Table of ContentsTHE CONCEPT OF COPYRIGHT...................................................................... 5 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) [29]..........................5 Bleistein v. Donaldson Lithographic Co., 188 U.S. 239 (1903) [33].........................5 Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99 (2d Cir. 1951) [52]..................5 Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993) [71].......................................... 5 COPYRIGHTABLE SUBJECT MATTER...........................................................6 General Principles.................................................................................................... 6 Magic Marketing v. Mailing Services of Pittsburgh, 634 F.Supp. 769 (W.D.Pa 1986) [76]................................................................................................................................ 6 Sebastian International, Inc. v. Consumer Contact (PTY) Ltd., 664 F.Supp. 909 (D.N.J. 1987), rev’d on other grounds, 847 F.2d 1093 (3d Cir. 1988) [79]..............6 The Idea/Expression Dichotomy.......................................................................... 6 Baker v. Selden, 101 U.S. 99 (1879) [97]..........................................................................6 Morrissey v. Proctor & Gamble Co., 379 F.2d 675 (1st Cir. 1967) [103]................7 Continental Casualty Co. v. Beardsley, 253 F.2d 702 (2d Cir. 1958), cert. denied, 358 U.S. 816 (1958) [105]....................................................................................................7 Bibbero Systems, Inc. v. Colwell Systems, Inc., 893 F.2d 1104 [106].......................7 ABR Benefits Services Inc. v. NCO Group, 52 U.S.P.Q.2D 1119 (E.D.Pa 1999) [110]..........................................................................................................................................7 Facts and Compilations............................................................................................7 Feist Publications, Inc. v. Rural Telephone Service, 499 U.S. 340 [112].................7 Rockford Map Publishers, Inc. v. Directory Service Co., 768 F.2d 145 (7th Cir. 1985) [123]..............................................................................................................................8 Nash v. CBS, 899 F.2d 1537 (7th Cir. 1990) [124].........................................................8 Wainwright Securities v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977) [128]..............................................................................................................................8 Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970) [131]....8 Sem-Torq, Inc. v. K Mart Corp., 936 F.2d 851 (6th Cir. 1991) [132].......................8 Atari Games Corp. v. Oman, 979 F.2d 242 (D.C. Cir. 1992) [133]............................9 Matthew Bender & Co. v. West Publishing Co., 158 F.3d 674 (2d Cir. 1998) [135]..........................................................................................................................................9 Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693 (2d Cir. 1998) [137]..........................................................................................................................................9 CCC Information Services v. Maclean Hunter Market Reports, Inc., 44 F.3d 61 (2d Cir. 1994) [140]...............................................................................................................9 Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004) (en banc) [147].10 1 BellSouth Advertising & Publishing Corp. v. Donnelley Information Publishing, Inc., 999 F.2d 1436 (11th Cir. 1993) (en banc) [149]..................................................10 Assessment Technologies of Wisconsin, LLC v. WIREdata, Inc., 350 F.3d 640 (7th Cir. 2003) [152]...........................................................................................................10 Sparaco v. Lawler, Matusky & Skelly Engineers LLP, 303 F.3d 460 (2d Cir. 2002) [156]........................................................................................................................................10 Derivative Works.................................................................................................... 10 L. Batlin & Son v. Snyder, 536 F.2d 486 (2d Cir. 1976) (en banc) [164]................10 Schiffer Publications v. Chronicle Books, 73 U.S.P.Q.2d 1090 (E.D.Pa. 2004) [177]........................................................................................................................................11 Maljack Productions, Inc. v. UAV Corp., 964 F.Supp. 1416 (C.D.Cal. 1997) [180] ................................................................................................................................................... 11 Computer Programs............................................................................................... 11 Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) [185]........................................................................................................................................11 Data General Corp. v. Grumman Systems, 825 F.Supp. 340 (D.Mass. 1993) [194] ................................................................................................................................................... 12 Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st Cir. 1995) [195]............................................................................................................................12 Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997) [203]................................12 American Dental Association v. Delta Dental Plans Association, 126 F.3d 977 (7th Cir. 1997) [205]...........................................................................................................13 Pictorial, Graphic, and Sculptural Works......................................................... 13 Mannion v. Coors Brewing Co., 377 F.Supp.2d 444 (S.D.N.Y. 2005) [206]..........13 Masquerade Novelty Inc. v. Unique Industries, 912 F.2d 663 (3d Cir. 1990) [228] ................................................................................................................................................... 13 Pivot Point International, Inc. v. Charlene Products, Inc., 372 F.3d 913 (7th Cir. 2004) [231]............................................................................................................................13 Architectural Works.............................................................................................. 14 Demetriades v. Kaufmann, 680 F.Supp. 658 (S.D.N.Y. 1988) [253]........................14 Characters................................................................................................................ 14 Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930) [259]..................14 Warner Brothers Pictures v. CBS, 216 F.2d 945 (9th Cir. 1954) [260].................14 Anderson v. Stallone, 11 U.S.P.Q.2d 1161 (C.D.Cal. 1989) [261]............................15 Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004) [265].......................................15 Newton v. Diamond, 349 F.3d 591 (9th Cir. 2003) [270].......................................... 15 Government Works and Other Public Policy Issues........................................15 County of Suffolk, New York v. First American Real Estate Solutions, 261 F.3d 2 179 (2d Cir. 2001) [276].....................................................................................................15 Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc) [280]..................................................................................................15 Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979) [295]............................................................................................................................16 OWNERSHIP.......................................................................................................... 16 Initial Ownership.................................................................................................... 16 Lindsay v. R.M.S. Titanic, Inc., 52 U.S.P.Q.2d 1609 (S.D.N.Y. 1999) [301]..........16 Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) [305].........16 Aymes v. Bonelli, 980 F.2d 857 (2d Cir. 1992) [317].................................................. 17 Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995) [317]..............................17 Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 380 F.3d 624 (2d Cir. 2004) [318]................................17 Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998) [329].............................................18 Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000) [339]..................................... 18 Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004) [340].......................................18 Transfer of Copyright Ownership...................................................................... 18 Effects Associates v. Cohen, 908 F.2d 555 (9th Cir. 1990) [347].............................18 Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir. 1988) [356]..............19 Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co. [360].....................19 Random House, inc. v. Rosetta Books, LLC [368]...................................................... 19 Bassett [373] (come back later)........................................................................................20 Foad Consulting [374] (come back later)......................................................................20 New York Times Co., Inc. v. Tasini [375].....................................................................20 In re Marriage of Susan M. & Frederick L. Worth [385] come back later.........20 Fantasy, Inc. v. Fogerty [386] come back later............................................................ 20 Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211 (11th Cir. 1999) [471]............................................................................................................................20 Academy of Motion Picture Arts & Sciences v. Creative House Promotions, Inc., 944 F.2d 1446 (9th Cir. 1991) [477]................................................................................21 BMG v. Gonzalez [482].....................................................................................................21 Corbis Corp. v. Amazon.com [489]................................................................................. 22 Kahle v. Ashcroft [495] (come back later).....................................................................22 EXCLUSIVE RIGHTS UNDER COPYRIGHT................................................22 The Right to Reproduce the Work in Copies & Phonorecords.....................22 Arnstein v. Porter [509].....................................................................................................22 Dawson v. Hinshaw Music, Inc. [514]............................................................................22 Bright Tunes Music Corp. v. Harrisongs Music, Ltd. [516]....................................22 Gasté v. Kaiserman [520].................................................................................................. 23 3 Ty, Inc. v. GMA Accessories, Inc. [521] (come back later)....................................... 23 Laureyssens v. Idea Group, Inc. [524]............................................................................23 Ringgold v. Black Entertainment Television, Inc. [526]...........................................23 Peter Pan Fabrics, Inc. v. Martin Weiner Corp. [528]...............................................23 Herbert Rosenthal Jewelry Corp. v. Kalpakian [529].................................................24 Educational Testing Services v. Katzman [534]..........................................................24 Nichols v. Universal Pictures Corp. [537].................................................................... 24 Sheldon v. Metro-Goldwyn Pictures Corp. [542]....................................................... 25 Boisson v. Banian, Ltd. [555]............................................................................................25 Computer Associates International, Inc. v. Altai, Inc. [559].................................... 25 Steinberg v. Columbia Pictures Industries [572]........................................................ 25 ABKCO Music, Inc. v. Stellar Records, Inc. [591]...................................................... 26 Bridgeport Music v. Dimension Films [598]............................................................... 26 The Right to Prepare Derivative Works Under § 106(2)................................26 Horgan v. Macmillan, Inc. [605]......................................................................................26 Lee v. A.R.T. Co. [610]....................................................................................................... 27 Micro Star v. FormGen, Inc. [614]................................................................................. 27 Krause v. Titleserv, Inc. [620].......................................................................................... 27 Gilliam v. American Broadcasting Co., Inc. [621].......................................................27 Flack v. Friends of Queen Catherine, Inc. [630].........................................................28 Pollara v. Seymour [630]................................................................................................... 28 Pavia v. 1120 Avenue of the Americas Associates [640]...........................................28 Wojnarowicz v. American Family Association [643]................................................. 28 The Right to Distribute Under § 106(3)............................................................ 29 Fawcett Publications v. Elliot Publishing Co. [651]...................................................29 Rights of Public Performance and Display Under §§ 106(4)–(6)..................29 Columbia Pictures Industries, Inc. v. Aveco, Inc. [669]............................................. 29 4 THE CONCEPT OF COPYRIGHT Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) [29] Photographs qualified for copyright protection under the 1870 Copyright Act. Sarony sued Burrow-Giles for duplicating a photograph of Oscar Wilde without his permission. Although photographs were not explicitly mentioned in the 1870 Act, the court found that the omission most likely resulted from the fact that the Act had been written before photography had become a widely known technology. The court compared photographs to other graphical works, finding that “[u]nless [ ] photographs can be distinguished . . . from maps, charts . . . and other prints, it is difficult to see why Congress cannot make them the subject of copyright.” The court further rejected Burrow-Giles’s argument that the photograph was a “mere mechanical reproduction” of a scene and therefore ineligible for copyright. The court found that the composition of the photograph evidenced enough originality to place the photograph under copyright protection. Bleistein v. Donaldson Lithographic Co., 188 U.S. 239 (1903) [33] Originality, as opposed to artistic merit, is the standard of eligibility for copyright protection. Donaldson had reproduced Bleistein’s circus advertisements without first obtaining Bleistein’s permissions. Finding infringement, the court noted that “[o]thers are free to copy the original [subject matter depicted]. They are not free to copy the copy.” The court rejected Donaldson’s contention that copyright protection applied only to the “fine arts,” noting that “[i]t would be a dangerous undertaking for persons trained only in the law to constitute themselves final judges of the worth of pictorial illustrations.” Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99 (2d Cir. 1951) [52] A work is original (and therefore eligible for copyright) as long as it exhibits more than a “merely trivial” variation from preexisting works. Bell asserted copyright protection for handmade reproductions of public-domain paintings. The reproductions had been made through a labor-intensive process known as the “mezzotint method.” The court found that the mezzotint method allowed the reproducer to exercise enough discretion to make the result an original work. Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993) [71] Ownership of the copyright to a work is distinct from ownership of a particular copy of that work. Forward owned “demo tapes” recorded by Thorogood’s band. A dispute arose when Forward sought to release commercially the demo-tape recordings against the band’s wishes. The court found that Forward’s physical possession of the tapes did not give him implicit ownership of the copy5 right to the recordings. COPYRIGHTABLE SUBJECT MATTER General Principles Magic Marketing v. Mailing Services of Pittsburgh, 634 F.Supp. 769 (W.D.Pa 1986) [76] Short, standardized phrases do not exhibit enough originality to qualify for copyright protection. Magic Marketing produced preprinted envelopes bearing phrases such as “telegram,” “gift check,” and “priority message.” When Magic Marketing asserted copyright protection for the phrases, the court found the phrases to lack the minimal degree of originality necessary to qualify for copyright. The court found that copyright protection did not extend to “fragmentary words and phrases,” “forms of expression dictated solely by functional considerations,” or “clichéd language and expressions communciating an idea which may only be conveyed in a more or less stereotyped manner.” Sebastian International, Inc. v. Consumer Contact (PTY) Ltd., 664 F.Supp. 909 (D.N.J. 1987), rev’d on other grounds, 847 F.2d 1093 (3d Cir. 1988) [79] Product labels are copyrightable as long as they exhibit the necessary “modicum of creativity.” The court found that the instructions for using a hair-care product were entitled to copyright protection because the language was “more than simply a list of ingredients, directions, or a catchy phrase.” The Idea/Expression Dichotomy Baker v. Selden, 101 U.S. 99 (1879) [97] The owner of a copyright to a written work may not use that copyright as a basis for asserting the exclusive right to use any procedure set forth in that work. Selden held the copyright to a book detailing a new method for performing double-entry bookkeeping. When Baker published a book detailing a substantially similar bookkeeping system, Selden sued Baker on the theory that Selden’s copyright entitled him to the exclusive use of the bookkeeping system. Ruling for Baker, the Court noted that “there is a clear distinction between the book, as such, and the art which it is intended to illustrate.” The Court further observed that “[t]o give to the author of the book an exclusive property in the art described therein . . . is the province of [patents], not of coyright.” Morrissey v. Proctor & Gamble Co., 379 F.2d 675 (1st Cir. 1967) [103] Copyright protection does not extend to subject matter which is so narrow that the topic “necessarily requires” one or a few forms of expression. At issue were 6 sweepstakes instructions which directed entrants to submit social security numbers and to comply with certain other rules. Finding the instructions to be so specific as to be expressible in only a few ways, the court held that the instructions were uncopyrightable. Continental Casualty Co. v. Beardsley, 253 F.2d 702 (2d Cir. 1958), cert. denied, 358 U.S. 816 (1958) [105] A particular printed form may be copyrightable even if the ideas underlying that form are not copyrightable. The court found an insurance form to be copyrightable because it contained “explanatory” information concerning the policy offered by the authoring company. Bibbero Systems, Inc. v. Colwell Systems, Inc., 893 F.2d 1104 [106] Blank forms are generally uncopyrightable, even if they feature highly particularized fields. Bibbero produced “superbills,” detailed forms which doctors used to obtain reimbursement from insurance companies. Colwell produced virtually identical superbills, which differed from Bibbero’s only in shading and other trivial aspects. Despite Colwell’s near-copying of the forms, the court found that blank forms are never copyrightable. The court declined to state that forms “convey information” because they list “some categories of information but not others” and cautioned that such a principle would be “potentially limitless.” ABR Benefits Services Inc. v. NCO Group, 52 U.S.P.Q.2D 1119 (E.D.Pa 1999) [110] “Blank forms may be copyrighted if they are sufficiently innovative that their arrangement of information is itself informative.” Facts and Compilations Feist Publications, Inc. v. Rural Telephone Service, 499 U.S. 340 [112] A compilation of facts may be copyrighted only if the selection of facts shows “some minimal degree of creativity.” The court found that Rural’s telephone directory was not copyrightable because the selection of telephone numbers was “entirely typical.” Rockford Map Publishers, Inc. v. Directory Service Co., 768 F.2d 145 (7th Cir. 1985) [123] Copyright protection does not depend on the amount of effort expended in creating the work. Nash v. CBS, 899 F.2d 1537 (7th Cir. 1990) [124] A particular interpretation of historical records may count as a “fact” for copy7 right purposes. Nash had written several books on the bank robber John Dillinger. These books claimed that Dillinger—contrary to conventional accounts—had escaped a supposedly fatal ambush by the FBI and was living incognito. Nash sued CBS copyright infringement after CBS produced a television program based on Nash’s theory. Ruling for CBS, the court noted that “Nash does not portray [his account] . . . as fiction,” so that “Nash’s rights lie in his expression . . . but not in the naked ‘truth.’ ” Wainwright Securities v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977) [128] Paraphrasing written reports of facts may amount to copyright infringement. Wainwright produced “in-depth analytical reports on industrial, financial, utility, and railroad corporations.” Wall Street published a weekly newspaper containing “abstracts of institutional research reports,” include those produced by Wainwright. Rejecting Wall Street’s theory that the abstracts were nothing but facts, the court found that “[Wall Street] did not bother to distinguish between the events contained in the reports and the manner of expression used by the Wainwright analysts.” Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970) [131] A work must be analyzed as a whole to determine whether it qualifies for copyright protection. The court upheld Roth’s copyright to greeting cards even though the text within the card was “prosaic.” The court found that “proprer analysis of the problem requires that all elements of each card, including arrangement of text, art work, and association between art work and text, be considered as a whole.” Sem-Torq, Inc. v. K Mart Corp., 936 F.2d 851 (6th Cir. 1991) [132] The mere bundling of individual works may not be sufficient to create a copyrightable compilation. Sem-Torq produced double-sided signs, which read “For Rent” on one side and “For Sale” on the other. Sem-Torq bundled these signs into sets of five. The court found that the bundled sets were not compilations because “[t]he whole of a compilation is greater than the sum of its parts.” For the court, each bundled set was nothing more than five individual signs. Atari Games Corp. v. Oman, 979 F.2d 242 (D.C. Cir. 1992) [133] A work may be copyrightable even if the individual elements comprising the work are not. The court found that the video game Breakout was copyrightable even though the on-screen images consisted of basic geometrical shapes. The court found that “the requisite level of creativity [can be] met by either the individual screens or the relationship of each screen to the other and/or the accom8 panying sound effects.” Matthew Bender & Co. v. West Publishing Co., 158 F.3d 674 (2d Cir. 1998) [135] Minimal enhancements to existing works may not qualify for copyright protection. West argued for copyright to certain elements of its editions of court opinions. These elements included (1) the arrangement of information specifying the parties, (2) the selection and arrangement of attorney information, (3) the arrangement of information relating to subsequent procedural developments, and (4) the selection and arrangement of “parallel and alternative citations” to other reporters. The court found that no element West to exercise enough discretion to give rise to the originality required for copyright protection. Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693 (2d Cir. 1998) [137] “Star pagination” markings within West’s editions of court opinions are not copyrightable because West exercised no discretion in the placement of those markings. CCC Information Services v. Maclean Hunter Market Reports, Inc., 44 F.3d 61 (2d Cir. 1994) [140] Factual compilations are copyrightable if the facts they contain reflect the subjective judgment of the author. Maclean published the Red Book, a manual containing appraisals of used vehicles. The estimated values took into account factors such as geographical region and vehicle condition. Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004) (en banc) [147] Part numbers generated formulaically are not copyrightable because they are the results of a mechanical process. The formula itself is not copyrightable because it is an idea.1 BellSouth Advertising & Publishing Corp. v. Donnelley Information Publishing, Inc., 999 F.2d 1436 (11th Cir. 1993) (en banc) [149] One does not commit copyright infringement by using a computer program to generate a database containing information printed in a telephone directory. Donnelley and BellSouth competed for clients willing to place advertisements in their respective directories. To target BellSouth’s existing customers, Donnelley created a computer program to extract information from BellSouth’s directory 1 See also ATC Distribution Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700 (6th Cir. 2005) [148]. 9 so as to concentrate information about purchasers of BellSouth’s advertising space. The extracted information was then used to construct a database, which assigned to each advertiser a numerical code that mirrored that advertiser’s classification in BellSouth’s directory. The court found no infringement on the part of Donnelley. The court found that the classifications (“Banks,” “Attorneys,” etc.) were so generic as to lack originality. Further, the court observed that there were few alternatives to organizing a business directory in the manner used by BellSouth. The dissent argued that BellSouth had exercised enough discretion in the selection of category headings to make the directory original. Assessment Technologies of Wisconsin, LLC v. WIREdata, Inc., 350 F.3d 640 (7th Cir. 2003) [152] (see old case briefs for now) Sparaco v. Lawler, Matusky & Skelly Engineers LLP, 303 F.3d 460 (2d Cir. 2002) [156] Architectural plans are copyrightable. (see old case briefs for now) Derivative Works L. Batlin & Son v. Snyder, 536 F.2d 486 (2d Cir. 1976) (en banc) [164] “Trivial variations” of existing works do not give rise to copyright protection. Batlin and Snyder were competing manufacturers of “Uncle Sam” coin banks. The basic design of the “Uncle Sam” banks did not originate from either business. Rather, the design had been created and popularized many years earlier. Snyder based its particular version on a cast-iron exemplar but made several design adjustments to facilitate manufacturing the bank from plastic. Upon a challenge by Batlin, the court invalidated Snyder’s copyright to its version of the bank. The court found that copyright required the work to show “substantial variation [from the original], not merely a trivial variation such as might occur in the translation to a different medium.” The dissent argued that Snyder’s modifications of the cast-iron exemplar showed enough originality to make Snyder’s bank copyrightable. Schiffer Publications v. Chronicle Books, 73 U.S.P.Q.2d 1090 (E.D.Pa. 2004) [177] Photographs of fabric designs exhibit enough originality to be copyrightable. The court found that the photographers of the fabric had exercised significant creative discretion by choosing the type of camera to be used, the type of film to be used, and so forth. The court found that the photographers intended to create 10 “visually interesting” images rather than precise reproductions of the fabrics themselves. Maljack Productions, Inc. v. UAV Corp., 964 F.Supp. 1416 (C.D.Cal. 1997) [180] A slightly modified re-release of a public-domain film is copyrightable. Maljack modified the film McClintock! by cropping the picture to fit conventional television screens, deleting some scenes, and improving the sound quality of the ori ginal soundtrack. The court found that the modifications showed enough originality to make the re-release copyrightable. Computer Programs Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) [185] Computer programs are copyrightable. Franklin manufactured “Apple clones,” computers that were designed to be completely compatible with software written for Apple’s own machines. In order to achieve the requisite level of compatibility, Franklin copied Apple’s operating system as well as several ancillary programs. The court found that Apple was entitled to an injunction enjoining Franklin from making and distributing copies of Apple’s software. The court found that computer programs were “literary works” under § 101 because they constituted “expression not only in words but also numbers [or] other numerical symbols or indicia.” The court further rejected Franklin’s contention that Apple’s software was merely a method of operating Apple’s computers. Finally, the court rejected Franklin’s contention that Apple’s programs were not unprotectable ideas. Data General Corp. v. Grumman Systems, 825 F.Supp. 340 (D.Mass. 1993) [194] Copyright law makes no distinction between “source code” and “object code” representations of computer programs. Grumman copied the object code of Data General’s software and subsequently claimed that the copying was not infringement because Data General had registered only the program’s source code. Finding infringement, the court emphasized that source code and object code were equivalent representations of the same program. Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st Cir. 1995) [195] Menu hierarchies within computer programs are uncopyrightable “methods of operation.” Lotus and Borland were competing developers of spreadsheet software. Lotus developed and marketed Lotus 1-2-3, which had gained significant 11 popularity. Borland, a relative newcomer to the market, sought to enhance the appeal of its software by copying the menu hierarchy used in Lotus 1-2-3. Because many users had already grown accustomed to using Lotus’s menu commands, Borland calculated that duplicating the menu hierarchy would ease the transition from Lotus 1-2-3 to its own product. Comparing the menu options to VCR buttons, the court rejected Lotus’s claim that Borland had committed copyright infringement. According to the court, “[h]ighlighting the ‘Print’ command . . . or typing the letter ‘P,’ is analogous to pressing a VCR button labeled ‘Play.’ ” Emphasizing the functional aspect of the menu options, the court further stated that “the Lotus command terms are not equivalent to the labels on the VCR’s buttons, but are instead equivalent to the buttons themselves.” The concurrence noted the possibility that a dominant player in a software market might “holder users hostage” to a widespread user interface. Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997) [203] The court found that “although an element of a work may be characterized as a method of operation, that element may nevertheless contain expression that is eligible for copyright protection.” American Dental Association v. Delta Dental Plans Association, 126 F.3d 977 (7th Cir. 1997) [205] A system of identification codes for dental procedures is copyrightable. American Dental developed a system that assigned a numerical code to each dental procedure. Under the system, each procedure was assigned a numerical code, a “short description,” and a “long description.” The court found that Delta Dental had infringed American Dental’s copyright to the system by copying the codes and the descriptions. According to the court, American Dental’s system exhibited originality because “[d]ental procedures could be classified by complexity, or by the tools necessary to perform them, . . . or in any of a dozen different ways.” Pictorial, Graphic, and Sculptural Works Mannion v. Coors Brewing Co., 377 F.Supp.2d 444 (S.D.N.Y. 2005) [206] The composition of a photograph can be copyrightable. Mannion took a photograph of basketball player Kevin Garnett. 2 Coors subsequently developed a billboard advertisement featuring a photograph with similar composition. Recognizing that photography complicated the analysis under the idea/expression dichotomy, the court found that (1) rendition, (2) timing, and (3) creation of the subject can influence the copyrightability of a photograph. Ultimately, the court stated that “there would be infringement . . . if the subject and rendition were 2 See pages 208–09 of the casebook for the photographs in question. 12 sufficiently like those in the copyrighted work.”3 Masquerade Novelty Inc. v. Unique Industries, 912 F.2d 663 (3d Cir. 1990) [228] Costume masks are copyrightable and are not “useful articles.” The court found that “the only utilitarian function of the nose masks is in their portrayal of animal noses . . . . [N]ose masks have no utility that does not derive from their appearance.” Pivot Point International, Inc. v. Charlene Products, Inc., 372 F.3d 913 (7th Cir. 2004) [231] Mannequin heads are copyrightable even though they are also “useful articles.” Pivot Point manufactured the “Mara” mannequin head, which was designed to “imitate the ‘hungry look’ of high-fashion, runway models.” Charlene Products subsequently began marketing its own “Liza” mannequin head, which bore a striking similarity to the “Mara” head. After reviewing the doctrine of separability, the court found that Charlene had infringed Pivot’s copyright to the “Mara” head. The court held that copyrightability should “depend on the extent to which the work reflects artistic expression uninhibited by functional considerations” and that “[c]onceptual separability exists [ ] when the artistic aspects of an article can be conceptualized as existing independently of their utilitarian function.” Applying this standard to the “Mara” head, the court observed that “one is not only able to conceive of a different face than that portrayed on the Mara mannequin, but one easily can conceive of another visage that portrays the ‘hungry look’ on a high-fashion runway model.” The dissent challenged the court’s conclusion that the face of a mannequin is conceptually separable its function. Architectural Works Demetriades v. Kaufmann, 680 F.Supp. 658 (S.D.N.Y. 1988) [253] This case took place before the enactment of § 120, which protects architectural works. Demetriades had hired an architect to draw up the plans for a custom-designed home. Kaufmann gained unauthorized access to the plans and traced the plans in order to build a duplicate of Demetriades’s house. Although the Copyright Act did not explicitly protect the plans, the court enjoined Kaufmann from making use of the plans in building any house. 3 See also Diodato v. Spade, 388 F.Supp.2d 382 (S.D.N.Y. 2005) [218]; Kisch v. Ammirati & Puris Inc., 657 F.Supp. 380 (S.D.N.Y. 1987) [579]. 13 Characters Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930) [259] The plot of a dramatic work is copyrightable. The court, however, cautioned that copyrights to plots implicate the idea/expression dichotomy. Warner Brothers Pictures v. CBS, 216 F.2d 945 (9th Cir. 1954) [260] The rights to use characters from a literary work may be granted separately from the right to use the work itself. The author and publisher of the story “The Maltese Falcon” granted to Warner Brothers the right to make a movie version of the story. Subsequently, the author and publisher granted to CBS the right to use characters from the story in radio programs as long as those programs did not duplicate the original plot. Warner Brothers challenged the arrangement with CBS on the ground that CBS’s use of the characters infringed its rights to use the original story. Ruling for CBS, the court found that the rights to characters could be granted separately from the rights to any work in which they originally appeared. Anderson v. Stallone, 11 U.S.P.Q.2d 1161 (C.D.Cal. 1989) [261] The Rocky character from the Rocky movies are copyrightable. After the first three Rocky movies had been released, Anderson wrote a proposed plot for a fourth Rocky movie and submitted it to MGM. When Stallone decided to use a similar story for Rocky IV, Anderson claimed that Stallone had infringed his copyright to the proposed plot. Ruling for Stallone, the court found that Anderson’s plot was uncopyrightable because it used the Rocky character without authorization. Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004) [265] (come back later) Newton v. Diamond, 349 F.3d 591 (9th Cir. 2003) [270] (come back later) Government Works and Other Public Policy Issues County of Suffolk, New York v. First American Real Estate Solutions, 261 F.3d 179 (2d Cir. 2001) [276] State governments may own copyrights to works produced to facilitate administrative functions. The government of Suffolk County produced “tax maps,” which showed “the ownership, size, and location of real property parcels” for the purpose of calculating taxes. First American distributed copies of the maps in printed form and on CD-ROMs. Finding that First American had committed 14 copyright infringement, the court found that “[t]here is nothing inconsistent between fulfilling [state laws’] goal of access and permitting a state agency to place reasonable restrictions on the redistribution of its copyrighted works.” The court drew a distinction between “permit[ting] a member of the public to copy a public record” and “the right of a private entity to distribute commercially what it would otherwise, under copyright law, be unable to distribute.” Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc) [280] Model codes produced by private organizations enter the public domain upon becoming part of the law. Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979) [295] Obscenity does not prevent a work from being copyrightable. Cinema Adult Theater made and distributed unauthorized copies of a pornographic film produced by Mitchell Brothers. While Cinema Adult conceded copying, it argued that the movie was uncopyrightable because of its obscenity. After reviewing the legislative history of the Copyright Act, the court concluded that the Act did not prohibit the copyrighting of obscene works. Further, the court noted that deciding the question of obscenity would require courts to engage in difficult line-drawing with regard to societal standards of decency.4 OWNERSHIP Initial Ownership Lindsay v. R.M.S. Titanic, Inc., 52 U.S.P.Q.2d 1609 (S.D.N.Y. 1999) [301] A person may be the author of a work even if he or she did not physically participate in the production of that work. Titanic had hired Lindsay to produce documentary footage detailing the salvaging of artifacts from the wreck of the Titanic. The filming was done by remote-controlled submarines. When a dispute arose as to Lindsay’s compensation for directing the filming, Titanic argued that Lindsay owned no copyright to the footage because he did not personally dive to the wreck to create it. Finding that Lindsay did own the copyright to the work, the court noted that the author of a work need not create that work in a literal, physical sense. Rather, Lindsay was the author because he “exercised [ ] a high degree of control [during the creative process] . . . such that the final product duplicates his conceptions and visions of what the film should look like.” 4 See also Devils Films, Inc. v. Nectar Video, 29 F.Supp.2d 174 (S.D.N.Y. 1998) [299]. 15 Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) [305] In deciding whether a particular work was made for hire, the reviewing court should first determine whether the creator of the work was an employee of the hiring party under common-law principles of agency. Once this determination has been made, the reviewing court should then analyze the work’s authorship under the appropriate paragraph of § 101. The Community for Creative NonViolence (CCNV) conceived of a crèche-style structure depicting a homeless family huddled on the street. CCNV hired Reid to create the sculpture, and the parties engaged in preliminary discussions concerning the sculpture’s basic design and the material from which it would be made. While Reid was creating the sculpture, he employed assistants, who were paid by CCNV. A dispute then arose as to whether the sculpture should be taken on a touring exhibit. The parties disagreed as to who retained the final say over the disposition of the sculpture. CCNV contended that the sculpture was a work for hire, and Reid claimed the contrary. The court observed since “[s]culpture does not fit within any of the nine categories of ‘specially ordered or commissioned works’ enumerated in [§ 101]” and there was no written agreement between the parties as to Reid’s status, “[t]he dispositive inquiry in this case [ ] is whether [the sculpture] is ‘a work prepared by an employee within the scope of his or her employ ment.’ ” After reviewing the factors tending to establish an employer–employee relationship,5 the court found that Reid was not an employee of CCNV. The sculpture was therefore not a work for hire made for CCNV, though the court observed that CCNV might qualify as a co-author. Aymes v. Bonelli, 980 F.2d 857 (2d Cir. 1992) [317] A computer program created for an employer is a work made for hire belonging to that employer. The court found that some of the factors listed in CCNV should be given more weight than others because “they will usually be highly probative of the true nature of the employment relationship.6 Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995) [317] A work may be a work for hire even if the creator exercised signification exercised significant discretion in creating it. Carter created a sculpture that was located in a building owned by Helmsley-Spear. A new owner subsequently purchased the building and indicated its intention to modify or remove the sculpture. Carter sued under the Visual Artists’ Rights Act to prevent any disturbance of the sculpture. Noting that Carter had received a regular salary and retirement benefits from Helmsley-Spear, the court held the sculpture to be a work for hire created at Helmsley-Spear’s behest. 5 See page 314 of the casebook. 6 See page 317 of the casebook for a list of the relevant factors. 16 Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 380 F.3d 624 (2d Cir. 2004) [318] During her life, Martha Graham had been employed by the Center as a choreographer. After her death, the court applied an “instance and expense” standard to determine whether Graham’s choreographic works were works for hire owned by the Center. Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998) [329] Even substantial contributions to a work may not make the contributor a coauthor of the work in the absence of sufficiently clear intent to create a joint work. Larson had composed the score for the musical Rent. While working on a production of the show, Larson agreed to take on Thomson as a “dramaturg,” a sort of advisor who could recommend substantive changes to the show. Despite Thomson’s presence, Larson was “insistent on making [the production] his own project” and was billed as the sole author. Dissatisfied with her compensation, Thomson subsequently sued for royalties on the theory that she was a co-author of the work. Applying the Childress test, the court found that Thomson was not a coauthor. Under the Childress test, “a co-authorship claimant bears the burden of establishing that each of the putative co-authors (1) made independently copyrightable contributions to the work; and (2) fully intended to be co-authors.” Forgoing discussion of the first element on procedural grounds, the court found that Thomson failed the second element of the test. After analyzing the nature of the cooperation between Thomson and Larson, the court found that Larson retained final decision-making authority over the production. Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000) [339] Where many individuals contribute creative elements to a work, the author of that work is the individual who “superintend[s]” the creation of the work. Lee was the co-writer, co-producer, and director of a movie on the life of Malcolm X. While producing the movie, Lee hired Aalmuhammed as a consultant on the subject of Malcolm X. Aalmuhammed’s made “extensive script revision,” “directed . . . actors on the set,” “created some new scenes with new characters,” and “edited parts of the film during post-production.” While acknowledging that Aalmuhammed’s contributions were “extremely helpful,” the court found that Aalmuhammed was not a coauthor of the movie because Lee retained “artistic control.” Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004) [340] (come back later) 17 Transfer of Copyright Ownership Effects Associates v. Cohen, 908 F.2d 555 (9th Cir. 1990) [347] A transfer of copyright ownership must be set forth in writing, as required by § 204(a). Effects Associates had created special-effects footage for certain scenes in a movie that Cohen produced. Although Cohen agreed to pay Effects Associates a fee for the footage, the parties did not discuss the ownership of the copyright to the special-effects footage. When Cohen subsequently refused to pay the fee in full, the ensuing lawsuit centered on whether Effects Associates had transferred ownership of the footage to Cohen. Citing § 204, the court found that the lack of a written agreement to transfer any copyright meant that Effects Associates had only granted Cohen an implied license to use the footage in his movie. The court concluded that Cohen therefore had committed no copyright infringement but might nonetheless face liability for a breach of contract. Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir. 1988) [356] A license to show television broadcasts of a movie does not confer the right to distribute videotape copies of that movie. Cohen owned the copyright to a musical composition that was included in the soundtrack of a movie distributed by Paramount. Negotiations between Cohen and Paramount had produced a license granting Paramount the right to “exhibit [the] motion picture by means of television.” When Paramount subsequently sold copies of the movie on videotape, Cohen sued Paramount on the theory that the license did not grant Paramount the right to distribute the movie on tape. Ruling for Cohen, the court found that the terms of the license explicitly excluded any form of distribution other than television broadcasts. The court further observed that Paramount should not be allowed to reap a “windfall” from the development of technology that could not have been foreseen at the time the license was made. Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co. [360] The scope of a license may be a factual issue when the language of the license is ambiguous with respect to the distribution of the licensed content through laterdeveloped media. Boosey & Hawkes owned the copyright to Igor Stravinsky’s “The Rites of Spring,” which was featured in the movie Fantasia. Although Stravinsky’s work had already entered the public domain in the United States, Disney decided to obtain a license in order to distribute the movie in countries where Stravinsky’s works were still protected by copyright. When Disney subsequently distributed video recordings of Fantasia, Boosey & Hawkes sued on the ground that the distribution violated the terms of the license. Finding that the language of the license could be plausibly interpreted in either party’s favor, the court remanded the case for a trial. Disney eventually settled the case by paying $3M to Boosey & Hawkes. 18 Random House, inc. v. Rosetta Books, LLC [368] The right to publish paper copies of a book is distinct from the right to distribute e-book copies of that book. Several authors had executed with Random House contracts that granted Random House the right to publish their works “in book form.” When those authors subsequently granted Rosetta the right to publish e-book versions of the same works, Random House sued on the theory that the paper-book contracts implicitly covered the right to distribute e-books. Ruling for Rosetta, the court found that the phrase “in book form” could not be read so broadly as to include the works in any format whatsoever. The court observed that the rights for Braille editions and other alternative formats were routinely negotiated separately, so that e-books should be treated in the same manner. Bassett [373] (come back later) Foad Consulting [374] (come back later) New York Times Co., Inc. v. Tasini [375] The owner of the copyright to a collective work does not have the right to republish independently copyrightable portions of that collection in an unrelated context. Tasini and several other respondents were freelance writers whose articles had appeared in the New York Times and several other newspapers. Unbeknownst to the writers, each newspaper had a standing agreement with the owners of the LexisNexis database whereby their respective news articles were made individually accessible to LexisNexis subscribers. When the writers discovered the availability of their articles on LexisNexis, they sued the newspapers for copyright infringement. Ruling for the writers, the Court found that LexisNexis “present[ed] articles to users clear of the context provided either by the original periodical editions ro by any revision of those editions.” The dissent (Justice Stevens and Justice Breyer) argued that database services should be considered “revisions” of the original collective work within the meaning of § 201(c). In re Marriage of Susan M. & Frederick L. Worth [385] come back later Fantasy, Inc. v. Fogerty [386] come back later Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211 (11th Cir. 1999) [471] The public delivery of that speech under the speech was very large. fringing the copyright a speech does not amount to a “general publication” of Copyright Act of 1909, even if the audience for that The estate of Martin Luther King, Jr., sued CBS for into King’s “I Have a Dream” speech. CBS had featured 19 portions of the speech in a documentary without first obtaining the consent of King’s estate. The court found that general publication occurred under only two circumstances: (1) when “tangible copies of the work are distributed to the general public in such a manner as allows the public to exercise dominion and control over the work” and (2) when the work is “exhibited or displayed in such a manner as to permit unrestricted copying by the general public.” The court specifically rejected CBS’s contention that the presence of a large audience for the speech converted the delivery of the speech into a general publication. According to the court, “general publication depends, not on the number of people involved, but rather on the fact that the work is made available to the public without regard to who they are or what they propose to do with it.” Judge Cook (concurring) stated that he would have based the outcome solely on the rule that general publication requires the distribution of tangible copies. Judge Roney (dissenting) stated that the factual circumstances supported a finding of general publication. Academy of Motion Picture Arts & Sciences v. Creative House Promotions, Inc., 944 F.2d 1446 (9th Cir. 1991) [477] The distribution of Oscar statuettes to recipients of the Academy Awards does not amount to a “general publication” of the statuettes under the Copyright Act of 1909. The Academy sued Creative for infringing the Academy’s copyright to the Oscar statuettes. Creative had sold lookalike statuettes without obtaining the Academy’s permission. The court found that any distribution of the Oscar statuettes was a limited publication because the statuettes (1) were distributed to a “select group of persons”; (2) were distributed for a limited purpose; and (3) were distributed with the implied condition that recipients had “no right of sale or other further distribution.” The court further noted that the widespread existence two-dimensional depictions of the statuettes did not amount to a general publication because “two-dimensional pictures [do] not constitute a divesting publication of three-dimensional objects.” BMG v. Gonzalez [482] The owner of the copyright to a work may obtain statutory damages for the infringement of that copyright as long as it provides a notice of copyright on all legally distributed copies of the work. Having illegally downloaded numerous songs owned by BMG, Gonzalez argued for a reduction in damages on the ground that the source files from which she made her unauthorized copies did not bear notices of copyright. Ruling for BMG, the court found that Gonzalez had reason to suspect that the downloaded songs were indeed copyrighted. 20 Corbis Corp. v. Amazon.com [489] A work is not “registered” within the meaning of § 411(a) until the Register of Copyrights actually issues the registration for that work. Merely filing for the registration of a work does not grant the putative copyright owner from suing for the infringement of that work. Kahle v. Ashcroft [495] (come back later) EXCLUSIVE RIGHTS UNDER COPYRIGHT The Right to Reproduce the Work in Copies & Phonorecords Arnstein v. Porter [509] In order to prevail on a claim of copyright infringement, the plaintiff must show that the defendant (1) actually copied from the plaintiff ’s work and (2) took so much of the work that the copying amounted to “improper appropriation.” Arnstein sued Porter on the ground that Porter had committed copyright infringement by appropriating certain parts of Arnstein’s songs. After acknowledging “similarities” between recordings of the parties’ respective songs and noting that printed scores of Arnstein’s compositions had circulated widely, the court found that a trial on the issue of infringement was appropriate. The court further held that “[t]he question . . . is whether the defendant took from plaintiff ’s works so much of what is pleasing to the ears of lay listeners . . . that defendant wrongfully appropriated something which belongs to the plaintiff.” The dissent (Judge Clark) disagreed with the court’s finding of “similarities” between the allegedly infringing compositions and the originals. The dissent criticized Arnstein for attempting to “dissect” Porter’s work so as to identify snippets that bore some resemblance to his own compositions. Dawson v. Hinshaw Music, Inc. [514] Whether one work infringes another should be evaluated from the standpoint of the intended audience for those works.7 Bright Tunes Music Corp. v. Harrisongs Music, Ltd. [516] Plain similarities between two works can give rise to a finding of infringement. Harrisongs distributed recordings of “My Sweet Lord,” a song composed by George Harrison. Bright Tunes sued Harrisongs on the ground that “My Sweet Lord” had borrowed impermissibly from one of its own songs, “He’s So Fine.” Comparing the two songs, the court found that “it is perfectly obvious to the listener that in musical terms, the two songs are virtually identical except for 7 See also Lyons Partnership v. Morris Costumes, Inc., 243 F.3d 789 (4th Cir. 2001) [515] (potential infringement of Barney the Dinosaur determined from the standpoint of children). 21 one phrase.” Gasté v. Kaiserman [520] “Striking similarity” between two musical compositions can give rise to a finding of infringement even in the absence of independent proof of infringement.8 Ty, Inc. v. GMA Accessories, Inc. [521] (come back later) Laureyssens v. Idea Group, Inc. [524] “Probative similarity” may establish infringement. Laureyssens manufactured a puzzle known as the “Happy Cube,” which had the distinct feature of being “assembleable in either a flat form . . . or into a three-dimensional hollow cube.” When Idea Group marketed a similar puzzle, Laureyssens sued Idea Group for copyright infringement. The court found that probative similarity might be established through “dissection and expert testimony.” The court, however, ultimately found no infringement. Ringgold v. Black Entertainment Television, Inc. [526] Actionable copyright infringement includes a quantitative component in addition to a qualitative component. Ringgold owned the copyright to a poster that appeared briefly in the background of a BET television program. When Ringgold sued BET for copyright infringement, BET argued that the appearance of the poster was a de minimis use, which would not give rise to liability. The court held that BET had committed “qualititative” copying by displaying the poster. As for “quantitative” copying, the court said that “in cases involving visual works . . . the quantitative component . . . concerns the observability of the copied work—the length of time the copied work is observable . . . and such factors as focus, lighting, camera angles, and prominence.” 9 Ultimately, the court ruled in favor of Ringgold. Peter Pan Fabrics, Inc. v. Martin Weiner Corp. [528] Potential infringement of a fabric design should be evaluated from the perspective of an “ordinary observer.” Herbert Rosenthal Jewelry Corp. v. Kalpakian [529] Independent creation is a defense to copyright infringement. Rosenthal owned the copyright to “a pin in the shape of a bee formed of gold encrusted with jewels.” Upon finding that Kalpakian also sold bee-shaped pins, Rosenthal sued Kalpakian for copyright infringement. Finding no infringement, the court criti8 See also Repp v. Webber, 132 F.3d 882 (2d Cir. 1997) [520]. 9 See pages 527–28 of the casebook for the court’s extensive discussion of the copying in question. 22 cized Rosenthal for failing to articulate a tenable basis for his infringement claim. The court observed that “although plaintiff ’s counsel asserted that the originality of plaintiff ’s bee pin lay in a particular arrangement of jewels on the top of the pin, the elements of this arrangement were never identified.” The court further noted that “[p]laintiff ’s counsel . . . was unable to suggest how jewels might be placed on the back of a pin in the shape of a bee without infringing plaintiff ’s copyright.” Ultimately, the court characterized the lawsuit as an attempt by Rosenthal to obtain improperly a monopoly on bee-shaped jewelry. Educational Testing Services v. Katzman [534] The use of identical wording or “substantially similar” wording in a written work may support a finding of infringement. The presence of “structural” similarities alone, however, is unlikely to result in a finding of infringement. As the operator of the Princeton Review, Katzman produced practice versions of the SAT. The questions on Katzman’s tests closely paralleled those on the official SATs. The court ultimately affirmed in part and vacated in part the district court’s injunction against Katzman. Nichols v. Universal Pictures Corp. [537] Taken alone, the existence of common plot elements in two dramatic works does not give rise to a finding of infringement. Nichols wrote a play entitled “Abie’s Irish Rose.” The play centered on the relationship between a young Irish man and his Jewish lover. Because of cultural friction between their families, the couple is forced to lie about their backgrounds to their respective families. After their Jewish–Irish marriage is discovered, the couple finds themselves shunned by their families. Only after they bear children are the families reconciled. Some time later, Universal produced a movie entitled “The Cohens and the Kellys.” In the movie, a young Irish man secretly loves and marries a young Jewish woman. When their relationship is discovered, their families quarrel with each other. The birth of grandchildren, however, ultimately reconciles the families. Finding that the movie did not infringe the play, the court held that “[a] comedy based upon conflicts between Irish and Jews, into which the marriage of their children enters, is not more susceptible of copyright than the outline of Romeo and Juliet.” Sheldon v. Metro-Goldwyn Pictures Corp. [542] One dramatic work may infringe another where the first work copies with particularity elements that can be identified as original inventions of the second work’s author. Sheldon wrote a play based on the life of Madeleine Cary, a Scottish woman who was strongly suspected of having poisoned a former lover despite being acquitted at trial. In the play, the woman lures her estranged lover to a meeting by feigning affection. During the meeting, she slips poison into her 23 lover’s drink and berates him as he dies. When Metro-Goldwyn later produced a movie with similar plot points, Sheldon sued for copyright infringement. In finding the movie to infringe the play, the court observed that Metro-Goldwyn had borrowed the aforementioned plot elements from the play.10 Boisson v. Banian, Ltd. [555] “Concept and feel” may be protected by copyright if the reviewing court imposes a “more discerning scrutiny” on potential elements that might fall within the public domain. Computer Associates International, Inc. v. Altai, Inc. [559] The “clean room” method of software development is a way to avoid copyright infringement. Computer Associates produced the computer program “CAScheduler,” which handled low-level scheduling tasks on mainframe computers. To make CA-Scheduler compatible with multiple types of mainframes, Computer Associates incorporated the sub-program “Adapter” into CA-Scheduler. The purpose of Adapter was to act as an interface between CA-Scheduler’s primary functionality and the underlying operating system. Altai developed software with a similar need for cross-mainframe compatibility. By hiring a former employee of Computer Associates, Altai gained access to the source code of Adapter. Altai then copied substantial portions of the Adapter code in making Oscar, its own cross-mainframe software. When Altai recognized that the borrowed portions of code might result in liability for copyright infringement, Altai ordered the software to be rewritten by engineers who knew nothing of the existing version of Oscar or Adapter’s source code. The court found that the rewritten version of Oscar did not infringe Computer Associates’s copyright. Steinberg v. Columbia Pictures Industries [572] Distinctive stylistic elements of a visual work may be copyrightable expression. Steinberg owned the copyright to an illustration for the cover of The New Yorker. Poking fun at the worldview of the stereotypically “provincial” New Yorker, the illustration showed New York City in great detail while reducing the rest of the world into a few generic shapes. 11 When Columbia released a movie poster for Moscow on the Hudson featuring an uncannily similar depiction of New York City, Steinberg sued for copyright infringement. Ruling for Steinberg, the court found that elements of Steinberg’s style were protectable expression. 10 See pages 549–50 of the casebook for the court’s detailed discussion of the similarities between the plots. 11 See pages 574–75 of the casebook for Steinberg’s illustration and the movie poster. See also page 581 of the casebook for illustrations depicting other cities in the same style. 24 ABKCO Music, Inc. v. Stellar Records, Inc. [591] Karaoke recordings that feature on-screen lyrics do not fall within the scope of the compulsory license granted in § 115. Stellar Records produced a karaoke rendition of a song recording owned by ABKCO. The court found that “compulsory licenses do not give [the maker of a recording] the right to publish the compositions’ lyrics on a screen.” Bridgeport Music v. Dimension Films [598] If one wants to “sample” portions of an existing recording, one must obtain a license from the owner of the copyright to that recording. The court found the language of § 114(b) to create a bright-line prohibition against the unauthorized reproduction of any portion of a recording. The Right to Prepare Derivative Works Under § 106(2) Horgan v. Macmillan, Inc. [605] A photograph of the performance of a dramatic work may be a derivative of the dramatic work. Horgan owned the copyright to George Balanchine’s choreographic version of The Nutcracker. Macmillan published a book containing photographs from a performance of the ballet, with each photograph accompanied by a description of the corresponding scene. When Horgan sued Macmillan on the theory that the book was an infringing derivative work, Macmillan argued that the book did not infringe because it depicted only isolated moments in the performance. Finding infringement, the court noted that “[e]ven a small amount of the original, if it is qualitatively significant, may be sufficient to be an infringement. The court found that “the district judge took a far too limited view of the extent to which choreographic material may be conveyed in the medium of still photography.” Lee v. A.R.T. Co. [610] The routine mounting of a visual work does not create an infringing derivative work. Lee created “notecards and small lithographs.” After buying these works, A.R.T. mounted the works on ceramic tiles. The court found that A.R.T. had not sufficiently “transformed” Lee’s works to turn them into derivative works. The court also noted that the mounting process did not create any additional value that could be “captured” by Lee. Micro Star v. FormGen, Inc. [614] Independently authored computer-game levels are derivative works based on the game. FormGen distributed Duke Nukem 3D, a “first-person shooter” game that allowed players to load custom-made levels in addition to those included with the game. Having amassed a collection of player-made levels, Micro Star sold 25 those levels on CD-ROM. The court found that Micro Star infringed the Duke Nukem storyline by selling the add-on levels. Rejecting Micro Star’s argument that the levels were only transient modifications of the original game, the court compared the level files to sheet music, pointing out that both encoded a user experience in abstract form. Krause v. Titleserv, Inc. [620] Under § 117(a), the modification of a computer program for maintenance purposes does not necessarily create an infringing derivative work. While working for Titleserv, Krause had written several purpose-built programs designed to help Titleserv handle customers, records, and other aspects of its business. Krause left the company before they negotiate a transfer of the copyright to the software. Although Krause did not object to Titleserv’s continued use of the programs in their existing forms, Krause sued to prevent Titleserv from modifying the programs to ensure their technical integrity. 12 The court allowed Titlserv to make the desired modifications. Gilliam v. American Broadcasting Co., Inc. [621] Unauthorized editing of a dramatic work may create an infringing derivative work. Monty Python had written comedic programs for the BBC. Under the arrangement, BBC was allowed to make only “minimal” changes to Monty Python’s scripts and no changes to the finalized recordings of the programs. ABC eventually obtained a license to broadcast the programs in the United States, but its version of the license did not contain the restrictions on modification. When ABC edited 24 minutes of a 90-minute show, Monty Python sued on the ground that ABC had infringed its copyright. Ruling for Monty Python, the court em phasized that the underlying copyright to the programs had never changed hands. Furthermore, the court held that moral rights provided an alternative ground for enjoining further modification of the programs. Flack v. Friends of Queen Catherine, Inc. [630] Models produced as intermediate steps in the creation of a sculpture may qualify as works of art for the purposes of VARA. Pollara v. Seymour [630] Works created “for the primary purpose of promoting or advertising” do not fall within VARA’s scope of protection. Pollara created a mural for the Gideon Coalition, a group that “advocate[d] legal representation for the poor.” Shortly after the mural had been hung on a wall, it was removed for failure to obtain permission to display the mural in that location. During the removal process, the 12 See pages 620 of the casebook for a detailed list of modifications that Titleserv intended to make. 26 mural was damaged. Emphasizing that the work had been created for a promo tional purpose, the court found that Pollara could not recover under VARA. The concurrence (Judge Gleeson) stated that the work lacked the “recognized stature” needed for recovery under VARA. Pavia v. 1120 Avenue of the Americas Associates [640] VARA prohibits only the act of making unauthorized modifications to a work. It does not prohibit the continued display of such modified works. Wojnarowicz v. American Family Association [643] Unauthorized photographic reproductions of a visual work may infringe the moral rights to that work. Wojnarowicz had produced a number of prominent sculptures addressing the AIDS epidemic of the 1980s. Some of his works “depicted sexual acts and a few portrayed Christ with a hypodermic needle in his arm.” Finding the works offensive, the American Family Association distributed pamphlets condemning the works. The pamphlets “contained unauthorized reproductions of 14 fragments of [Wojnarowicz’s] exhibited works.” Finding the Association to have violated Wojnarowicz’s moral rights, the court observed that “deliberate alterations” such as “selective cropping” could result in unauthorized modifications of the original work. The court further criticized the Association for “reduc[ing] plaintiff ’s multi-imaged works of art to solely sexual images.” The Right to Distribute Under § 106(3) Fawcett Publications v. Elliot Publishing Co. [651] The first sale doctrine allows the unrestricted resale of physical copies of a copyrighted work. Eliot obtained secondhand copies of comic books published by Fawcett. Eliot then bound Fawcett’s comics with other comic books and sold the resulting volumes as “double comics.” Ruling for Eliot, the court observed that “the purpose and effect of the copyright statute is to secure to the owner thereof the exclusive right to multiply copies.” Rights of Public Performance and Display Under §§ 106(4)–(6) Columbia Pictures Industries, Inc. v. Aveco, Inc. [669] A performance may be “public” within the meaning of § 106(4) even if it takes place in a venue that does not hold many people. Aveco operated a chain of video-rental stores. In addition to renting videotapes for home viewing, each store had a number of viewing rooms, in which customers could watch rented tapes. Aveco’s policy was to allow only customers and “members of their families and social acquaintances” to join each other for any particular viewing. Finding that Aveco had infringed Columbia’s exclusive right to authorize the public 27 performance of the videos, the court emphasized that “[t]he 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.” Furthermore, the court stated that the term “authorize” in § 106(4) was plainly meant to authorize secondary liability against Aveco for providing the tapes used in the unauthorized public performances. 28