Copyright Law Ronald W. Staudt Class 17 October 24, 2013

Law 360 news 10/24/2013 2nd Circ. Won't Rethink Marvel's IP Win Over Artist's Heirs The Second Circuit refused Tuesday to reconsider a panel's ruling that Marvel Comics Worldwide Inc. owns the copyrights to comic books drawn by legendary artist Jack Kirby, rejecting a request by Kirby's children to rehear or hold an en banc hearing on the decision. 50 Cent Hit With Copyright Suit Over Song's Promo Image Rapper 50 Cent was hit with a federal copyright infringement claim in Texas federal court Tuesday that claims he’s wrongfully using an image shot by a Houston photographer in online promotion of one of his songs. TV One Beats Infringement Claims Over Restaurant Show A California federal judge on Tuesday dismissed copyright infringement claims in a suit that accused TV One LLC of intentionally plagiarizing a show in order to create its own restaurant-themed program, “Belle's,” ruling the works are not substantially similar. Warner Wins Stay Of Some Claims In 'Happy Birthday' Suit A Warner Music Group Corp. unit partially won its bid to narrow a class action alleging the company is claiming bogus copyright protection for the ubiquitous song “Happy Birthday to You,” as a California federal judge on Wednesday limited the case to the central issue of the copyright's validity.

Infringement Arnstein v. Porter Prima Facie case ownership copying improper appropriation

Infringement Arnstein v. Porter Prima Facie case COPYING proved by Defendant’s admission or Circumstantial evidence: Access + similarity x if no similarity then no amount of evidence of access will prove copying x if evidence of access & similarity, then trier of fact with experts and dissection x If striking similarity may not need to prove access

Infringement Arnstein v. Porter Prima Facie case IMPROPER APPROPRIATION x Lay observer– no experts or dissection x Striking similarity can do double duty but proof of improper appropriation need not be enough to prove copying. x Often called “Substantial similarity” Quality and quantity of expression Different from “probative similarity”

Nichols v. Universal– the abstractions test. yFacts xP author of play Abie’s Irish Rose Religion, twins and multiple marriage xD produced Cohens and the Kellys Money, inheritance, marriage and twins y“The right cannot be limited literally to the text else a plagiarist would escape by immaterial variations.” xBlock in situ- fragmented literal similarity xAbstract of the whole- comprehensive nonliteral similarity x“Upon any work ***a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out ySkeleton – expression/idea yCharacters – more development = more protection yApplication of these principles-- infringing copying??

Sheldon v. Metro-Goldwyn PicturesMetro zFacts yP’s play “Dishonored Lady” about Madeleine Cary xMoreno, Farnborough, strychnine yP’s play based on book about Madeleine Smith- news yLowndes wrote book about Letty & Ekebon & arsenic yD produced movie “Letty Lynton” based on bookLetty Lynton xRenaul & Darrow & strychnine yD denies using play, DJ agrees D took only ideas zKeats and independent creation zPublic domain relevant to © work only on issue of infringement – makes D’s denial of copying more plausible zCopying, infringing copying, unconscious copying, perjury yCary is like Letty of the movie, not Smith or book!--595 yPlot, details, incidents of movie track the play!—596 z“…a play may be pirated without using the dialogue… z…”no plagiarist can excuse the wrong by showing how much of his work he did not pirate…”

Substantial Similarity zExamples yTextbooks yBamboozle ySally Hemings yZagats yTerminator zOrdinary observer- y…the audience the author intended to be the commercial market… yDawson xLay v. choral director yLyons xKids-Duffy or parents-Barney z Approaches yWhole of the copied portions of P’s work, like a compilation (Boisson v. Banian’s “concept and feel”- quilt) xWith “more discerning” gloss or yOnly ©able elements of P’s work, dissection /extraction approach yNew Orleans photos? 604-5

Improper Appropriation or Infringing Copying –software case zComputer Associates International v. Altai yFacts: literal elements of OSCAR 3.5 not substantially similar to ADAPTER, what about its structure? yIdea/expression yAbstraction: Nichols yFiltration xEfficiency: Baker v. Seldon, Morrissey xExternal factors: Hoehling, scenes a faire xPublic domain: Sheldon v. MGM yComparison

Blehm v. Jacobs zFacts PenmenImproper Appropriation Infringing copying Substantial similarity JakeDC says remove common themes & general concepts- remaining expression is thin! P’s penmen have detached round heads half filled with smiles, thin, long legs, four fingers and long fat feet

compare images zBoth have round heads– not really zSimilar proportions- not really zFour fingers, black line bodies and big half moon smiles ySmiles are different, maybe penman is a hairline! yProtected expressive choices are not substantially similar zCopying is not infringement- d copied ideas not expression so d is a copier but not an infringer!!

Harney v. Sony Pictures Television Facts: Amber alert uses ©ed photo by Harney Sony recreates the image for TV show DC enters SJ for D, affirmed….why? Standard for infringement is Peter Pan after dissection. what does © protect in new photos? Kisch, Manion… here: neither subject nor arrangement are P’s ID protected elements and compare them…. what about differences- background, lighting, religious detail

Warner Bros. Ent. v. X One X Prod. zFacts yMovie posters & lobby cards xGone with the Wind xWizard of Oz xTom and Jerry funniest momentsTom and Jerryfunniest moments yT-shirts, playing cards figurines & action figures yMovies in ©

Warner Bros. Ent. v. X One X Prod. zExtraction of images and new works? ySherlock Holmes example ySilverman example xA new work that incorporated character traits newly introduced by nine later original stories still under copyright would infringe those copyrights… yScope of film copyrights and Scope of posters in PD?? xSuperman analogy- ad in black and white with raised car?? xDoes it matter if poster is released before or after films? xTom & Jerry, GWTW and Wizard of Oz—character scope? yD’s use of the poster images xIdentical 2d image xT shirts, cards etc xComposite works x2d into 3d products- globes, action figures