Case Briefs on Copyright Law

Table Ta ble of Contents Contents THE CONCEPT OF COPYRIGHT......................................................................5 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) [29]..........................5 Bleistein v. v. Donaldson Lithographic Co., 188 U.S. 239 (1903) [33].................... [33]............. ............5 .....5 Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99 (2d Cir. 1951) [52]..................5 Forward v. v. Thorogood, 985 F.2d 604 (1st Cir. 1993) [71].......................................... [71]............................... ........... 5 COPYRIGHTABLE COPYRIGHTABLE SUBJECT MATTER................................ MATTER................................................... ........................... ........ 6 General Principles............................ Principles................................................ ....................................... ...................................... ................................. .............. 6 Magic Marketing v. v. Mailing Mailin g Services Servi ces of Pittsburgh, 634 F.Supp. F.Supp. 769 (W.D.P (W.D.Paa 1986) [76]................................................... [76].................................................................................. ............................................................... .............................................. .............. 6 Sebastian International, Inc. v. Consumer Contact (PTY) Ltd., 664 F.Supp. 909 (D.N.J. 1987), rev’d on other grounds, 847 F.2d 1093 (3d Cir. 1988) [79]..............6 The Idea/Expression Idea/Expression Dichotomy............ Dichotomy............................... ...................................... ...................................... ........................ ..... 6 Baker v. v. Selden, 101 U.S. 99 (1879) [97]............................................... ........................... 6 Morrissey v. Proctor & Gamble Co., 379 F.2d 675 (1st Cir. 1967) [103]................7 Continental Casualty Co. v. Beardsley, 253 F.2d 702 (2d Cir. 1958), cert. denied, 358 U.S. 816 (1958) [105]....................................................................................................7 Bibbero Systems, Inc. v. Colwell Systems, Inc., 893 F.2d 1104 [106].......................7 ABR Benefits Services Inc. v. NCO Group, 52 U.S.P.Q.2D 1119 (E.D.Pa 1999) [110]..........................................................................................................................................7 Facts and Compilations............................................................................................7 Feist Publications, Inc. v. Rural Telephone Service, 499 U.S. 340 [112].................7 Rockford Map Publishers, Inc. v. Directory Service Co., 768 F.2d 145 (7th Cir. 1985) [123]..............................................................................................................................8 Nash v. v. CBS, 899 F.2d F.2d 1537 (7th Cir. 1990) [124].........................................................8 [124]............................................ .............8 Wainwright Securities v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977) [128]..............................................................................................................................8 Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970) [131]....8 Sem-Torq, Inc. v. K Mart Corp., 936 F.2d 851 (6th Cir. 1991) [132].......................8 Atari Games Corp. v. Oman, 979 F.2d 242 (D.C. Cir. 1992) [133]............................9 Matthew Bender & Co. v. v. West Publishing Co., 158 F.3d F.3d 674 (2d Cir. 1998) [135]..........................................................................................................................................9 Matthew Bender & Co. v. v. West Publishing Co., 158 F.3d F.3d 693 (2d Cir. 1998) [137]..........................................................................................................................................9 CCC Information Services v. Maclean Hunter Market Reports, Inc., 44 F.3d 61 (2d Cir. 1994) [140]...............................................................................................................9 Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004) (en banc) [147].10 1

BellSouth Advertising & Publishing Corp. v. Donnelley Information Publishing, Inc., 999 F.2d F.2d 1436 (11th Cir. 1993) (en banc) [149].......................................... ........10 ........ 10 Assessment Asses sment Technologies of Wisconsin, Wisconsi n, LLC v. v. WIREdata, Inc., 350 F.3d F.3d 640 (7th Cir. 2003) [152]...........................................................................................................10 Sparaco v. Lawler, Matusky & Skelly Engineers Engineer s LLP, LLP, 303 F.3d 460 (2d Cir. 2002) [156]........................................................................................................................................10 Derivativ Derivativee Works............................................ orks......................... ...................................... ....................................... ..................................... ................. 10 L. Batlin & Son v. Snyder, 536 F.2d 486 (2d Cir. 1976) (en banc) [164]................10 Schiffer Publications v. Chronicle Chron icle Books, 73 U.S.P.Q.2d U.S.P.Q.2d 1090 (E.D.Pa. 2004) [177]........................................................................................................................................11 Maljack Productions, Inc. v. UAV Corp., 964 F.Supp. 1416 (C.D.Cal. 1997) [180] ...................................................................................................................................................11 Computer Programs............................... Programs................................................... ....................................... ...................................... ......................... ...... 11 Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) [185]........................................................................................................................................11 Data General Corp. v. Grumman Systems, 825 F.Supp. 340 (D.Mass. 1993) [194] ...................................................................................................................................................12 Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st Cir. 1995) [195]............................................................................................................................12 Mitel, Inc. v. v. Iqtel, Inc., 124 F.3d F.3d 1366 (10th Cir. 1997) [203]..... [203]............ ............... ............... ............12 .....12 American Dental Association v. Delta Dental Plans Association, 126 F.3d 977 (7th Cir. 1997) [205]...........................................................................................................13 Pictorial, Graphic, Graphic, and Sculptural Works..................................... orks.................. ....................................... .................... 13 Mannion v. Coors Brewing Co., 377 F.Supp.2d 444 (S.D.N.Y. 2005) [206]..........13 Masquerade Novelty Inc. v. Unique Industries, 912 F.2d 663 (3d Cir. 1990) [228] ...................................................................................................................................................13 Pivot Point International, Inc. v. Charlene Products, Inc., 372 F.3d 913 (7th Cir. 2004) [231]............................................................................................................................13 Architectural Architectural Works......................................... orks...................... ....................................... ....................................... ................................. .............. 14 Demetriades v. Kaufmann, 680 F.Supp. 658 (S.D.N.Y. 1988) [253]........................14 Characters................. Characters..................................... ....................................... ...................................... ...................................... ..................................... .................. 14 Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930) [259]..................14 Warner Brothers Pictures v. CBS, 216 F.2d 945 (9th Cir. 1954) [260].................14 Anderson v. Stallone, 11 U.S.P.Q.2d 1161 (C.D.Cal. 1989) [261]............................15 Gaiman v. v. McFarlane, 360 F.3d F.3d 644 (7th Cir. 2004) [265]................. [265].......... .............. ............... ...............15 .......15 Newton v. v. Diamond, 349 F.3d 591 (9th Cir. 2003) [270].......................................... [270]............................ .............. 15 Government Government Works Works and Other Public Policy Issues................................ Issues............. ........................... ........15 15 County of Suffolk, New York York v. v. First American Ame rican Real Estate Es tate Solutions, 261 F.3d F.3d 2

179 (2d Cir. 2001) [276].....................................................................................................15 Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc) [280]..................................................................................................15 Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979) [295]............................................................................................................................16 OWNERSHIP................................. OWNERSHIP.................................................... ....................................... ....................................... .................................. ............... 16 Initial Ownership.......................... Ownership............................................. ...................................... ....................................... .................................... ................ 16 Lindsay v. R.M.S. Titanic, Inc., 52 U.S.P.Q.2d 1609 (S.D.N.Y. 1999) [301]..........16 Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) [305].........16 Aymes v. v. Bonelli, 980 F.2d F.2d 857 (2d Cir. Cir. 1992) [317].................................................. [317]......................... ......................... 17 Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995) [317]..............................17 Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of  Contemporary Dance, Inc., 380 F.3d F.3d 624 (2d Cir. Cir. 2004) [318]................................17 [318].............................. ..17 Thomson v. v. Larson, 147 F.3d F.3d 195 (2d Cir. Cir. 1998) [329]............................................. [329]............................. ................ 18 Aalmuhammed v. v. Lee, 202 F.3d 1227 (9th Cir. 2000) [339]..................................... 18 Gaiman v. v. McFarlane, 360 F.3d F.3d 644 (7th Cir. 2004) [340]................. [340].......... .............. ............... ...............18 .......18 Transfer Transfer of Copyright Ownership......................... Ownership............................................ ...................................... .......................... ....... 18 Effects Associates v. Cohen, 908 F.2d 555 (9th Cir. 1990) [347].............................18 Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir. 1988) [356]..............19 Boosey & Hawkes Hawkes Music Publishers, Ltd. v. v. Walt Disney Co. [360]................... [360]............ .........19 ..19 Random House, inc. v. v. Rosetta Books, Books, LLC [368]...................................................... 19 Bassett [373] (come back later)........................................................................................20 Foad Consulting [374] (come back later)......................................................................20 New York York Times Co., Inc. v. v. Tasini [375]..................................................................... [375]........................................ ............................. 20 In re Marriage of Susan M. & Frederick Frederick L. Worth Worth [385] come come back later... later...... ......20 ...20 Fantasy, Fantasy, Inc. v. Fogerty [386] come back later............................................................ later............................. ............................... 20 Estate of Martin Luther Luth er King, Jr., Inc. v. v. CBS, Inc., 194 F.3d F.3d 1211 (11th Cir. 1999) [471]............................................................................................................................20 Academy of Motion Picture Arts & Sciences v. v. Creative House Promotions, Promotions, Inc., 944 F.2d F.2d 1446 (9th Cir. 1991) [477].................................................................... [477]..................................... ...........................................21 ............21 BMG v. Gonzalez [482].....................................................................................................21 Corbis Corp. v. Amazon.com [489].................................................................................22 Kahle v. v. Ashcroft [495] (come back later).......................................... later)..................................................................... ........................... 22 EXCLUSIVE EXCLUSIVE RIGHTS UNDER UNDER COPYRIGHT................. COPYRIGHT.................................... ............................... ............22 22 The Right to Reproduce Reproduce the Work Work in Copies & Phonorecords.. Phonorecords........ ............ ............ .......22 .22 Arnstein v. v. Porter [509]................................... [509].................................................................. ............................................................... ...................................22 ...22 Dawson v. v. Hinshaw Music, Inc. [514]..................................................................... [514]..................................... .......................................22 .......22 Bright Tunes Music Corp. v. v. Harrisongs Music, Ltd. [516].................................... 22 Gasté v. Kaiserman [520]..................................................................................................23 3

Ty, Ty, Inc. v. GMA Accessories, Inc. [521] (come back later)....................................... 23 Laureyssens v. v. Idea Group, Inc. [524]...................................................................... [524]....................................... .....................................23 ......23 Ringgold v. v. Black Entertainment Television, Television, Inc. [526]...........................................23 Peter Pan Fabrics, Fabrics, Inc. v. Martin Weiner Corp. [528]............... [528]........ .............. ............... ............... ............... ............23 23 Herbert Rosenthal Jewelry Corp. v. v. Kalpakian [529].............................. [529].................................................24 ...................24 Educational Educational Testing Services v. v. Katzman [534].......................................................... [534].............................. ............................ 24 Nichols v. v. Universal Pictures Pictures Corp. [537]..................................... [537].................................................................... ............................... 24 Sheldon v. v. Metro-Goldwyn Pictures Corp. [542]............................. [542]....................................................... .......................... 25 Boisson v. Banian, Ltd. [555]............................................................................................25 Computer Associates Associates International, Inc. v. v. Altai, Inc. [559].................................... [559].................................. .. 25 Steinberg v. v. Columbia Pictures Industries [572]........................................................ [572]....................................................... . 25 ABKCO Music, Music, Inc. v. v. Stellar Records, Inc. [591].................................. [591]...................................................... .................... 26 Bridgeport Music v. v. Dimension Films [598].......................................... [598]............................................................... ..................... 26 The Right to Prepare Prepare Derivativ Derivativee Works Works Under § 106(2)............................... 106(2)............ ..................... 26 Horgan v. v. Macmillan, Inc. [605].............................................. ........................................26 ............................... .........26 Lee v. A.R.T. Co. [610].......................................................................................................27 Micro Star v. v. FormGen, FormGen, Inc. [614]........................... [614]........................................................... ...................................................... ...................... 27 Krause v. v. Titleserv, Titleserv, Inc. [620].............................................................................. [620]............................................... ........................................... ............ 27 Gilliam v. v. American Broadcasting Co., Inc. [621].............................. [621].......................................................27 .........................27 Flack v. v. Friends of Queen Catherine, Catherine, Inc. [630]..................................... [630]......................................................... ....................28 28 Pollara v. v. Seymour [630]............................ [630]........................................................... ............................................................... ........................................ ........ 28 Pavia Pavia v. v. 1120 Avenue Avenue of the Americas Associates [640]........................................... 28 Wojnarowicz v. v. American Family Family Association [643]................................................. 28 The Right to Distribute Under § 106(3)............................................................29 Fawcett Fawcett Publications Publications v. Elliot Publishing Co. [651]................................................... 29 Rights of Public Performan Performance ce and Display Display Under §§ 106(4)–(6)......... 106(4)–(6).................. ......... 29 Columbia Pictures Industries, Inc. v. v. Aveco, Aveco, Inc. [669]............................................. [669].................................. ........... 29

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THE CONCEPT OF COPYRIGHT Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) [29] Photographs qualified for copyright protection under the 1870 Copyright Act. Sarony sued Burrow-Giles Burrow-Giles for duplicating duplicating a photograph of Oscar Wilde without his permission. permission. Although Although photograp photographs hs were not explicitly explicitly mentioned mentioned in the 1870 Act, the court found that the omission most likely resulted from the fact that the Act had been written before photography had become a widely known technology. technology. The court compared compared photographs to other graphical works, works, finding that “[u]nless [ ] photographs can be distinguished . . . from maps, charts . . . and other prints, it is difficult to see why Congress cannot make them the subject of copyrigh copyright.” t.” The court court further rejected rejected BurrowBurrow-Giles’ Giles’ss argument argument that the the photograp photograph h was a “mere mechanical mechanical reproductio reproduction” n” of a scene and therefor thereforee in eligible for for copyright. copyright. The court found found that that the composition composition of the photograph photograph evidenced enough originality to place the photograph under copyright protection. Bleistein v. Donaldson Lithographic Co., 188 U.S. 239 (1903) [33] Originalit Originality y, as opposed to artistic merit, is the standard standard of eligibili eligibility ty for copycopyright protection. protection. Donaldson had had reproduced Bleistein’s circus advertisements advertisements without first obtaining obtaining Bleistein’s permissions. permissions. Finding infringement, the court noted that “[o]thers are free to copy the original [subject matter depicted]. They are not free to copy the copy.” copy.” The court rejected Donaldson’s contention that copyright protection applied only to the “fine arts,” noting that “[i]t would be a dangerous undertaking for persons trained only in the law to constitute themselves themselves final judges judges of the worth of pictorial illustrations illustrations.” .” Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99 (2d Cir. 1951) [52] A work is original (and therefore eligible for copyright) as long as it exhibits more than a “merely “merely trivial” variat variation ion from preexisting preexisting works. works. Bell asserted asserted copyrigh copyrightt protectio protection n for handmade handmade reproduct reproductions ions of public-d public-doma omain in paintings paintings.. The reproductions had been made through a labor-intensive process known as the “mezzotint method.” method.” The court found that that the mezzotint method method allowed allowed the reproducer to exercise enough discretion to make the result an original work. Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993) [71] Ownership of the copyright copyright to a work is distinct from from ownership of a particular copy copy of that that work. Forward orward owned owned “demo tapes” tapes” recorded recorded by Thorogoo Thorogood’s d’s band. band. A dispute dispute arose when Forward Forward sought sought to release release commerciall commercially y the dede mo-tape recordings against against the band’s wishes. wishes. The court found that Forward’s Forward’s physical possession of the tapes did not give him him implicit ownership ownership of the copycopy5

right to the recordings. COPYRIGHTABLE SUBJECT MATTER MATTER General Principles Magic Marketing v. v. Mailing Services of Pittsburgh, Pittsburgh , 634 F.Supp. F.Supp. 769 (W.D.Pa 1986) [76] Short, standardized phrases do not exhibit enough originality to qualify for copyright copyright protection. Magic Marketing Marketing produced preprinted preprinted envelopes envelopes bearing phrases such as “telegram,” “gift check,” and and “priority message.” message.” When Magic Marketing asserted copyright protection for the phrases, the court found the phrases phrases to lack the minimal minimal degree of originalit originality y necessary to qualify for copycopyright. The court found that that copyright protection protection did not extend to “fragmentary words and phrases,” phrases,” “forms of expression dictated solely solely by functional functional considerations,” or “clichéd language and expressions communciating an idea which may only be conveyed in a more or less stereotyped manner.” Sebastian International, Inc. v. Consumer Contact (PTY) Ltd., 664 F.Supp. 909 (D.N.J. (D.N.J. 1987), rev’d on other grounds, 847 F.2d 1093 (3d Cir. 1988) [79] Product labels are copyrightable copyrightable as long as they exhibit the necessary necessar y “modicum of creat creativi ivity ty.” .” Th Thee court court found found that that the instruc instructio tions ns for using a hairhair-car caree product were entitled to copyright protection because the language was “more than simply a list of ingredients, directions, directions, or a catchy phrase.” The Idea/Expression Dichotomy Baker v. Selden, 101 U.S. 99 (1879) [97] The owner owner of a copyright copyright to a written written work may not use that copyrigh copyrightt as a basis for asserting the exclusive right to use any procedure set forth in that work. Selden held the the copyright copyright to a book detailing detailing a new method for for performing double-entry double-entry bookkeeping. bookkeeping. When Baker Baker published published a book detailing detailing a substantially similar bookkeeping system, Selden sued Baker on the theory that Selden’s copyright copyright entitled him to the exclusive use of the bookkeeping bookkeeping system. Ruling for Baker, the Court noted that “there is a clear distinction between the book, as such, and the art which it is intended intended to illustrate.” illustrate.” The Court further observed that “[t]o “[t]o give to the author of the book an exclusive property in the art described therein therein . . . is the province of [patents], [patents], not of coyright.” Morrissey v. Proctor & Gamble Co., 379 F.2d 675 (1st Cir. 1967) [103] Copyright protection does not extend to subject matter which is so narrow that the topic “necessarily requires” one or a few few forms of expression. At issue were were 6

sweepstakes instructions which directed entrants to submit social security numbers and to comply comply with certain other rules. rules. Finding the instructions to be be so specific as to be expressible in only a few ways, the court held that the instructions were uncopyrightable. Continental Casualty Co. v. Beardsley, 253 F.2d 702 (2d Cir. 1958), cert. denied, 358 U.S. 816 (1958) [105] A particular printed form may be copyrightable copyrightable even even if the ideas underlying that that form are not copyrightab copyrightable. le. The court found found an insurance form to be copyrightcopyrightable able becaus becausee it contai contained ned “explan “explanat atory” ory” informa informatio tion n conce concerning rning the the policy policy offered by the authoring company. Bibbero Systems, Inc. v. Colwell Systems, Inc., 893 F.2d 1104 [106] Blank forms are generally uncopyrightab uncopyrightable, le, even if they feature feature highly particularized fields. fields. Bibbero produced produced “superbills,” “superbills,” detailed forms which doctors used to obtain reimbursement reimbursement from insurance companies. companies. Colwell Colwell produced virtually virtually identical superbills, which differed from Bibbero’s only in shading and other trivial aspects. aspects. Despite Colwell’s Colwell’s near-copying near-copying of the forms, forms, the court found that that blank blank forms are never never copyright copyrightabl able. e. The court declined declined to state state that forms “convey “convey information” because they list “some categories categories of information but but not others” and cautioned that such a principle would be “potentially limitless.” ABR Benefits Services Inc. v. NCO Group, 52 U.S.P.Q.2D 1119 (E.D.Pa 1999) [110] “Blank forms may be copyrighted copyrighted if they are sufficiently innovativ innovativee that their arrangement rangement of informat information ion is itself informat informative ive.” .” Facts and Compilations Feist Publications, Inc. v. Rural Telephone Service, 499 U.S. 340 [112] A compilat compilation ion of facts facts may be copyrigh copyrighted ted only only if the selection selection of facts shows shows “some “some minimal degree of creativit creativity y.” The court found found that that Rural’s telephon telephonee directory was not copyrightab copyrightable le because the selection of telephone numbers numbers was “entirely typical.” Rockford Map Publishers, Inc. v. Directory Service Co., 768 F.2d 145 (7th Cir. 1985) [123] Copyright Copyright protection does does not depend on the amount amount of effort expended in creating the work. Nash v. CBS, 899 F.2d 1537 (7th Cir. 1990) [124] A particular particular interpret interpretatio ation n of historica historicall records may count count as a “fact” for copy7

right right purpose purposess. Nash Nash had written written several several books books on the the bank bank robber robber John John Dillinger Dillinger.. The These se books books claimed that that Dillinger— Dillinger—cont contrary rary to conventio conventional nal accounts—had escaped a supposedly fatal ambush by the FBI and was living incognito. nito. Nash sued CBS copyrigh copyrightt infringement infringement after CBS produced produced a televisio television n program based on Nash’s theory theory.. Ruling for CBS, CBS, the court noted that that “Nash does not portray [his account] . . . as fiction,” so that “Nash’s rights lie in his exe xpression . . . but not in the naked ‘truth.’ ” Wainwright Securities v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977) [128] Paraphra Paraphrasing sing written reports of facts facts may may amount amount to copyright copyright infringement. infringement. Wainwright produced “in-depth analytical reports on industrial, financial, utility, and railroad corporations.” corporations.” Wall Street published published a weekly weekly newspaper contain contain ing “abst “abstract ractss of instit instituti utiona onall resear research ch reports reports,” ,” includ includee those those produc produced ed by Wainwright. Rejecting Rejecting Wall Wall Street’s theory that the abstracts were nothing but facts, the court found that “[Wall Street] did not bother to distinguish between the events events contained contained in the reports reports and the manner manner of expression expression used by the Wainwright analysts.” Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970) [131] A work must be analyzed as a whole to determine whether it qualifies for copyright right protection. protection. The court upheld upheld Roth’s Roth’s copyright copyright to greeting cards cards even though the text text within the card was “prosaic.” “prosaic.” The court found that that “proprer “proprer analysis analysis of the problem problem requires requires that that all elements of each card, card, including including ar rangement of text, art work, and association association between between art work and text, be considered as a whole.” Sem-Torq, Inc. v. K Mart Corp., 936 F.2d 851 (6th Cir. 1991) [132] The mere bundling bundling of individu individual al works may not be sufficien sufficientt to create create a copy copy rightable rightable compilation. Sem-Torq Sem-Torq produced double-sided double-sided signs, which read “For “For Rent” on one side and “For “For Sale” on the other. other. Sem-Torq Sem-Torq bundled these signs into sets sets of five. five. The court court found that that the bundled bundled sets were were not compilati compilations ons because “[t]he “[t]he whole whole of a compilation compilation is greater than the sum of its parts.” parts.” For the court, each bundled set was nothing more than five individual signs. Atari Games Corp. v. Oman, 979 F.2d 242 (D.C. Cir. 1992) [133] A work may be copyrig copyrightab htable le even if the individual individual elements elements comprisin comprising g the work are not. not. The court found found that that the video game game Breakout  was copyrightable even even though the on-screen on-screen images images consisted consisted of basic geometri geometrical cal shapes. shapes. The court found that that “the requisite level level of creativity [can [can be] met by either either the indiindi vidual screens or the the relationship of of each screen to the other other and/or the the accomaccom 8

panying sound effects.” Matthew Bender & Co. v. West Publishing Co., 158 F.3d 674 (2d Cir. 1998) [135] Minimal enhancements to existing works may not qualify for copyright protection. tion. West argued argued for for copyrig copyright ht to certain certain element elementss of its its editio editions ns of court court opinions. opinions. These elements elements included included (1) the arrangement arrangement of information specifying the parties, parties, (2) the selection selection and arrangement arrangement of attorney attorney information information,, (3) the arrangement arrangement of informat information ion relating relating to subsequent subsequent procedural procedural developdevelopments, ments, and (4) the selection selection and arrangement arrangement of “parallel “parallel and alternativ alternativee citations” tions” to other other reporters. reporters. The court found found that no element element West West to exercise enough discretion to give rise to the originality required for copyright protection. Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693 (2d Cir. 1998) [137] “Star “Star pagina pagination” tion” markings markings within within West’s est’s editions editions of court opinions opinions are not copyrigh copyrightab table le because because West West exercised exercised no discretio discretion n in the placement placement of those those markings. CCC Information Services v. Maclean Hunter Market Reports, Inc., 44 F.3d 61 (2d Cir. 1994) [140] Factual Factual compilations are copyrightab copyrightable le if the facts they contain reflect the sub jective judgment of of the author author.. Maclean published published the Red Book , a manual containing taining appraisals appraisals of used vehicl vehicles es.. The estimat estimated ed values values took into accoun accountt factors such as geographical geogr aphical region and vehicle condition. Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004) (en banc) [147] Part numbers generated formulaically are not copyrightable copyrightable because they are the results of of a mechanical mechanical process. process. The formula formula itself is not copyrightabl copyrightablee because 1 it is an idea. BellSouth Advertising & Publishing Corp. v. Donnelley Information Publishing, Inc., 999 F.2d 1436 (11th Cir. 1993) (en banc) [149] One does not commit copyright infringement by using a computer program to generate a database containing information printed in a telephone directory. Donnelley and BellSouth competed for clients willing to place advertisements in their respective directories. directories. To target BellSouth’s existing customers, customers, Donnelley created a computer program to extract information from BellSouth’s directory 1 See also ATC Distribution Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700 (6th Cir. 2005) [148].

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so as to concentrate concentrate informat information ion about about purchasers purchasers of BellSouth BellSouth’s ’s advertisi advertising ng space. The extracted information information was then used to construct a database, database, which assigned to each advertiser a numerical code that mirrored that advertiser’s advertiser’s clas sification in BellSouth’s BellSouth’s directory. directory. The court found no infringement on the part of Donnelley Donnelley.. The court found that that the classifica classifications tions (“Banks (“Banks,” ,” “Attorneys Attorneys,” ,” etc.) were so generic generi c as to lack originality original ity.. Further, the court observed obser ved that there were few alternatives to organizing a business directory in the manner used by BellSouth. The dissent argued that BellSouth had exercised enough discretion in the selection of category headings to make the the directory original. Assessment Assessmen t Technologies of Wisconsin, Wisconsin , LLC v. v. WIREdata, Inc., 350 F.3d F.3d 640 (7th Cir. 2003) [152] (see old case briefs for now) Sparaco v. Lawler, Lawler, Matusky Matus ky & Skelly Engineers Eng ineers LLP, LLP, 303 30 3 F.3d F.3d 460 (2d Cir. 2002) [156] Architectural plans are copyrightab copyrightable. le. (see old case briefs for now) now) Derivative Works L. Batlin & Son v. Snyder, 536 F.2d 486 (2d Cir. 1976) (en banc) [164] “Trivial “Trivial variations variations”” of existing existing works works do not give give rise to copyrig copyright ht protection. protection. Batlin Batlin and Snyder Snyder were competing competing manufactu manufacturers rers of “Uncle “Uncle Sam” coin banks. banks. The basic design design of the “Uncle “Uncle Sam” banks did not originate originate from either business. Rather, Rather, the design had been created and popularized many years years earlier. Snyder based its particular version on a cast-iron exemplar but made several design design adjustments adjustments to facilita facilitate te manufacturing manufacturing the bank from plastic. plastic. Upon Upon a challenge by Batlin, Batlin, the court invalidated invalidated Snyder’s Snyder’s copyright to its version of the bank. The court found that that copyright required required the work to show show “substantial variation [from the original], not merely a trivial variation such as might occur in the translation to a different medium.” The dissen dissentt argue argued d that that Sny Snyder’s der’s modi modific ficat ation ionss of the the cast-i cast-iro ron n exemp exemplar lar showed enough originality to make Snyder’s bank copyrightable. Schiffer Publications v. Chronicle Books, 73 U.S.P.Q.2d 1090 (E.D.Pa. 2004) [177] Photograph Photographss of fabric fabric designs designs exhibit exhibit enough enough originality originality to be copyrig copyrightab htable. le. The court found that the photographers photographers of the fabric had exercised significant significant creative creative discretion by by choosing the the type of camera to be used, used, the type of of film to be used, and so forth. The court found that that the photographers intended to create create 10

“visuall “visually y interestin interesting” g” images images rather rather than precise reproduction reproductionss of the fabrics themselves. Maljack Productions, Prod uctions, Inc. v. UAV UAV Corp., 964 F.Supp. 1416 1 416 (C.D ( C.D.Cal. .Cal. 1997) [180] A slightly modified re-release re-release of a public-domain public-domain film is copyrightab copyrightable. le. Maljack modified the film McClintock!  by cropping the picture to fit conventional television screens, deleting deleting some scenes, and improving improving the sound quality of the oriori ginal soundtrack. The court found that the the modifications modifications showed enough originoriginality to make the re-release copyrightable. Computer Programs Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983) [185] Computer Computer programs are copyrightable. copyrightable. Franklin manufactured manufactured “Apple “Apple clones,” computers that were designed to be completely compatible with software written for Apple’s own machines. machines. In order to achieve achieve the requisite level level of compatibilcompatibility, Franklin copied Apple’s operating system as well as several ancillary programs. grams. The court court found that that Apple was entitled entitled to an injunction injunction enjoining enjoining Franklin Franklin from making making and distribu distributing ting copies copies of Apple’s Apple’s software software.. The court court found that computer programs were “literary works” under § 101 because they constituted “expression not only in words but also numbers [or] other numeric al symbols symbols or indicia.” indicia.” The court further further rejected rejected Franklin’s Franklin’s contention contention that Apple’s software software was merely a method method of operating Apple’s Apple’s computers. computers. Finally, Finally, the court rejected Franklin’s contention that Apple’s programs were not unprotectable ideas. Data General Corp. v. Grumman Systems, 825 F.Supp. 340 (D.Mass. 1993) [194] Copyright Copyright law makes no distinction between “source code” and “object code” reprep resentat resentations ions of compute computerr programs. programs. Grumman Grumman copied copied the object object code of Da Data ta General’s software and subsequently claimed that the copying was not infringement because Data General had registered only the program’s source code. Finding infringement, the court emphasized that source code and object code were equivalent equivalent representations representations of the same program. program. Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st Cir. 1995) [195] Menu hierarchies within computer programs are uncopyrightable “methods of  operation.” Lotus and Borland Borland were were competing competing developers developers of spreadsheet softsoft ware. Lotus developed developed and marketed marketed Lotus 1-2-3, which which had gained significant 11

popularity. popularity. Borland, a relative newcomer newcomer to the market, sought to enhance the appeal appeal of its software software by by copying copying the menu menu hierarchy hierarchy used used in Lotus 1-2-3. 1-2-3. Because many users had already grown accustomed to using Lotus’s menu commands, Borland calculated that duplicating the menu hierarchy would ease the transition from Lotus 1-2-3 to to its own product. Comparing the menu options options to VCR buttons, buttons, the court rejected Lotus’s claim that Borland had committed copyright right infringement. infringement. According According to the court, “[h]ighli “[h]ighlighti ghting ng the ‘Print’ command . . . or typing the letter ‘P,’ is analogous to pressing a VCR button labeled ‘Play.’ ‘Play.’ ” Emphasizing the the functional aspect of of the menu options, options, the court court further stated that “the Lotus command terms are not equivalent to the labels on the VCR’s buttons, but are instead equivalent to the buttons themselves.” The concurrence noted the possibility that a dominant player in a software market might “holder “holder users hostage” to a widespread user interface. Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997) [203] The court found that that “although an element of of a work may be characterized characterized as a method of operation, that that element may nevertheless nevertheless contain expression that is eligible for copyright protection.” American Dental Association v. Delta Dental Plans Association, 126 F.3d 977 (7th Cir. 1997) [205] A system of identification identification codes for for dental procedures is copyrightable copyrightable.. American Dental developed a system that assigned a numerical code to each dental procedure. cedure. Under Under the system, each procedur proceduree was assigned assigned a numerical code, code, a “short description,” and a “long description.” description.” The court found that that Delta Dental had infringed American Dental’s copyright to the system by copying the codes and the descriptions. descriptions. According to the the court, American Dental’s Dental’s system exhibited originality because “[d]ental procedures could be classified by complexity, or by the tools necessary necessary to perform perform them, . . . or in any of a dozen different different ways.” Pictorial, Graphic, and Sculptural Works Mannion v. Coors Brewing Co., 377 F.Supp.2d 444 (S.D.N.Y. 2005) [206] The composition composition of a photograph photograph can be copyrightab copyrightable. le. Mannion took a photo2 graph of basketball basketball player player Kevin Garnett. Coors subsequently developed a billboard advertisement advertisement featuring featuring a photograph photograph with similar composition. composition. Recog Recog nizing that photography complicated the analysis under the idea/expression dichotom chotomy y, the court found that (1) rendition rendition,, (2) timing, timing, and (3) creation creation of the subject can influence influence the copyrightability copyrightability of a photograph. Ultimately Ultimately,, the court stated stated that “there “there would be infringeme infringement nt . . . if the subject subject and rendition rendition were 2 See pages 208–09 of the casebook for the photographs in question.

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sufficiently like those in the copyrighted work.”3 Masquerade Novelty Inc. v. Unique Industries, 912 F.2d 663 (3d Cir. 1990) [228] Costume masks masks are copyrightable copyrightable and are not “useful “useful articles.” The court found that that “the only utilita utilitarian rian function function of the nose masks masks is in their their portrayal portrayal of animal noses . . . . [N]ose masks masks have no utility utility that does does not derive from their their apap pearance.” Pivot Point International, Inc. v. Charlene Products, Inc., 372 F.3d 913 (7th Cir. 2004) [231] Mannequin heads are copyrightable even though they are also “useful articles.” Pivot Point manufactured the “Mara” mannequin head, which was designed to “imitate “imitate the ‘hungry ‘hungry look’ of high-fashion, high-fashion, runway models models.” .” Charlene Products Products subsequently began marketing its own “Liza” mannequin head, which bore a striking similarity similarity to the “Mara” “Mara” head. After reviewing reviewing the the doctrine doctrine of separabseparab ility, the court found that Charlene had infringed Pivot’s copyright to the “Mara” head. head. The court held that that copyright copyrightabil ability ity should should “depend on the extent to which the work reflects artistic expression uninhibited by functional considerations” and that “[c]onceptual separability exists [ ] when the artistic aspects of  an article can be conceptualize conceptualized d as existing independentl independently y of their their utilitar utilitarian ian function.” Applying Applying this standard to the the “Mara” head, the court court observed that that “one is not only only able to conceive conceive of a different different face than that that portraye portrayed d on the Mara mannequin, but one easily easily can conceive of another visage that that portrays the ‘hungry look’ on a high-fashion runway model.” model.” The dissent challenged challenged the court’s court’s conclusion conclusion that that the face of a mannequi mannequin n is conceptually separable its function. Architectural Works Demetriades v. Kaufmann, 680 F.Supp. 658 (S.D.N.Y. 1988) [253] This case took place before the enactment enactment of § 120, which protects architectural architectural works works.. Demetr Demetriad iades es had hired hired an archite architect ct to draw draw up the plans plans for for a custom-desig tom-designed ned home. home. Kaufmann Kaufmann gained unauthor unauthorized ized access access to the plans and traced the plans in in order to build build a duplicate duplicate of Demetriades’s Demetriades’s house. Although the Copyri Copyrigh ghtt Act did did not explici explicitl tly y prote protect ct the plans plans,, the court court enjoin enjoined ed Kaufmann from making use of of the plans in building building any house.

3 See also Diodato v. Spade, 388 F.Supp.2d 382 (S.D.N.Y. 2005) [218]; Kisch v. Ammirati & Puris Inc., 657 F.Supp. 380 (S.D.N.Y. 1987) [579].

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Characters Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930) [259] The plot of a dramatic dramatic work is copyrigh copyrightab table. le. The court, howev however er,, cautioned cautioned that copyrights to plots implicate the idea/expression dichotomy. Warner Brothers Pictures v. CBS, 216 F.2d 945 (9th Cir. 1954) [260] The rights to use characters from a literary work may be granted separately from the the right to use the the work itself. itself. The author author and publishe publisherr of the story story “The Maltese Falcon” granted to Warner Brothers the right to make a movie version of the story. story. Subsequently Subsequently,, the author and publisher publisher granted to CBS the right to use characters from the story in radio programs as long as those programs did not duplicate duplicate the the original plot. Warner Brothers challenged the the arrangement rangement with CBS on the g round round that CBS’s CBS’s use of the characters characters infringed infringed its rights rights to use the original original story. story. Ruling Ruling for CBS, the court found found that the rights to characters could be granted separately from the rights to any work in which they originally appeared. Anderson v. Stallone, 11 U.S.P.Q.2d 1161 (C.D.Cal. 1989) [261] The Rocky character from the Rocky  movies are copyrightab copyrightable. le. After the the first three Rocky  movies had been released, Anderson wrote a proposed plot for a fourth Rocky  movie and submitted it to MGM. When Stallone decided decided to use a similar story for Rocky IV , Anderson claimed that Stallone had infringed his copyright copyright to the proposed plot. Ruling for Stallone, Stallone, the court found that Ander Ander-son’s plot was uncopyrightable because it used the Rocky character without authorization. Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004) [265] (come back later) Newton v. Diamond, 349 F.3d 591 (9th Cir. 2003) [270] (come back later) Government Works and Other Public Policy Issues County of Suffolk, New York York v. v. First American Real Estate Solutions, 261 F.3d 179 (2d Cir. 2001) [276] State governments may own copyrights to works produced to facilitate administrative trative functions functions.. The government government of Suffolk Suffolk County County produced produced “tax maps,” maps,” which showed showed “the ownership, ownership, size, and location of real property parcels” for the purpose purpose of calculat calculating ing taxes taxes.. First American American distrib distributed uted copies copies of the maps maps in printed form and on on CD-ROMs. CD-ROMs. Finding that that First American had committed committed 14

copyright infringement, the court found that “[t]here is nothing inconsistent between between fulfilling fulfilling [state [state laws’] laws’] goal of access access and permitting permitting a state state agency to place place reasonab reasonable le restricti restrictions ons on the redistribu redistribution tion of its copyrighte copyrighted d works.” works.” The court drew a distinction between between “permit[ting] a member of the public to copy copy a public public record” and “the right of a private private entity to distribute distribute commer commer cially what it would otherwise, under copyright law, be unable to distribute.” Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc) [280] Model codes produced by private organizations enter the public domain upon becoming part of the law. law. Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979) [295] Obscenity Obscenity does not prevent prevent a work from being copyrigh copyrightab table. le. Cinema Cinema Adult Theater Theater made and distribu distributed ted unauthoriz unauthorized ed copies of a pornographic pornographic film produced by Mitchell Mitchell Brothers. Brothers. While Cinema Adult conceded conceded copying, copying, it argued that the the movie movie was uncopyrightabl uncopyrightablee because of its obscenity. obscenity. After reviewing the legislative legislative history of the Copyright Copyright Act, the court concluded that that the Act did not prohibit prohibit the copyrighting copyrighting of obscene works. works. Further, Further, the court noted noted that deciding deciding the question question of obscenity obscenity would would require courts to engage engage in difficult difficult 4 line-drawing with regard to societal standards of decency. decency. OWNERSHIP Initial Ownership Lindsay v. R.M.S. Titanic, Inc., 52 U.S.P.Q.2d 1609 (S.D.N.Y. 1999) [301] A person may be the author author of a work even even if he or she did not physically physically participate in the production production of that work. Titanic had hired hired Lindsay Lindsay to produce produce documentary umentary footage footage detailing detailing the salvagin salvaging g of artifacts artifacts from the wreck of the Ti-  filming was done done by remote-controlled remote-controlled submarines. submarines. When a dispute dispute tanic . The filming arose as to Lindsay’s Lindsay’s compensation for directing the filming, Titanic argued that Lindsay owned owned no copyright copyright to the footage footage because he did not personally dive to the wreck to create it. Finding that Lindsay Lindsay did own the copyright copyright to the work, the court noted that that the author of a work need not create that that work in a literal, physical sense. Rather, Rather, Lindsay was the author author because he “exercised [ ] a high degree of control control [during [during the creativ creativee process] . . . such that that the final product product duplicates duplicates his conceptions and visions of what the film should should look like.” like.”

4 See also Devils Films, Inc. v. Nectar Video, 29 F.Supp.2d 174 (S.D.N.Y. 1998) [299].

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Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) [305] In deciding whether a particular work was made for hire, the reviewing court should should first determine determine whether whether the creator creator of the work was an employe employeee of the hiring party under under common-law common-law principles principles of agency. agency. Once this determination determination has been made, the reviewing court should then analyze the work’s authorship under under the appropria appropriate te paragraph of of § 101. The Communi Community ty for Creativ Creativee NonViolence Violence (CCNV) conceived conceived of a crèche-st crèche-style yle structure structure depicting depicting a homeless homeless family huddled huddled on the street. CCNV hired Reid to create create the sculpture, sculpture, and the parties parties engaged engaged in prelimina preliminary ry discussion discussionss concerning concerning the sculpture sculpture’s ’s basic design and the material material from which it would be made. made. While Reid was creating creating the sculpture, he employed employed assistants, who were paid by CCNV. CCNV. A dispute then arose arose as to whether whether the sculpture sculpture should should be taken taken on a touring touring exhibit. exhibit. The parties parties disagreed as to who retained retained the final say over the disposition disposition of the sculptur sculpture. e. CCNV CCNV contended contended that the sculpture sculpture was a work for hire, hire, and Reid claimed the contrary. contrary. The court observed since “[s]culpture “[s]culpture does not fit within within any of the nine categories categories of ‘specially ordered ordered or commissioned commissioned works’ works’ enumerated in [§ 101]” and there was no written agreement between the parties as to Reid’s status, “[t]he dispositive inquiry in this case [ ] is whether [the sculpture] is ‘a work prepared by an employee employee within within the scope of his or her employment.’ ” After reviewing the factors tending to establish an employer–employ employer–employee ee 5 relationship, the court court found that that Reid was not an employe employeee of CCNV CCNV. The sculpture was therefore not a work for hire made for CCNV, though the court observed that CCNV might qualify as a co-author. Aymes v. Bonelli, 980 F.2d 857 (2d Cir. 1992) [317] A computer program created for an employer is a work made for hire belonging to that that employe employerr. The court court found that that some some of the factors factors listed listed in CCNV  should be given more weight than others because “they will usually be highly probative probative of the true nature nature of the employment employment relationship. relationship.6 Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995) [317] A work may be a work for hire even even if the creator creator exercised exercised signification signification exercised significant significant discretio discretion n in creating creating it. Carter Carter created created a sculptur sculpturee that that was located located in a building owned owned by Helmsley-Spear Helmsley-Spear.. A new owner subsequently subsequently purchased the building and indicated its intention to modify or remove the sculpture. Carter sued under under the Visual Visual Artists’ Rights Act Act to prevent prevent any disturbance of the sculptu sculpture. re. Noting Noting that that Carter had receiv received ed a regular salary salary and retirement benefits from Helmsley-Spear, the court held the sculpture to be a work for hire created at Helmsley-Spear’s Helmsley-Spear’s behest. 5 See page 314 314 of the casebook. casebook. 6 See page 317 317 of the casebook casebook for a list of the relevant relevant factors. factors.

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Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Contemporary Dance, Inc., 380 F.3d F.3d 624 (2d Cir. Cir. 2004) [318] During her life, Martha Graham had been employed by the Center as a choreographer. After her death, death, the court applied applied an “instance and expense” standard standard to determi determine ne wh wheth ether er Graham Graham’s ’s choreo choreograph graphic ic works works were were works works for for hire hire owned by the Center. Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998) [329] Even substantial contributions to a work may not make the contributor a coauthor of the work in the the absence of sufficiently clear intent to create create a joint work. Larson had composed the score for the musical Rent . While working working on a production of the show, show, Larson agreed to take on Thomson as a “dramaturg,” “dramaturg,” a sort of advisor advisor who could recomme recommend nd substantiv substantivee changes to the show show. Despite Despite Thomson’s presence, Larson was “insistent on making [the production] his own project” and was billed as the sole author author.. Dissatisfied with with her compensation, compensation, Thomson subsequently subsequently sued for royalties on the theory that she was a co-author co-author of the work. Applying Applying the Childress  test, the court found that Thomson was not a coauthor coauthor.. Under the the Childress  test, “a co-authorship claimant bears the burden of estab establis lishin hing g that that each each of the putativ putativee co-aut co-author horss (1) made indepe independe ndentl ntly y copyrightable contributions to the work; and (2) fully intended to be co-authors.” Forgoing discussion of the first element on procedural grounds, the court found that Thomson Thomson failed the the second element element of the test. After analyzing analyzing the nature nature of the cooperati cooperation on between Thomson Thomson and Larson, Larson, the court found that Larson retained final decision-making authority over over the production. Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000) [339] Where many individuals contribute creative elements to a work, the author of  that work is the individual individual who “superintend[s]” “superintend[s]” the creation creation of the work. Lee was the co-writer co-writer,, co-produ co-producer cer,, and director director of a movie on the life of Malcolm Malcolm X. While producing the movie, movie, Lee hired hired Aalmuhammed Aalmuhammed as a consultant on the subject of of Malcolm X. Aalmuhammed’s Aalmuhammed’s made made “extensive “extensive script revision,” “direc“directed . . . actors on the set,” “created some new scenes with new characters,” and “edited “edited parts of the film during during post-prod post-product uction.” ion.” While acknowl acknowledgi edging ng that Aalmuhammed’s contributions were “extremely helpful,” the court found that Aalmuham Aalmuhammed med was not a coauthor coauthor of the movie movie because Lee retained “artistic “artistic control.” Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004) [340] (come back later)

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Transfer Transfer of Copyright Ownership Effects Associates v. Cohen, 908 F.2d 555 (9th Cir. 1990) [347] A transfer of copyright copyright ownership must be set forth in writing, writing, as required by § 204(a). Effects Associates Associates had created special-effects special-effects footage for for certain scenes in a movie that that Cohen produced. Although Cohen Cohen agreed to pay Effects Associates a fee for the footage, footage, the parties did not discuss the ownership of the copyright copyright to the special-effects special-effects footage. footage. When Cohen subsequently subsequently refused to pay pay the fee in full, the ensuing lawsuit centered on whether Effects Associates had transferred ownership of of the footage footage to Cohen. Citing § 204, the the court found that the the lack of a written agreement to transfer transfer any copyright copyright meant that that Effects Associ Associ-ates had only granted Cohen an implied license to use the footage in his movie. The court concluded that Cohen therefore had committed no copyright infringement but might might nonetheless face liability for for a breach of contract. Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir. 1988) [356] A license to show show television television broadcasts broadcasts of a movie does not confer the right to distribute distribute videotape copies copies of that movie. movie. Cohen owned owned the copyright copyright to a mu mu sical composition that that was included in the soundtrack of a movie distributed distributed by Paramount. Negotiations Negotiation s between Cohen and Paramount had produced a license licens e granting Paramount the right to “exhibit [the] [the] motion picture by by means of television.” When Paramount Paramount subsequently subsequently sold copies of the movie movie on videotape, videotape, Cohen sued Paramount on the theory that the license did not grant Paramount the right to distribute distribute the movie on tape. Ruling for Cohen, Cohen, the court found that the terms of the license license explicitly explicitly excluded excluded any form of distribu distribution tion other other than television broadcasts. broadcasts. The court further observed that Paramount Paramount should not be allowed to reap a “windfall” “windfall” from the development development of technology that that could not have been foreseen at the time the license was made. Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co. [360] The scope of of a license may may be a factual factual issue when the the language of of the license is ambiguous with respect respect to the distribution distribution of the licensed content through through laterdeveloped developed media. Boosey & Hawkes Hawkes owned the copyright copyright to Igor Stravinsky’s Stravinsky’s “Thee Rites of Spring,” “Th Spring,” which which was featured featured in the movie movie Fantas Fantasia. ia. Although Although Stravinsky’s work had already entered the public domain in the United States, Disney decided to obtain a license in order to distribute the movie in countries where Stravinsky’s Stravinsky’s works were still protected protected by copyright. copyright. When Disney subsequentl sequently y distribu distributed ted video recordings recordings of Fantasi Fantasia, a, Boosey Boosey & Haw Hawkes kes sued on the ground that that the distribution distribution violated violated the terms of the license. license. Finding that that the language of the license could be plausibly interpreted in either party’s favor favor,, the court remanded remanded the case for a trial. Disney Disney eventual eventually ly settled settled the case by paying $3M to Boosey & Hawkes. 18

Random House, inc. v. Rosetta Books, LLC [368] The right to publish publish paper copies of a book is distinct from the right to distribdistribute e-book e-book copies copies of that that book. Several Several authors authors had executed executed with with Random Random House contracts that granted Random House the right to publish their works “in book book form.” When those authors authors subsequen subsequently tly granted Rosetta Rosetta the right right to publish publish e-book e-book versions versions of the same works, works, Random Random House sued on the theory theory that the paper-book contracts implicitly covered the right to distribute e-books. Ruling for Rosetta, the court found that the phrase “in book form” could not be read so broadly as to include the works in any format whatsoever. whatsoever. The court observed that the rights for Braille editions and other alternative formats were routinely negotiated separately, so that e-books should be treated in the same manner. Bassett [373] (come back later) Foad Consulting [374] (come back later) New York Times Co., Inc. v. Tasini [375] The owner of the copyright copyright to a collective work does does not have the right to to republish independently independently copyrightable copyrightable portions of that collection in an unrelated context. Tasini and several several other respondents were were freelance writers whose articles had appeared in the New York Times and several other newspapers. Unbeknownst to the writers, each newspaper had a standing agreement with the owners of the LexisNexis database whereby whereby their respective respective news articles were made individually individually accessible accessible to LexisNexis subscribers. When the writers discovered discovered the availability availability of their articles on LexisNexis, they sued the newspapers for copyright copyright infringement. Ruling for the writers, writers, the Court found that LexisNexis “present[ed] “present[ed] articles to users clear of the context provided provided either by the original periodical periodical editions ro by any revision of those editions.” editions.” The dissent (Justice Stevens and Justice Breyer) argued that database services should be considered “revisions” “revisions” of the original collective collective work within the meaning meaning of § 201(c). 201(c). In re Marriage of Susan M. & Frederick L. Worth Worth [385] come back later Fantasy, Inc. v. Fogerty [386] come back later Estate of Martin Luther King, K ing, Jr., Jr., Inc. v. CBS, Inc., 194 F.3d F.3d 1211 121 1 (11th Cir. 1999) [471] The public public delivery delivery of that that speech speech under under the the speech was very very large. fringing fringing the copyright copyright

a speech speech does not amount amount to a “general publica publication” tion” of  Copy Copyrig right ht Act of 1909, 1909, even even if the the audie audience nce for that The estate estate of Martin Luther King, Jr., Jr., sued CBS for into King’s “I Have a Dream” speech. speech. CBS had feature featured d 19

portions portions of the speech speech in a document documentary ary without first obtaining obtaining the consent of  King’s estate. estate. The court found that that general publication publication occurred under only two circumstances: (1) when “tangible “tangible copies copies of the work are distributed distributed to the general public in such a manner as allows the public to exercise dominion and control over the work” and (2) when the work is “exhibited or displayed in such a manner as to permit unrestricted unrestricted copying by by the general public.” public.” The court specifically cifically rejected rejected CBS’s contention contention that that the presence presence of a large audience audience for the speech converted converted the delivery delivery of the speech speech into a general publication. publication. According to the court, “general publication publication depends, depends, not on the number of people involved, but rather on the fact that the work is made available to the public without regard to who they are or what they propose to do with it.” Judge Cook (concurring) stated that he would have based the outcome solely on the rule that general publication publication requires the distribution of tangible copies. copies. Judge Roney (dissenting) stated that the factual circumstances supported a finding of general publication. publication. Academy of Motion Picture Arts & Sciences v. v. Creative Creative House Promotions, Inc., 944 F.2d 1446 (9th Cir. 1991) [477] The distribu distribution tion of Oscar Oscar statuet statuettes tes to recipients recipients of the Academy Academy Award Awardss does does not amount to a “general publication” of the statuettes statuettes under the Copyright Act of 1909. The Academy Academy sued Creative Creative for infringing infringing the Academy’s Academy’s copyright copyright to the Oscar statuettes. statuettes. Creative Creative had sold lookalike lookalike statuettes statuettes without obtaining the Academy’s Academy’s permission. The court found found that that any distribution distribution of the Oscar statuettes statuettes was a limited publication because the statuettes (1) were distributed distributed to a “select group of persons”; persons”; (2) were distributed distributed for a limited purpose; purpose; and (3) were distributed distributed with the implied condition that that recipients had “no right of sale or other further distributio distribution.” n.” The court further noted noted that the widespread exex istence two-dimensional two-dimensional depictions of the statuettes statuettes did not amount to a general publication because “two-dimensional pictures [do] not constitute a divesting publication publication of three-dimensional objects.” objects.” BMG v. Gonzalez [482] The owner of the copyright copyright to a work may obtain obtain statutory damages damages for the inin fringemen fringementt of that that copyright copyright as long as it provide providess a notice notice of copyrigh copyrightt on all legally legally distributed distributed copies of of the work. Having illegally illegally downloaded downloaded numerous songs owned by BMG, Gonzalez argued for a reduction in damages on the ground that the source files from which she made her unauthorized copies did not bear notices notices of copyright. copyright. Ruling for for BMG, BMG, the court found that that Gonzalez Gonzalez had reason to suspect that the downloaded songs were indeed copyrighted.

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Corbis Corp. v. Amazon.com [489] A work is not “registered” “registered” within the meaning meaning of § 411(a) until until the Register Register of  Copyrights Copyrights actually issues issues the registration for that that work. Merely filing for for the registration of a work does not grant the putative copyright copyright owner from suing for the infringement infringement of that work. Kahle v. Ashcroft [495] (come back later) EXCLUSIVE RIGHTS UNDER COPYRIGHT The Right to Reproduce the Work in Copies & Phonorecords Arnstein v. Porter [509] In order to prevail prevail on a claim of copyright copyright infringement, the the plaintiff must show show that that the defendant defendant (1) actually actually copied copied from the plaintiff plaintiff ’s work and (2) took so much of the work that the the copying copying amounted amounted to “improper “improper appropriation.” appropriation.” Arn stein sued Porter on the ground that Porter had committed copyright infringement by by appropriating appropriating certain certain parts of Arnstein’s songs. songs. After acknowledging acknowledging “similarities” between between recordings of the parties’ respective respective songs and noting that printed scores of Arnstein’s compositions had circulated widely, widely, the court found that a trial on the the issue of infringement was appropriate. appropriate. The court further further held that “[t]he “[t]he question . . . is whether the defendant defendant took from plaintiff ’s works so much of wha whatt is pleasing to the ears of lay lay listeners . . . that that defendant defendant wrongwrongfully appropriated appropriated something which belongs to the plaintiff.” The dissent (Judge (Judge Clark) disagreed with the court’s court’s finding finding of “similari “similarities” ties” between between the allegedly allegedly infringing composition compositionss and the originals originals.. The dissent criticized Arnstein for attempting to “dissect” Porter’s work so as to identify snippets that bore some resemblance to his own compositions. compositions. Dawson v. Hinshaw Music, Inc. [514] Whether one work infringes another should be evaluated from the standpoint of  the intended audience for those works. works.7 Bright Tunes Music Corp. v. Harrisongs Music, Ltd. [516] Plain similarities between between two works can give rise to a finding finding of infringement. Harrisongs Harrisongs distribut distributed ed recordings recordings of “My Sweet Lord,” Lord,” a song composed composed by George Harrison. Bright Tunes sued sued Harrisongs on the ground that that “My Sweet Lord” Lord” had borrowed borrowed impermissib impermissibly ly from one of its own songs, songs, “He’s “He’s So Fine.” Comparing the two songs, the court found that “it is perfectly obvious to the listener that in musical terms, the two songs are virtually identical except for 7 See also Lyons Partnership v. Morris Costumes, Inc., 243 F.3d 789 (4th Cir. 2001) [515] (potential (potential infringement infringement of Barney the Dinosaur determined determined from the standpoint standpoint of children). children).

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one phrase.” Gasté v. Kaiserman [520] “Striking similarity” between two musical compositions can give rise to a finding of infringemen infringementt even even in the the absence absence of independen independentt proof proof of infringeme infringement nt..8 Ty, Inc. v. GMA Accessories, Inc. [521] (come back later) Laureyssens v. Idea Group, Inc. [524] “Probative “Probative similarity” similarity” may establish establish infringement. Laureyssens manufactured manufactured a puzzle known known as the “Happy Cube,” Cube,” which had the the distinct feature feature of being “assembleable in either a flat form . . . or into a three-dimensional hollow cube.” When Idea Group marketed a similar puzzle, Laureyssens sued Idea Group for copyright copyright infringement. The court found that that probative probative similarity might might be established tablished through “dissection “dissection and expert testimony.” testimony.” The court, however however,, ultimately found no infringement. Ringgold v. Black Entertainment Television, Inc. [526] Actionable copyright infringement includes a quantitative component in addition to a qualitative qualitative component. component. Ringgold owned owned the copyright copyright to a poster that that appeared briefly briefly in the background background of a BET television television program. program. When Ringgold sued BET for copyright copyright infringement, infringement, BET argued that the appearance appearance of the poster was a de minimis use, which would not give rise to liability. liability. The court held that BET had committed “qualititative” copying by displaying the poster. As for “quantitat “quantitativ ive” e” copying copying,, the court said that “in cases involving involving visual works works . . . the the quanti quantita tativ tivee compo componen nentt . . . concern concernss the the observ observab abili ility ty of the the copied copied work—the work—the length length of time the copied work is observab observable le . . . and such 9 factors as focus, focus, lighting, camera angles, and prominence.” Ultimately, the court ruled in favo favorr of Ringgold. Peter Pan Fabrics, Inc. v. Martin Weiner Corp. [528] Potential infringement of a fabric design should be evaluated evaluated from from the perspective of of an “ordinary observer observer.” .” Herbert Rosenthal Jewelry Corp. v. Kalpakian [529] Independent creation creation is a defense to copyright copyright infringement. infringement. Rosenthal Rosenthal owned the copyright copyright to “a pin in the the shape of a bee formed formed of gold encrusted encrusted with jewels.” els.” Upon finding finding that Kalpakian Kalpakian also sold bee-shaped bee-shaped pins, pins, Rosenthal Rosenthal sued Kalpakian for copyright copyright infringement. Finding no infringement, infringement, the court court criti8 See also Repp v. Webber, 132 F.3d 882 (2d Cir. 1997) [520]. 9 See pages 527–28 527–28 of the casebook for the court’s court’s extensive discussion discussion of the copying copying in question.

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cized Rosenthal for failing to articulate a tenable basis for his infringement claim. The court observed that “although “although plaintiff ’s counsel asserted that the originality of plaintiff plaintiff’s ’s bee pin lay in a particular particular arrangeme arrangement nt of jewels jewels on the top of  the pin, the the elements of this arrangement were were never never identified.” The court furfurther noted that “[p]laintiff “[p]laintiff ’s counsel . . . was unable to suggest how jewels might be placed on on the back of a pin in the the shape of a bee without without infringing plaintiff plaintiff ’s copyrigh copyright.” t.” Ultima Ultimatel tely y, the court characteri characterized zed the lawsuit lawsuit as an attempt attempt by Rosenthal to obtain improperly a monopoly on bee-shaped jewelry. Educational Testing Services v. Katzman [534] The use of identical identical wording wording or “substant “substantiall ially y similar” wording wording in a written work may may suppor supportt a finding of of infringeme infringement. nt. The presenc presencee of “structural” “structural” simsimilarities alone, howev however er,, is unlikely unlikely to result in a finding of infringement. As the operator operator of the Princeton Princeton Review Review, Katzman Katzman produced produced practice practice versions versions of the SAT SAT. The questions on Katzman’s Katzman’s tests closely paralleled those on the official SAT SATs. The court ultimate ultimately ly affirmed in part and vacated vacated in part the district court’s injunction against Katzman. Nichols v. Universal Pictures Corp. [537] Taken Taken alone, the existence of common plot elements elements in two dramatic works does not give rise to a finding of infringement. Nichols wrote wrote a play entitled entitled “Abie’s “Abie’s Irish Rose.” The play centered centered on the relationship relationship between between a young Irish man man and his Jewish Jewish lover lover.. Because Because of cultural cultural friction friction between between their families families,, the couple is forced to lie about their their backgrounds to their respective families. families. After their Jewish–Irish marriage is discovered, the couple finds themselves shunned by their their families. families. Only after after they bear bear children are the families reconciled. reconciled. Some time later, later, Universal produced a movie movie entitled “The Cohens and the Kellys.” Kellys.” In the movie, a young Irish man secretly loves and marries a young Jewish woman. When their relationship is discovered, their families quarrel with each other. The birth of grandchildren, however however,, ultimately ultimately reconciles reconciles the families. families. Finding that the movie did not infringe the play, the court held that “[a] comedy based upon conflicts between between Irish and Jews, Jews, into which the marriage of their children enters, enters, is not more susceptible susceptible of copyrigh copyrightt than the outline outline of Romeo Romeo and Juliet.” Sheldon v. Metro-Goldwyn Pictures Corp. [542] One dramatic work may infringe another where the first work copies with particularit ticularity y elements elements that can be identified identified as original original invention inventionss of the second work’s author author. Sheldon wrote wrote a play based based on the life of Madeleine Cary, Cary, a Scottish woman who was strongly strongly suspected suspected of having poisoned poisoned a former lover lover desdes pite being acquitted at trial. In the play, play, the woman lures her estranged lover to a meeting by feigning affection. During the meeting, meeting, she slips poison poison into her 23

lover’s drink and berates him him as he dies. When Metro-Goldwyn later produced a movie with similar similar plot points, Sheldon Sheldon sued for copyright copyright infringement. In finding the movie to infringe the play, the court observed that Metro-Goldwyn had borrowed the aforementioned plot elements from the play. play.10 Boisson v. Banian, Ltd. [555] “Concept and feel” may be protected protected by copyright copyright if the reviewing court imposes imposes a “more discerning scrutiny” on potential elements that might fall within the public domain. Computer Associates International, Inc. v. Altai, Inc. [559] The “clean room” method of software development development is a way to avoid avoid copyright infringem infringement. ent. Compute Computerr Associat Associates es produced produced the computer computer program “CAScheduler,” which handled low-level scheduling tasks on mainframe computers. To make CA-Scheduler CA-Scheduler compatible with multiple types of mainframes, Computer Computer Associates Associates incorporated the sub-program sub-program “Adapter” “Adapter” into CA-Scheduler CA-Scheduler.. The purpose of Adapter was to act as an interface interface between CA-Scheduler’s CA-Scheduler’s primary functional functionality ity and the underlying underlying operating operating system. Altai develop developed ed software with a similar need for cross-mainframe cross-mainframe compatibility compatibility.. By hiring a former former emem ploye ployeee of Compute Computerr Associates Associates,, Altai gained gained access to the source source code of Adapter apter. Altai then then copied copied substantial substantial portions portions of the Adapter Adapter code in making making Oscar, Oscar, its own cross-mainframe cross-mainframe software. When Altai recognized recognized that the the borrowed portions of code might result in liability for for copyright infringement, infringement, Altai ordered the software software to be rewritten by engineers engineers who knew nothing of of the existing isting version version of Oscar Oscar or Adapter’s Adapter’s source source code. The court court found that that the rewritten version of Oscar did not infringe Computer Associates’s Associates’s copyright. copyright. Steinberg v. Columbia Pictures Industries [572] Distinctive Distinctive stylistic elements of a visual work may be copyrightab copyrightable le expression. Steinberg owned the copyright to an illustration for the cover of  The New York-  er . Poking fun at the worldview of the stereotypically stereotypically “provincial” New York Yorker er,, the illustration showed New York City in great detail while reducing the rest of  the world into a few generic shapes.11 When Columbia released a movie poster for Moscow on the Hudson  featuring an uncannily uncannily similar depiction of New York York City, City, Steinberg sued for copyright infringement. Ruling for Steinberg, Steinberg, the court found that that elements of Steinberg’s style were protectable protectable expression.

10 See pages 549–50 549–50 of the casebook for the court’s court’s detailed discussion discussion of the similarities similarities between the plots. 11 See pages 574–75 of the casebook for Steinberg’s illustration and the movie poster. See also  page 581 of the casebook for illustrations depicting depicting other cities in the same style.

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ABKCO Music, Inc. v. Stellar Records, Inc. [591] Karaoke recordings that feature on-screen lyrics do not fall within the scope of  the compulsory compulsory license license grante g ranted d in § 115. Stellar Stellar Records Records produced produced a karaoke karaoke rendition rendition of a song recording recording owned by ABKC ABKCO O. The court found found that that “compulsory licenses do not give [the maker maker of a recording] the right to publish publish the compositions’ lyrics lyrics on a screen.” Bridgeport Music v. Dimension Films [598] If one wants to to “sample” portions of an existing recording, recording, one must obtain a license from from the owner owner of the copyrig copyright ht to that that recording. recording. The court court found the the language of § 114(b) to create a bright-line prohibition prohibition against the unauthorized unauthorized reproducti reproduction on of any portion portion of a recording recording.. The Right to Prepare Derivative Works Under § 106(2) Horgan v. Macmillan, Inc. [605] A photograph photograph of the performance performance of a dramatic dramatic work may may be a derivati derivative ve of the dramatic work. work. Horgan owned owned the copyright copyright to George Balanchine’s Balanchine’s choreoNutcracker. Macmillan published a book containing phographic version of  The Nutcracker. tographs tographs from a performan performance ce of the ballet, ballet, with each photograph photograph accompanied accompanied by a description description of the corresponding corresponding scene. When Horgan sued Macmillan Macmillan on the theory that the book was an infringing derivative work, Macmillan argued that the book did not infringe because it depicted only isolated moments in the perfo performa rmance nce.. Findin Finding g infrin infringem gemen ent, t, the the court court noted noted that that “[e]ve “[e]ven n a small small amount of the original, if it is qualitativel qualitatively y significant, may may be sufficient to be an infringem infringement. ent. The court found found that “the “the district judge judge took a far too limited limited view of the extent to which choreographic material material may be conveyed conveyed in the medium of still photography.” photography.” Lee v. A.R.T. Co. [610] The routine mounting mounting of a visual work does not create an infringing derivative derivative work. Lee created created “notecards “notecards and small lithographs.” lithographs.” After buying buying these works, A.R.T. A.R.T. mounted the works on ceramic tiles. The court found that A.R.T. had not sufficiently “transformed” “transformed” Lee’s works to turn them into derivative derivative works. works. The court also noted that the mounting process did not create any additional value that could be “captured” by Lee. Micro Star v. FormGen, Inc. [614] Independently authored computer-game computer-game levels are derivative derivative works based on the game. FormGen distributed Duke Nukem 3D , a “first-person shooter” game that allowed players to load custom-made levels in addition to those included with the game. game. Having amassed amassed a collection collection of player-made player-made levels levels,, Micro Star Star sold 25

those levels levels on CD-ROM. CD-ROM. The court found that that Micro Star infringed the Duke  Nukem  storyline by selling the add-on add-on levels. levels. Rejecting Micro Micro Star’s argument that the the levels were only transient modifications modifications of the original game, game, the court compared the level files to sheet music, pointing out that both encoded a user ex perience in abstract form. Krause v. Titleserv, Inc. [620] Under Under § 117(a), 117(a), the modificat modification ion of a computer computer program program for maintenan maintenance ce purposes does not necessarily necessarily create an infringing derivative derivative work. While working for Titleserv, Krause had written several purpose-built programs designed to help help Titles Titleserv erv handle handle custo custome mers, rs, record recordss, and othe otherr aspect aspectss of its busin business ess.. Krause left the company before before they negotiate negotiate a transfer of the copyright copyright to the software. software. Although Although Krause Krause did not object object to Titleserv’s Titleserv’s continued continued use of the programs in their existing forms, Krause sued to prevent prevent Titleserv from modify ing the the programs programs to ensure ensure their their techn technica icall integrit integrity y.12 The court allowed allowed Titlserv to make the desired modifications. Gilliam v. American Broadcasting Co., Inc. [621] Unautho Unauthorized rized editing of a dramatic dramatic work may create create an infringing infringing derivativ derivativee work. Monty Python Python had written written comedic comedic programs for the BBC. Under the arrangement, BBC was allowed to make only “minimal” changes to Monty Python’s scripts and no changes changes to the finalized recordings recordings of the programs. programs. ABC eventually eventually obtained a license to broadcast the programs in the United States, States, but its version version of the license did not contain the the restrictions on on modification. modification. When ABC edited 24 minutes minutes of a 90-minute show show, Monty Python sued on the ground that ABC had infringed its copyright. copyright. Ruling for for Monty Python, Python, the court emem phasized that the underlying copyright to the programs had never changed hands. hands. Furthermore, the court court held that that moral rights provided provided an alternative alternative ground for enjoining further modification modification of the programs. Flack v. v. Friends of Queen Catherine, Catherine, Inc. [630] Models produced produced as intermediate steps in the creation of a sculpture may qualify qualify as works works of art for the the purposes purposes of VARA. Pollara v. Seymour [630] Works created “for the primary purpose of promoting or advertising” do not fall within VARA VARA’s ’s scope of protection. Pollara Pollara created a mural for the the Gideon Coalition, a group that “advocat “advocate[d] e[d] legal representation representation for the poor.” poor.” Shortly after the mural had been hung on a wall, it was removed for failure to obtain per mission to display display the mural in that location. location. During the removal removal process, process, the 12 See pages 620 of the casebook for a detailed detailed list of modifications that that Titleserv intended to make.

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mural was damaged. damaged. Emphasizing that that the work work had been created created for a promotional purpose, the court found that Pollara Pollara could not recover under VARA. VARA. The concurrence (Judge Gleeson) stated that the work lacked the “recognized stature” needed for recovery under VARA. Pavia v. v. 1120 Avenue Avenue of the Americas Associates Asso ciates [640] VARA prohibits prohibits only the act of making making unauthorize unauthorized d modifica modification tionss to a work. work. It does not prohibit the continued continued display of of such modified works. works. Wojnarowicz v. American Family Association [643] Unautho Unauthorized rized photographic photographic reproductio reproductions ns of a visual visual work may infringe the moral rights to that that work. work. Wojnarowicz had had produced produced a number of of prominent sculptur sculptures es addressing addressing the the AIDS epidemic epidemic of the 1980s 1980s.. Some Some of his works works “depicted sexual acts and a few portrayed Christ with a hypodermic needle in his arm.” Finding the works offensive, offensive, the American Family Family Association Association distributed distributed pamphlets pamphlets condemning the works. works. The pamphlets pamphlets “contained unauthorized unauthorized reproductions productions of 14 fragments fragments of [Wojnarowicz’s] [Wojnarowicz’s] exhibited works.” works.” Finding the the Association to have violated Wojnarowicz’s moral rights, the court observed that “deliberate alterations” such as “selective cropping” could result in unauthorized modifications modifications of the original work. The court further criticized criticized the Association Association for “reduc[ing] “reduc[ing] plaintiff ’s multi-imaged multi-imaged works of art to solely sexual images.” images.” The Right to Distribute Under § 106(3) Fawcett Publications v. Elliot Publishing Co. [651] The first sale doctrin doctrinee allow allowss the the unrest unrestric ricted ted resale resale of physi physical cal copies copies of a copyrighted copyrighted work. Eliot obtained obtained secondhand secondhand copies copies of comic books books published published by Fawcett. Fawcett. Eliot then bound Fawcett’s Fawcett’s comics with other comic books and sold the resulting volumes volumes as “double comics.” comics.” Ruling for Eliot, Eliot, the court observed that that “the purpose and effect of the copyrigh copyrightt statute statute is to secure to the owner thereof the exclusive right to multiply multiply copies.” copies.” Rights of Public Performa Performance nce and Display Under §§ 106(4)–(6) Columbia Pictures Industries, Inc. v. Aveco, Inc. [669] A performance performance may be “public “public”” within the meaning meaning of § 106(4) even even if it takes takes place place in a venue that that does not hold many people. people. Aveco veco operated operated a chain chain of  video-ren video-rental tal stores. stores. In addition addition to renting renting videotapes videotapes for home viewing, viewing, each store store had a number of viewing viewing rooms, rooms, in which customers customers could watch watch rented tapes. Aveco’s veco’s policy was to allow only only customers and “members of their families and social acquaintances” acquaintances” to join each other other for any particular particular viewing. viewing. FindFind ing that Aveco had infringed Columbia’s exclusive right to authorize the public 27

performan performance ce of the videos, videos, the court emphasize emphasized d that that “[t]he “[t]he Copyrigh Copyrightt Act speaks of performances at at a place open open to the public. public. It does not require require that the public place place be actually crowde crowded d with people.” people.” Furthermore, the court court stated that the term “authorize” in § 106(4) was plainly meant to authorize secondary liability against Aveco for providing the tapes used in the unauthorized public performances.

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