Copyright Law
Ronald W. Staudt
Class 17
October 24, 2013
Law 360 news
news-alt@law360.com, 10/24/2013
2nd Circ. Won't Rethink Marvel's IP Win Over Artist's Heirs
The Second Circuit refused Tuesday to reconsider a panel's ruling that Marvel Comics Worldwide Inc.
owns the copyrights to comic books drawn by legendary artist Jack Kirby, rejecting a request by
Kirby's children to rehear or hold an en banc hearing on the decision.
50 Cent Hit With Copyright Suit Over Song's Promo Image
Rapper 50 Cent was hit with a federal copyright infringement claim in Texas federal court Tuesday
that claims he’s wrongfully using an image shot by a Houston photographer in online promotion of
one of his songs.
TV One Beats Infringement Claims Over Restaurant Show
A California federal judge on Tuesday dismissed copyright infringement claims in a suit that accused
TV One LLC of intentionally plagiarizing a show in order to create its own restaurant-themed
program, “Belle's,” ruling the works are not substantially similar.
Warner Wins Stay Of Some Claims In 'Happy Birthday' Suit
A Warner Music Group Corp. unit partially won its bid to narrow a class action alleging the company
is claiming bogus copyright protection for the ubiquitous song “Happy Birthday to You,” as a
California federal judge on Wednesday limited the case to the central issue of the copyright's validity.
Infringement
Arnstein v. Porter
Prima Facie case
ownership
copying
improper appropriation
Infringement
Arnstein v. Porter
Prima Facie case
COPYING proved by
Defendant’s admission or
Circumstantial evidence: Access + similarity
if no similarity then no amount of evidence of access will
prove copying
if evidence of access & similarity, then trier of fact with
experts and dissection
If striking similarity may not need to prove access
Infringement
Arnstein v. Porter
Prima Facie case
IMPROPER APPROPRIATION
Lay observer– no experts or dissection
Striking similarity can do double duty but proof of
improper appropriation need not be enough to
prove copying.
Often called “Substantial similarity”
• Quality and quantity of expression
• Different from “probative similarity”
Nichols v. Universal–
the abstractions test.
Facts
P author of play Abie’s Irish Rose
• Religion, twins and multiple marriage
D produced Cohens and the Kellys
• Money, inheritance, marriage and twins
“The right cannot be limited literally to the text else a
plagiarist would escape by immaterial variations.”
Block in situ- fragmented literal similarity
Abstract of the whole- comprehensive nonliteral similarity
“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
Skeleton – expression/idea
Characters – more development = more protection
Application of these principles-- infringing copying??
Sheldon v. Metro-Goldwyn
Pictures
 Facts
 P’s play “Dishonored Lady” about Madeleine Cary
Moreno, Farnborough, strychnine
 P’s play based on book about Madeleine Smith- news
 Lowndes wrote book about Letty & Ekebon & arsenic
 D produced movie “Letty Lynton” based on book
Renaul & Darrow & strychnine
 D denies using play, DJ agrees D took only ideas
 Keats and independent creation
 Public domain relevant to © work only on issue of infringement –
makes D’s denial of copying more plausible
 Copying, infringing copying, unconscious copying, perjury
 Cary is like Letty of the movie, not Smith or book!--595
 Plot, details, incidents of movie track the play!—596
 “…a play may be pirated without using the dialogue…
 …”no plagiarist can excuse the wrong by showing how much of his
work he did not pirate…”
Substantial Similarity
 Examples
 Textbooks
 Bamboozle
 Sally Hemings
 Zagats
 Terminator
 Approaches
Whole of the copied
portions of P’s work,
like a compilation
(Boisson v. Banian’s
“concept and feel”- quilt)
With “more discerning” gloss
 Ordinary observer …the audience the author
intended to be the commercial
market…
 Dawson
Lay v. choral director
 Lyons
Kids-Duffy or parents-Barney
or
Only ©able elements of
P’s work,
dissection /extraction
approach
New Orleans photos? 604-5
Improper Appropriation or Infringing
Copying –
software case
 Computer Associates International v. Altai
Facts: literal elements of OSCAR 3.5 not substantially
similar to ADAPTER, what about its structure?
Idea/expression
Abstraction: Nichols
Filtration
Efficiency: Baker v. Seldon, Morrissey
External factors: Hoehling, scenes a faire
Public domain: Sheldon v. MGM
Comparison
Blehm v. Jacobs
Facts
• Penmen
Improper Appropriation
Infringing copying
Substantial similarity
• Jake
DC says remove common
themes & general conceptsremaining expression is thin!
P’s penmen have detached round heads half filled
with smiles, thin, long legs, four fingers and long fat feet
compare images
 Both have round heads– not really
 Similar proportions- not really
 Four fingers, black line bodies and big half moon
smiles
Smiles are different, maybe penman is a hairline!
Protected expressive choices are not substantially similar
Copying is not infringement- d copied ideas
not expression so d is a copier but not an
infringer!!
Harney v.
Sony Pictures
Television
Facts:
Amber alert uses ©ed photo by Harney
Sony recreates the image for TV show
DC enters SJ for D, affirmed….why?
Standard for infringement is Peter Pan after dissection.
what does © protect in new photos? Kisch, Manion…
here: neither subject nor arrangement are P’s
ID protected elements and compare them….
what about differences- background, lighting, religious detail
Warner Bros. Ent. v. X One X Prod.
Facts
Movie posters & lobby cards
Gone with the Wind
Wizard of Oz
Tom and Jerry funniest moments
T-shirts, playing cards
figurines & action figures
Movies in ©
Warner Bros. Ent. v. X One X Prod.
 Extraction of images and new works?
Sherlock Holmes example
Silverman example
A new work that incorporated character traits newly introduced by nine
later original stories still under copyright would infringe those copyrights…
Scope of film copyrights and Scope of posters in PD??
Superman analogy- ad in black and white with raised car??
Does it matter if poster is released before or after films?
Tom & Jerry, GWTW and Wizard of Oz—character scope?
D’s use of the poster images
Identical 2d image
T shirts, cards etc
Composite works
2d into 3d products- globes, action figures