copyright law final - barry shrum

RAGHHHHHHHH

The legal foundation for copyright, the Progress Clause, found in Article [__], Section [___], Clause [___] of the U.S. Constitution, which gives Congress the right to establish, for a limited time, exclusive rights to authors and inventors in their respective writings and discoveries.

1, 8, 8

[___] is a prerequisite and an integral component of originality.

independent creation

The [___] of Plato’s “intelligible” world are to the sensible world’s [___] what copyright law’s [___] are to its [___].

forms, manifestation, ideas, expression

TRUE OR FALSE: A simple idea, absent any original expression, can be entitled to copyright protection.

false

The basic requirements for copyright protection enumerated in Section 102(a) of the Copyright Act are best summarized in which of the following the sentences:

1. Any work of art that is fixed in a tangible format.

2. An original work authorship expressed in a tangible medium of format.

3. A work that contains a “modicum” of subjective creativity.

4. Any idea that is fixed in a tangible format.

2

Who said that ideas, like the air that we breathe, “should spread freely from one to another over the globe,” and are therefore incapable of “stable property,” i.e., ownership.

Thomas Jefferson

James Madison designed the copyright construct to [___] benefit [___] by [___] benefiting [___].

indirectly, society, directly, the individual

CONSTITUTIONAL QUESTION OF: Apple v. Franklin

If an idea can only be expressed in one (or a few) way(s), the idea is said to have “merged with the expression and it cannot be protected.

CONSTITUTIONAL QUESTION OF: Campbell v. Acuff Rose

Used the definition of “derivative works” from Section 101 to replace the element of “commercialism” in Section 107 with the element of “transformation.”

CONSTITUTIONAL QUESTION OF: Eldred v. Ashcroft

Is life plus seventy years a “limited time” as that phrase is defined in the Progress Clause?

CONSTITUTIONAL QUESTION OF: Warhol v. Goldsmith

Reestablished the equitable nature of the analysis of Section 107 by finding that “nature and purpose” required consideration of the degree to which the commercial purpose of the works were similar.

CONSTITUTIONAL QUESTION OF: Feist Publications Inc. v. Rural Telephone Company, Inc.

Can facts be arranged in such a way as to warrant copyright protection?

CONSTITUTIONAL QUESTION OF: Golan v. Holder

Does the Progress Clause allow Congress to remove certain works from the public domain?

CONSTITUTIONAL QUESTION OF: Nichols v. Universal

Established the concept that universally accepted concepts such as “stock characters” are unprotected in a copyright.

Based on the class lectures and your knowledge of the Copyright Act thus far, which of the following are examples of works that ARE NOT entitled to copyright protection?

1. Parts numbers in a catalog of automotive parts.

2. Labanotation.

3. A word or phrase.

4. Business correspondence, including an email.

5. Newspapers and magazines.

6. An original “tweet” on Twitter.

7. House plans.

8. Photographs and paintings.

9. Computer programs.

10. A song title.

1, 3, 10

In order to determine if a work of art is entitled to copyright protection, the law considers whether a reasonable person would find the work aesthetically pleasing. Is that statement right or wrong?

wrong

In Burrow-Giles Lithographic Co. v. Sarony, the Supreme Court states that the creative works of authorship that are entitled to protection are those based on the “fruits of intellectual labor embodied in the form of books, prints, engravings and the like.” On what philosopher is this concept based?

John Locke

Justice [___] said that “Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man’s alone.”

Oliver Wendell Holmes

TRUE OR FALSE: The fact that there are only 7 basic notes in the musical scale limits the number of original musical works that can be created.

false

TRUE OR FALSE: In copyright analysis, “originality” implies that a work of art has been independently created as opposed to being copied from someone else’s expression.

true

Is it a correct statement to say that “originality” as required by the Copyright Act requires a specific measure of novelty, ingenuity and/or aesthetic merit.

false

On a scale of 1-10 with 10 being the highest, what degree of creativity does the Supreme Court require for a work to be entitled to copyright protection?

1-2

Fair Use

An equitable rule of reason that applies when the strict application of copyright would interfere with the purposes of free speech

Abstraction

A method of determining what elements of a copyrighted work may be protected

Simultaneous Use of Ideas

The idea that two people in two different places/times can create expressions of the same idea that are similar, yet each would own a copyright in the expression provided that neither copied from the other

Idea/Expression Dichotomy

The theory codified in Section 102 of the Copyright Act that states that ideas are not entitled to protection, but rather only an idea that has been clothed in original expression is protectable

Merger

An expression that is so close to being an idea that it cannot be protected

According to the class lectures, [___]’s painting of a black circle is a perfect example of when an idea can merge with the expression of that idea.

Malevich

The plaintiff in the Supreme Court case off [___] v. Ashcroft challenged the constitutionality of the [___] while the plaintiff in the case of [___] v. Holder challenged the constitutionality of the [___].

Eldred, CTEA, Golan, URAA

Justices Stephens and Alito dissented from the majority in Eldred and Golan, respectively. Which justice joined them, dissenting in both cases?

Justice Breyer

The concept that “originality” is based on the fact that personality always contains something unique, that is “irreducible” comes from which supreme case/justice?

Oliver Wendell Holmes in Blaustein v. Donaldson

TRUE OR FALSE: Although the exploitation and funding of music has been around for centuries, the “modern” concept of “music publishing” began in the early 19th century in approximately five buildings on 28th Street between Fifth and Sixth Avenues in Manhattan “Flower District” of New York City.

true

Who wrote a journal article about “The Menace of Modern Music” that concluded that the proliferation of that “dastardly mechanical music” was becoming a “substitute for human, skill intelligence, and soul,” foreshadowing the age of AI by over 100 years?

John Phillip Sousa

Who said that performance of a musical composition at a public venue like a restaurant or hotel is “part of the total for which the public pays” and, therefore, the author of the composition should receive a performance royalty, thus leading to the establishment of the first performance right organization?

Oliver Wendell Holmes, Jr.

WHO SAID THIS: “There is nothing which can better deserve your patronage than the promotion of Science and Literature.”

George Washington

WHO SAID THIS: “As encouragements to literary works and ingenious discoveries, [a monopoly in copyrights is] too valuable to be wholly renounced. Monopolies are sacrifices of the many to the few.”

James Madison

WHO SAID THIS: “Law teaches [anyone] who would but consult it, that [all people are] equal and independent, [and therefore] no one ought to harm another in his Life, Health, Liberty, or Possessions.”

John Locke

WHO SAID THIS: “Good is whatever brings the greatest happiness to the greatest number of people.”

Jeremy Bentham

WHO SAID THIS: “Government is instituted, and ought to be exercised for the benefit of the people, which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.”

James Madison

WHO SAID THIS: “The government does not ‘grant’ a patent or copyright, in the sense of a gift, privilege, or favor; the government merely secures it — i.e., the government certifies the origination of an idea and protects its owner’s exclusive right of use and disposal.”

Ann Rand

Which early 19th Century inventor did President Thomas Jefferson and his VP, James Madison propose and pass a law, solely for his personal benefit, that restored his patent rights in the invention?

Oliver Evans, inventor of the steam engine

Which of the following are NOT among the exclusive “bundle” of rights identified in 17 U.S.C. Section 106?

1. The right to publicly perform the work.

2. The right to publicly display the work.

3. The right to create derivative works.

4. The right to reproduce and distribute the work.

5. The right to protect the integrity of the work.

6. The right to perform a sound recording via retransmission to terrestrial radio stations.

7. The right to prevent others from defacing or destroying the work.

8. The right to perform a song to immediate friends and family.

5, 6, 7, 8

Exercising one of the exclusive rights in Section 106 without the permission of the copyright owner is referred to as [___], while exercising a right with permission is referred to as [___].

infringement, having a license

Which of the following statements are correct with regard to the Section 106 Bundle of Rights?

1. The rights are cumulative.

2. The rights are distinctive, i.e. they may only be used one at a time.

3. The rights overlap one another.

4. The rights must be sold as a bundle, and not individually.

5. Each right may be subdivided infinitely.

6. Each right may be subdivided into halves.

7. Each right and each subdivision of that right may be owned, transferred and enforced separately.

1, 3, 5, 7

Which right from Section 106 is the most basic right protected by, and the legal basis for most forms of exploitation of, copyrights?

reproduction

TRUE OR FALSE: A mechanical license can never be obtained unless the copyright owner gives willing permission.

false

Does sharing an MP3 file over the Internet violate the distribution right of the owner of the musical composition?

true

A new work based on one or more preexisting works is a

derivative work

An adaptation, or derivative work, is created when an author takes an existing copyright and adds material containing a new expression. Is this description of a derivative work right or wrong?

true

Which of the following is NOT an example of derivative work?

1. A “cocktail arrangement” of a public domain musical composition.

2. An editorial revision of a work.

3. A fictionalization of an autobiography.

4. A dramatization of Don Schlitz’s musical composition The Gambler.

5. A Spanish translation of the Greek New Testament.

6. A sound recording of a musical composition.

7. An abridgment of a well-known novel.

8. An executive summary of an extensive 50-page research article.

1

Does reproducing a New Yorker cartoon on the foyer of a condominium building infringe the rights of the cartoonist who created it, assuming the cartoonist has not transferred any rights?

true

When may the “useful articles” of a copyright structure, such as the windows in the building, be entitled to copyright protection?

When the original features of the useful article are capable of being identified separately from, and capable of existing independently of, the utilitarian aspects of the element.

TRUE OR FALSE: Since the art of pantomime is a performance art, it is ONLY entitled to the right of public performance.

false

TRUE OR FALSE: Is it correct to say that musical compositions do not posses the exclusive right of display?

false

A descendant of Monet creates a beautiful adaptation of his ancestor’s classic impressionist piece, Sunrise. She sells the work of art to an enthusiast benefactor and fan of Monet. Five years later, the benefactor loans the new work of art to Frist in Nashville to be displayed publicly. The painter seeks an injunction in the Middle District Federal Court to prevent the new owner from displaying the work at the Frist. Will she win the injunction?

false

You and your friends go to Buffalo Wild Wings to watch the NFL Sunday games. The big screens are all playing sound and airing the broadcasts of the games live. A Ford truck commercial comes on which plays Will Hoge’s musical compositions, Strong, in the background. Does Buffalo Wild Wings need to get a license from Will Hoge and/or his publishing company to perform the song?

Yes, because the term “perform” under Section 101 of the Copyright Act is defined as not only the original rendition of the musical compositions, but also any further actions that transmits or communicates that rendition to the general public.

TRUE OR FALSE: An Internet streaming radio services transmits a performance of the Eagles Hotel California to the public, but its analytics show that there was no one listening to the stream during most of the time that Hotel California was playing, except for one person who tuned in during the last 10 seconds of the song. Because the listener did not listen to a “substantial portion” of the song, the Internet streaming radio services IS NOT responsible for obtaining a performance license.

false

The Supreme Court case of Victor Herbert v. Shanley Co. was pursued by the founders of which performance rights organization?

ASCAP

In Victor Herbert v. Shanley Co., Justice Oliver Wendell Holmes ruled that:

Music is part of the total for which the public pays and the fact that the price of the whole is attributable to a particular item which those present are expected to order is not important.

Which of the following statements about performance rights organizations (SESAC, ASCAP, BMI) is not true?

1. They sign non-exclusive agreements with publishers and songwriters to license performances and collect fees from the licensees.

2. They monitor public performances of member songs.

3. Through proprietary algorithms, they pay publishers and songwriters based on the number and significance of the performances they monitor.

4. All three organizations are subject to consent degrees with the Department of Justice which limits the scope of their activities.

1 or 4

A singer performs a cover of the Lennon/McCartney composition, Let it Be at 3rd & Lindsley. Who is responsible for payment of a performance royalty for that performance?

The venue is solely responsible for obtaining a performance license from ASCAP, BMI and SESAC. The performer is not responsible.

TRUE OR FALSE: The U.S. fully implemented Section 6bis (regarding moral rights) of the 1971 Paris revision to the Berne Treaty when it signed off in 1989.

false

TRUE OR FALSE: Fair use is an inalienable right of every U.S. citizen.

false

Does Professor Shrum agree or disagree with the conclusion that Shepherd Fairy’s Hope poster was a “transformative use” or Manny Garcia’s photograph of then-Presidential candidate Obama?

true

The Nashville Library has a vinyl recording of The Eagles’ greatest hits album which it loans out. It is so popular that the recording is becoming worn. The library finds another copy of the record in a used book store that is in perfect condition, and makes copies of the album in a digital, lossless format to prevent further degradation. The digital copies are only being made for archival purposes and will not be distributed through the Inter Library Loan system. Has the library violated the copyright owner's’ (the sound recording and the musical composition owners respectively) rights of reproduction and distribution?

No, because Section 108 gives libraries the right to make copies of a copyrighted work for both archival copies and for purposes of replacing an existing copy of a damaged work.

TRUE OR FALSE: A website buys and sells used MP3’s under Section 109’s legal doctrine of first use. Has the website infringed the copyright of both the sound recording and the musical composition?

true

A Vanderbilt exchange student from China imports Chinese translations of U.S. textbooks authorized by the publisher for sale in China. The student then sales them for a profit to other Chinese students at Vanderbilt. Is this a proper application of Section 109’s first sale doctrine?

true

TRUE OR FALSE: A local mega-church displays the lyrics of popular Christian pop songs behind the band during the Sunday morning service. Worried about infringement of Section 106’s right of display, the worship leader informs the church that it should pay royalties to the songwriter/publisher for the display of the lyrics.

false

A street artist paints a mural on the side of a building on 12th South. A local photographer likes the mural, so he takes a photograph of the building that prominently features the painting and then duplicates and sells the photograph as postcards. Is the photographer violating the right of the street artist to display the work?

false

Is it possible for two separate authors working independently to simultaneously create a work that bear striking similarities?

true

If one author independently creates a work that is similar to an author’s work created years prior (assume she did not copy the original work), will that author nonetheless be liable for copyright infringement?

false

MULTIPLE CHOICE: Which of these copyright defenses are supported by the introduction of “prior art”?

1. It proves that the two works are substantially similar.

2. It eliminates the probability and probative value of access.

3. The element of originality in the subsequent works is minimized and becomes trivial.

4. All substantial similarities in the subsequent two works can be attributed to their reliance on the prior art.

2, 3, 4

Scènes à faire is from the [___] language, meaning “[___] that must be [___].”

French, scenes, done

TRUE OR FALSE: In the case of Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir. 1986), the court ruled in favor of Walker and found infringement where both works opened with an Irish cop shooting a black man, and included similar scenes of cockfights, stripped automobiles, prostitutes, etc. in the Queens borough of New York.

false

TRUE OR FALSE: The literary device of parody is always fair use, provided that it includes a humorous commentary about a social event or a social observation.

false

Which of these literary styles is more likely to be considered fair use?

1. Satire

2. Onomatopoeia

3. Parody

4. Metaphor

3

In the Supreme Court case of Acuff-Rose v. Live Crew, SCOTUS’ opinion can be summarized as follows:

The 2 Live Crew song transforms Roy Orbison’s Pretty Woman by degenerating its predictable lyrics into a play on words, including shocking lyrics that demonstrate how banal the original song was.

Which of the following would possible be considered abandonment of the copyright by the author/owner?

1. A copyright owner makes his work available on Creative Commons and allows anyone to mass up the song provided that they give attribution or credit for the original.

2. An author is aware of an prominent infringement of her song, but refuses to prosecute the case.

3. An author executes an assignment of all 106 rights to a public trust where songs are used for the benefit of charities.

4. A work is published, but the publisher decides to delist the work from Books in Print (i.e., it becomes unpublished).

1, 3

A photographer sues a television production company for use of his photograph in a commercial for laundry detergent. The camera scans a bedroom scene and the photograph is in view for less than a second before centering on the woman in the frame. The court rules against the photographer, finding no infringement. Which is the most probably defense applied by the judge?

De minimis non curat lex

In 2018, a 60-year old songwriter hears, for the first time, a sound recording from 1960 that is substantially similar to his composition. If he brings a copyright infringement action against the artist and record label, do you think the record label/artist has a fairly good chance of knocking the case out on an early motion to dismiss?

true

A remedy to a copyright infringement action that is intended to discourage future acts of infringement would be considered what type of remedy?

coercive

If a plaintiff in a copyright infringement action has difficulty ascertaining how much she was damaged by the defendant’s use of her work, but she knows that the defendant intentionally infringed her work, what is the best type of damages to opt for?

statutory

A plaintiff sues a defendant who is using her previously-published song in a second sound recording. The defendant failed to get the required compulsory license. The plaintiff seeks an injunction requiring the defendant to stop selling the sound recording immediately, or else she will suffer irreparable harm. The judge grants the injunction. Do you agree with that outcome?

false

TRUE OR FALSE: The duration of copyright protection has generally been tied to the average life span of an individual.

true

What conclusion can one make regarding a song that is written prior to 1923?

That is in the public domain.

What year did Congress begin to contemplate a new copyright act to replace the 1909 Act?

1955

The name of the Register of Copyright that led the charge in researching and drafting the 1976 Copyright Act was Barbara [___].

Ringer

Prior to the Copyright Term Extension Act of 1998, the term of protection for individual ownership of a copyright was:

Life + 50

TRUE OR FALSE: Under certain circumstances, 17 USC § 304 (c) provides that a recording artist who signed a recording agreement can terminate the record label’s ownership of the master recordings transferred through a work for hire provision.

false

TRUE OR FALSE: The city of Nashville commissions Yo-yo Ma to write a symphony for its New Year’s celebration. The city specifies that it intended to record the performance and create audiovisual products to sell to the public afterward. Mr. Ma agreed in writing that the work would be work for hire. Pursuant to the work for hire principles we discussed, the city is the author of the symphony.

true

TRUE OR FALSE: Under section 201(c) of the Copyright Act, each separate contribution to a “collective work” is distinct from copyright in the collective work as a whole. Thus, the ownership of the copyright vests initially in the author of the contribution.

true

TRUE OR FALSE: A person who buys a copy of a book owns the copyright that is embedded in the physical object, and therefore, according to the First Sale Doctrine, can make copies of that book and sell them.

false

TRUE OR FALSE: A publisher goes to an open mike night at The Basement. She likes what she hears, so she sits down with the artist/songwriter and they scribble out a copyright assignment on the back of a napkin and both the songwriter and the publisher sign the napkin. Do they have a valid transfer of copyright?

true

What exactly do the joint authors (co-writers) of a musical composition own after they fix their work in a tangible medium of expression?

They each own an undivided interest in the copyright.

What is the burden(s) of proof most often used when proving the elements of copyright infringement?

Preponderance, Clear and convincing

TRUE OR FALSE: It is possible that a musical composition may be protected by copyright, even when it consists solely of non-protected elements assuming the combination of these elements establishes a “stamp of fresh authorship.”

true

Which of these elements must be established in order to establish copyright infringement?

1. Misappropriation of protected elements

2. Actual copying

3. Ownership

4. Striking similarity

1, 2, 3

If the plaintiff in a copyright infringement action establishes that the defendant had access to the original work, that establishes which essential element?

Actual copying

If a plaintiff in a copyright infringement action has a registration certificate from the U.S. Copyright Office, that is considered prima facie evidence of which element of proof?

Ownership