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Copyright Infringement I Intro to IP – Prof Merges 2.16.12.

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1 Copyright Infringement I Intro to IP – Prof Merges 2.16.12


3 Contracting around termination events 1938: License to Penguin 1994: “New agreement for continued publication”; changed the economic terms of the 1938 Agreement, mostly to Elaine Steinbeck's benefit, by requiring Penguin to provide a far larger annual guaranteed advance, and royalties of between ten and fifteen percent of retail (rather than wholesale) sales.

4 Descent of copyrights Steinbeck  widow Elaine  her children Excluded other heirs of John Steinbeck, including his only surviving son, Thomas Thomas filed a notice of termination in 2004 and filed suit vs. Penguin

5 What about the statute? “Termination of the grant may be effected notwithstanding any agreement to the contrary” 17 USC §304(c)(5)

6 Penguin Group v. Steinbeck, 537 F.3d 193 (2d Cir. 2008).

7 Critique of Milne/Steinbeck Peter Menell and David Nimmer, Pooh- Poohing Copyright Laws "Inalienable" Termination Rights, 57 J. Copyright Soc’y 799 (2010)


9 On to infringement Elements of copyright infringement Application of “substantial similarity” standard Different types of subject matter: music, graphics, computer software

10 Arnstein v. Porter Cole Porter Standard for proving infringement


12 Procedural History District court granted defendant Porter’s Summary Judgment motion Can you guess why?

13 Standard for Infringement Copying Improper Appropriation

14 Two elements in Arnstein (a) that defendant copied from plaintiff’s copyrighted work and (b) that the copying (assuming it to be proved) went so far as to constitute improper appropriation. – p. 521

15 Element 1: Copying: P. 521 Proof of “access” or other circumstantial evidence of copying “Striking similarity” – “must be so striking as to preclude the possibility [of independent creation]”

16 Element 1: Copying Issue of fact Evidence here? – Objective: publication and dissemination of plaintiff’s songs – Testimonial: plaintiff’s deposition

17 Copying facts here “Fantastic” evidence How to balance with more objective evidence – Wide distribution of copyrighted work – Defendant’s testimony: no actual access

18 Access & improper appropriation After listening to the compositions … we find similarities; but we hold that unquestionably, standing alone, they do not compel the conclusion, or permit the inference, that defendant copied. The similarities, however, are sufficient so that, if there is enough evidence of access to permit the case to go to the jury, the jury may properly infer that the similarities did not result from coincidence. -- p. 522

19 Improper appropriation “substantial similarity” – versus “probative” similarity” (Notes p. 525 ) Effect on the “lay listener”, the ordinary audience member, is what counts But: expert witness testimony is admissible too

20 Judge Clark dissent Music is intellectual too; three- four- and five- note sequences are repeated in both compositions But this is not enough Arnstein v. Edward Marks, 12 note sequence infringed

21 Second v. 7 th Circuit on Access 2 nd : No evidence of access if there is enough similarity 7 th : Must show some evidence of access to support infringement case Posner reconciliation - ?

22 Harrisongs case

23 Nichols V. Universal Pictures (2d Cir. 1930) Did the film “The Cohens and the Kellys” infringe the play “Abie’s Irish Rose”?




27 NY Times Abie's Irish Rose: Review Published: May 24, 1922 The play has its little sermon that earned one of the heartiest bits of applause last night. Priest and rabbi, it appeared, also had met "over there." "I gave the last rites to many Jewish boys," said the fighting chaplain. "And I to many of your Catholic lads," the Jewish chaplain replied. "We're all on the same road, I guess, even though we do travel by different trains."

28 Judge Hand Opinion “It is of course essential to any protection of literary property, whether at common law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations.”

29 Types of infringement “block in situ” (in whole), vs. “an abstract of the whole”

30 Nichols : Abstractions test “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…there is a point in this series of abstractions where they are no longer protected.” [since they are idea]

31 Abstraction Test Abie’s Irish Rose – I. Jewish and Irish families – One wealthy, one not – Strangers to each other – A. Son and daughter marry – Twins born Cohens and Kellys – I. Jewish and Irish families – Both poor (at start) – Long-time enemies – A. Son and daughter marry – Single child born

32 Nichols Abstraction Test I. A. 1. a. b. c. i. B. 1. 2. a. b. i. ii. II. I. A. 1. B. 1. 2. II.

33 Nichols Abstraction Test I. A. 1. a. b. c. i. B. 1. 2. a. b. i. ii. II. I. II.

34 Story - Main Idea Plot Outline Subplots General Characters and Scenes Text Specific Character Elements Levels Of Abstraction

35 Why are “high level” abstractions of plot not copyrightable? Ideas, not expression Theory of relativity, or evolution: basic ideas, too general to be protected Similar to section 101 of Patent Act...

36 “Character test” Can a character, standing independent from plot, be copyrighted? If so, how? And how far would that copyright reach?

37 “Stock Characters” Low-comedy ethnic characters Example of “scenes-a-faire” – standard “setups” or scenes Drunken Irishman, nosy neighbor, irritating mother in law, comic sidekick, etc etc

38 Play it Again, Sam

39 Ideas cannot be protected “[Plaintiff’s] copyright did not cover everything that might be drawn from her play; its content went to some extent into the public domain...”

40 Steinberg v. Columbia Pictures, Inc. – Problem 4-28 New Yorker cover, movie poster





45 Elements Ownership Copying – Access – Improper Appropriation

46 Analysis Lay Observer Common sense’ side-by-side comparison


48 Similarities and Differences 4 block view Details of distant city?

49 What do you compare? The whole of the copied portions of the Plaintiff’s work, including individually uncopyrightable elements like ideas and scenes a faire? OR only the copied portions that are copyrightable?

50 Sampling Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

51 Bridgeport Music


53 Bridgeport, compare to Beastie Boys – IPNTA 5 th p. 533-534 Sound recording (remixes) Versus musical composition De Minimis doctrine


55 The letters may have been taken more as a means of capitalizing on the interest in Salinger than in providing a critical study of the author. (Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987).

56 CONTU Report National Commission on New Technological Uses of Copyrighted Works, Final Report (1979) Basis for Copyright Act 1980 revisions

57 CONTU Report “[C]omputer programs, to the extent that they embody an author’s original creation, are proper subject matter of copyright.”

58 “[C]opyright protection for programs does not threaten to block the use of ideas or program language previously developed by others when that use is necessary to achieve a certain result. When other language is available, programmers are free to read copyrighted programs and use the ideas embodied in them in preparing their own works.” -- CONTU Report at 20.

59 “One is always free to make the machine do the same thing as it would if it had the copyrighted work placed in it, but only by one’s own creative effort rather than by piracy.” CONTU Report at 21.

60 The problem with copyright The line between unprotectable idea and protectable expression is (a) difficult to define, and (b) a crucial “policy fulcrum” under copyright law

61 Late 1980s, early 1990s Copyright Cases “Abstraction, filtration, comparison” test: Computer Associates

62 The end of copyright’s effectiveness Peter S. Menell, An Epitaph for Traditional Copyright Protection of Network Features of Computer Software, 43 Antitrust Bull. 651 (1998)

63 Computer Associates v. Altai Background Facts 3-step test

64 CA test Abstraction Filtration Comparison

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