Copyright

• Acuff-Rose Music v. Josiens Inc. (2nd Cir. 1998)

"you've got to stand for something or you will fall for anything." Held: widespread use of phrase, plaintiff failed to prove he originated the phrase

• Martin v. City of Indianapolis (7th Cir. 1999)

- "recognized stature" means several people in the artist community considers the work worthy (several newspaper articles that offered lukewarm praise and a letter from an art school director who liked the work). Fairly low standard

Effect Associates Inc. v. Cohen (9th Cir 1990)

- Facts: Cohen asked Effects Associates to create footage to enhance certain actions sequences in the film. A short letter from Effects offered to prepare 7 shots, Cohen agreed to deal orally but no one said who would own CR in footage. Cohen was unhappy with one shot Effects created and only paid half the promised amount but incorporated Effect's footage into the film and distributed it. - Issue: whether Effects had transferred to Cohen the right to use the footage - Holding: Effects impliedly granted non-exclusive licenses to Cohen and his production company to incorporate the special effects footage into his movie and distribute the film - CR Act clearly states that in order to transfer ownership it must be made in writing. The court rejects Cohen's argument that it is customary in the motion picture industry to not have written licenses and therefore should be exempt from the writing requirement - §101 makes a narrow exception to the writing requirement of §204, it expressly removes from the scope of §204 a "nonexclusive license" - therefore the issue is now whether Cohen had a non-exclusive license to use plaintiff's special effects footage ♣ non exclusive licenses may be granted orally or even implied from conduct - therefore Effect's conduct created an implied license to use the footage in Cohen's movie

Gates Rubber v. Bando Chemical (10th Cir. 1993)

- Levels of abstraction: • The main purpose • The program structure and architecture • The modules • Algorithms & data structures • Source code • Object code

1. MAI Systems v. Peak (9th Cir)

- court held that copes made automatically by activating a computer violate the §106(1) right even though they are not saved and they disappear the moment the computer is switched off

Warner Brothers Inc. v. ABC (2nd Cir. 1983)

-"numerous differences stand to undercut substantial similarity" -differences may matter more in the case of graphic or 3D works, than in the case of literary works

Pharrell Williams et al v Bridgeport music

-2013 robin thicke and pharell Williams released blurred lines -upon learning that Marvin Gaye's estate claimed that the songs has a sonic similarity and same feel as Marvin Gaye's "Got to Give it Up" Williams and thicke brought suit sought declaratory judgement that they did not infringe Gaye's right -Gaye's estate counterclaimed alleging they appropriated protected elements -signature phrase, hooks, hooks with backup vocals, etc. -because Marvin Gaye's song predated the passage of the 1976 Copyright Act, he only submitted the music sheet when the work was registered. Hence, the suit had to proceed based on the music sheet alone; no reference to the actual recording and Marvin Gaye's singing was allowed. As a result jury was not supposed to consider the falsetto or cow bell -district court denied plaintiff's motion for summary judgment, citing disagreements between the musicologists of the parties abou the similarities -jury found that blurred lines infringed the CR in got to give it up and awarded the gay estate over $7.3 million -Judge Kronstadt denied williams' request for a new trial. He reduced compensation award to $5.3 million, but ordred Williams to pay the gaye estate 50% of all future proceeds -9th circuit stepped in and affirmed the ruling (split panel) -the majority stated that musical works are entitled to broad protection and found no ground to overturn the disctrcit court ruling (procedural in nature) -dissent (Nyguyen) -ruling "strikes a devastating blow to future musicians and composers everywhere" by protecting musical style -the songs differ in lyrics, melodies, harmonies, and ryhymes -the gayes' expert testimony improperly "cherry-picked brief snippets of unprotected elements to establish substantial similarity"

AP V Shepard Fairey

-Obama Hope Poster -never determined but it is a very close call. We know that the poster is based on this photo and it is very much the same expression. Regardless there was a very strong fairuse argument

Twentieth Century Music Corp v. Aiken (S. Ct. 1975)

-a restaurant owner played radio broadcasts to patrons -Held: no infringement. Activity falls on listener's side

Sheldon v Metro-Goldwin Pictures (2nd Cir. 1936)

-no plagiarist can excuse the wrong by showing how much of his work he did not pirate

Harney v Sony Pictures Television

-plaintiff accosted a father and young daughter as they were coming out of a church and sought permission to take their photo. They agreed. -Later than same year, the father kidnapped his daughter and he was subsequently committed of a murder he committed much earlier -the photo was featured in several wanted pictures -sony did a movie about the guy and they reenacted the photo -plaintiff sued for copyright infringement -Court held this is a transitory upstaged picture so narrow protection. Only infringing if it is identical which this is not. Awarded the defendants summary judgment -first circuit affirmed

Tasini v. New York Times (U.S. 2001)

1. Facts: Tasini and group of freelance journalists made contributions to various editions of NYtimes newspaper, sued NYT after they added their contribution in various electronic databases and CD-roms containing the content of the daily newspapers. Basically with the assent of digital media, NYT decided to transfer all the content to digital media - freelancers saying NYT isn't allowed to do that. NYT relied on 201(c) and claimed that those databases were a revision OR a collective work in the same series 2. Issue: Whether electronic databases are a revision or work in the same series subject to 201(c) privilege? 3. Held: Electronic database are "not a revision of the newspaper" or "a later collective work in the same series" a. 201(c) doesn't reach this far - the contributions of freelancers as included in the databases were presented on their own and stripped of all editorial content that was in the originally published, divorced of all surrounding context and therefore this should not be classified as a revision or a new edition because the final search result was shown free of any editorial contribution b. the fix in this case was quite harmful to freelance journalists - after this case the NYT made freelancers contractually transfer their CR rights to their works. Bargaining power lies with NYT o 201(c) is just a gap filler and you can always contract around it 4. dissent - the freelancers should be thankful to NYT that those CHOSE their pieces for the databases, choosing which pieces is the main editorial revision

A. Warner Bros v. RDR

1. JK rowling sued to stop the publication of a reference guide called the harry potter lexicon. Rowling won a. In dicta, however, court noted that, as a rule, reference guides would not be considered derivative works as they don't recast, transform, or adapt the things to which they are guides but only condense/sympathize

Ford motor co v summit

3rd circuit opined that even a gratuitous transfer of a single copy might be sufficient to violate the distribution right

i. Buck v. Jewell-La Salle Realty Co. (S. Ct. 1931) •

A hotel received an unauthorized broadcast of a copyrighted musical and transmitted it to all the rooms Held: hotel committed an illegal public performance

Ringgold v. Black Entertainment Television (2d Cir. 1997) - Stapleton

Artist makes poster of copyrighted painting of plainitff art. BET makes sitcom called ROC. Plaintiff uses poster of the piece in the background of a scene 9 times from 1.86s to 4.16s for a total of 26.75s. De minimis threshold for actionable copying of protected expression had been crossed. A brief display of a poster of a CRed work in the background a TV series was in principle violation of the right of public display and did not qualify as de minimis EVEN THOUGH the work was shown for only 27 seconds. if the defendants to prevail he must use fair use but as is it is not okay. Quantitative assessment • 37 C.F.R. § 253.8: Regulation distinguishes between a "featured" and "background" display. o background: any display less than full-screen or substantially full-screen, or full-screen for less than three seconds • 26.75s is clearly not de minimis from a quantitative assessment Qualitative assessment • That is like saying that a videotape of the Mona Lisa shows only a painting of a woman with a wry smile

Columbia Pictures Indus. v. Aveco (3d Cir. 1986) - Stapleton

Aveco is a video rental business where customers could pay a fee and rent a private viewing room to watch the movie or a copyrighted video they brought from home. Issue: does renting video cassettes of motion pictures in conjunction with providing rooms/spaces where they can be viewed violate the public performance right? Aveco's operations constituted an authorization of public performances of the copyrighted works and therefore infringed the CR owner's 106(4) right. Any place open to the public is a public place. Size does not matter. By making tapes of copyrighted movies and space in which to view them available to the public, aveco authorized a public performance in violation of 106(a) • By enabling its customers to perform the video cassettes in the viewing rooms, Aveco authorizes the performances - Aveco liable for secondary liability • The Copyright Act speaks of performances at a place open to the public. It does not require that the public place be actually crowded with people. • The viewing rooms are public Section 106 says to do or to authorize. Aveco's action is an authorization

Swatch v. Bloomberg. S.D.N.Y. 2011

Censorship to protect the calls

Hotaling v. Church of Jesus Christ of Latter Day Saints (4th Cir. 1997)

Church buys a microfiche of Hotaling's written compilation of genealogical materials and made unauthorized/illegal copies of the microfiche from their lawful copy to send to its different branches. Following a complaint, the library destroys all copies. Hotaling comes to examine the microfiche and discovers a copy with a purple background (illegal copy). The church claims that in an effort to comply with Hotaling's demand that they destroy all the illegal copies, they accidentally destroy the original so they kept the illegal copy as its replacement. No one could check out the work and no one had ever looked at it or used it. Whether the existence of a single illegal copy in the libraries main collection infringe the plaintiff's distribution right By holding an illegal copy and being open to the public, the library infringed Hotaling's distribution right. When a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public.

Viacom Int'l v. Youtube 2nd Cir. 2012

Facts -viacom international together with copyright holders attribute direct and secondary infringements to youtube based on the public performance display etc. -youtube says intitled to safe harbor -on appeal, Viacom argues that youtube is not entitled to protection of safe harbor because -it had general knowledge of existence of infringing content on its website -it had the ability to control the activity of direct infringer but did not use it as it derived direct financial benefit from those activities Issue 1:does section 512 require general knowledge or specific knowledge of infringing content? Holding: it is clear from the statutory language that congress requires specific knowledge Issue 2: can liability be imposed on willful blindness Holding: yes, in principle. But ISPs are under no obligation to monitor content and actively search for infringing content Issue 3: Does youtube have control over infringers? What constitutes control for purposes of 512(c? Holding: For purpose of the DMCA the "right and ability to control" infringing activity under 512(c(1)(B) requires something more than the ability to remove or block access to materials posted on a service providers website. Liability was imposed only in those very rare cases where an ISP exerted substantial influence on the activities of users

Campbell v. Acuff-Rose Music (U.S. 1994) - Souter (p. 804)

Facts 2 Live Crew parodies Orbison's "Oh, Pretty Woman." Asks permission, but its denied. Released anyways, claimed fair use Issue Whether, as the Appeals Court held, every commercial use is presumptively unfair and the blantantly commercial purpose of 2Live Crew's parody prevented it from constituting fair use Holding Reversed and remanded - the commercial purpose of a work is only one element of the inquiry, no presumption against fair use just because the work is commercial Reasoning Purpose/character of use • Work is commercial - but this is not dispositive against fair use (not important) o In Sony this was the most important factor, but here it is of little value in the analysis • Parodies are highly transformative by their very nature - must comment or criticize the original work o There is substantial/significant societal value in parodies o Cannot rely on consensual production of parodies • Definition: "The use of some elements of a prior author's create a new one that, at least in part, comments on that author's work." Nature of the copyright work • "Parodies almost invariably copy publicly known, expressive works" - not important Amount & substantiality taken • When takes aim at a particular original work, the parody must take enough of the original to be able to "conjure up" at least enough of that original to make the object of its critical wit recognizable. o It should not be restricted to bare minimum o Should be allowed to take heart of the original o Context is everything • In parody, context is everything and the question of fairness asks what else the parodist did besides go to the heart of the original Effect of the use on potential market • Primary Market • Court finds no real harm • Further, harm resulting from parodies are not actionable - Whatever harm a parody may occasion on the original version through criticism is not actionable • Derivative Market - market for rap version of the original • Not enough information about the potential rap market. Remanded to determine.

Community for Creative Non-Violence v. Reid (U.S. 1989) - Marshall

Facts CCNV hired Reid to create a sculpture ("Third World America" sculptural work. Portrayed holy family as contemporary homeless people). CCNV contributed the general concept, referred Reid to family that might serve as a model, as well as creating the pedestal and steam grate. Reid created the actual sculpture in his studio, with input from CCNV. After the annual Christmas time pageant, CCNV wanted to take the sculpture on tour after Reid made minor repairs. Reid refuses to return the sculpture, both CCVN and Reid apply for ownership status Issue Whether the sculpture is a "a work prepared by an employee within the scope of his or her employment" Holding - There are three possible employment relationships here: a. This was an employment relationship so CCNV own rights, b. Reid is an independent contractor so he owns the right, or c. Co-ownership - Court offers 4 possible tests: a. 1) control over work product (results oriented) b. 2) control over the creation process (process oriented) c. 3) common law agency test - Court picks this as the appropriate test d. 4) formal salaried test focus on the manner and the means by which the product is accomplished To determine whether a work is for hire under the Act, a court first should ascertain, using principles of the general common law of agency, whether the work was prepared by an employee or an independent contractor. Factors include: • The hiring party's right to control the manner and means by which the product is accomplished • The skill required • Source of instrumentalities and tools • Location of the work • Duration of the relationship between the parties • Whether the hiring party has the right to assign additional projects to the hired party • Extent of the hired party's discretion over when and how long to work • Method of payment • Hired party's role in hiring and paying assistants • Whether the work is part of the regular business of the hiring party • Whether the hiring party is in business • Provision of employee benefits • Tax treatment of the hired party Result Reid was an independent contractor and thus the work was not made for hire. -supplied his own tools -worked in his own studio in a different city -worked for CCNV for less than 2 months -full discretion over work schedule -payment depended on the sculptures completion -held sole discretion over hiring assistants -CCNV did not pay social security taxes for Reid -CCNV did not give him employee benefits (in the 2nd circuit at least payroll formalities weigh more heavily than other factors. Gideon thinks this is good) remanded to lower court to see if the sculpture was a joint work

Cartoon Network v. CSC Hodlings (2nd Cir, 2008)

Facts CN, holder of multiple CRs in audiovisual works, brings an infringement suit against the operator of CSC after CSC offers Remote service digital video recording (RS-DVR) to its customers. RS-DVR is akin to a digital video recorder, but it performs the recording remotely in a centralized fashion in response to consumer's request The content feed is bifurcated into two routes: (1) consumers (2) primary ingest buffer (inquires whether there are requests to record from users) holds the content for no more than 0.1 seconds, then continues to the second buffer (content which has a recording request is identified and separated) where it is held of 1.2 seconds, and then the content is rerouted into multiple systems of hard discs where it is stored for consumers District court grants SJ to defendants Issue Whether service constitutes CR infringement Holding Court: NO, CSC isn't liable for an infringement of the reproduction right o looks to statutory definition, finds two elements ♣ 1) fixation in a tangible medium in a sufficiently permanent form to enable reproduction ♣ 2) for a period of more than a transitory duration • The first element is met. o CN had a problem with the second element ♣ the district court focused exclusively on the first element of the definition and ignored the second. Since no content remains in the system for more than 1.2 seconds, the result is that the content is fixed only for a transitory duration. If its only for transitory duration it isn't enough to constitute infringement o who is responsible for the copy made on the hard discs? CSC or the end-user? ♣ Volition argument - it is the end-user, subscriber, who makes the copy that is stored on the hard disc, not CSC ♣ CSC merely operated an automated technological system, it is the end-user who is charge of the storage and therefore D is entitled to summary judgment on this point ♣ so CN can go after end-users, what are the problems? ⎥ end-users can probably establish a fair-use claim ⎥ the end-users may be judgment proof ⎥ the cost of litigation end-users is very different than the cost of litigating against the D ⎥ PR implications - subscribers who get sued by CN may discontinue use o here the issue was direct infringement, but CN could have brought suit under secondary liability (contributory infringement) o This case was a direct liability case. There was a much stronger case against cablevision for secondary liability (i.e. materially contributed to an infringing activity)

Eldred v. Ashcroft (U.S. 2003) - Ginsburg (p. 340)

Facts CTEA extended the length of copyright terms from life + 50 to life + 70, etc. applied retroactively. Group of individuals and businesses whose products rely on public domain works brought suit to challenge the constitutionality of the CR extension act because the extension applied to new AND pre-existing works Issue • 1) Whether the CTEA's extension of existing copyrights violates Congress' power under the Copyright Clause. Offer an interpretation of "fixed" or "inalterable" for the phrase "limited times" in the IP clause • 2) Whether the CTEA's extension of existing and future copyrights violates the First Amendment Holding • 1) Guided by text, history, and precedent, we cannot agree with petitioners' submission that extending the duration of existing copyrights is categorically beyond Congress' authority under the Copyright Clause. o 1) Text - proposed interpretation inconsistent with plain meaning, "limited times" does not mean "fixed" or "inalrteable" o 2) history - through out history congress extended both patent and CR protection retroactively o 3) precedent - other cases confirm that it is within the power of Congress to do this o Legislation puts US authors on equal footing w foreign authors. Extension will likely prompt publishers to republish and redistribute older copyrighted works. Hence, legislation satisfies the rational basis standard • 2) When, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. o Ct rejects plea to adopt a strict scrutiny standard, holds that the CR law and 1st amendment are largely compatible ♣ CR law contains doctrines that take free speech into account, such as the idea/expression dichotomy, lesser protection to factual works, etc. (CR act embodies a balance between free speech and incentives to create) ♣ In addition there is the fair use doctrine which allows us to engage in a case by case balancing, allows for a more nuanced/refined case by case balancing ♣ As long as we have these built in safeguards, we don't have to worry about free speech and don't have to apply SS Dissent (Stevens) The majority pays no heed to the interest of the public in this case. Pays no attention to a rich public domain. Any retroactive change of the terms of the hypothetical bargaining between the public and the author is unfair. Dissent (Breyer) The CTEA grants authors the equivalent of perpetual copyright protection. Already, before the extension, you could get 99.8% of value of perpetual protection, so the extension does not advance a constitutionally valid interest. No incentive to production, but taxes speech without offering any real offsetting benefits Notes Policy Debate-Effects of extension: • Production of new works o Works in existence: no effect o New works: minimal (because 99% value of perpetual copyright was already granted) • Distribution of preexisting works o Paul Heald: Both types of works were distributed, CR'd works were marginally more expensive

Bright Tunes Music Corp. v. Harrisongs Music, Ltd. (S.D.N.Y. 1976) (p. 601)

Facts Chiffons records "He's So Fine" in 1962. Consists of 4 repetitions of one motif A, followed by 4 repetitions of another motif B, with a gracenote. Harrison records "My Sweet Lord" in 1971. Consists of 4 repetitions of motif A, followed by 3 repetitions of motif B, with the same gracenote. Harrison discussed the creation of the song, claiming that he did not copy He's So Fine. Issue Whether conscious copying is required for infringement Holding 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 (Harrison didn't intentionally copy) Reasoning • It is apparent from the extensive colloquy between the Court and Harrison covering forty pages in the transcript that neither Harrison nor Preston were conscious of the fact that they were utilizing the He's So Fine theme. • However, they in fact were, for it is perfectly obvious to the listener that in musical terms, the two songs are virtually identical except for one phrase. • Because his subconscious knew it already had worked in a song his conscious mind did not remember. Notes Selle v. Gibb (7th Cir. 1984) • Selle brought suit against Gibb( Bee Gees) claiming that the song "How Deep is Your Love" was a knockoff of a song he wrote called "Let it End". There was a finding of striking similarity in the two songs by the court, and jury found infringement. The 7th Cir. then overturned • Access: P's song never achieved success, performed only two or three times in Chicago area. Bee Gees documented the creation of the song and nothing indicated reliance on the plaintiff's song. • Independent creation was found, despite the fact that an expert testimony stated that it was impossible for these two songs to have been created independently because they were so similar

Computer Assoc. Int'l v. Altai (2d Cir. 1992) - Walker (p. 646)

Facts Computer Assoc. makes a copyrighted computer program called CA-SCHEDULER, with a component called ADAPTER. Altai made a program that was compatible with ADAPTER called OSCAR. There was no duplicate code, but similar parameters, etc. Issue Whether and to what extent the "non-literal" aspects of a computer program, that is, those aspects that are not reduced to written code, are protected by copyright Are the two programs substantially similar? Holding Abstraction-Filtration-Comparison Test • Abstraction: A court should dissect the allegedly copied program's structure and isolate each level of abstraction contained within it. This process begins with the code and ends with an articulation of the program's ultimate function. • Filtration: Remove elements . . . o Dictated by efficiency (ala merger) o Dictated by external factors (ala scenes a faire) o Compatibility requirements o Industry standards and needs o Taken from the public domain (ala public domain) • Comparison: Compare what's left after filtration to allegedly infringing software No infringement. Reasoning Whelan: The idea/expression in software means the purpose or function of a utilitarian work would be the work's idea, and everything that is not necessary to that purpose or function would be part of the expression of the idea. This test is too protective

Fonovisa, Inc. v. Cherry Auction, Inc. (9th Cir. 1996) - Schroeder (p. 693)

Facts Defendant operates space for a swap-meet, provides: • Rents out space to vendors • Provides parking • Conducts advertising for events • Retains right to exclude vendors at will People were selling illicit copies at the swap-meet Issue: Is D liable for CR infringement? Vicarious or contributory? Holding Although the Copyright Act does not expressly impose liability on anyone other than direct infringers, courts have long recognized that in certain circumstances, vicarious or contributory liability will be imposed Reasoning Vicarious Infringement - YES One may be vicariously liable if he (1) has the right and ability to supervise the infringing activity and also (2) has a direct financial interest in such activities. • Control: D had control - They controlled access by consumers, had power to terminate vendors • Financial Benefit: D didn't receive an direct financial gain from sale of pirated copies, but D still received financial benefit because the pirated copies enhanced the attractiveness of swap meet to consumers which increased the revenues of the D Contributory Infringement - YES One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another may be held liable as a contributory infringer. • Knowledge: No question about knowledge - D was aware of illicit exchanges • Material Contribution: Yes because D provided provision of support services, facilitated the exchange Only need to find vicarious OR contributory infringement, don't need to find both.

Walt Disney Productions v. Filmation Assoc. (C.D. Cal. 1986) - Stotler (p. 446)

Facts Filmation creates sequels to several animation classics by Disney. Filmation copies some of Disney's animated characters for the sequels in the production of the yet-to-be-released animated films. Creates storyboards, models in preparation for completing the film - however the film is not compeleted and isn't put on the market. Disney alleges infringement, however Filmation argues that they engaged in an intermediate step that shouldn't be actionable. Issue Whether private transitory copies can infringe the reproduction right? At what point in time does actionable action occur? Is intermidate copying actionable? Holding Holds for Disney, finds infringement. To constitute an actionable copy, therefore, an expression need only be a material object permanently cast in some intelligible form. Transitory stages are not exempt, any copy made in the process of creating a new work is an infringement if done without permission Notes Intermediate copying is actionable. They deserve no special treatment under the act

Harper & Row v. Nation Enterprises (U.S. 1985) - O'Connor (p. 799)

Facts Ford's memoirs were going to be released - Harper & Row signed contract with Time for the publishing of the first excerpts one week before the book became available to stores. Nation somehow got a stolen copy of the manuscript and quickly wrote a story regarding the Nixon pardon - uses 300 to 400 words (13% of the Nation's article). Nation's article was time to "scoop" an article scheduled to appear in Time magazine. As a result of Nation's article, Time cancels the contract with Harper & Row. There is no dispute that there was infringement - violated §106 reproduction right Issue Whether fair use (in combination with 1st amendment) sanctions the unauthorized use of quotations from the unpublished manuscript of Ford's memoirs Holding No fair use Reasoning Right of first publication - whether and what form to release the work • Very important because the right can only be exercised once. Key factor but not dispositive in itself • Normally the wuthor's right to control the first public appearance outweighs claim of fair use First amendment - Nation argues that the public's interest in learning the news as fast as possible outweighed the right of the author to control its first publication • This argument would destroy any expectation that CR would protect work of a public figure • The appropriate balance between our concern for free speech and expression incentives is built into Copyright Act Fair Use • News reporting is presumptively fair, but analysis must be undertaken • Purpose of the use - against fair use o Commercial - against fair use o Not transformative enough o Bad faith - knew that it was an unauthorized copy of the manuscript • Nature of the copyrighted work - against fair use o Factual but also excerpted subjective description (expression) o Unpublished (against fair use) • Amount & substantiality of the portion used o Quoted a small part of the book BUT book the heart of the work - why Ford pardoned Nixon o 300-400 words out of 2,000, but makes up 13% of the Nation's work ♣ not a lot compared to P's work, but a lot compared to Nation's work (dual standard) • Effect on the market o "Undoubtedly the single most important element of fair use" o Led to lost contract with Time o More importantly, "it would adversely affect the potential market for the copyrighted work." Dissent (Brennan) It's the practice of the news industry to scoop one another Majority's approach is overly restrictive of fair use and will harm robust public debate and impede the progress of science and useful arts Notes New factors • Bad faith o See a strong fairness dimension to the fair use doctrine • Substantiality of the infringing work made up of copyrighted work - seems to double count transformative because analyze how much D adds to original work in transformation already o Parcho believes that "taking the heart of the work" shouldn't be celebrated - doesn't believe this is a taking the heard of the work but instead it was largely based in fact • Attention to industry practices (in dissent)

Apple Computer, Inc. v. Franklin Computer Corp. (3d Cir. 1983) - Sloviter (p. 147)

Facts Franklin copied Apple's operating system programs and used them in their ACE PC so that it would be compatible with Apple equipment/software. They don't deny copying but claim that such programs aren't copyrightable in object. Lower court held for Δ, finding operating systems not copyrightable. Issues Whether operating systems are copyrightable as expressed in object code Holding A computer program, whether in object code or source code, is a "literary work" and is protected from unauthorized copying, whether from its object or source code version. Reasoning Defense claims: • 1) object code is not entitled to CR protection • 2) programs embedded in a computer's ROM are not fixed • 3) Operating system programs fall under the category of systems processes or methods that are no entitled to CR protection under the act • 4) merger Court holdings: • 1) It is firmly supported that computer programs are copyrightable (Williams v Artic 3d Cir. 1982)... Doesn't matter that it is in object code and can't be read by humans b/c 102(a) explicitly says expression is protectable if intelligible with aid of machine. A computer program, whether in object or source code, is a literary work. • 2) ROM is fixation and subject to copyright. • 3) Process/method: Apple doesn't want protection for the method, but for the code in which it is expressed - §101 makes no statutory difference between application or operating system so both are CRable o Franklin was trying to draw a distinction between software and operating systems, their goal wasn't to find software as unCRable (because this has already been addressed) but to find that operating systems were not CRable • 4) Idea/expression: the DC didn't make findings as to this and so we remand, BUT o As for merger, the court must find if there is more than one way to express the ideas of the operating system. e.g., how to translate source code into object code o If other methods of expressing that idea are not foreclosed as a practical matter then there is no merger Notes • This case widely known as a first generation case - such cases dealt w/whether software at all entitled to protection. • Clearly established now that computer programs get CR whether in object code or source code. • 2nd generation cases dealt with the scope of that protection • Court here is clearly trying to protect Apple, they could have found merger but instead took the issue more broadly. From a business perspective did Apple do the right thing? o the alternative - Apple could make money by opening up its operating system and then make money off of its applications, if other companies could achieve inter-operability with Apple's OS, Apple could have increased its revenues by selling those applications o the goal isn't to achieve the maximum degree of protection but to obtain maximum degree of revenues o software at the end of the day is function, its about accomplishing a certain task, different from traditional subject matter of CR ♣ many attempts to limit the scope of protection for software has failed, how do we design the correct protection for software

**MGM Studios, Inc. v. Grokster, Ltd. (U.S. 2005) - Souter (p. 722)

Facts Grokster offers FastTrack technology. Streamcast Networks provides Morpheus technology. Both used for P2P filesharing. Secondary liability Issue Under what circumstances can a distributor of a technology that's capable of both infringing and non-infringing uses be held liable for infringements by end users. Procedural Posture Ninth Circuit says (1) Sony applies because technology has substantial non-infringing use (2) the knowledge requirement is lacking because of the decentralized nature of the technology. Therefore no liability for secondary liability (contributory infringement) Holding When a producer distributes a technology with the object of promoting its use to infringe copyright as shown by clear expression or other affirmative steps taken to foster infringement it will be secondarily liable. Reasoning (Souter) Inducement • When a producer distributes a technology with the object of promoting its use to infringe copyright as shown by clear expression or other affirmative steps taken to foster infringement it will be secondarily liable. o The test is now the intent of the technology provider - focuses on the subjective motivation of the technology provider. Sony was an objective test o Subjective tests are can be manipulated, one can just testify as to what their intent was o Grokster is another carve-out for inducement cases (exclusion from the Sony safe harbor), left Sony intact o How do you infer intent? • Evidence: o 1) Court looked at internal correspondences and "print materials" that indicated that the executives intended to capture Napster users o 2) No filtering mechanism o 3) monitored content o 4) business model relied on ad revenues, therefore need a lot of volume and increased volume by having a lot of infringing content o Streamcast marketed itself as an alternative to Napster o Grokster attempted to capture Napster users by meta tags o Streamcast executives monitored the number of protected songs that went through their system and aimed to increase the number of copyrighted songs. o Business models of both companies relied on revenues from advertisements (boosted by offering infringing content) o Neither company attempted to screen for infringing files Sony does not apply • No inducement, the sales of the VCR did not depend on it. • Safe Harbor does not apply to inducement. Inducement has always been an independent ground for liability Concurrence (Ginsburg) Focuses on evidence. In Sony there was clear evidence of substantial non-infringing uses, but here there is no evidence that there is or will be substantial non-infringing use. Concurrence (Breyer) Accepts with inducement theory. Believes it is unwise to touch Sony. Concerned with policy, asks what the standard should be (CBA). Has Sony worked to protect innovation? Yes • It's a clear standard • Strongly technology protecting • It's forward-looking • It's mindful of the limitations facing judges where matters of technology are concerned Would modification or strict interpretation of Sony significantly weaken the ability to protect innovation? Yes • Considers Souter's rule to raise the bar - more difficult to qualify for Son'y safe harbor • It would increase the legal uncertainty that surrounds the creation or development of a new technology capable of being put to infringing uses. • The price of a wrong guess could be large. Would the gain in expressive output from weakening Sony outweigh the loss in technological innovation? No • Other tools to protect: o Bring infringement against the direct infringer o CR owners may develop the technological devices that will help curb unlawful infringement o Can use creative marketing strategies to dim the allure of illegal file sharing o Advances in technology has discouraged unlawful coping by lawful copying cheaper and easier to achieve (iTunes) o Legislative options remains available

INS v. AP (U.S. 1918) NOTE: Still valid law

Facts INS and AP are news agencies, one has sent reporters to the "front" during the war, the other did not. INS reprinted the AP reports as their own. Issues Whether there is a cause for action, news is not copyrightable but this is unfair. Holding You cannot steal another's work, created a quasi property right in the news narrowed the scope to only apply to competitors. Notes • This is a new cause of action, misappropriation.

Lee v. A.R.T. Company (7th Cir. 1997) - Easterbrook (p. 446)

Facts Lee creates works of art, which she sells through her firm Annie Lee & Friends. A.R.T. buys Lee's paintings, mounts them on ceramic tiles, and sells them. Holding The mounting of legally purchased work on a ceramic tile does not violate the adaptation right. "Mounting and other traditional means of framing and displaying art do not infringe authors' exclusive right to make derivative works" Reasoning • Ct: small changes such as mounting plus other traditional means of framing are traditionally exempt • Lee argues that originality required to infringe the adaptation right should be less than the originality required to establish copyrightability in the contributions to a derivative work • A.R.T. argues that the two originality requirements should be the same • The court says its not necessary to choose sides: o Adaptation right protects against a work being "recast, transformed, or adapted" o This change is none of the above o We are below the liability threshold • Establishes relationship between adaptation right (§106(2) and first sale doctrine §109(a) o First Sale Doctrine (§109(a)) - permits lawful owners to resell or otherwise dispose of copies and phonorecords they own. Without this doctrine we couldn't sell our books at the end of the year b/c it would infringe the CR owner's distribution right (106(3))

White-Smith Music Publishing v. Apollo (U.S. 1908)

Facts Makers of piano-player rolls sued for making an unauthorized copy of the music Issues Whether the piano-player rolls constitute copies of the copyrighted music Holding The perforated piano rolls are not copies because they are not intelligible (not perceptible) to humans...can only get music out of it by use of a machine, i.e. the player piano. Notes Law is clearly the opposite now. • 1909 - Congress enacted §1(e) of the 1909 Act which extended ©protection to cover such "mechanical reproductions" of musical compositions ...BUT Congress didn't overrule Apollo's definition of copy so the absence of direct perceptibility remained a barrier to protection • 1976 Act added the "now known or later developed" language to do away with the type of thinking that characterized the Apollo decision, which was that copyrightability somehow depended on perceptibility

Miller v. Universal City Studios (5th Cir 1981)

Facts Miller write a book, 83 Hours till Dawn, and Universal creates a movie based on the story Issue: Are factual stories and the research underlying them CRable? Holding Facts and research cannot be protected, only original expression can • Historical research takes a long time to do and sometimes reveals facts that are very important. Yet there's a long standing rule in CR law that you cannot get protection for the research you did or facts you uncovered because we must respect the distinction between idea and expression. Since facts fall on the idea it gets no protection.

A&M Records v. Napster (9th Cir. 2001) (p. 721)

Facts Napster creates MusicShare software and provides centralized servers with index of files and services to connect users. Napster was a peer-to-peer technology that allowed user to engage in file-sharing - DLing of CRed music files (file sharing) Issue Whether the distribution of Napster to the general public violates any of the rights conferred by the Copyright Act Procedural Posture After preliminary injunction against Napster, enjoining it from engaging in or facilitating in other in copying, downloading, uploading, transmitting, or distributing protected content without explicit permission from the right-owners. Reasoning Court ruled that Napster was liable for direct and indirect infringement. Also found that all Napster users were liable of direct infringement Direct infringement • Napster users are infringing 106(1) reproduction & 106(3) distribution rights • Rejects fair use argument (non-transformative, commercial, works lifted in entirety, adversely affects market) Secondary infringement: • Contributory o Knowledge: Requires actual knowledge of specific infringements, but Napster did have actual knowledge of infringing acts and could have blocked access to the system of infringing materials, but didn't. o Material Contribution: Without the support services of Napster, users couldn't infringe. (Fonovisa) • Vicarious o Financial Benefit: The infringing material acted as a draw for consumers (Fonovisa). Napster's future revenues that were supposed to come from advertisers depended on the number of users. o Control: Napster had an express reservation of rights policy stating that it expressly reserves the right to refuse service and terminate accounts at its discretion. "The reserved right must be exercised to its full extent. Turning a blind eye to detectable acts of infringement would give rise to liability." NOTE Where is Sony in the analysis? Aren't file sharing systems potentially capable of substantial non-infringing uses? - if we applied the Sony technological safe harbor, it's not clear that file sharing programs wouldn't have passed. They are clearly capable of substantially non-infringing uses. Courts ignored Sony because they didn't like the result. This led to Grokster

Chase-Riboud v. Dreamworks (CD Cal 1997)

Facts P wrote book "Echo of Lions" and claimed that a movie by Dreamworks infringed her CR in the book Holding Ct found no CR infringement, Chase's historical research regarding Amistad is protected only against bodily appropriate- only expression is protected, so if there is verbatim copying then one is entitled to remedy, otherwise there is no protection under CR law Notes The right to make derivative works is being limited quite significantly in this case. Any movie made from a fictional book is not allowed because derivative work is right held in author of book. However authors of historical or factual novels are unable to maintain protection for derivative works using the facts they found

Practice Management v. American Medical Association (9th Cir 1999)

Facts PM, a private co, wanted to copy a coding system adopted as regulation by the Health Care Financing Admin and published by AMA in their Medical Procedure Coding System. Holding 9th Cir affirmed a ruling that the AMA did not lose its CR in a medical procedure coding system after it had been adopted by the healthcare financing admin based on a gov't requirement • The Healthcare Financing Admin was required by law to adopt a procedure coding system and chose the one drafted by AMA • Ct believes they can balance the interest of the public against the interest of federal agencies by turning ot one of the following 3 mechanisms: o 1) Regulatory agencies can terminate agreements with priv org if they unduly restrict access, or in the K with the priv org can mandate or require broader access o 2) courts can enlarge/expand defense to CR infringement suits such as fair us and/or due process doctrine o 3) legislatures can adopt compulsory licensing agreements

Pivot Point Int'l v. Charlene Products (7th Cir. 2004) - Ripple

Facts PP worked with artist Heerlein to create an original sculpture of a female human head to show the "hungry runway look." He designs Mara, a plaster sculpture. Wax molds were made and exact reproductions made in PVC. First version made and shipped had double hairlines reflecting an initial mistake. PP got CR on the design of Mara, a bareheaded female human head with no makeup or hair. Δ displays its own "Liza", very close in appearance to Mara, even with double hairline. Clear that they copied Mara. Issues Whether the mannequin head is copyrightable Holding Mannequin head has CS and is therefore CRable CS Process Oriented Approach: When the artistic aspects of an article can be "conceptualized as existing independently of their utilitarian function," informed by "whether the design elements can be identified as reflecting the designer's artistic judgment exercised independently of functional influences" Reasoning Useful article • Assumed that the district court correctly ruled that Mara is a useful article • Note: if Mara had NOT been found a useful article as defined under the CR act then we wouldn't have to worry about CS, Mara would have automatically been entitled to full CR protection Conceptual separability • Mara was the product of a creative process unfettered by functional concerns, its sculptural features can be identified separately from, and are capable of existing independently of its utilitarian aspects • Parcho criticism - Mara was used to help teach how to apply makeup, so mannequin is very close functionally to its purpose - unclear whether there is CS Dissent (Kanne) • Statute requires both physical and conceptual separability • Preferred Goldstein's test which is Results oriented: If it can stand on its own as a work of art traditionally conceived and if the useful article in which it is embodied would be equally useful without it • It's irrelevant to inquire into the origins of Mara's eyes, cheekbones, and neck

Veeck v. Southern Bldg Code Congress Int'l (5th Cir. 2002)

Facts Private company, SBCCI, drafts building codes. They are enacted into law as regulations in two towns. Veeck gets copy of codes and posts them on internet without attribution. Issue Whether a code-writing organization can prevent a website from posting the text of a model code where the code is identified simply as the building code of a city that enacted the code as law Holding No copyright protection because: • A work loses its CRed status once it is adopted as law/regulation • in a democracy, law is inherently public and always in the public domain. We the people are the authors of the law and, thus, the law can't be subject to copyright protection, and • law is fact- merger doctrine precludes protection because it is the law and no other way to express the law but word for word. • The code was specifically created to become the law Reasoning • Public policy favors free distribution of the law • § 105 forbids protection of statute under copyright, therefore it should also be applied to state & locals laws/ordinances • Due Process argument for making the law available to all for free - public's right to laws includes right to reproduce • The gov't isn't appropriating a copyrighted work, plaintiff gave gov't permission to take the codes to enact them into local law. Dissent (Higginbotham) There are many ways of expressing the regulations, doesn't think the merger doctrine applies. Given the modern environment, the gov't must rely more and more on the services of actors and organizations, such actors/org should not be denied CR protection. The NTA of 1995 gives patent protection to private companies that work with the gov't so why shouldn't it be the same for CR? Notes Gov't needs help from private organizations, why shouldn't public interest trump? • There are indirect ways to receive compensation - they get paid in advance to do the work and private companies are always commissioned to do the work (ex ante contracting - can negotiate) • A problem is free-riding, localities may copy from each other- a company will get commissioned to draft codes for one locality and a neighboring locality will copy the enacted law without having to pay the commissioned company anything • A solution would be to recognize a quasi property right that avails/gives protection against copying by other municipalities that doesn't restrict copying by the public at large.

Realnetworks, Inc. v. Streambox, Inc. (Wash. 2000) (printout)

Facts RealNetworks encodes music and video so that they can be streamed over the WW but not downloaded. RealNetworks products: - RealMedia files - files of encoded music and video which may be transmitted over the net - Real Server - means by which RealNetworks distributes the files - Real Player - the software used to play RealMedia files, incorporates a copy switch feature that makes it impossible to DL - Snap - a search engine used to locate and retrieve RealMedia files Streambox products - Sreambox VCR - circumvents the secret handshake and enables DLing plus distribution of illegal copies - The Ripper - converts files from RealMedia format to other formats - The Ferret - a plug in device that substitutes RealNetworks Snap with a different search engine and changes the user interface Streambox produces equipment that decodes the encryption and allows copying and distribution. Reasoning Streambox VCR • Violates the anticircumvention provisions of the DMCA. It is primarily designed to circumvent the ACCESS control and COPY control measures The Ripper • No violation because it has a legitimate non-infringing use and format itself does not qualify as a technological protection measure The Ferret They don't issue in the injunction (not about DMCA liability) but • Because it changes the user interface, it violates 106(2) - it creates an unauthorized derivative work.

Sony v. Universal City Studios, Inc. (U.S. 1984) - Stevens (p. 701)

Facts Sony produces and distributes VCR - enables infringement by home users. Advertise the ability to create your own library of movies, etc. Studies seem to show that the main use is time-shifting Issue Whether the sale of VCRs to the general public violates any of the rights conferred by the Copyright Act Under what circumstances will a technology provider who produces/distributes dual purpose technology (has infringing use and non-infringing use) will be liable for CR infringement? Holding The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes . . . it need merely be capable of substantial noninfringing uses. If there's a potential and substantial non-infringing use then the technology provider is NOT liable (doesn't tell us under what conditions there WILL be liability) (court designed a technological safe harbor) • "potential" - in control of technology provider • "substantial non-infringing use" - in control of user Reasoning • 9-10% of content being recorded was either not copyrighted or programs whose copyright owners didn't mind it would be recorded • Time-shifting, the predominate use, is fair use (recording for later viewing) • "Staple article of commerce" doctrine imported from patent law: "a staple article of commodity of commerce suitable for substantial noninfringing use" is no contributory infringement. Dissent (Blackmun) The test should be "if a significant portion of the product's use is non-infringing, the manufacturers and sellers cannot be held contributorily liable for the product's infringing uses." Notes Difference between majority and dissent: • The dissent would require manufacturers to create technology and commercialize it, before they can know whether the technology meets the standard • The technology manufacturers control capability of the product, users decide the actual uses Sony created a "Safe Harbor" for technology providers. Alternative Options they could have chosen instead of "potential" and "substantial non-infringing": • Majority non-infringing actual uses • Substantial non-infringing actual uses • Capable of substantial non-infringing uses • Capable of any non-infringing use

Bleistein v. Donaldson Lithographing Co. (U.S. 1903) - Holmes

Facts Three chromolithographs prepared by employees of the plaintiffs for advertisements of a circus. The circus ran out of advertisments so they asked the D company to copy the P's original lithographs. That they were copied is clear. Issues Whether the works as advertisements were copyrightable Holding A picture is nonetheless a picture, and nonetheless a subject of copyright, if it is used for an advertisement. The court will not make a value judgment. Reasoning (Holmes) "It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations outside of the narrowest and most obvious limits." Except in the most extreme cases the courts should nto evaluate expressive works. Dissent (Harlan) "The clause of the Constitution giving Congress power to promote the progress of science and useful arts, by securing for limited terms to authors and inventors the exclusive right to their respective works and discoveries, does not, as I think, embrace a mere advertisement of a circus." Notes • We expect judges to understand med mal, why not art? Is it a problem with objective/subjective divide? Arguments against advertisements • They are commissioned works and will be created anyways • Preventing other companies from copying them could be accomplished through unfair competition laws/trademark • Note in 1st Amendment we distinguish between political speech and commercial speech. Parch: Advertisements have become valuable as art in later years, Holmes is probably right, who are we to know/judge what will become/is valuable/worthwhile?

Nichols v. Universal Pictures Corp. (2d Cir. 1930) (p. 621)

Facts Two plays about romance between a son of a Jewish family and a daughter of an Irish family. Issue: Did the motion picture infringe the CR in the play? Holding CR protection extends beyond literal copying - So there can be literal similarities or pattern similarities. If CR was all about literal copying, then infringer would be let of the hook too easily as long as they changed the words they used a little. "Upon any work, and especially upon a play, 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 the series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his "ideas," to which, apart from the expression, his property is never extended" Parcho's words - at the core we have an idea, a little beyond that is still in the territory of the idea but beyond that we get into the realm of protected expression. Trigger- taking a protected element. Parcho doesn't believe this is a real test because it depends on where you draw the line between an idea and start of protected expression. Key is to know where the cut off point is and this test tells us nothing about where that is. Notes Establishes Hand's abstractions test (subtractive approach)

Universal City Studios v. Corley (2d Cir. 2001) - Newman (p. 754)

Facts UCS utilized a scrambling system called CDD. Johansen came up with DeCss to decrypt DVDs with CSS (CSS is an encryption software). Corley is the owner of a hacker website and published DeCSS on his site and makes it available for DLing. Sued under DMCA and lost, the court issued an injunction requiring Corelyto remove DeCSS. Next, he linked to other sites offering DeCSS. Lost again. Corely now decided to challenge the constitutionality of the DMCA. Issue Whether the DMCA violates the powers under the Copyright Clause or First Amendment Reasoning Arguments: 1) CR Clause - argued that Congress didn't have the right under the CR clause in the Constitution to enact DMCA because it encroached into the public domain • Rejected because it was: o Only raised in a footnote o The claim was premature, there was no proof yet that the DMCA led to depletion of public domain works or that it changed the CR balance 2) First Amendment - free speech • Key question: does code constitute speech under the 1st Am? o Court holds that YES code does constitute speech but it is a special kind of speech because code is a mix of speech and non-speech elements. The non-speech elements dominate • Posting of circumvention technologies: o Court views DMCA as content-neutral restriction on speech o When content-neutral, the test/Standard of Review is: ♣ 1) Regulation must serve substantial Gov't interest ♣ 2) Restriction of speech must not burden substantially more than necessary to further interest o Court rules that the DMCA passed under this test since it does not burden substantially more speech than is necessary • Linking to sites containing circumvention technology: o Court relied on test designed by district court o Standard of Review: ♣ 1) Must know at the time the link is offered that circumventing material was present on linked-to sites, ♣ 2) Must know that it is circumvention technology that may not be lawfully offered, ♣ 3) Must create or maintain link for the purpose of disseminating that technology o 2nd Cir.: "it suffices to reject the Appellants' contention that an intent to cause harm is required and that linking can be enjoined only under circumstances applicable to a print medium" 3) Fair Use • The fair use challenge is beyond the scope of the present law suit for 3 reasons: o 1) The appellant's didn't raise a fair use claim for DeCSS - The injunction issued did not prevent them from making fair uses, only from trafficking in circumvention o 2) the impact of the DMCA on fair use is unclear given the current data o 3) fair use doesn't imply privileges to copy a work in its original digital format, critics can still comment on movies they see in theaters and quote dialogue from the movies, nothing grants them the right to copy footage from the film.

ABC v. Aereo

Facts: Areo is a streaming service. It recasts broadcasting content so it can be streamed over the internet. The service is provided in three steps 1. Areo uses thousands of antennas, each dedicated to a single user 2. At a user's request, aereo tunes the user's antenna to a specific broadast carrying the particular show the user wants to watch 3. The requested content is converted into "streamable" form and saved onto a subscriber-specific folder on Aereo's servers ii. Streaming to subscribers begins several seconds after the content has been saved (i.e. there is no live streaming) iii. Legal space: 1. VCR: non infringing. (private)/fair use 2. Cable Television: infringing in principle, but covered by a compulsory license 3. Aereo's model - delayed streaming of TV content: ? iv. Aereo claims 1. No performance 2. Even if there is one, it is not public, because the streaming is initiated at a user's behest and therefore aereo itself is not performing anything b. Held: Breyer: i. Infringing ii. "In light of the text and purpose of the statutory text, we conclude that when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it transmits a performance to them regardless of the number of discrete communications it makes iii. neither the fact that aereo streams to each subscriber discretely, nor the fact that a separate copy is prepared prior to each transmission changes this result c. Dissent: Scalia i. There can be no direct liability in this case because Aereo does not perform at all ii. There can be no direct liability without a volitional act iii. aereo's degree of involvemnent is insufficient to establish direct liability (aereo may be secondarily liable)

Arista Records v. Launch Media

Facts: Launch cast: employ a mathematical algorithm to profile listeners. Each listener is asked to report the genre they prefer and rate songs in the genre from 0 (dislike) to 100 (like). The service then personalizes the selection of songs streamed to listener. Arista cries foul and that you can't stay under compulsory license bc this is interactive. Held: 2nd Cir holds that the service is not interactive and therefore compulsory license applies - §144 (j)(7): Service is interactive only if user: (1) Requests and receives a particular song OR (2) receives a transmission of a program specially created for the user -In this case, users couldn't select and receive a particular song, thus Launch Media did not meet the definition of an interactive service. Users of Launch Media did not have requisite degree of control. Their degree of control is no different from traditional radio station listener expressing a preference for country music station or classic rock station.

Perfect 10, Inc. v. Amazon, Inc. (9th Cir 2007)

Facts: Perfect 10 sued Google and Amazon for infringing their right of public display. Perfect 10 claimed several infringements: (1) displayed copyrighted photos in the form of thumbnails (visual representations of search results in minimized form) (2) allowed users to view the photos in enlarged form via in-line linking (html directions to 3rd party websites containing infringing images) (3) system caching (store webpages in cache) Held: (1) technically thumbnails are an infringement but Google has a fair use defense (2) in-line linking is not a direct infringement because nothing is stored or displayed on Google's computer, Google only provides the code leading to other's websites. Providing instructions does not amount to display (HTML is instruction) (3) System Caching - Google is only using the text and does not store images, therefore no direct infringement

A. Sandoval v New Line Cinema Corp

Facts: Plaintiff sued after his copyrighted images were displayed as blurred transparencies in reduced form Held: Second circuit ruled that the images were not displayed with sufficient detail to be recognized by the average viewer. Hence, the display fell under the category of de minimis

Castle Rock Entertainment v. Carol Publishing (2nd Cir. 1998)

Facts: -plaintiff is the producer of the popular tv series, Seinfeld - claims that defendant infringed its copyright by publishing SAT, at 132 page book containing 643 trivia questions about the how -defendant claims that SAT should count as comment, scholarship or research, exposing "all the shows nothingness to articulate its true motive forces and its social and moral dimensions" Issue: Does SAT qualify as fair use? Holding: no fair use. Factor 1: purpose and character of the use -SAT merely repackages the original; it is only minimally transformative. It is also commercial. First factor weights against fair use. Factor 2: nature of the work -Seinfeld is fictional work and is therefore entitled to strong copyright protection. Second factor weighs against fair use Factor 3: amount and substantiality -defendants could take a lot less to make the basic point that Seinfeld is a show about nothing. Third factor weighs against fair use. Factor 4: effect on market -SAT substitutes for a derivative market that the television show owner "would in general develop or license others to develop." Fourth factor weighs against fair use.

London-Sire Records v. Doe (D. Mass 2008)

Facts: Record companies want to sue students for filesharing. Record companies want subpoenas to know the names of the anonymous users who infringed. Defendants want to quash motion based on failure to state a claim on which relief may be granted. Issue: Do you need actual dissemination to constitute infringement? Is distribution only limited to physical objects? Are electric files material objects? Does the making of a copyrighted work available to the public by itself infringe? Holding: Distribution requires more than mere publication File sharing does constitute infringement as it violates the distribution right of each music file owner. Reasoning: Authorization is sufficient to give rise to liability but only if the infringing act occurs afterwards. Distribution and publication isn't the same. The def. only infringed on record company's distribution right if they actually distributed.

Lee v. A.R.T. Company (7th Cir. 1997) - Easterbrook

Lee creates works of art, which she sells through her firm Annie Lee & Friends. A.R.T. buys Lee's paintings, mounts them on ceramic tiles, and sells them. The mounting of legally purchased work on a ceramic tile does not violate the adaptation right. "Mounting and other traditional means of framing and displaying art do not infringe authors' exclusive right to make derivative works" • Ct: small changes such as mounting plus other traditional means of framing are traditionally exempt • Lee argues that originality required to infringe the adaptation right should be less than the originality required to establish copyrightability in the contributions to a derivative work • A.R.T. argues that the two originality requirements should be the same • The court says its not necessary to choose sides: o Adaptation right protects against a work being "recast, transformed, or adapted" o This change is none of the above o We are below the liability threshold • Establishes relationship between adaptation right (§106(2) and first sale doctrine §109(a)

Pivot Point Int'l v. Charlene Products (7th Cir. 2004) - Ripple

PP worked with artist Heerlein to create an original sculpture of a female human head to show the "hungry runway look." He designs Mara, a plaster sculpture. Wax molds were made and exact reproductions made in PVC. First version made and shipped had double hairlines reflecting an initial mistake. PP got CR on the design of Mara, a bareheaded female human head with no makeup or hair. Δ displays its own "Liza", very close in appearance to Mara, even with double hairline. Clear that they copied Mara. Whether the mannequin head is copyrightable Mannequin head has CS and is therefore CRable CS Process Oriented Approach: When the artistic aspects of an article can be "conceptualized as existing independently of their utilitarian function," informed by "whether the design elements can be identified as reflecting the designer's artistic judgment exercised independently of functional influences" Useful article • Assumed that the district court correctly ruled that Mara is a useful article • Note: if Mara had NOT been found a useful article as defined under the CR act then we wouldn't have to worry about CS, Mara would have automatically been entitled to full CR protection Conceptual separability • Mara was the product of a creative process unfettered by functional concerns, its sculptural features can be identified separately from, and are capable of existing independently of its utilitarian aspects • Parcho criticism - Mara was used to help teach how to apply makeup, so mannequin is very close functionally to its purpose - unclear whether there is CS Dissent: Statute requires both physical and conceptual separability • Preferred Goldstein's test which is Results oriented: If it can stand on its own as a work of art traditionally conceived and if the useful article in which it is embodied would be equally useful without it It's irrelevant to inquire into the origins of Mara's eyes, cheekbones, and neck

c. Sparco v. Lowler (2d Cir 2002):

Portion of construction site plan setting forth existing physical characteristics of the site according to cartographic parameters is NOT entitled to copyright protection, i.e., preexisting property boundary dimensions, easements, right of way are not protected. But other elements of the site plan are protected, i.e., detailed specifications of structure positions, placement of utilities, creation of fire lanes, walls, fences, security gates and proposals for landscaping. i. Inconsistent because exactly what we DON'T protect here, i.e., boundaries, etc., is exactly what IS protected in regular maps.

Feist Publications v. Rural Telephone Service (U.S. 1991) - O'Connor

Rural makes local phonebook for area in which they have a monopoly - required to by the government. Rural arranged the listings in alphabetical order. Feist creates a phonebook that includes a greater territory. The typically negotiate a license with the local companies, but Rural holds out and won't give info they collected/gathered. Feist simply copies the information for their phonebook. Issue: whether and to what extent are factual compilations copyrightable Originality, not "sweat of the brow" is the touchstone of copyright protection in directories and other fact-based works Rule: Facts themselves are not CRable, selection and arrangement may be protected if there is sufficient originality and a modicum of creativity Entries are not copyrightable because there is no creativity • They had a legal monopoly • The law required them to create the directory • All the subscribers had to fill out the information • The arrangement in alphabetical order was not original • No infringement Constitution requires "a modicum of originality" • The IP Clause is not created to reward the "sweat of the brow," but rather to "Promote the Progress of Science and the Useful Arts"

a. Horgan v. MacMillan (2d Cir. 1986):

Still photographs may infringe a CR in a choreographic work

Shine v. Childs (S.D.N.Y. 2005) - Mukasey

Student designed a two model skyscrapers, Shine and Olympic for a studio in college, judged by prominent architects. One of those architects later submitted a design for the Freedom Tower that was similar to both Shine and Olympic. Issue: are the student's models entitled to CR protection? Defendant's arguments Neither model is an architectural work under CR act b/c they are preliminary and conceptual • Both tower designs are worthy of protection because they are both distinctive designs. Doesn't matter if it could actually be constructed. • Once a design includes "specific expression and realization of ideas," copying constitutes infringement. Design unoriginal • AWCPA says overall form in addition to arrangement and composition can be copyrightable and compilations of unprotectable elements can be protected, • Registration is prima facie evidence of validity of the copyrights and of the originality of the works. The threshold for originality is low and these towers meet it What originality that existed isn't CRable b/c it is linked to its functionality • Whether or not any original aspect is functionally required is a material issue of fact that remains for trial. Assuming CR is valid, there are still not substantial similarities • Grant of D's motion for SJ for Shine b/c lack of probative similarity b/w Shine and Freedom. • Denied D' motion for SJ for Olympic b/c reasonably jurors could find similarity b/w Olympic and Freedom.

Childress v. Taylor (2d Cir. 1991) - Newman

Taylor asks Childress to write a play about famous African American comedian "Moms" Mobley. Taylor came up with the concept, did the research, and suggested certain scenes and characters. Childress wrote the play. No agreement regarding ownership. There is a falling out. Taylor commissioned Caldwell to write another play-provided with a copy of Childress' play. Childress sues for copyright infringement. Taylor claims she is a joint author. Was the play a joint work? What contributions establish joint authorship in a copyrighted work Taylor is not a joint author because she did not make a CRable contribution and Childress is adamant that she never intended to be a joint author. Two elements for joint authorship • 1) Each party must make a copyrightable contribution to the work (does not have to be an equal contribution) o recognizing too many CR owners can lead t conflicts over the use of the work • 2) Each party must harbor an intent to create a joint work o the parties must intend to create a join work at the time the two contributions are being brought together into a unitary whole. Sometimes people intend to join when working on it separately, but then change their minds before joining it with another's. This does not satisfy intent because they changed their minds before the two works merged.

Kirsaeng v john wiley and sons

Thai native legally purchased authorized low priced editions of books that were published printed and sold outside us and resold tehm in the us. Publisher sued for copyright infringement with violation of 602(a) Holding: supreme court held first sale doctrine trumps 602(a) and applies to copies lawfully made anywhere around the world. Not just copies that were initially made in the us but also copies made in other countries. (good thing US companies did not respond to Quality King by moving their businesses to other countries)

Quality King Distributors v. L'Anza Research Int'l

There are copyrighted labels on the product which means by attaching the label it's a diff. ball game. Quality king legally bought L'Anza's products abroad and attempted to import them back to the US. It's like Lee v. ART without even changing it a little. This case represents a direct clash between §109(a) and §602(a) -L'anza argued that §109 has a limited geographic scope and doesn't apply to goods produced in the US and sold abroad -Quality King agues there are no such restrictions. Holding: Justice ruled 109(a) trumps 602(a) - the First Sale Doctrine under 109(a) applies to both domestic and foreign sales of CRed materials. L'Anza is engaging in price determination. Charging different prices to different consumers based on their ability to pay. It maximizes their profit because they can sell more. Reimportation here compromises that. But the American markets didn't suffer because you can apply practical things like change labels into foreign languages and change the color of pills. You can construct a whole global marketing strategy around this. From a legal standpoint it's a strange decision.

Schrock v. Learning Curve Int'l (7th Cir 2009)

Thomas the Tank Engine rights are owned by HIT Entertainment. Defendant licensed the rights to make Thomas Tank toys based on the character and other Tank engines. Defendant also uses the services of Plaintiff to produce photographs and other print material as promotional work. D then decides to use someone else to make promo materials, so P decides to register rights in all photos created for D, and institutes infringement suit against the D. D argues that P had no permission to CR his photos as DW, therefore the photos have no CR and therefore cannot sue. The photographs are derivative works. Derivative works arise by operation of the law. Their existence does not depend on permission from owner of CR in the original work, thus lack of permission does not negate their existence or CRability. Default opt-out rule - allowed to make DW unless there is an agreement with the CR owner that you aren't allowed to • CRability of DW depends on CR Act and not on permission from any individual who owns CR to underlying, original material • Do NOT need permission to create a CRed DW Originality Standard for DW • Ct rejected higher standard set forth in Gracen which required substantial difference/originality • Ct adopts standard from Bucklew v. Hawkins, that the DW must express enough variation from public domain or other existing works to enable it to be readily distinguishable from its predecessors • Ct held that D's photos were original enough under Bucklew test, D used different angles and lighting to make the toys look more life-like and friendly o Parcho thinks Ct is crazy and that there is NOT a huge difference between the Thomas tank toy and the photographs • Ct rejected higher standard set forth in Gracen which required substantial difference/originality • Ct adopts standard from Bucklew v. Hawkins, that the DW must express enough variation from public domain or other existing works to enable it to be readily distinguishable from its predecessors • Ct held that D's photos were original enough under Bucklew test, D used different angles and lighting to make the toys look more life-like and friendly o Parcho thinks Ct is crazy and that there is NOT a huge difference between the Thomas tank toy and the photographs

Ty, Inc. v. GMA Accessories (7th Cir. 1984) (p. 608) Facts

Ty makes beanie babies, a pig and a cow. GMA makes similar stuff animals, a pig and a cow. The cow is clearly a copy. The question is the pig. Issue Whether the pigs are based on a common prior source in public domain (a real pig) Holding 1) Prior common source in public domain - To prove prior common source, the defendant bears burden of showing this. D failed to prove this, their pif is only similar to Ty's and not any other pig. 2) Access (and copying) may be inferred when two works are so similar to each other and not to anything in the public domain that it is likely that the creator of the second work copied the first, but the inference can be rebutted by disproving access or otherwise showing independent creation. Reasoning • The more a work is both like an already copyrighted work and-for this is equally important-unlike anything that is in the public domain, the less likely it is to be an independent creation. Notes Three types of common prior sources 1) prior common source in public domain - no liability 2) CRed prior common source - no liability, coped a CRed work but not the Plaintiff's 3) Prior common source that is an industry standard - Axis of Awesome (4 chourds)

Pre-Feist: West Publishing v. Mead Data Central (8th Cir. 1986)

West sues to prohibit LEXIS from using their star pagination claiming (1) that the jump cites are CRable and (2) that by taking the jump cites, they infringed their selection and arrangement. Majority affirmed the enjoinment on grounds that West's arrangement and editorial process is the result of a lot of labor, talent, and judgment so use of the pagination by MDC would infringe their CR. Split cir ruled for West. Very far reaching and roundly criticized • West granted copyright in the page numbers from their bound reporters because they embodied west's selection and arrangement • Dissent: The fact that page numbers may be an important component of selection and arrangement doesn't make them copyrightable

Matthew Bender & Co. v. West Publishing Co. (2d Cir. 1998)

Westlaw introduces two types of changes to published opinions: • Category 1 (no one argues that these are not copyrightable): Independently composed features: o Syllabus- digests and heralds the opinion o Headnotes - summarizing specific points of law o Key numbers • Category 2 changes - Additions of factual information to the text of the opinions (points of issue) o parallel and alternate citations (all in conformity to bluebook), attorney information, subsequent procedural history, rearrangement of information concerning parties, courts and dates, attorney information (π wants to make a CD-ROM without the category 1 changes, just the second category) Issue: Do Category 2 alterations possess sufficient originality to warrant copyright protection under feist? Category 1 is CRable but category 2 changes do not possess sufficient creativity and originality to warrant CR protection. They do not meet the modicum of creativity requirement Three considerations for creativity in selection & arrangement: • Total number of options available (copyright office says at least 4 options) • External factors that limit the viability of certain options and render others non-creative • Prior uses that rendered certain selections "garden variety" The additional information is all facts so that the only originality has to be in selection & arrangement • When it comes to selection & arrangement of info, creativity lies in (1) making non-obvious choices (2) from among more than a few options. • Selections that have been selected countless times in the past and have become typical is insufficient. Protection of such choices would enable copyright holders to monopolize widely used expression and upset the balance of copyright • Three considerations: o Total number of options available o External factors that limit the viability of certain options and render others non-creative o Prior uses that rendered certain selections "garden variety" Dissent: West's contributions shouldn't be viewed on a standalone basis, but as a whole. On the whole there is enough creativity. Additionally, the majority is requiring more than just a modicum of creativity and certainly more than non-trivial alterations.

2. Scorpio Music v. Willis

a. After victor willis (lead singer village people) elected to terminate 33 copyright transfers executed after 1977. His music publisher said the works were made for hire b. Chief judge rejected the argument that the singers were employees of the company that managed them. Also willis does not need the consent from the other joint owners in order to exercise his termination right. He can do it independently

1. Leicester v. Warner Bros. (9th Cir. 2000)

a. Batman Forever filmed a portion of a building, including five towers and gates that formed the "streetwall" of a courtyard adjacent to the building b. Plaintiff (architect) argued that courtyard is not part of building design, but rather an independent sculptural work, not subject to §120(a). Because 120(a) only applies to DESIGN of building. The courtyard is like a "sculpture" or "garden of sculpture" great argument b/c by arguing physical separability he didn't have to deal with CS c. Holding: The courtyard was part of the building and was subject to § 120(a) and therefore WB permitted to film in courtyard

1. Cramer v. Crestar Financial Corp. (4th Cir. 1995)

a. Court found that a computer program created by Ds director of information systems was created within the scope of employment and was therefore a work made for hire (WMFH)

1. Marvel Worldwide v. Kirby (SDNY 2011)

a. Marvel sold rights to all marvel comics to Disney for $4B. The heirs of the main illustrative, Kirby arguing that altho Kirby transferred rights to Marvel, they intend on terminating this transfer in 2013 so Disney paid $4B for 4 years of use b. Court ruled that all the works at issue were all works for hire, and the termination provision does not apply to WFH

1. Gilliam v. ABC (2nd Cir. 1976)

a. Terry Gilliam of Monty Python sued ABC after it shortened Monty Python's programs by 24 minutes in order to make room for commercials. b. The second circuit ruled that by doing so without specific permission, ABC created an authorized derivative work, thereby violating 106(2)

Gilliam v. ABC (2nd Cir. 1976)

a. Terry Gilliam of Monty Python sued ABC after it shortened Monty Python's programs by 24 minutes in order to make room for commercials. b. The second circuit ruled that by doing so without specific permission, ABC created an authorized derivative work, thereby violating 106(2)

1. Wojnarowicz v. American Family Ass'n (AFA) (SDNY 1990) (p. 576)

a. Wonjarowicz is multimedia artists sand enjoin AFA from publishing and distributing a pamphlet that contained photographic reproductions of forty fragments of his work. Pamphlet was produced to put pressure on the national endowment for the art to stop funding artists like Wojnarowicz, whose work the Defendant found indecent and outrageous. P claimed that reproductions in pamphlet violated his CR in his works - (106(2)) violation - Lanham act) and NY artists authorship act. b. Court agreed. NY statue guards against alterations of reproductions of the work and original itself (so protects against copies too) c. Any unfaithful reproduction is potentially I violation of artist's moral rights. The fact that only minor parts were reproduced in the pamphlet does not help the defendants. On the contrary, it makes things worse bc by excising and reproducing only small portions of the works, Ds have largely reduced P's multi-imaged works to solely sexual images devoid of any political and artistic context. likely to be harmful to artists reputation

• Pollar v. Seymour (N.D.N.Y. 2001)

court opined that even a work that was never displayed to the public may be of recognized stature

b. Mason v. Montgomery Data Inc. (5th Cir 1992)

i. Appellate court did NOT find merger in maps that portrayed location, size and shape of surveys, land grants, tracts, and various topographical features of Montgomery County TX because they were more complex.

a. Kern River Gas v. Costal Court (5th Cir 1990)

i. Court held that a proposal to run a pipeline from point A to point B that was drawn in a map is NOT CRable because of merger - only one most effective way to run a pipeline from A to B so idea merges with expression

a. Kroft v. McDonald (9th Cir. 1977)

i. McDonald's production of an ad in McDonaldLand copied the concept and feel of the plaintiff's "Puff 'n Stuff Show" ii. The court held that although no identical elements were taken, the total concept and feel "Puff 'n Stuff" was used in the McDonald's commercial, and this alone was enough for a finding of infringement (problematic because concept and feel are not supposed to be protected)

◊ Cage v. Batt

o 60 second silence

◊ Burrow-Giles Lithographic Co. v. Sarony (Supreme Court 1984)

o Defense claims ♣ A photograph, being a reproduction, on a paper of the exact features of a natural object is not a writing under the constitution ♣ Photograph made by machines not humans, so fails authorship requirement o Held: ♣ First congress deemed maps and charts worthy of protection and photos are essentially similar to maps and charts ♣ The work is the fruit of the photographers mental conception to which he gave visible form by posing Oscar Wilde in front of the camera and selecting/arranging his costume and the set • What about mugshots? Government works are not copyrightable, but this means work of the federal government • Mannie Garcia v. Shepard Faineg (Barrack Obama photo). The press was assigned the seat/angle etc. but the photo is clearly copyrighted

◊ Satava v. Lowry (9th Cir. 2003)

o Glass jellyfish display o To establish liability plaintiff must show defendant copied original expression o Holding: Satava's glass-in-glass jellyfish. Court alleviates preliminary injunction against Lowry. Sculptures, though beautiful, combine several unprotectable ideas and standard elements. These elements are part of the public domain. Satava may not sue copyright law to seize them for his exclusive use ♣ The combo of unprotectable elements falls short of the standard • High bar from this court • Clear glass, oblong shroud, bright colors, etc. lacks the amount of originality needed ♣ Court did acknowledge some copyrightable contributions • shape of the curls, exact hues, shape of jellyfish bell • but this Is still a thin protection and can't stop others from nature displays or glass-in-glass etc.

◊ CCC Information Services v. MaClean Hunter Markets Report (2nd Cir. 1987)

o Issue: are used care price projections subject to copyright protection? o Holding: Court introduces a distinction between "hard ideas" and "soft ideas" to find no merger. They grant protection ♣ Hard ideas = scientific ideas. There will be a merger ♣ Soft ideas = impression, taste, etc. care prices are more art than science so they are soft ideas and eligible for copyright protection ♣ Gideon disagrees with this description (also these are both ideas not expressions so why do hard ideas get protection? Really just facts but stupid phrasing)

◊ Baker v. Sheldon (Supreme Court 1880)

o Issue: can a bookkeeping method be claimed under the law of copyright by means of a book in which the method is explained? (what was copied was the blank form/table) o Holding: no ♣ How can you protect the method? Patent law - where the threshold requirements are much higher ♣ What does this case stand for? • Patentable subject matter cannot be claimed under copyright law (if it's patentable then get patent protection. Don't take easy way out) • Standard blank forms are not copyrightable • The idea/expression dichotomy (only expression can be copyrighted) o Court said the introductory essay could be protected but not the method itself • The merger doctrine o When there is only a small number of ways to express an idea so the ideas and expressions become one, and protection is denied all together o Copyright extends to expressions and not ideas. Authors can only get protection for original expression

• Midway Manufacturing Co. v. Artic International (7th cir. 1982)

o Issue: must all expressive elements of work be fixed? (for games you only fix and store the basic features o Held: no. sufficient that the basic audiovisual aspects were stored in the Read Only Memory (ROM)

◊ Mazer v Stein (S. Ct. 1954)

o Issue: the copyrightability of lamp-bases shaped as statuettes of Balinese dancers ♣ Petitioner: copyright protection should not extend to mass-produced useful articles irrespectively of their artistic merit o Holding: no categorical exclusion of mass produced utilitarian objects; petitioner's argument has no basis in the copyright act

◊ Morrisey v. Proctor & Gamble

o Morrissey adopted a set of sweepstakes rules that Procter & Gamble later copied o Issue: are the rules copyrightable? o District court found for defendant because rules did not possess sufficient originality o Holding: on appeal result is affirmed but because of a different reason: merger ♣ There is only a limited number of ways to express those rules o You can avoid protection on grounds of originality OR on grounds of merger o The merger analysis is not technical. There is no set number ♣ But the more you recreate something (a rule) in different ways it will become more confusing, convoluted variations of this more basic rule. This puts competitors at a disadvantage (anti-competitive effect) o If the court went with idea-expression instead of merger this would lead to an increase of litigation because for each case they'd need to argue about it. Gideon think merger was the right decision

◊ David Slater

o Wikipedia: said the photo was public domain material. Slater protested o PETA: against Slater on behalf of the monkeys ♣ Congress did not recognize the right of animals to sue under the Copyright Act. Therefore, animals have no standing to bring copyright infringement suits ♣ But what about Slater? Should he have a copyright? Was there enough human authorship?

♣ MAI Systems v. Peak Computer Inc (9th Cir. 1993)

• A temporary copy of software made automatically by a computer's CPU when a computer is activated is sufficiently permanent to constitute a fixation, and hence infringement, even though the copy automatically disappears when computer is switched off • Ruling revised (it had given software companies a monopoly over service industry). Reversed in 1998 by Computer Maintenance Assuring Act (now section 117(c) which exempts liability): o Copy made solely by virtue of activation of a machine o Copy not used for any purpose and is destroyed upon completion of service o ? o ? • Temporary copies give rise to liability

Steinberg v. Columbia Pictures Industries (S.D.N.Y. 1987) (pg. 674)

• Facts: Plaintiff artist for New Yorker drew picture of NY which was on cover and made into posters; Def movie studio consulted that picture and drew much from it for the cover poster of the movie, "Moscow on the Hudson". • Held: SJ to plaintiff found Columbia's movie poster to be infringing; defenses of Def. rejected. Need similarity + access: • As to access, clearly present here as Def. admitted that. • As to "substantial similarity," test is "whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." - Demonstrable similarities such that proof of access was unnecessary. • "Both illustration were executed in sketchy and whimsical styles, that had become of of S's hallmarks. Also in rendering NY blocks, both authors chose similar vantage points looking down the street. The block that Steinberg drew doesn't exist but both sets of buildings look similar • Parcho worries about this decision because it takes us beyond what was supposed to be protected under the Act, and begins to protect style

Matthews v Freedman, 157 F3d 25 (1st Cir. 1998)

• First T-Shirt - "Someone Went to Boston and Got me this shirt because they love me very much" • Second T-Shirt - "Someone who loves me went to Boston and got this shirt" • Are these stock elements? Or is the selection and arrangement similar enough that there is infringement • Merger or Idea/Expression? Mostly Idea - Merger b/c only so many ways to say this. • Court : No infringement. Used merger language though didn't outright say merger - said only limited # of ways to say that phrase. What was taken? Did D take unprotected ideas or protected elements, the court found that only ideas were taken. Court took the subtractive approach, but if they had used the totality approach probably would have found infringement.

o Atari v. Oman (D.C. Cir. 1989) a dispute involving video game "breakout"

♣ Court says we have to evaluate the elements as a whole • "Even simple shapes...combined in a...manner...ingenuity...afforded protection"

o Horgan v MacMillan Inc. (2nd Cir. 1986)

♣ Issue: can still photos of a ballet performance infringe the copyright on the choreography for the ballet? ♣ District court: no. it is impossible to recreate the choreography from the still photos of the performance ♣ 2nd Cir.: reverses. The answer in principle is Yes • whether the choreography may be recreated is not the test. An unauthorized photocopy of a page from a novel amounts to an infringement and so does an unauthorized photo. In fact, a still photo can convey a great deal of information

o Meshwerks v. Toyota Motor Sales U.S.A. (1oth Cir. 2008)

♣ Meshwerks hired by Toyota to produce digital copies of its cars for an ad campaign. Toyota used the models multiple times. Meshwerks claims that by doing so Toyota exceeded the terms of the license ("single use") and sued for copyright infringement • Toyota didn't buy the copyright (which it needed to) • Toyota's defense is that it was their car. If it's not original you cannot sue • Issue: are Meshwerks models sufficiently original? • Held: no. They are mere copies of the original. To determine originality we can look at the process or look at the product o They depicted the cars without any adaptations o The task definition was to procure exact replicas o Meshwerks intended to produce exact models of the cars ♣ Court here decided to focus on the final product and not the process ♣ Court didn't say this, but now Toyota should own the copyright

o Hemmingway's Estate v. Random House (23 N.Y. 2d 341(1968))

♣ Oral works may qualify for protection but speaker must: • Have a clear intent to attain protection and • Mark off parts intended to be protected