Copyright Law 2003
Class of March 17 2003
Professor Fischer
ANNOUNCEMENTS
• Makeup class on Sat. March 22 in Room 307 at 2
p.m.
• Quiz 2 due on Mon. March 24 in class
• Make sure you are viewing up-to-date Web
syllabus as I have reduced some reading
assignments
• Today we will cover 3 rights of the copyright
owner: reproduction, distribution and adaption
WRAP UP: TERMINATION
• SECTION 203:Transfer of copyright if
made by author may be terminated by
qualified persons at any time within 5 year
termination window opening 35 years after
transfer is executed. Termination effected
by giving notice 2-10 years prior to date
within window.
WRAP UP: TERMINATION
• S. 304(c): For copyrights that came into
being prior to 1978, can reclaim extended
renewal period given by 1976 Act.
Qualified persons can terminate by giving
notice 2-10 years prior to specified date
within a window that generally opens at
start of 39 year extended renewal period.
Exclusive Rights of Copyright
Owner
• See s. 106 where these are listed
• You should know which rights these are, and how
these rights are infringed, as well as the exceptions
to these rights that are discussed in class and in the
reading assignment
• Today we will consider the right of reproduction,
the right of distribution, and the right of adaption
What is Reproduction under
106(1)?
• Must be reproduction of the work in “copies” or
“phonorecords” (material objects) – so
performance of a work does not violate the
reproduction right (though it may violate the
public performance right)
• Can violate 106(1) by just making unauthorized
copies or phonorecords, even if don’t distribute
the copies
• Note broad wording of s. 106(1) so wording of
specific exeptions is very important
2 types of infringement of
reproduction right
• 1. Exact copies
• 2. Substantially similar copies
EXACT COPIES
• 3 kinds of exact copying cases
• 1. Piracy cases (infringement liability clear;
difficulties are procedural or remedial)
• 2. Cases where allegedly privileged conduct is at
issue (such as fair use)
• 3. Cases involving digital copies made
automatically when reading, viewing, hearing or
using authorized copy of the work
• We will discuss infringement by exact copies as
well as some exceptions to the reproduction right
before considering infringement by substantially
The Reproduction Right in a
Digital Age
• MAI v. Peak held that a temporary reproduction of
a computer program in RAM created a “copy” for
the purposes of s. 106(1) of the Copyright Act.
• Does posting clip art with no copyright notice on
the Internet amount to infringement? By whom?
Web page operator? Server operator?
• Does browsing copyrighted content on the Internet
(which does involve temporarily copying works
into user’s Internet browser’s cache/copying to
server’s RAM) amount to infringement of the
reproduction right?
DMCA and Service Providers
• Digital Millennium Copyright Act of 1998
provides a "safe harbor" for service providers,
limiting their liability for copyright infringement
if their actions meet certain criteria – see s.
512 – we will discuss later
• DMCA doesn’t provide a clear answer as to
when information on the Internet may be
considered "copied" under copyright law and
whether a copyright holder's rights could be
violated by browsing, downloading, linking,
framing, or caching Web sites. The doctrines
of implied license and fair use may provide
some answers to these questions.
Exceptions to the Reproduction
Right
• 1. Ephemeral copies for works that are being
broadcast under s. 112 or s. 118 (for public
broadcasters)
• 2. Mechanical compulsory license for
nondramatic musical works under s. 115 –
nonexclusive right to make/distribute
phonorecords of the work, not to perform it
• 3. Certain exemptions for copying by libraries
and archives in s. 108
• 4. Limited exceptions for certain reproductions of
computer programs in s. 117
INFRINGEMENT OF THE RIGHT OF
REPRODUCTION: SUBSTANTIALLY
SIMILAR COPIES
• There is a 2 step test for infringement (see
Arnstein v. Porter (2d Cir. 1946 p. 358)
• 1. COPYING
• 2. UNLAWFUL APPROPRIATION
1. 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 from which access can be inferred
to prove copying.
• As your books says, it may be hard to document
independent creation after the fact
2. UNLAWFUL
APPROPRIATION
• Only arises if copying has been proved
• Question - has defendant taken so much from P’s
work that he wrongfully appropriated?
• Note at times there is confusion between
terminology used by courts – use “substantial
similarity” to mean BOTH similarity required to
show copying as well as unlawful appropriation
(violation of s. 106).
ABKCO Music v.
HARRISONGS (1976)
The Chiffons: “He’s So Fine”
• Recorded in 1962
• Top hit in England and
U.S.
ABKCO TUNES V.
HARRISONGS
• Subconscious copying
• Was there infringement, according to the Second
Circuit? Why or why not?
• SEE ALSO Three Boys Music Corp. v. Bolton (9th
Cir. 2000 – p. 319) – Did singer/songwriter
Michael Bolton and his songwriter partner
Andrew Goldmark copy the Isley Brother’s song
“Love is a Wonderful Thing?” On what basis?
STRIKING SIMILARITY:
SELLE V. GIBB (7th Cir. 1984)
p. 322
• What is the issue?
• What is the court’s
holding? Why?
TY V. GMA (7th Cir. 1997)- the
Beanie Baby Case p. 324
• Did GMA’s “Preston
the Pig” infringe Ty’s
“Squealer” stuffed
pig?
• How is this case
different from Selle, if
at all?
SUMMARY- UNLAWFUL
APPROPRIATION OF
REPRODUCTION RIGHT in s.
106
• Only arises if copying has been proved
• Question - has defendant taken so much
from P’s work that he wrongfully
appropriated?
• For substantially similar copies, test is that
of the ordinary observer
• Dissection and expert evidence not
admissible (irrelevant)
CASES ON SUBSTANTIAL
SIMILARITY
• Once a court has established copying in fact
(usually through access and similarity) the
question is whether that copying was wrongful.
• To establish a violation of 106, must show that
copyrightable expression was copied. Test is
whether the Ps and Ds works are substantially
similar
• How is test of substantial similarity applied by the
courts?
NICHOLS v. UNIVERSAL
PICTURES (2d Cir. 1930) – p.
354
• Did the film “The
Cohens and the
Kellys” infringe the
play “Abie’s Irish
Rose”?
• “Abstractions test”
KROFFT v. McDONALDS (9th
Cir. 1977) p. 360
• Compare the test
applied here to
determine unlawful
appropriation with the
Arnstein test and the
Nichols test
• How does this test
differ, if at all from the
Steinberg test (CB p.
363)?
“TOTAL CONCEPT AND
FEEL”TEST
• What is meant by this? See Krofft, Roth
Greeting Cards v. United Card Co. How
does this test differ from the other tests
we’ve looked at?