Copyright Law 2003 Class of March Professor Fischer

ANNOUNCEMENTS Makeup class on Sat. March 22 in Room 307 at 2 p.m. Quiz 2 due on Mon. March 24 in class Make sure you are viewing up-to-date Web syllabus as I have reduced some reading assignments Today we will cover 3 rights of the copyright owner: reproduction, distribution and adaption

WRAP UP: TERMINATION SECTION 203:Transfer of copyright if made by author may be terminated by qualified persons at any time within 5 year termination window opening 35 years after transfer is executed. Termination effected by giving notice 2-10 years prior to date within window.

WRAP UP: TERMINATION S. 304(c): For copyrights that came into being prior to 1978, can reclaim extended renewal period given by 1976 Act. Qualified persons can terminate by giving notice 2-10 years prior to specified date within a window that generally opens at start of 39 year extended renewal period.

Exclusive Rights of Copyright Owner See s. 106 where these are listed You should know which rights these are, and how these rights are infringed, as well as the exceptions to these rights that are discussed in class and in the reading assignment Today we will consider the right of reproduction, the right of distribution, and the right of adaption

What is Reproduction under 106(1)? Must be reproduction of the work in “copies” or “phonorecords” (material objects) – so performance of a work does not violate the reproduction right (though it may violate the public performance right) Can violate 106(1) by just making unauthorized copies or phonorecords, even if don’t distribute the copies Note broad wording of s. 106(1) so wording of specific exeptions is very important

2 types of infringement of reproduction right 1. Exact copies 2. Substantially similar copies

EXACT COPIES 3 kinds of exact copying cases 1. Piracy cases (infringement liability clear; difficulties are procedural or remedial) 2. Cases where allegedly privileged conduct is at issue (such as fair use) 3. Cases involving digital copies made automatically when reading, viewing, hearing or using authorized copy of the work We will discuss infringement by exact copies as well as some exceptions to the reproduction right before considering infringement by substantially similar copies

The Reproduction Right in a Digital Age MAI v. Peak held that a temporary reproduction of a computer program in RAM created a “copy” for the purposes of s. 106(1) of the Copyright Act. Does posting clip art with no copyright notice on the Internet amount to infringement? By whom? Web page operator? Server operator? Does browsing copyrighted content on the Internet (which does involve temporarily copying works into user’s Internet browser’s cache/copying to server’s RAM) amount to infringement of the reproduction right?

DMCA and Service Providers Digital Millennium Copyright Act of 1998 provides a "safe harbor" for service providers, limiting their liability for copyright infringement if their actions meet certain criteria – see s. 512 – we will discuss later DMCA doesn’t provide a clear answer as to when information on the Internet may be considered "copied" under copyright law and whether a copyright holder's rights could be violated by browsing, downloading, linking, framing, or caching Web sites. The doctrines of implied license and fair use may provide some answers to these questions.

Exceptions to the Reproduction Right 1. Ephemeral copies for works that are being broadcast under s. 112 or s. 118 (for public broadcasters) 2. Mechanical compulsory license for nondramatic musical works under s. 115 – nonexclusive right to make/distribute phonorecords of the work, not to perform it 3. Certain exemptions for copying by libraries and archives in s Limited exceptions for certain reproductions of computer programs in s. 117

INFRINGEMENT OF THE RIGHT OF REPRODUCTION: SUBSTANTIALLY SIMILAR COPIES There is a 2 step test for infringement (see Arnstein v. Porter (2d Cir p. 358) 1. COPYING 2. UNLAWFUL APPROPRIATION

1. COPYING Copying may be (rarely) proved by D’s admission that she copied Or by circumstantial evidence from which copying can be inferred (access) AND sufficient similarity between the works to prove copying If no similarity exists between the works, no evidence of access will prove copying If access/similarity, court can use expert evidence/dissection to determine copying If no evidence of access, need STRIKING SIMILARITY from which access can be inferred to prove copying. As your books says, it may be hard to document independent creation after the fact

2. UNLAWFUL APPROPRIATION Only arises if copying has been proved Question - has defendant taken so much from P’s work that he wrongfully appropriated? Note at times there is confusion between terminology used by courts – use “substantial similarity” to mean BOTH similarity required to show copying as well as unlawful appropriation (violation of s. 106).

ABKCO Music v. HARRISONGS (1976)

The Chiffons: “He’s So Fine” Recorded in 1962 Top hit in England and U.S.

ABKCO TUNES V. HARRISONGS Subconscious copying Was there infringement, according to the Second Circuit? Why or why not? SEE ALSO Three Boys Music Corp. v. Bolton (9th Cir – p. 319) – Did singer/songwriter Michael Bolton and his songwriter partner Andrew Goldmark copy the Isley Brother’s song “Love is a Wonderful Thing?” On what basis?

STRIKING SIMILARITY: SELLE V. GIBB (7th Cir. 1984) p. 322 What is the issue? What is the court’s holding? Why?

TY V. GMA (7th Cir. 1997)- the Beanie Baby Case p. 324 Did GMA’s “Preston the Pig” infringe Ty’s “Squealer” stuffed pig? How is this case different from Selle, if at all?

SUMMARY- UNLAWFUL APPROPRIATION OF REPRODUCTION RIGHT in s. 106 Only arises if copying has been proved Question - has defendant taken so much from P’s work that he wrongfully appropriated? For substantially similar copies, test is that of the ordinary observer Dissection and expert evidence not admissible (irrelevant)

CASES ON SUBSTANTIAL SIMILARITY Once a court has established copying in fact (usually through access and similarity) the question is whether that copying was wrongful. To establish a violation of 106, must show that copyrightable expression was copied. Test is whether the Ps and Ds works are substantially similar How is test of substantial similarity applied by the courts?

NICHOLS v. UNIVERSAL PICTURES (2d Cir. 1930) – p. 354 Did the film “The Cohens and the Kellys” infringe the play “Abie’s Irish Rose”? “Abstractions test”

KROFFT v. McDONALDS (9 th Cir. 1977) p. 360 Compare the test applied here to determine unlawful appropriation with the Arnstein test and the Nichols test How does this test differ, if at all from the Steinberg test (CB p. 363)?

“TOTAL CONCEPT AND FEEL”TEST What is meant by this? See Krofft, Roth Greeting Cards v. United Card Co. How does this test differ from the other tests we’ve looked at?