Class 11
Copyright, Winter, 2010
Proof of Copying
and Infringement
Randal C. Picker
Leffmann Professor of Commercial Law
The Law School
The University of Chicago
773.702.0864/r-picker@uchicago.edu
Copyright © 2005-10 Randal C. Picker. All Rights Reserved.
Arnstein v. Porter


154 F.2d 464 (2d Cir. 1946)
Play the Music
http://cip.law.ucla.edu/cases/case_arnsteinp
orter.html
March 22, 2016
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Arnstein v. Porter

Access + Similarities
“If
there is evidence of access and
similarities exist, then the trier of the facts
must determine whether the similarities are
sufficient to prove copying. On this issue,
analysis (“dissection”) is relevant, and the
testimony of experts may be received to aid
the trier of the facts.’
March 22, 2016
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3
Arnstein v. Porter

Even Without Evidence of Access if
Strikingly Similar
If
evidence of access is absent, the
similarities must be so striking as to
preclude the possibility that plaintiff and
defendant independently arrived at the
same result.”
March 22, 2016
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4
Arnstein v. Porter

What is the Relevant Audience?
“The
question, therefore, is whether
defendant took from plaintiff's works so
much of what is pleasing to the ears of lay
listeners, who comprise the audience for
whom such popular music is composed,
that defendant wrongfully appropriated
something which belongs to the plaintiff.”
March 22, 2016
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How Dow We Know that
We’ve Copied?

Hypo
GH
writes song; believes it to be original
What should he do next?

How is an author supposed to be sure that
he hasn’t copied?
Should
we create a database of popular
songs and search against that?
March 22, 2016
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Bright Tunes v. Harrissongs


420 F. Supp. 177 (S.D.N.Y. 1976)
Play the Music
http://cip.law.ucla.edu/cases/case_brighthar
risongs.html
March 22, 2016
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The Songs

Component Motifs
A:
B:
B
March 22, 2016
(with grace note):
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The Songs

He’s So Fine
AAAABBwgBB

My Sweet Lord
AAAABBwgB
March 22, 2016
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The Expert Testimony

Footnote 11
 Even
Harrison's own expert witness, Harold
Barlow, long in the field, acknowledged that
although the two motifs were in the public domain,
their use here was so unusual that he, in all his
experience, had never come across this unique
sequential use of these materials. He testified:

March 22, 2016
“The Court: And I think you agree with me in this,
that we are talking about a basic three-note
structure that composer can vary in modest ways,
but we are still talking about the same heart, the
same essence?
Copyright © 2005-10 Randal C. Picker
10
The Expert Testimony
“The Witness: Yes.
 “The Court: So you say that you have not
seen anywhere four A's followed by three
B’s or four?
 “The Witness: Or four A's followed by four
B’s.”
 The uniqueness is even greater when one
considers the identical grace note in the
identical place in each song.

March 22, 2016
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The Songs

Accessing He’s So Fine
At
or near the top of the charts in the US
and the UK in 1963

My Sweet Lord
Recorded
March 22, 2016
in 1970
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Understanding Copying

Should we have a …
Bad

A

This would require something like intent or
recklessness; presumably knowing copying
substitution theory of copying?
If thing doesn’t compete with original, not a
copy
Or
March 22, 2016
person theory of copying?
a replication theory of copying?
Copyright © 2005-10 Randal C. Picker
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Understanding Copying
A

March 22, 2016
use theory of copying?
Any use, whether knowing or not, suffices to
make a copy
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The Creative Process at
Work and Copying

Says the Court
 “What
happened? I conclude that the
composer, in seeking musical materials to
clothe his thoughts, was working with various
possibilities. As he tried this possibility and
that, there came to the surface of his mind a
particular combination that pleased him as
being one he felt would be appealing to a
prospective listener; in other words, that this
combination of sounds would work. Why?
March 22, 2016
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The Creative Process at
Work and Copying
 “Because
his subconscious knew it already
had worked in a song his conscious mind did
not remember. Having arrived at this pleasing
combination of sounds, the recording was
made, the lead sheet prepared for copyright
and the song became an enormous success.
Did Harrison deliberately use the music of He’s
So Fine? I do not believe he did so
deliberately.
March 22, 2016
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The Creative Process at
Work and Copying
 “Nevertheless,
it is clear that My Sweet Lord is
the very same song as He’s So Fine with
different words, and Harrison had access to
He’s So Fine. This is, under the law,
infringement of copyright, and is no less so
even though subconsciously accomplished.”
March 22, 2016
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Harrison’s Take on the
Work

Footnote 9
 “It
is of interest, but not of legal significance, in my
opinion, that when Harrison later recorded the
song himself, he chose to omit the little grace note,
not only in his musical recording but in the printed
sheet music that was issued following that
particular recording. The genesis of the song
remains the same, however modestly Harrison
may have later altered it. Harrison, it should be
noted, regards his song as that which he sings at
the particular moment he is singing it and not
something that is written on a piece of paper.”
March 22, 2016
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Bouchat

Core Facts
Bouchat
creates drawings for possible
Baltimore Ravens football team
March 28, 1996: B meets Moag, head of the
Maryland Stadium Authority
April 1, 1996: B faxes drawings to Moag at
the MSA
March 22, 2016
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Bouchat
April
2, 1996: Modell, owner of the Ravens,
meets with NFL properties about logo
design
June 1996: Ravens unveil logo
March 22, 2016
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[Ravens Home]
March 22, 2016
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The Pictures
March 22, 2016
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Proofing Infringement

Two Steps
Prove
ownership of a copyright
Proof copying of protected elements
March 22, 2016
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How Should We Prove …

Bouchat Was First?
March 22, 2016
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Proof of Copying

Direct Evidence
“We
so.”

copied it, because we had a right to do
Indirect Evidence
Multiplicity
of tests
Access + substantial similarity
 Weak or minimal access evidence (perhaps
none) and “striking similarity”

March 22, 2016
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The Chain of Events

Step by Step
1.
Bouchat sends the fax and the Maryland
Stadium Authority receives it
2. MSA forwards it to Moag (chair of the
MSA) at his Pratt St. office
3. Modell sees/gets a copy of the drawing
4. Modell forwards it to Rhonda Kim and/or
Kurt Osaki of NFL Properties
March 22, 2016
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How Should We Prove …

The Sending and Receipt of the Fax?
The

March 22, 2016
Majority
The next day, Bouchat got permission from
his supervisor to use the office fax machine
in order to send his drawings to Moag at the
Maryland Stadium Authority (MSA). Jan
Drabeck, Bouchat’s immediate supervisor,
showed Bouchat how to use the fax
machine.
Copyright © 2005-10 Randal C. Picker
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How Should We Prove …
The

March 22, 2016
Dissent
Bouchat presented no witnesses who saw
him send the fax; he submitted no
confirmation sheet verifying that the
facsimile transmission was successful; and
he failed to produce any telephone records
confirming the transmission.
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How Should We Prove …

March 22, 2016
Moreover, the Deputy Director of M.S.A.
testified that, following the initiation of this
lawsuit, he conducted an investigation to
determine whether M.S.A. had received
Bouchat’s fax. Based on this investigation,
he concluded that “[e]very member of [MSA]
staff said they had no knowledge of this
drawing.”
Copyright © 2005-10 Randal C. Picker
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How Should We Prove …

The Forwarding of the Fax from MSA to
Moag’s Pratt St. Office?
The

March 22, 2016
Majority
Evidence was also introduced that the
regular practice at the M.S.A. was to forward
faxes for Moag to his Pratt Street office. The
jury was thus entitled to conclude that the
faxed drawing reached Moag at the Pratt
Street office.
Copyright © 2005-10 Randal C. Picker
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How Should We Prove …
The

March 22, 2016
Dissent
Nevertheless, the majority approves of the
additional inference—based exclusively on
MSA’s general policy of forwarding
correspondence to Moag—that M.S.A. sent
the shield drawing to Moag’s law office. I
disagree on this point; …
Copyright © 2005-10 Randal C. Picker
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How Should We Prove …

March 22, 2016
Indeed, the only evidence produced at trial on this
issue is inconsistent with the jury’s inference that
the faxed drawing reached Moag. The office
manager at Patton Boggs testified that an
investigation of internal office files did not indicate
receipt of any drawings from Bouchat. Likewise,
when Moag was asked whether he recalled
receiving any artistic submissions from Bouchat
after their initial meeting, he replied, “No, I do not. I
remember meeting Mr. Bouchat but I don’t
remember receiving anything from him.”
Copyright © 2005-10 Randal C. Picker
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How Should We Prove …

The Forwarding of the Fax from Moag to
Modell?
The

March 22, 2016
Majority
Defendants admit that Modell and other Ravens
staff shared office space with Moag in the Pratt
Street building, and that Modell’s own office was
within “earshot” of Moag’s office. By proving that the
drawings were transmitted to Moag, and that Modell
shared the same office space with Moag, Bouchat
proved that Modell had “access” to Bouchat’s
drawing.
Copyright © 2005-10 Randal C. Picker
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How Should We Prove …
The

March 22, 2016
Dissent
While the majority regards an office policy
as sufficient proof that M.S.A. forwarded the
fax to Moag, it ignores Moag’s personal
policy and practice to the contrary of not
forwarding to the Ravens material sent to
MSA.
Copyright © 2005-10 Randal C. Picker
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How Should We Prove …


March 22, 2016
The undisputed evidence was that neither Modell
nor any other Ravens official ever received
Bouchat’s shield drawing. As the district court
conceded, “There is no direct evidence specifically
proving that the Shield Drawing fax was provided to
Mr. Modell, and he generally denies any knowledge
of such a fax.”
There is more. All witnesses from the Ravens
organization categorically denied having received or
viewed Bouchat’s shield drawing prior to creation of
the Ravens shield logo.
Copyright © 2005-10 Randal C. Picker
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How Should We Prove …

The Forwarding of the Fax from Modell to
NFLP?
The
Majority
The jury was entitled to infer that the NFL
designers had access if a third party
intermediary (Modell) with a close
relationship to the alleged infringers (the
NFL designers) had access.
 Plus see * footnote on this

March 22, 2016
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How Should We Prove …
 The

March 22, 2016
Dissent
The defendants introduced undisputed evidence
inconsistent with the majority’s inference that Modell
shared the drawings with someone at the NFLP. For
instance, Mr. Cope testified that the Ravens did not
forward any materials or drawings to the NFLP after
March 18, 1996, approximately two weeks prior to
Bouchat’s claimed date of access. Similarly, the
undisputed evidence indicates that Bouchat’s shield
drawing was not received by the NFLP in New York.
Copyright © 2005-10 Randal C. Picker
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How Should We Prove …

March 22, 2016
Bruce Burke, the NFLP’s vice president and
creative director, when asked whether he saw any
of Bouchat’s drawings prior to the final selection of
the Ravens logos, testified simply, “No, absolutely
not.” J.A. 864. Similarly, Paula Guibault, the NFLP’s
senior intellectual property counsel, when asked
whether she had seen any of Bouchat’s drawings
prior to the initiation of this lawsuit, replied, “No, I
did not.” J.A. 1053. And finally, both Kim and Osaki,
the NFLP artists responsible for the design of the
Ravens shield logo, testified unequivocally that they
had never seen any drawings submitted by
Bouchat.
Copyright © 2005-10 Randal C. Picker
38
Similarity and Access

Should some level of similarity reduce the
need for other evidence of access?
The
“strikingly” similar doctrine
If we do that, where does that leave
independent creation?
March 22, 2016
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