17 U.S.C. §106
– “Subject to sections 107 through 122, the owner of
the copyright … has the exclusive rights to do and to
authorize any of the following:
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(1) to reproduce the copyrighted work …
(2) to prepare derivative works …
(3) to distribute copies … to the public …
(4) … to perform the copyrighted work publicly …
(5) … to display the copyrighted work publicly …
(6) in the case of sound recordings, to perform the copyrighted
work publicly by means of a digital audio transmission
Right to Reproduce
• Elements of infringement action
– (1) Actual copying
• Independent creation is not infringing
• Factual issue for the jury
– (2) Improper appropriation
• Perspective is the ordinary observer
• Did the copier copy “too much”?
Bright Tunes v. Harrisongs
Arnstein v. Porter
Actual Copying
Webber
Striking Similarity
Harrison
BeeGees
Similarity
Arnstein
Jury
No Jury
No Similarity
Access
Actual Copying
• Methods of proof
– Direct evidence
– Circumstantial evidence
• (1) Access
• (2) Similarity
• 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
• “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
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Idea
Plot Outline
Subplots, Characters
Scenes
Text
West Side Story
Improper Appropriation
• Substantive issues
– Standard is “substantial similarity”
– Both quantitative and qualitative
– Generally look to “ordinary observer”
• Sometimes modify if intended for a specialized market
• Procedural issues
– Issue of fact: for the jury
– Expert testimony generally not permitted
– Reviewed on appeal for clear error
Steinberg v. Columbia
Infringing?
Copyrighting Styles
Sampling
Statutory Limits
• Statutory limits on reproduction right
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Public library exceptions
Broadcast exceptions
Compulsory licensing for musical works
Audio Home Recording Act
Fair Use
Next Assignment
• Finish II.E (sections 2 through 4)