b.

2. In Search of a Distinctive Copyright Paradigm a. The Ritual Formula: Copying = Access + Substantial Similarity i. Plaintiffs burden Why not require direct evidence of copying? o We can rarely catch an infringer in the act. Therefore, infringement must be proven indirectly. In the Second Circuit, substantial similarity is increasingly called probative similarity. If P shows that D had the opportunity to see or hear the work (access) and also shows that D's work shows similar, unexplainably similar characteristics (substantial/probative similarity), then P has made a prima facie case of copying. ii. Defendants burden Once P has a prima facie case, D must now show independent creation or some other exception. iii. Affirmative Defense After this, D can bring up fair use, but only after D's infringement is proven. Access -- the magnetic power of other legal subcultures Smith v. Little, Brown & Co. (SDNY 1965) Facts: o P submitted unfinished manuscript of novel to D's office. o Editor thought it was good but writing style was dull; rejected it. o Editor induced second author to write a children's book on the same subject. o When this book was published, P sued because substantial portions of the work resembled her manuscript. Analysis: o Work is unpublished; therefore, there is no other way to get access except through P's the submission to the publisher. o The fact that they alone had access to the work makes it hard for them to say that the similarities were the product of coincidence. o ***Technical point of all access cases*** Alleged infringer must have some opportunity to see or hear the work or the P cannot establish a prima facie case of copying. (But see Bright Tunes) For unpublished works, access can be shown if the author submitted to the publisher for consideration. Novelty Textile v. Joan Fabrics (If no access, striking similarity might be sufficient) Bright Tunes v. Harrisongs (striking similarity plus availability is fine if no direct access) o Media popularity/wide dissemination allowed court to assume that there was some access even though no specific access could be proven.

Three Boys Music Corp v. Bolton o 30 year time differential between songs does not matter for purposes of unconscious copying. o Multiple unprotectable elements put together may be protectable (similar to the phone book/database organization theory). o Any given combination of unprotectable elements must therefore be protectable. c. Covert Function of Access from Literary Larceny to Recognition of the Market Interest 1. Primitive Copyright Doctrine o Stinky access and dirty tricks are what the earlier cases turned on. o Prof hates this. These cases stink according to him. 2. Nichols v. Universal Pictures (2d Cir. 1930) o Facts P in her play discovered a popular theme first generation ethnic groups drawn together by the love of their children. D made a film that was similar to the play. o Courts Analysis Judge never says what elements of the play/film need to be substantially similar to be actionable. Shows no interest in the possible economic harm that could be brought on P for coming into the field so quickly with the film. Judge only tells us that the play is just talking ideas -- available for all to use. o Actual Analysis A play can be broken down into varying levels of abstraction -o title, theme-setting, o plot-sequence-theme, o interaction of plot-incident-character, o character development-mood-dialogue-personal stylistic elements, o arrangement of expressive and non-expressive components o fully fleshed out play/novel Only ideas were similar between the two and were expressed in different ways. No room for analysis of substantial similarity. Characters not protectable because judges says that they are stock characters. Almost seems to be applying novelty factor for copyright. o The film creator wins because judge converts characters and plot of the play into ideas -- no protectable expression left to take. Sheldon v. MGM (2d Cir 1936) 3. Real life poisoning case became the basis of novel, play, and film. Underlying historical sequence could not be protected. Play author claimed that the film infringed its play.

Strongest point for D is that it is based on historical

facts. Does not sink P's case because D can copy the facts but not any new expressive manner that the P may have added. Two major propositions Layers of copyright theory -- if both works have a public domain common source, both may use the public domain layer; if P adds a layer of expression and D takes some of that layer and some of the public domain layer, D infringes. Look to the similarities, not to the differences when looking at substantial similarity. How is this case any different than Nichols? - shouldn't this all be unprotectable ideas/themes? Judge Hand gets it right this time and says that copyright does not require novelty. 4. So why does the D win in Nichols and not in Sheldon? (this is representative of the primitive copyright doctrine -- changes post-1990's) Smelly access in Sheldon! Prior negotiation that was aborted. No smelly access in Nichols. Absence of dirty tricks/unjust enrichment significantly affect the court's line drawing between idea/expression. Also affects court's view of substantial similarity. In this period, a taking of unauthorized similarities did not strike courts as actionable. What concerned judges more was the improper actions/access of Ds ("literary larceny") than the market effect on Ps. Sounds more like unfair competition law. Recognition of the Market Interest Arnstein v. Porter (2d Cir 1946) 1. Bifurcated test of infringement Copying? Access Overall substantial similarities Infringement? Ideas, etc. v. protected expression Audience displacement D must not appropriate a P's potential financial return on his original creation. Is D's work an illicit substitute? Most courts ignored this case. 2. When he says "single-step," he seems to be referring to dirty dealings = infringement. Kroffts (9th Cir 1977) 3. Lots of dirty tricks, but 9th Cir resisted the propensity to see ideas everywhere and find infringement almost immediately

v.

Finds Arnstein's message about needing to protect a P's market interest. Must consider the secondary (derivative) markets, not just the primary market where the product was first exploited. (codified as 106(2)) Did the similarities permit the D to exploit the expressive features of P's work in primary and secondary markets? Did D saturate the secondary markets so that P could not exploit those markets? Avoided the risk of making a flop by taking P's proven success. Court dealt with dissimilarities here by rejecting a piecemeal process by looking at the entire works as a whole (totality test). Viewed as an ensemble, D captured the total concept and feel of P's work.

a. Codification of the Market Interest: Unprivileged Imitation of Protectable Commercial Values? Copyright Office in drafting 76 Act seemed to sought to i. codify Arnstein. 1. Strong derivative work rights. 2. Divisibility of rights. 3. Fair use includes market harm test. ii. Total concept and feel test must only be done after the unprotected matter is filtered out. iii. Courts now deemphasize dirty tricks and emphasize market harm/embrace bifurcated view of infringement Warner Bros. v. ABC (2d Cir 1983) iv. 1. 2nd Cir's response to the Market Interest theory 2. WB tried to stop ABC's series Superboy. 3. WB claimed that ABC infringed WB's copyright in Superman. 4. The relevant market is television series of comic book characters. Draw idea/expression line differently depending on what market is implicated. 5. Applies total concept and feel test only to protectable expression. Must look at the whole, not piecemeal -- result here is that they were different. 6. Protecting the market interest must sometimes give way to innovation. Outer limit on the derivative work right is there because we need to allow room for new works.

e.

Atari v. North American Philips (7th Cir 1982) i. Atari created Pacman; Philips tried to get a license to PacMan, failed.

1. Philips then made a version that Atari claimed infringed. ii. Philips claimed independent creation iii. 7th Cir looked at the second prong of infringement - audience displacement. 1. D is free to exploit common ideas but not expression (bifurcation of idea/expression before looking at infringement) 2. Court set out the protectable features of the game before it looked at substantial similarity. 3. Concluded that the range of expression was relatively limited. 4. Said that the game was at the thin end of the copyright protection spectrum. iv. Key fact for Atari was that the monsters were fanciful and nonviolent and gave the game a whimsical feel. 1. This is the primary protectable feature; now, can apply the audience displacement/substantial similarity 2. D argued that there were many differences; independent creation 3. P's answer is that we look to the similarities, not differences, of the ensemble/whole. Also, court should particularly discount differences that are brought on by changes in medium. v. Application of the audience test 1. Audience is children 2. Found that they would overlook the differences relied upon by D; D copied the overall look and feel of P's work. 3. Infringement, OMG. 1.Limits of the Mature Copyright Paradigm a. Computer software cases raised difficult questions i. Scope of protection for functional elements when D does not take them directly? b. Early cases found very broad expression; this changed in the next case. c. Computer Associates v. Altai (2d Cir 1992) i. Rejected the one-idea/purpose model for software. ii. Overall function or purpose of a program is the result of subroutines; the subroutines themselves are computer programs with their own ideas/expressions. Each must be tested to see if they are protectable and where the line is between idea/expression. 1. Cannot use the overall look and feel test. iii. 3 step process for computer programs. Abstraction - retrace the structural map, identify the 1. components of the program and figure out where the line of idea/expression is. Successive filtering test - exclude all unprotectable 2. matter, must exclude standardization brought on by market factors, public domain material, code about versioning (<--- didn't catch one of them????)

Apply wrongful appropriation test of similarities to whatever expressive parts remain.

3.

12/01: Fair Use

Friday, December 03, 2010 11:50 AM

1. Fair Use and the Protection of the Market Interest 1. Basic Tensions: Control v. Access i. Minimalist view - protection of the author is the dominant concept; fair use is drawn narrowly. ii. I missed a view somewhere? Public policy influenced view? iii. Law and economics view - fair use can be explained by market failure rationale; comes in when the transaction costs of negotiating a license outweighs the benefits from the license (market failure) 1. Dates back to 1982 before the emergence of digital networks. These tend to solve the problems that cause market failures. 4. Because digitization, networks, etc. resolve market failures, more courts were willing to preserve licensing revenues in licensing markets (?) American Geophysical v. Texaco (2nd Cir 1994) 5. i. Copying for science in a commercial environment. ii. Transformation is required for fair use. 1. New case here somehow i. Reprinted 7 Grateful Dead posters in a book ii. Court held that a transformative use beyond the purposes that the author considered at the time of the creation made it a fair use. 2. Undermine author's rights? 3. Creative authorship also creates non-rivalrous public goods and should not be stifled by the market harm prong of the fair use analysis. iii. No transformation here, so no fair use. 1. Would have been a market failure before; but at this time, the CCC had been formed to allow blanket licenses for scientific works. 6. Courts seem to be more favorable to idea that fair uses are privileged uses in their own right, not exceptions. i. Does this conflict with the TRIPS Agreement Art 13? (exceptions to exclusive rights shall be confined to cases where they do not conflict with a normal exploitation of a work and do not unreasonably prejudice the legitimate interests of the right holder) 2. Technical Application of the Codified Fair Use Factors i. Factors are found in Section 107.

ii.

1. Safety net after other exceptions like idea/expression, not copyrightable subject matter, etc. Congress thought this could cover criticism, 2. comment, news reporting, teaching, scholarship, or research. (Transformative uses!) i. If the copyright owner's right covered these uses, then that could stifle innovation. 3. A finding of fair use means it is a free use. i. Two questions i. Can we make a certain use of a protected work without permission? ii. Can we make that use without permission and without payment? Actual factors 1. The purpose and character of the use, including whether such use is of a commercial nature (harder) or is for nonprofit educational purposes (easier). 2. The nature of the copyrighted work. 3. The amount and substantiality of the portion used in relation to the copyright work as a whole. 4. The effect of the use upon the potential market for or value of the copyrighted work. Campbell v. Acuff-Rose (SCOTUS 1994) i. Had parody (favored? Preamble says criticism). 1. Clear cut case of market failure; author would hardly ever license the work for criticism/parody. 2. However, usually fails commercial factor. 3. Parodist can take enough to "conjure up" the original work, but not much more. 4. Rarely implicates market harm factor because not a substitute. ii. Transformative use is one that adds something new with a different character, giving new meaning, expression, or message. Princeton University i. Blanket licenses ii. Market failure iii. WTF

3.

4.

5. Avoid the market failure argument in fair use because transaction costs of licensing are low now because of technology. i. Except it still works for criticism and parody, where the original authors would not agree 6. Fair use should favor transformative uses that add to the work of others, especially educational, non-profit uses. i. Also limits derivative work right, some interplay there. 7. Blanch v. Koons

i. Allowed Koons to use parts of Blanch's photograph into his painting without permission. ii. Did little to no harm to Blanch's market for photographs. No serious market substitution effect here. 1. However, the market factor is not the most influential factor unless the use in question is a substitute on the derivative market. 2. Now, most powerful factor is transformative use. 8. Perfect 10 v. Amazon i. Work had not been transformed at all; was put to a new use though - electronic searching. ii. Truncated the amount and substantiality of the work factor since all was taken iii. Found fair use. eBay v. MercExchange

9.

x. Never find a pro-fair use exception that doesn't look at public interest. 1. One person's fair use if taken by many people can start to affect the market. xi. Strength of US fair use law is its flexibility. Weakness is the all or nothing approach. (should have equitable compensation)