Transcript copyright law 2001 - The Catholic University of America

COPYRIGHT LAW 2006
Columbus School of Law
The Catholic University of America
Prof. Fischer
Class 21 Infringement
November 1, 2006
WRAP-UP: FORMALITIES
• Trend: reduction in importance in
formalities
INFRINGEMENT
• In this unit, we learn about all of the
exclusive rights in the bundle of rights
owned by the copyright owner (see s. 106)
• We start with the “right of reproduction”
in 106(1) - right to reproduce the
copyrighted work in copies or
phonorecords
Infringement:
• See Section 501 defining infringer as
“anyone who violates any of the exclusive
rights of the copyright owner as provided in
sections 106 through 122”
• If owner of chattel in which work embodied
refuses to permit author access to chattel in
order to exercise her exclusive rights, is that
a copyright infringement?
Infringement:
• If owner of chattel in which work embodied
refuses to permit author access to chattel in
order to exercise her exclusive rights, is that
a copyright infringement?
• No - see Frasier v. Adams-Sandler (4th Cir.
1996)
COPIES
• See definition of copy in section 101
• Digital copying - courts have consistently
held that it’s still copying even if the work
gets broken up into bits in the process of
packet switching
Matthew Bender & Co. v. West
Publishing Co. (2d Cir. 1998)
• West - premier reporter of judicial decisions
in U.S.
• Official reporter for a few jurisdictions
• De facto reporter for federal cases, many
states
• Are judicial opinions subject to copyright
protection? Why or why not?
West
• What did Matthew Bender do that West
claimed was an infringement of copyright?
• Did the court find a copyright
infringement?
• Why or why not?
INFRINGEMENT
• Of the right to reproduction
• There is a 2 step test for infringement (see
Arnold v. Porter)
• 1. COPYING
• 2. UNLAWFUL APPROPRIATION
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 to prove copying
UNLAWFUL
APPROPRIATION
• Only arises if copying has been proved
• Question - has defendant taken so much
from P’s work that he wrongfully
appropriated?
• Test is that of the ordinary observer
• Dissection and expert evidence not
admissible (irrelevant)
AUDIENCE DETERMINING
SUBSTANTIAL SIMILARITY
• Can this be a specialized audience (such as
children) where the work is intended by the
author for a particular market? See Lyons
Partnership L.P. v. Morris Costumes, Inc.
(4th Cir. 2001), Dawson v. Hinshaw (4th Cir.
1990).
BRIGHT TUNES V.
HARRISONGS (1976)
The Chiffons: “He’s So Fine”
• Recorded in 1962
• Top hit in England and
U.S.
BRIGHT TUNES V.
HARRISONGS
• Subconscious copying
• Is that infringement?
• What if Harrison played the notes of the
motifs A and B in “He’s so Fine” backwards
and published the song? Does this infringe
Bright Tunes’ copyright in “He’s So Fine”?
• SEE ALSO Three Boys Music Corp. v.
Bolton (9th Cir. 2000)
STRIKING SIMILARITY
• Is there a split in the circuits on this issue?
SELLE V. GIBB (7th Cir. 1984)
• http://www2.bonet.co.
id/cpr/MIDI/POP/beeg
ees/00index.html
• What is the issue?
• What is the court’s
holding? Why?
REPP v. WEBBER (2d Cir. 1997)
• What is the issue for
the Second Circuit?
TY V. GMA (7th Cir. 1997)
• Did GMA’s “Preston
the Pig” infringe Ty’s
“Squealer”
DE MINIMIS COPYING
• Ringgold v. BET (2d
Cir. 1997)