Master Set for Copyright
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284 Terms
What two sets of actors can infringe a copyright?
Those who directly infringe the rights of copyright holders
Those who encourage or assist a third party to infringe
What are the exclusive rights for owner of a copyright? Section 106
1) To reproduce in copies or phonorecords
2) To prepare derivative works based on the copyrighted work
The copyright owner has the right to make new versions or adaptations of the work, like:
Turning a novel into a movie,
Making a sequel or prequel,
Translating the work into another language,
Arranging or remixing a song.
(3) To distribute copies or phonorecords of the copyrighted work to the public
The owner can sell, give away, rent, lease, or lend physical or digital copies of the work (like books, CDs, DVDs, or downloads).
(4) To perform the work publicly (for certain kinds of works)
For things like books, music, plays, dances, and movies, the owner can control public performances, such as:
Playing a song in a bar or store,
Showing a movie in a theater,
Staging a play or dance in front of an audience.
(5) To display the work publicly (for certain kinds of works)
For books, music, plays, dances, pictures, graphics, and sculptures, the owner controls public display, such as:
Showing a painting in a museum or gallery,
Displaying individual frames of a movie publicly,
Posting images or pages online in a public way.
(6) To perform sound recordings publicly by digital audio transmission
For recorded music (like a CD or MP3), the owner has the right to control digital public performances, such as:
Streaming a song on an internet radio station or music‑streaming service,
Broadcasting the recording online.
What is the most fundamental right granted to a copyright owner?
right to reproduce
What does the right to reproduce protect against?
literal reproduction and unauthorized making of “substantially similar” reproductions
What are the two aspects of direct infringement that doctrines address?
Proving copying
Improper appropriation
Copyright law only prohibits…
copying
What does copyright protection not bar?
Independent creation
What proof do courts need for direct infringement?
Eyewitness and videotape reliable but not necessary, circumstances may point toward copying
Ex: work has been widely distributed, second author produces identical work
Copyright says you infringe if you copy a work in whole or…
in a “substantial part”
As long as you take the author’s…
protected expression, you can infringe even if you don’t copy it exactly—you can copy by imitation or changing it a lot
Where do the two different meanings of “Substantial similarity” come up?
copying and unlawful appropriation
Substantial similarity in copying means…
Striking or probative similarity found in circumstantial evidence (the similarities are so unique or unusual that they’re unlikely to be coincidence or from a common source).
Substantial similarity in unlawful appropriation means…
substantial similarity in protected expression, defendant took too much of the protected part.
Without direct evidence, the plaintiff can show circumstantial proof of copying by:
Access (the defendant had a chance to see the original), and
Probative similarity
Probative vs.. Substantial Similarity
Probative similarity is used to prove actual copying (factual evidence 1st step), while substantial similarity is used to prove unlawful appropriation (legal infringement, 2nd step) of protected elements.
Ninth Circuit (in Skidmore v. Led Zeppelin) held the “Copying” and “unlawful appropriation” are…
two separate steps, even though people often lump them together under the vague phrase “substantial similarity.”
In Arnstein v. Porter, how did the court differentiate between copying and improper appropriation?
Issue(s):
Did the district court correctly grant summary judgment for Cole Porter and take the case away from a jury before trial?
In a musical‑copyright case:
How should courts decide whether the defendant copied from the plaintiff’s work?
How should they decide whether that copying was illegal appropriation (infringement)?
Facts:
Ira B. Arnstein, a relatively obscure songwriter, sued the famous composer Cole Porter for copyright infringement.
Arnstein claimed that Porter’s songs—such as “Begin the Beguine,” “My Heart Belongs to Daddy,” and “Night and Day”—were pirated from his songs including “The Lord Is My Shepherd,” “A Mother’s Prayer,” and “I Love You Madly.”
He said his works had been sold, broadcast on the radio, or sent to publishers and movie producers, so Porter could have had access to them.
He also suggested that some people (“stooges”) working for Porter had stolen copies from his room, but he admitted he had no proof Porter was involved.
Porter denied ever seeing or hearing any of Arnstein’s songs and said he had nothing to do with any theft.
The district court granted summary judgment for Porter, saying Arnstein’s theory of copying was “fantastic” and that he had no right to a trial.
Defendant and Plaintiff argument:
Plaintiff (Arnstein):
Argued that Porter’s songs had enough musical similarities to his that a jury could reasonably find copying.
Argued that, given publication and broadcasts of his works, a jury could also find that Porter had access.
Said that credibility of the witnesses (including Porter’s denials) should be decided by a jury after hearing both sides live, not by a judge on paper.
Defendant (Porter):
Argued that there was no real evidence he had ever seen or heard Arnstein’s songs, so he could not have copied them.
Argued that the musical similarities Arnstein pointed to were small, common, and trivial and did not amount to infringement.
Said the court was right to grant summary judgment because Arnstein’s whole story was implausible.
Procedural posture:
Arnstein sued for copyright infringement and asked for a jury trial.
The district court granted Porter’s motion for summary judgment, dismissing the case before any live trial, based on the parties’ depositions and written evidence.
Arnstein appealed to the Second Circuit, asking the court to decide whether the district court wrongly denied him a trial on the merits.
Judgment:
The Second Circuit reversed the summary‑judgment ruling and sent the case back so Arnstein could have a trial.
The court held that there was a genuine issue of fact on both copying (access) and illegal appropriation, so a jury should decide these questions.
Applicable Rules and Precedent:
Rule 56 (summary judgment): The court set out a strict standard—summary judgment is proper only if there is “no slightest doubt” about the facts in favor of the moving party; otherwise, the case should go to a jury.
Copyright law background: The opinion relies on basic copyright ideas that infringement requires two elements:
Proof that the defendant copied from the plaintiff’s work.
Proof that the copying amounted to unlawful appropriation of protected expression.
Earlier music‑plagiarism cases: The court references earlier Second Circuit decisions such as Arnstein v. Marks Music Corp. and Wilkie v. Santly Bros., which dealt with how much similarity is enough to show infringement.
Holding:
Copying and improper appropriation are separate fact questions in copyright infringement.
Copying can be shown by direct proof or by circumstantial evidence of access plus similarities.
Improper appropriation is about whether the copying is substantially similar in a way that infringes the plaintiff’s protected expression.
On copying (access), the court held that Arnstein had enough evidence (publication, sales, broadcasts, and distribution to music‑industry people) that a jury could reasonably infer Porter had access, even though part of Arnstein’s story seemed “fantastic.”
On improper appropriation, the court held that whether the songs are so alike that the “ordinary lay listener” would think they came from the same source is a question for the jury, not for the court to decide on paper.
Expert testimony and “technical dissection” of the music may help on copying, but cannot control the question of whether ordinary listeners would feel the defendant stole something.
Because both issues involved credibility and factual disputes, summary judgment for Porter was wrong; Arnstein was entitled to a trial where witnesses could testify in person.
Reasoning:
The court emphasized that copyright infringement is a factual question, not something a judge should resolve coldly on the record.
It said that access can be inferred if the plaintiff’s work was widely available in the relevant industry and the defendant is in that same world, even if there is no smoking‑gun proof of copying.
It insisted that how much copying is illegal should be judged by the ordinary lay listener, not by trained musicians picking out notes on paper, because the law protects the commercial value of the work to the public, not the composer’s artistic reputation.
The court warned that, when credibility is central (for example, whether Porter is telling the truth about never having heard Arnstein’s songs), summary judgment is especially risky and should usually be avoided so a jury can see and hear the witnesses.
Rule of Law:
In a copyright‑infringement case, infringement has two parts: (1) copying (often shown by access plus similarity) and (2) improper appropriation (substantial similarity as seen by the ordinary lay listener).
Both parts are questions of fact that, when there is a genuine dispute and credibility is involved, entitle the plaintiff to a trial; summary judgment is only proper when there is no real doubt about those facts.
Courts may use expert analysis and dissection to help prove copying, but cannot substitute such analysis for the ordinary‑audience test on whether there was unlawful appropriation.
Key takeaway:
Arnstein v. Porter is the case that cleared the two‑step path courts still follow today: first ask did the defendant copy?, then ask did the copying take enough of the “ear appeal” to the public to be illegal?
It also set a high bar for summary judgment in copyright‑infringement cases: if the facts are disputed or credibility matters, the jury should decide, even if the plaintiff’s theory sounds far‑fetched, because summary judgment should not be used to shut out marginal but genuine claims at the pleading stage.
What is improper appropriation
Whether the defendant copied sufficient protected expression to violate the plaintiff’s copyright interests
How does the court draw the line between idea v. expression in Nichols v. Universal Pictures Corporation?
Issue(s):
Did the movie “The Cohens and Kellys” copy enough of the plaintiff’s play “Abie’s Irish Rose” to be a copyright infringement, even though the copying was not word‑for‑word but only in general plot and character ideas?
At what level of generality (idea vs. expression) does copyright protection stop, so that others can still use similar themes, stock characters, and common storylines without infringing?
Facts:
Anne Nichols wrote the play “Abie’s Irish Rose,” a comedy about a Jewish father obsessed with his son marrying a Jewish girl, and how he is tricked into accepting a marriage to an Irish Catholic girl, leading to family conflict and eventual reconciliation around their grandchildren.
Universal Pictures made the movie “The Cohens and Kellys,” a comedy about a Jewish‑Irish feud, the secret marriage of their children, initial hostility, financial drama, and eventual reconciliation between the two fathers, with a child born to the couple.
Nichols sued for copyright infringement, arguing that Universal had taken the plot, characters, and emotional “quadrangle” between the two families.
The district court dismissed the case, and she appealed to the Second Circuit.
Defendant and Plaintiff argument:
Plaintiff (Nichols):
Argued that “The Cohens and Kellys” copied the core sequence of events and character relationships from “Abie’s Irish Rose,” such as:
Jewish and Irish families at odds.
A secret marriage between the children.
Reconciliation via grandchildren.
Presented a detailed “quadrangle” analysis mapping the emotions of both sets of fathers to show parallelism.
Defendant (Universal):
Argued that the similarities were only at a very general, idea‑like level, such as using an Irish‑Jewish clash and a mixed‑faith marriage.
Said that the actual plot, characters, and tone were different enough that no real copyright infringement occurred.
Procedural posture:
Nichols sued in district court, seeking an injunction and damages for infringement of her play.
The district court dismissed her claim and Universal was the prevailing party.
Nichols appealed to the Second Circuit, which reviewed the two plays and decided whether the movie was too similar to the play under copyright law.
Judgment:
The Second Circuit affirmed the dismissal; it held that “The Cohens and Kellys” did not infringe “Abie’s Irish Rose.”
The court concluded that Universal had taken only general themes and stock elements, not enough protected expression to be infringement.
Applicable Rules and Precedent:
Core copyright principle: copyright protects expression, not ideas (the idea‑expression dichotomy), even if the statute at the time did not state it so explicitly.
Earlier cases such as Dam v. Kirk La Shelle Co. and Stodart v. Mutual Film Co. had held that plots can be protected, but only when the copying is detailed enough, not just the abstract outline.
The court referred to the general rule that courts must draw a line between what is protected “expression” and what is unprotected “idea,” even though that line is always somewhat arbitrary.
Holding:
Copyright does not protect general themes, stock characters, or high‑level plot ideas, even if those ideas are central to a successful work.
When two works resemble each other mainly in broad themes and common tropes (such as “Jewish and Irish families feud, their children secretly marry, and they later reconcile”), that is not enough to show infringement.
To infringe, a work must take substantial and concrete expression—specific sequence of incidents, particular character traits, and distinctive structure—not just the outline or mood of the original.
Reasoning:
Hand explained that if copyright extended to very abstract levels (like the general idea of a religious‑clash romantic comedy), then the author could monopolize entire genres, which would harm creativity and the public.
He described a “series of abstractions,” where you can keep pulling out more general patterns from a work until you are left with just the bare idea; at that level, copyright must stop and the material passes into the public domain.
Looking at the two plays, he found that the only real commonalities were:
A Jewish‑Irish father‑father feud.
The fact that the children secretly marry.
The birth of a child and eventual reconciliation.
He concluded that Universal had not copied enough concrete, distinctive elements of Nichols’s expression; it only reused common, stock ingredients of farce.
He also dismissed the plaintiff’s “emotions‑quadrangle” analysis, saying that very general emotional labels (like “love” or “anger”) are too broad to prove infringement; courts should instead judge by how the whole work strikes an ordinary spectator.
Rule of Law:
In copyright law, idea and expression are separated: the author has no monopoly on general themes, stock characters, or broad plot outlines, even if those ideas are original.
Two works are only infringing when the allegedly infringing work copies substantial, concrete, and distinctive elements of the expression—such as specific sequence of incidents and detailed character development—not just similar high‑level ideas or moods.
Key takeaway:
Nichols is the foundational case that clearly draws the line between what is protected expression (specific plot, characters, and structure) and what is unprotected idea (general theme, stock type, and broad storyline).
Even if one play is clearly successful and the other borrows the same kind of conflict and family‑reconciliation arc, that kind of general similarity is not infringement—others may still build on the same idea as long as they do not copy the specific, original expression of it.
What is a layhearer?
A person who listens to music without professional training or expertise, often used as a standard for evaluating whether copying in copyright infringement cases is substantial enough to be deemed illegal.
Why software is hard to fit into IP categories?
Both written text and a useful tool, copyright protects creative works while patents usually protect useful things
What did CONTU (the National Commission on New Technological Uses of Copyrighted Works) decided about how software should be protected?
By copyright law
What did CONTU say copyright protected in software?
programmer’s code and the way the program is written
What did CONTu say copyright did not protect?
the underlying process or method the program carries out (for example, how it works)
Copyright cannot protect…
ideas, procedures, processes, methods, or systems—only the way someone expresses them
How does CONTU analogize software to rules of a game?
rules of the game can be copyrighted, so you can’t just copy and republish them.
But the copyright owner cannot stop people from playing the game or using the rules in their own way
Congress adopted CONTU’s…
recommendation of codifying copyright protection for software programs
What is the critical questions on how courts deal with software with copyright?
how courts draw this idea‑expression line over time.
Computer Associates International, Inc. v. Altai, Inc. implements what test in order to find substantial similarity?
Issue(s):
Are the non‑literal elements (structure, organization, design) of a computer program protected by copyright, and how should courts decide whether another program infringes them?
After Altai rewrote its OSCAR 3.5 program so that no literal code matched CA’s ADAPTER, was OSCAR 3.5 substantially similar in its non‑literal structure to still be an infringement?
Facts:
Computer Associates (CA) made a job‑scheduling program, CA‑SCHEDULER, which included a sub‑program called ADAPTER that helped the program work with different IBM operating systems.
Altai made a competing scheduler, ZEKE, which originally only worked with one operating system (VSE).
Altai hired Claude Arney, a former CA employee, who knew ADAPTER and secretly took its source code with him. He used that code to create OSCAR 3.4, a compatibility component for ZEKE; about 30% of OSCAR 3.4 came from ADAPTER.
When CA discovered the copying, Altai rewrote OSCAR 3.4 into OSCAR 3.5 without Arney’s help; the new version had no copied source code and several programmers built it from scratch.
CA sued for copyright infringement (OSCARS 3.4 and 3.5) and trade secret misappropriation. The district court found infringement on OSCAR 3.4 and awarded damages, but rejected the claim on OSCAR 3.5, holding it was not substantially similar.
Defendant and Plaintiff argument:
Plaintiff (Computer Associates):
Argued that OSCAR 3.4 infringed because it copied a large part of ADAPTER’s source code.
Argued that OSCAR 3.5, even though it had no copied code, still copied the structure, organization, and design of ADAPTER and should be found infringing under the Whelan “structure as expression” test.
Also argued that Altai misappropriated trade secrets by using confidential CA information via Arney.
Defendant (Altai):
Admitted copying in OSCAR 3.4 but appealed only on OSCAR 3.5 and the trade‑secret preemption issue.
Argued that OSCAR 3.5 was a clean rewrite with no copied code, and that the remaining structural similarities were unprotectable ideas, efficiency‑driven choices, or public‑domain techniques, not protectable expression.
Procedural posture:
CA sued in the Eastern District of New York, seeking damages and an injunction for copyright infringement and trade secret misappropriation.
The district court found OSCAR 3.4 infringed and awarded about $364,000 in damages but rejected the infringement claim for OSCAR 3.5 and held CA’s trade secret claim was preempted by federal copyright law.
CA appealed the findings on OSCAR 3.5 and preemption; Altai dropped its challenge to the OSCAR 3.4 award.
Judgment:
The Second Circuit affirmed the district court’s ruling that OSCAR 3.5 did not infringe CA’s ADAPTER in its non‑literal structure.
The court vacated the district court’s finding that the trade secret claim was preempted and remanded that issue for further analysis, because trade‑secret liability can exist even alongside copyright.
Applicable Rules and Precedent:
Copyright protects expression, not ideas, methods, systems, or processes (§102(b) and the idea‑expression dichotomy).
Nichols v. Universal Pictures (1930): Courts must separate protectable expression from unprotected idea using an “abstractions” test.
Baker v. Selden (1879): You cannot copyright systems or methods just because they are described in a book.
Merger doctrine / scenes à faire / public domain doctrines: Some expression is not protected when it is necessary to the idea, is industry‑standard, or is commonplace.
Holding:
The non‑literal elements (structure, design, organization) of computer programs can be protected by copyright, but only if they are original expression, not ideas, methods, or efficiency‑driven choices.
To decide whether one program’s structure infringes another, courts should use the Abstraction‑Filtration‑Comparison (AFC) test; under that test, OSCAR 3.5’s structure was not substantially similar to ADAPTER’s protectable expression.
Reasoning:
The court agreed that copyright extends beyond just code to the program’s structure and organization, but stressed that many parts of that structure (such as interfaces, parameter lists, and service requirements) are functional and therefore unprotectable.
It criticized the Whelan test (which treated almost all structure as expression) as too broad and instead endorsed a three‑step AFC method:
Abstraction: Break the program into levels of structure, from the raw code up to its overall function.
Filtration: Remove everything that is idea, process, efficiency‑driven, externally required, or public‑domain.
Comparison: See if what is left—the kernel of protectable expression—is substantially similar to the allegedly infringing program.
Applying AFC, the court found that any similarities between OSCAR 3.5 and ADAPTER were:
Functional (e.g., compatibility with the operating system),
Efficiency‑driven, or
Industry‑standard/public‑domain,
leaving no substantial, protectable similarity.
The court also said broad software copyright can “lock up” basic programming techniques, so the AFC test better balances incentives for creators and freedom for competitors.
Rule of Law:
Software structure is only protected by copyright if it is original expression, not if it is a mere idea, process, method of operation, or efficiency‑driven or industry‑standard choice.
For non‑literal software infringement, courts should use the Abstraction‑Filtration‑Comparison test to isolate only the protectable expression and then compare that kernel to the allegedly infringing program.
Key takeaway:
Computer Associates v. Altai is the case that replaced the Whelan rule and gave courts the AFC test to decide whether one program’s structure copies another’s in a way that counts as infringement.
The decision narrowed the scope of copyright in software structure, recognizing that many similarities are just functional or obvious and do not deserve protection, while still leaving room to protect truly original architectural choices.
What is not accounted for in defining infringement?
intent and scale:
Whether someone meant to copy or copied for profit does not change whether it’s infringement.
Any copying that violates someone’s exclusive rights can be infringement, even if it’s small or done by accident.
When is copying allowed without liability?
Libraries can make limited copies (Preserving a deteriorating copy, or Replacing a work that can’t be bought at a fair price.)
Broadcasters can make “temporary” copies (short‑term, “ephemeral” copies as part of broadcasting or retransmitting a program)
Helping people with disabilities (copy and distribute certain books and literary works in special formats (like Braille, audio, or large print))
Home copying of music for noncommercial use (lets consumers make copies of sound recordings for non‑commercial use (like taping a CD at home))
Running and maintaining computer software (copy is only for maintenance or repair of that machine and already had lawful copy, or Necessary to run the program on a computer, and used only for that, or copy made for archival backup)
Fair use in certain circumstances (like teaching, criticism, research, or parody)
What are the two parts in copyright in music?
The musical composition (the song itself—melody and lyrics).
The sound recording (the actual recorded performance).
What is a mechanical compulsory license?
lets people legally cover a song without the composer’s permission, as long as:
The song has already been released with the owner’s permission.
The cover artist files a notice with the Copyright Office and pays a set royalty per copy.
**called “mechanical”—it started with player‑piano rolls, then later applied to records and CDs.
Under the 1976 act, how does the mechanical license work?
pay the mechanical royalty rate (now about 9.1 cents per song, or 1.75¢ per minute of playing time, whichever is higher).
They file a notice of intention to get the compulsory license.
cover can’t change the basic melody or “fundamental character” of the song
Why in Supreme Records v. Decca and Capitol did the Court say no infringement on the copyright?
lawsuit claimed the cover stole the arrangement, style, and performance, court said the recording and arrangement alone were not enough to create a separate property right; the cover did not infringe the composition copyright.
How do courts treat “sound-alike” recordings today?
you can make sound‑alike versions of compositions, even if they copy the arrangement or style, as long as you don’t change the basic melody or character of the song (§114(b))
How did racial inequality arise as a result of cover licensing?
Big white‑owned labels used the cover license to record “sound‑alike” versions of R&B songs by black artists.
What is a DPD (digital phonorecord delivery)?
special mechanical compulsory license that covers things like digital downloads and certain kinds of streaming
What are the two kinds of DPD?
Incidental DPDs:
The copy is only temporary (like when a song is buffered but not saved), so the listener does not keep a permanent copy.
These can have lower royalty rates than permanent copies.
General DPDs:
The listener keeps a copy (like a download they can replay later).
These get higher compulsory rates.
In 2008, what did music and tech companies agree to set royalties for? What was the rate?
Limited downloads,
Interactive streaming,
Known types of “incidental” DPDs.
The mechanical rate ended up being 10.5% of revenue
Who did the law give the power to set DPD royalty rates?
Copyright Royalty Board (CRB)
How did the Music Modernization Act (MMA) fix the streaming and pre-1972 recording issues?
created a broad DPD blanket license for online streaming of music.
put pre‑1972 sound recordings under federal copyright.
give producers a share of digital performance royalties.
What did the Mechanical Licensing Collective (MLC) do?
Administer that blanket license,
Maintain a music‑works database (to match songs to rights‑holders).
How did the New DPD “blanket” license system set the royalty rating?
uses a “willing buyer / willing seller” standard
How did the Music Modernization Act (MMA) help services?
reduces the risk for services that try to follow the rules in good faith:
They can’t be hit with statutory damages if they’ve made good‑faith efforts to comply.
also shields copyright owners and services from antitrust liability when they negotiate compulsory‑license terms together.
How did the right to make derivative works change over time?
first, copyright only stopped people from making very similar copies in the same form, as TV, film, merchandise, and other media developed, copyright law broadened to protect new versions of a work in different forms.
What does the 1976 copyright act say about derivative works?
gave the copyright owner an exclusive right to prepare derivative works
What can a derivative work be?
A translation, musical arrangement, dramatization, movie version, sound recording, art reproduction, abridgment, or adaptation.
Also, edits, notes, or other changes that together form a new original work based on the old one.
Why the derivative right is like a “prospect”
gives them a broad chance to profit from almost any adaptation, remake, or spin‑off of the work, and to either license or block others from doing it
In Anderson v. Stallone, what specifically about the characters made the court decide that they were copyrightable?
Issue(s):
Are the Rocky characters (Rocky, Adrian, Apollo, Clubber Lang, Paulie, etc.) protected by copyright so that someone cannot just take them and build a sequel without consent?
If a writer uses those characters without permission in a treatment for a movie (like a early “Rocky IV” idea), is that an unauthorized derivative work and therefore infringement?
If the writer’s work is an infringing derivative work, can he still get copyright protection for the parts that are “original” and sue Stallone for copying his treatment?
Facts (in simple terms):
The first three Rocky movies were huge hits. Sylvester Stallone wrote the scripts and played Rocky Balboa.
When Stallone was promoting Rocky III, he told reporters what he was thinking about Rocky IV:
Rocky would “step out” and deal with big world issues, like a fight between the U.S. and the Soviet Union in Moscow, with the whole world watching on TV.
A writer named Anderson wrote a movie treatment (a short outline of a script) that used Rocky Balboa and the other main characters from the first three movies and built a new story around them, essentially making an unauthorized “sequel‑style” work.
Stallone developed his own Rocky IV movie, and Anderson claimed Stallone stole his treatment.
Stallone responded that Anderson stole the Rocky characters and story in the first place, so Anderson’s work was an infringing derivative work and not protectable.
Defendant and Plaintiff argument:
Plaintiff (Anderson):
Argued that his treatment contained original ideas and expression.
Claimed he should get copyright protection for the non‑infringing parts of his treatment and that Stallone infringed his work.
Pointed to §103(a), saying Congress meant authors to still get protection for the original parts of works that also use some copyrighted material.
Defendants (Stallone, etc.):
Argued that Anderson took the Rocky characters lock, stock, and barrel from the already‑existing movies.
Said Anderson’s work was an unauthorized derivative work based on Stallone’s copyrighted movies, so Anderson cannot sue Stallone for copying it.
Argued that §103(a) does not give an infringer the right to sue the original copyright owner.
Procedural posture:
Anderson sued in federal district court, claiming copyright infringement of his treatment.
The defendants moved for summary judgment, arguing that Anderson’s work was an infringing derivative work and not protectable.
The court was deciding whether the Rocky characters are protected and whether Anderson’s treatment was an unauthorized derivative work at the summary‑judgment stage.
Judgment:
The court granted summary judgment for Stallone.
It held that:
The Rocky characters are protected by copyright.
Anderson’s treatment is an unauthorized derivative work based on those characters.
Therefore, Anderson cannot get copyright protection for his treatment, and cannot sue Stallone for infringement.
Applicable Rules and Precedent:
Copyright protects characters if they are highly developed and specific, not just vague types (following Nichols v. Universal Pictures).
A derivative work is only lawful if the copyright owner allows it (§106(2) and Ninth Circuit cases like Litchfield v. Spielberg).
§103(a): Copyright protects derivative and compilation works, but protection does not extend to the parts that unlawfully borrow from someone else’s copyrighted work.
Case law says you cannot use §103(a) to give an infringer the right to sue the original copyright owner for copying the infringing work.
Holding (in simple terms):
The Rocky characters are so richly developed and central to the first three movies that they are protected by copyright as characters.
Anderson’s treatment took those characters “bodily”—names, relationships, histories, personalities—and built a new story around them without permission, so it is an unauthorized derivative work.
Even if the treatment has some original ideas, §103(a) does not allow Anderson to:
Get copyright protection for the infringing derivative part, or
Turn around and sue Stallone for copying his own infringing work.
Reasoning:
The judge said the Rocky characters are extremely detailed and “the story being told” in the early movies; they are not just generic “tough boxer” stock types.
Because the characters are so rich, anyone who copies them directly and builds a sequel or similar story is stealing protectable expression, not just an idea.
The test for a derivative work is whether the work would be infringing if the copied material were taken without permission; here, it clearly would.
Anderson did not just copy general ideas; he copied the specific characters and their relationships. That is literal appropriation of expression, not a fair use or new story.
The court said §103(a) was meant to protect things like anthologies where one poem is unauthorized, but the rest are okay; it was not meant to let someone sue the copyright owner for copying an infringing sequel they themselves created.
Rule of Law:
Highly developed, central characters in movies can be protected by copyright, and someone who uses those characters in a new work without permission creates an unauthorized derivative work and is infringing.
An infringer cannot use §103(a) to:
Claim copyright protection for the infringing derivative work, or
Sue the original copyright owner for copying the infringing work.
Key takeaway:
Anderson v. Stallone stands for the idea that you cannot steal iconic, fully developed characters (like Rocky and his world) and then turn around and claim the copyright owner copied your “idea.”
Once your work is an unauthorized derivative based on a protected copyrighted work, you lose the right to sue the original owner for infringement, even if some parts of your work are original.
What exclusive right does section 106(3) give to copyright owners?
right to distribute copies or phonorecords of their work to the public by:
Sale or transfer of ownership, or
Rental, lease, or lending.
Even when person copies but doesn’t sell or didn’t know they were infringing…
liablity can still be attached
What does section 602 allow copyright owners to block?
import or export of copies of their works, with some narrow exceptions such as:
Government use (but not schools),
Personal copies for private use,
Some educational, scholarly, or religious materials (no more than five copies).
What two views do courts have do if distribution includes making material available online?
Narrow view:
To violate the distribution right, the file must have been actually downloaded by someone.
Just putting a file in a share folder is not enough by itself.
Broad view:
Making a work available for download is enough to violate the distribution right.
Once you open it up to the public via file‑sharing, you’ve “distributed” it.
Why does the split between narrow and broad view matter?
Narrow interpretation:
It’s harder to prove distribution, because someone actually has to download the file.
You may need technical evidence (logs, screenshots, expert testimony), which is expensive and hard to get.
Broad interpretation:
Millions of file‑sharers could be exposed to huge statutory damages, even if only a few people actually download their files.
What does the copyright office say on if “making available” counts as infringement?
concluded that §106(3) does include a “making available” right
How do courts use circumstantial evidence to prove online distribution?
A copyright holder’s forensic expert easily finds the song/movie in the defendant’s share folder by searching for the title or artist.
That kind of evidence can be enough to show it’s more likely than not that the work was distributed (even if there’s no direct download log).
What is the first sale doctrine?
once a copy of a work (like a book, CD, DVD, or phonorecord) is lawfully made and sold, the person who owns that copy can sell, give away, rent, or lend it without needing the copyright owner’s permission.
Under the first sale, what can and can’t do?
You can:
Resell a book or CD.
Lend a library book.
Donate your old DVDs.
You cannot:
Make a new copy (burn a CD, photocopy the book, etc.)—that’s still copyright infringement.
What limitations were added to rentals?
§109(b) says you generally cannot rent phonorecords (like CDs) or computer programs for profit.
This is different from movies (DVDs/Blu‑rays) and books, which can be rented or loaned out.
What did the Court say about whether foreign copies can be resold in America in Kirtsaeng v. John Wiley?
Issue(s):
Does the “first sale” doctrine (§109(a)) apply to copies of a copyrighted work lawfully made abroad (for example, textbooks printed overseas with the publisher’s permission)?
Can someone who buys such a foreign‑made copy abroad bring it into the United States and resell or give it away without the copyright owner’s further permission, even though §602(a)(1) generally bans unauthorized importation?
Facts:
John Wiley & Sons publishes expensive academic textbooks and sells cheaper “foreign‑edition” textbooks in other countries, often with labels saying they are for sale only outside the United States.
Supap Kirtsaeng, a Thai student studying in the U.S., had friends and family buy these low‑price foreign‑edition textbooks in Thailand and mail them to him.
He then resold them in the U.S. at a profit, undercutting Wiley’s U.S. prices.
Wiley sued, claiming his importation and resale violated copyright, even though the books were lawfully made and sold abroad with Wiley’s permission.
Defendant and Plaintiff argument:
Plaintiff (Wiley):
Argued that the phrase “lawfully made under this title” (in §109(a)) should be read geographically: it applies only to copies made in the United States (or where the U.S. Copyright Act directly applies).
The first sale doctrine, they said, should not protect foreign‑made copies, so importing them and reselling them without permission is copyright infringement under §602(a)(1).
Defendant (Kirtsaeng):
Argued that “lawfully made under this title” just means made in compliance with U.S. copyright law, not necessarily made in the United States.
Because the foreign‑printed textbooks were made and sold with the copyright owner’s permission (even abroad), Kirtsaeng said the first sale doctrine should apply, and he was free to import and resell them.
Procedural posture:
Wiley sued Kirtsaeng in district court for copyright infringement.
The district court and the Second Circuit ruled in Wiley’s favor, saying foreign‑made copies were not protected by the first sale doctrine and that Kirtsaeng’s activities were infringing.
Kirtsaeng appealed to the Supreme Court, which granted certiorari to decide whether the first sale doctrine applies to lawfully made foreign copies.
Judgment:
The Supreme Court reversed the Second Circuit and ruled in favor of Kirtsaeng.
The Court held that the first sale doctrine applies to copies of copyrighted works that were lawfully made abroad with the copyright owner’s permission.
Applicable Rules and Precedent:
§106(3): Gives copyright owners the exclusive right to distribute copies.
§109(a): The “first sale” doctrine says the owner of a particular copy lawfully made under this title may sell or dispose of it without the owner’s permission.
§602(a)(1): Bans importation without permission of copies of a copyrighted work acquired outside the U.S.
Bobbs‑Merrill Co. v. Straus (1908): Early case establishing the first sale doctrine in U.S. copyright.
Statutory‑interpretation canons: The Court looked at text, context, legislative history, and common‑law background.
Holding:
The words “lawfully made under this title” in §109(a) do not mean “made in the United States”; they mean made in accordance with or in compliance with U.S. copyright law.
Therefore, if a copy of a copyrighted work is lawfully made abroad with the copyright owner’s permission, the first sale doctrine applies to that copy.
Someone who owns such a foreign‑made copy may bring it into the U.S., resell it, or otherwise dispose of it without the owner’s further permission.
Reasoning (majority):
Text:
The phrase “lawfully made under this title” says nothing about geography; it describes whether the copy was made in compliance with the Copyright Act, not where.
The word “under” can mean “in accordance with” or “subject to” the law, not “inside the U.S.”
Context and history:
The earlier version of the first sale doctrine (under the 1909 Act) had no geographic limit; the Court found no clear sign that Congress meant to add one in the 1976 Act.
The first sale doctrine is a common‑law rule against restraints on resale, consistent with antitrust and competition policy.
The Court reasoned that a geographic reading would create absurd problems for:
Libraries with foreign‑printed books,
Used‑book dealers,
Museums displaying foreign‑made art,
Consumers reselling everyday goods (like cars with embedded software).
Policy / “horribles”:
The Court worried that a narrow, geographic reading would let copyright owners permanently control the distribution of foreign‑made copies, effectively turning every import into potential infringement.
Instead, the Court favored international exhaustion: once a copy is lawfully sold anywhere, the copyright owner’s distribution right is exhausted worldwide.
Rule of Law:
The first sale doctrine (§109(a)) applies to copies of a copyrighted work lawfully made abroad with the copyright owner’s permission.
Owners of those copies may import, resell, and otherwise dispose of them in the United States without further permission, even though §602(a)(1) otherwise bans unauthorized importation.
Key takeaway:
Kirtsaeng is the key case that adopted “international exhaustion” in U.S. copyright law:
Once a copyrighted work is lawfully sold anywhere in the world, the copyright owner loses the right to block further resale of that particular copy, including importation into the U.S.
This decision protects consumers, libraries, used‑book dealers, museums, and secondary markets from having to track down copyright owners for every foreign‑printed item.
Dissent (Justice Ginsburg):
Ginsburg argued that the plain language and history show Congress intended to protect copyright owners from unauthorized importation of foreign‑made copies, even if those copies were sold abroad with permission.
She saw the majority’s reading as shrinking §602(a)(1) to the point of irrelevance and placing the U.S. at the front of “international exhaustion,” which the U.S. had historically resisted in trade talks.
She also argued that the Court’s “horribles” (libraries being shut down, etc.) were overblown, because:
Many foreign‑made copies imported with permission are already covered by other doctrines or implied licenses.
The law already has exceptions and limits that protect libraries and museums.
In short, the dissent believed the Court overrode Congress’s intent to let copyright owners control pricing and importation across borders, even while trying to protect consumers.
What does 106(4) of the copyright act give owners the exclusive right to do in public?
perform or show those works in public.
What is considered a “performance”?
To “perform” a work basically means:
Reading it aloud, singing it, playing it, dancing it, or acting it out,
Either live or using any device or process (like a CD, TV, or computer).
For movies and videos, it means showing the images or making the sound audible.
What makes the performance “public”?
A performance is “public” if it is:
At a place open to the public (like a store, bar, theater, or school event), or
Anywhere a substantial number of people (who are not just your family and close friends) are gathered.
What does the law say about broadcasts being a public performance?
The law also says it’s a public performance if you transmit or send a performance:
To a place open to the public, or
To the public (even if people watch in different places or at different times).
American Broadcasting Companies, Inc. v. Aereo, Inc.
Issue(s):
Does Aereo’s service (letting paid subscribers stream broadcast TV over the Internet almost at the same time as the over‑air broadcast) constitute a public performance of copyrighted works under the Copyright Act?
If so, does Aereo perform publicly under the Transmit Clause of §101, even though each subscriber gets a “personal” copy sent only to them?
Facts (include arguments):
What Aereo did:
For a monthly fee, Aereo let subscribers watch broadcast TV programs over the Internet just as they were being aired.
Its system used thousands of tiny antennas, transcoders, and hard drives in a central warehouse.
When a user selected a show, Aereo:
Dedicated one small antenna to that user.
Tuned it to the over‑air signal.
Created a subscriber‑specific copy (a “personal” copy) of the program.
Streamed that copy to only that user, a few seconds behind the broadcast.
Aereo claimed it was just providing equipment that let users effectively use their own “antenna,” and that because each copy and stream was personal and individual, it did not perform publicly.
Petitioners’ argument (TV networks / broadcasters):
Said Aereo’s service was functionally the same as a cable or satellite TV system, just using more granular technology.
Argued that Aereo publicly performed their programs by retransmitting them to thousands of paying subscribers, even if streams were technically “personal.”
Pointed to the 1976 amendments to the Copyright Act, which were aimed at bringing cable TV (CATV) systems within the scope of the public‑performance right.
Aereo’s argument:
Said it did not perform; the user chose the program and the system just automatically responded.
Compared itself to a copy shop with a library card: the shop just provides machines; the patron decides what to copy or stream.
Claimed that each subscriber‑specific antenna and copy meant it was not transmitting to “the public” but only to one person at a time.
Procedural posture:
Broadcasters sued Aereo in federal district court for copyright infringement, alleging violation of the public performance right under §106(4) and the Transmit Clause.
Aereo argued it fell within the “private performance” category and did not infringe.
Lower courts initially sided with Aereo, but the Supreme Court granted certiorari to decide whether Aereo’s system publicly performed copyrighted works.
Judgment:
The Supreme Court ruled for the broadcasters and against Aereo.
It held that Aereo does perform copyrighted works publicly under the Copyright Act and therefore infringes.
Applicable Rules and Precedent:
§106(4): Gives copyright owners the exclusive right to perform a copyrighted work publicly.
§101 (Transmit Clause): Defines “public performance” to include transmitting or communicating a performance to the public by any device or process, even if people receive it at different times or places.
Pre‑1976 CATV cases (Fortnightly and Teleprompter): Said cable‑TV systems were more like viewers than performers, so they didn’t directly infringe.
1976 amendments and §111: Congress amended the Act to bring cable systems inside the public‑performance right and created a compulsory licensing scheme for cable retransmission.
Holding:
Aereo performs copyrighted works when it transmits them to its subscribers.
Even though each subscriber gets a personal copy and a separate transmission, Aereo’s overall service is functionally equivalent to a cable system and therefore transmits performances to the public under the Transmit Clause.
Reasoning:
Functional similarity to cable TV:
Congress amended the Act largely to overrule earlier cable‑TV cases and bring cable systems within the public‑performance right.
Aereo’s service is “for all practical purposes” a cable system: it receives broadcast signals, stores them, and retransmits them to thousands of paying subscribers.
The fact that each antenna and copy is personalized and streams are slightly delayed doesn’t change its economic and functional role in the market.
“Public” under the Transmit Clause:
The Transmit Clause treats as public any transmission to multiple people, even if they receive it at different times or through separate links.
Aereo’s subscribers are numerous, unrelated people who pay primarily to watch broadcast TV, not owners of the works; they count as “the public.”
So even though each stream goes to one user, Aereo transmits a contemporaneous performance to large numbers of people, which qualifies as a public performance.
Rejection of the “copy shop” analogy:
The Court said Aereo is not like a copy shop that just supplies equipment.
The copy shop is passive; Aereo runs an integrated, automated, commercial retransmission system that operates like a cable company.
The user’s click does not turn Aereo into a mere tool; it is still Aereo’s system doing the performance.
Technology‑neutrality (but not laissez‑faire tech policy):
The Court emphasized it was not creating a new general rule for all modern tech (like cloud storage or DVRs).
It left questions about remote storage DVRs, cloud computing, and similar services for future cases, and said fair use and Congress can deal with them.
Rule of Law:
A service that receives broadcast‑TV signals and then retransmits them to many paying subscribers over the Internet, even using personalized antennas and copies for each user, can still publicly perform copyrighted works under the Transmit Clause.
Functional equivalence to a cable system, rather than fine‑grained technical distinctions about personalized hardware or slight delays, determines whether the public‑performance right is triggered.
Key takeaway:
Aereo draws the line that technological tricks won’t defeat copyright if the service does essentially what a cable company does—retransmitting live broadcast TV to large numbers of paying users.
Even if a company claims it is just providing equipment or “personal” copies, the Court will look at the overall effect and similarity to cable TV and can treat that as a public performance subject to copyright liability.
The decision clarifies that Congress aimed to cover cable‑like services, and modern online retransmission businesses that fit that mold cannot avoid liability merely by engineering more granular individual copies or streams.
What did the ASCAP (the American Society of Composers, Authors, and Publishers) invent?
the blanket license: a business (like a radio station or bar) can pay one license fee to ASCAP and get permission to play any song in ASCAP’s catalog, instead of negotiating with every single songwriter.
What is the ASCAP (the American Society of Composers, Authors, and Publishers)
group of composers and music owners that bundled their rights and shared the costs of enforcement and licensing.
What did the US government impose on ASCAP for antitrust violations?
consent decree, limits how ASCAP can operate and sets up a court in New York to set fair royalty rates.
ASCAP an example of a…
collecting society
Sound recordings are excluded…
from law that gives copyright owners the public performance right for things like music and movies.
PGS are in…but not under…
in §106, but not under the public performance right—because it’s not really clear what it would mean to “perform” a painting or a building in the same way you perform a song
Why does Congress not give sound‑recording owners a public performance right in the 1976 copyright act?
Radio stations were already paying ASCAP and BMI for musical compositions (the underlying songs), and they did not want to pay a second set of copyright owners (record labels) for the same performance.
What was created as a result of the Internet change to the rules regarding sound recording and public performance?
Congress created Digital Performance Right in Sound Recordings Act (DPRSRA), create an exclusive right to publicly perform sound recordings by “digital audio transmission”, meaning digital audio streaming (like webcasts and certain online services) now requires a license and payment to the sound‑recording owners.
What are the two exceptions to the copyright owners strong control over public performances and displays of works
Public‑interest exemptions: certain performances are not infringing at all.
Compulsory licenses: the user must pay a set fee or negotiated rate, but does not need individual permission.
What are the five examples that within public interest exemptions?
1. Live education (§110(1))
Teachers can perform or show copyrighted works in face‑to‑face teaching at a school without getting a public‑performance license.
This applies to live presentations in classrooms, not TV or radio broadcasts.
2. Distance learning / webcasts (§110(2))
Accredited, nonprofit educational institutions can broadcast their classes (including via webcasts) to students at a distance, under certain conditions.
This is a special exemption intended for teaching, not for commercial web‑streaming.
3. Religious performances (§110(3))
Churches and other religious places can perform or display copyrighted works as part of religious services without a public‑performance license.
This is a narrow exemption tied to worship.
4. Small, nonprofit, or charitable performances (§110(4))
Certain “nondramatic literary or musical works” can be performed for free or for charity (e.g., a nonprofit concert) without needing a public‑performance license.
This is a revival of the old “for‑profit” focus from the 1909 Act.
5. Record‑store playing (§110(7))
Music stores can play records in the store to attract customers and encourage sales, as long as the listening is free and in the store.
But this does not apply to playing videos in video stores without permission.
How did Fairness in Music Licensing Act of 1998 (§110(5)) help with small businesses and restaurants become exempt? Even if business fit parameters, what still required a license?
broaden the home‑listening exemption to cover:
Small businesses under 2,000 square feet,
Restaurants under 3,750 square feet,
Larger places that meet limits on speakers and screen sizes.
BUT:
They still need a license if they host live music or taped performances
What did WTO say about the small business exemptions? What did US do in response?
too broad: About 65% of restaurants, 71% of drinking establishments, and 27% of retail stores all qualified for the exemption. the U.S.: agreed to change the law to comply (not fully fixed yet), and paid about $1.1 million per year in compensation to rights holders.
What do compulsory licenses allow?
performance or retransmission, but only if the user pays a set royalty (often determined by law or a tribunal).
What are the rules for cable transmission (retransmit TV broadcasts to subscribers) under a compulsory license according to 111?
cable company:
Registers its intent to retransmit,
Pays a royalty based on a percentage of subscriber revenue, and
Does not alter the content or delay the signal.
What are the rules for satellite retransmission under a compulsory license according to 119?
Satellites can carry TV signals to “unserved households” (people who cannot get a station over the air or by cable).
They pay a royalty for that service (not set by the statute; it is negotiated voluntarily or set by arbitration between the satellite company and the stations/networks)
What are the rules for jukeboxes under a compulsory license according to 116?
Owners of jukeboxes (coin‑operated players) can publicly perform the musical works inside them under a compulsory license.
The rate is fixed by law, and the providers (ASCAP/BMI/SESAC) must accept payment instead of suing.
What are the rules for public broadcasting under a compulsory license according to 116?
Public‑broadcasting stations (e.g., PBS‑type entities) can transmit music and art under a compulsory license.
The law does not set the rate; instead:
The stations and rights holders negotiate a rate every five years,
Under the supervision of the Librarian of Congress.
What does of the three-tier system created by Congress under DPRSA 114 decide for compulsory licenses?
Whether a service needs a license,
What kind of license it gets (compulsory or direct), and
Who has to pay and how much
What are the three tiers of the DPRSA system?
Exempt transmissions
Certain non‑subscription digital broadcasts (often by traditional broadcasters) are exempt from the digital performance right—they do not pay under this scheme.
Non‑interactive subscription transmissions
Services like webcasters, Pandora, SiriusXM, etc., that curate the music but do not let users pick specific songs on demand can get a compulsory license.
They must pay a statutory royalty.
Interactive or user‑selected streaming
When users can choose specific songs (like Spotify’s on‑demand service), there is no compulsory license.
The service must get direct permission and negotiate a license with the sound‑recording owners.
What is SoundExchange?
A non-profit organization that collects and distributes digital performance royalties to music artists and record labels,
What did MMA change about SoundExchange’s control over the fixed split of royalties?
must let labels and featured artists direct that a portion of their shares be paid to producers, mixers, or sound engineers who worked on the recording, law does not fix a percentage; that is up to the instructions.
What is the public display right?
gives owners of certain kinds of works (like books, music, plays, pictures, sculptures, and individual frames from movies) the exclusive right to display those works publicly, §106(5).
What does it mean to “display a work”?
To show a copy of it,
Either directly (like hanging a painting on a wall),
Or using a device or process (like a projector, TV, computer screen, or slide).
What does not trigger the public display right?
Section 109(c) creates a big exception:
If you own a lawfully made copy of a work (like a painting, photo, or sculpture),
Or you’re authorized by the owner,
Then you can display that copy publicly without needing permission from the copyright owner.
What limit is on public display of projections of a copy?
copy can be projected, but only one image at a time to people in the same room.
When do public display right disputes usually arise?
when the work is shown electronically or over a network, not in a museum or gallery:
Showing a copyrighted image on TV or in a broadcast,
Or putting a photo on a website in a way that members of the public can see it.
What are morals rights of a copyright?
about protecting the author’s reputation and personal connection to the work, not just the money.
What do moral rights include?
The right of attribution – the right to be credited as the author (or to remain anonymous or use a pseudonym).
The right of integrity – the right to prevent distortion, mutilation, or harmful changes to the work that would hurt the author’s honor or reputation.
What did the Berne Convention (an international copyright treaty) say about moral rights requirements?
requires that authors be able to:
Claim authorship, and
Object to distortion or mutilation that harms their reputation.
What did the Visual Artists Rights Act of 1990 (VARA) entail about moral rights in the US?
law gives visual artists moral rights in the U.S., but:
Only for “works of visual art”,
And with many exceptions and limits (much narrower than in Europe).
Under VARA, what is included under a “work of visual art”?
Paintings, drawings, prints, sculptures,
Still photographs signed by the author,
And such works existing in:
A single copy, or
A limited edition of 200 or fewer copies.
What does VARA not cover?
Posters, maps, charts, technical drawings, models, advertisements, logos, merchandising items, packaging, books, magazines, newspapers, periodicals, databases, websites, and similar publication‑type works.
Motion pictures and other audiovisual works.
Works made for hire (works created by an employee or under a special “work‑for‑hire” contract).
Castillo v. G&M Realty L.P.
Issue(s):
Does street art created at 5Pointz count as protected “works of visual art” under the Visual Artists Rights Act (VARA), even though it was temporary?
When is a work of visual art “of recognized stature” under VARA, so that an artist can prevent its destruction?
Did the property owner willfully violate VARA by whitewashing 5Pointz during litigation, and was the $6.75 million statutory‑damages award legal?
Facts (include arguments):
In 2002, real‑estate developer Jerry Wolkoff invited artist Jonathan Cohen to oversee installation of aerosol art on several warehouse buildings in Long Island City, New York.
The site became known as 5Pointz and evolved into a world‑famous showcase for street and aerosol art, with about 10,650 works painted on the walls.
Cohen divided the walls into “short‑term rotating” areas (art lasted days or weeks) and “longstanding” areas (for best, more permanent pieces).
In 2013, Wolkoff announced plans to demolish 5Pointz and build luxury apartments on the site.
Cohen tried to block demolition by seeking landmark status and raising money to buy the site, but failed.
After litigation began under VARA, and without giving the artists time to remove their work, Wolkoff banned artists from the site, then whitewashed all the murals in a single night, destroying 45 important works.
At trial, the district court found that:
45 of the works had “recognized stature.”
Wolkoff violated VARA by destroying them.
His violation was willful, and he was ordered to pay $150,000 per work in statutory damages (total $6.75 million).
Artists’ arguments:
Their 5Pointz murals were protected works of visual art under VARA, including temporary street art.
Those works had recognized stature because of their artistic quality, Cohen’s curation, and broad recognition in the art world and beyond.
Wolkoff’s whitewashing was a willful destruction after he knew of the VARA claims.
Wolkoff’s arguments:
The 5Pointz works were temporary street art and therefore could not reach “recognized stature.”
Artists knew the building might be torn down, so they assumed the risk of destruction.
The district court focused too much on the reputation of 5Pointz as a site and not on each individual artwork.
The $150,000–per‑work statutory‑damages award was too high and should be overturned.
Procedural posture:
The initial litigation arose after Wolkoff began demolition plans and the artists sued under VARA to stop destruction.
A temporary restraining order initially blocked demolition, but the district court later denied a preliminary injunction and before the opinion issued, Wolkoff whitewashed the site.
After the destruction, nine more artists joined the suit.
At trial, the district court found 45 works had recognized stature, Wolkoff violated VARA, and his conduct was willful.
It awarded $6.75 million in statutory damages (no reliable actual‑damages figure).
Wolkoff appealed to the Second Circuit, challenging the “recognized stature” findings and the statutory‑damages award.
Judgment:
The Second Circuit affirmed the district court on all issues.
It held:
The aerosol works at 5Pointz were protected under VARA.
45 of them were “works of recognized stature.”
Wolkoff violated VARA by willfully destroying them.
The $150,000 per work statutory‑damages award was lawful and not an abuse of discretion.
Applicable Rules and Precedent:
VARA (Visual Artists Rights Act), 17 U.S.C. §106A:
Grants artists moral rights, including:
The right of attribution (to be credited or remain anonymous).
The right of integrity, which:
Bars harmful distortion, mutilation, or modification that prejudices the artist’s reputation.
Bars intentional or grossly negligent destruction of a work of “recognized stature.”
Covers works of visual art that are “fixed” (endure for more than a “transitory duration”) and meet statutory definitions.
Allows only the artist (or heirs) to enforce these rights; they cannot be transferred, only waived in a written instrument.
VARA specifics on building‑integrated art (§113(d)):
If a work is in a building such that removing it would destroy or distort the work, the artist’s rights may be waived if the artist and owner sign a written instrument stating that the installation may subject the work to destruction.
If the work can be removed safely, the owner must either:
Make a diligent, good‑faith attempt to notify the artist and give them 90 days to remove the work, or
Provide written notice and then the artist must remove or pay for removal within 90 days.
Damages (§504):
For VARA violations, artists can recover actual damages and profits or statutory damages ranging from $750 to $30,000 per work, up to $150,000 per work if the violation is willful.
Precedent cited:
Carter v. Helmsley‑Spear (Second Circuit): Interpreted VARA and “recognized stature” in earlier 2000s.
Martin v. City of Indianapolis (Seventh Circuit): Also addressed recognized stature.
Holding:
Temporary street art can be protected under VARA and can achieve “recognized stature” even if it is meant to be short‑lived.
A work is of “recognized stature” under VARA when it is of high quality, status, or caliber that has been acknowledged as such by a relevant community (usually the artistic community).
The temporary nature of a work does not automatically bar it from recognized stature.
The site or context of a work (such as being curated at a famous place like 5Pointz) can be evidence of stature, but the focus must still be on the works themselves.
The district court correctly found Wolkoff’s destruction of the 5Pointz murals was willful under VARA.
The district court did not abuse its discretion in awarding $6.75 million in statutory damages (the maximum) for 45 works.
Reasoning:
Recognized stature standard:
The court endorsed the Second Circuit’s earlier and consistent definition: a work has recognized stature when it is high‑quality, statusful, or of high caliber and acknowledged as such by a relevant community, usually the art world (artists, critics, curators, historians).
It stressed that courts are not final art‑value judges; instead, rulings should rely on expert testimony and external recognition (awards, exhibitions, publications, museum‑level treatment).
Temporary works are not lesser under VARA:
The court said nothing in VARA excludes temporary or street art from protection.
Temporary works like Christo’s “The Gates” in Central Park (a two‑week installation) clearly achieved recognized stature, as did many street‑art pieces by artists like Banksy.
The statute already distinguishes between “transitory” (too fleeting to be copyrightable) and “sufficiently fixed”; the 5Pointz murals were up for far longer than the “transitory” threshold.
Curation and context matter:
The Second Circuit held that curator Jonathan Cohen’s role—selecting which artists and which works got long‑term walls—was strong evidence of stature, similar to a museum putting a work on display.
Recognition of the overall 5Pointz site could support, but not replace, the finding that individual works were of recognized stature.
Wolkoff’s willful conduct:
The court found no clear error in the district court’s finding that:
Wolkoff knew there was active VARA litigation.
He chose to whitewash the works without giving artists the 90‑day removal window VARA contemplates.
He even said he would do the same thing again.
The Second Circuit accepted that conduct as willful under the “knowledge or reckless disregard” standard.
Statutory‑damages award:
The court deferred to the district judge’s broad discretion under the Copyright Act.
It emphasized the unique facts—the deliberate whitewashing, the sheer number of works destroyed, and Wolkoff’s disrespectful attitude—as justifying the top‑of‑the‑range award.
Rule of Law:
Under VARA, a work of visual art can be temporary (such as graffiti or street murals) and still be protected if it is sufficiently fixed.
A work is of “recognized stature” when it enjoys high artistic quality or status that has been acknowledged by a relevant community, usually the artistic community, and need not be permanent to qualify.
A property owner who knowingly destroys such works during active litigation, and refuses to follow VARA’s notice and removal procedures, can be liable for willful violations and maximum statutory damages of up to $150,000 per work.
Key takeaway:
Castillo v. G&M Realty is a landmark case for street art and murals, confirming that temporary graffiti can be high‑status protected works under VARA.
Courts should look outside their own taste and rely on artistic‑community recognition to decide “recognized stature,” not just whether a work lasts a long time.
Property owners must take VARA seriously when their buildings host important murals; they cannot simply whitewash or demolish such works during litigation and expect to avoid serious financial consequences.
§301 of the 1976 Act took state/common law and…
replaced/took over copyright protection with federal law, controls works that are written down or recorded (“fixed in a tangible medium”).