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SECTION TOPIC CASE CT YR FACTS HOLDING NB

Williams assert CR over videgame


AV can be permanently embodied in computer chip so fixation satisfied; sufficiently
Fixation Williams Electronic v. Arctic (Defense Command/DEFENDERS) AV
Subject Matter 3d Cir. 1982 permanent and stable enough to be reproduced/communicated for more than a
(embodiment) International displays; says AV displays change with
transitory period
user input so not "fixed"

Cable buffer in a DVR system; Cablevision


sends viewing stream and DVR stream; MAI Systems = only on embodiment; fixed if "sufficiently permanent" (like if user
Fixation Cartoon Network v. CSC Cartoon network argues that the buffer shuts down the computer and the data is still there)
Subject Matter 2d Cir. 2008
(duration) Holdings and playback storage are unauthorized - 1.2 seconds = too transitory! fixed
copying, and the playback itself is public - cable buffer can be embodiment, but too transitory for duration
performance
Photo = art if "product of intellectual invention"
Burrow-Giles Lithograph v. - author = originator, maker
Subject Matter Originality SCOTUS 1884 Oscar Wilde photograph
Sarony - made picture from "original mental conception, to which he gave visible form by
selecting... aranging"
Bleistein "Non-Discrimination Principle"- "It would be a dangerous
Chromolithographs (circus
Bleistein v. Donaldson undertaking for persons trained only in the law to constitute themselves
Subject Matter Originality SCOTUS 1903 advertisements); asserts that posters Advertisements can be "original" if not purely utilitarian
Lithographing the final judges of worth of pictoral illustrations outside of the narrowest
and advertisements are not original
and most obvious limits"
Need more than trivial variation
Mezzotint of original painting in public
- "sweat of the brow" doesn't warrant protection Bleistein - "free to copy the original but not copy the copy" (exact copies
Subject Matter Originality Alfred Bell v. Catalda Fine Arts 2d Cir. 1951 domain; Catalda makes prints of 's
- public domain copy is CR'able if distinguishable variation are not protected)
mezzotints
- exact copy in different medium doesn't warrant CR
Originality requires a "modicum of creativity" (will not grant CR where the "creative
Feist Publications v. Rural Feist uses Rural phonebook listings w/o spark is utterly lacking or so trivial as to be nonexistent"
Subject Matter Originality SCOTUS 1991
Telephone permission - compilations of facts are CR'able if selected, coordinated, arranged, where work as a
whole becomes an original work of Au'ship
Photographs can be original if:
Coors commissioned ad where modeal (1) rendition - angle of shot, light, exposure, etc.
Subject Matter Originality Mannion v. Coors Brewing Co. SDNY 2006 was dressed and posed exactly like (2) timing - "right place right time"
Mannion's original photo (3) creation - creation of subject, control over subject being shot
= "independent creative decisionmaking"
NOT original bc creator intended to create an exact copy .'. No independent
Meshwerks wireframes Toyota cars to
Meshwerks v. Toyota Motor expression
Subject Matter Originality 10th Cir. 2008 painstaking detail; Toyota then uses those Look at the creator's intent
Sales - "sweat of the brow" is not enough (even if "intensive, skillful, and even creative labor
wireframes for advertisements
is invested" does not mean it's immediately CR'able)
Selden's forms are not CR'able bc Selden's intent was to explain an IDEA (forms =
diagrams that are incident to the idea)
Idea/Expression Selden made accounting ledger system; Merger Doctrine - limited ways to express an idea, so idea and
Subject Matter Baker v. Selden SCOTUS 1879 - "where the truths of a science or methods of an art are the common property of the
Dichotomy Baker then used the ledger system expression merge into one; .'. Not CR'able
whole world, an Au has the right to express the one, or explain/use the other, in his
own way"
Merger Doctrine - sometimes the copy gets really thing CR protection
Hindenberg book by Hoehling; Universal
Idea/Expression A.A. Hoehling v. Universal When Au presents interpretation of historical accounts as FACT, then not CR'able (e.g. 9th Cir. does this)
Subject Matter 2d Cir. 1980 made a movie based on Hoehling's factual
Dichotomy Studios - wants to prevent chilling effect on historians and historical research Scenes a Faire Doctrine - elements that are indispensable or standard
interpretation of what happened
in treatment of a topic (incidents, characters, settings) are not CR'able
Idea/Expression ATC Distribution v. Whatever Car part taxonomy (catalog and Numbers are not like narratives, but more like an idea (Merger - where limited ways
Subject Matter 6th Cir. 2005 Taxonomies can be creative endeavors though!
Dichotomy It Takes Transmission numbering system) to express the underlying idea, the expression is not CR'able)
1909 Act ended distinction between "purely aesthetic" and "useful," so Mazer is liable
PGS Separability Mazer copied art to make statuette lamp - CR can cover industrial reproduction of protected articles; "useful articles" can be
Subject Matter Mazer v. Stein SCOTUS 1954
("Useful Articles") base CR'd
- physical separability in pictoral, graphic, sculptural (PGS) works

Other cases/tests mentioned:


Denicola TEST - "CR turns on the relationship between work and process of - Kieselstein v. Pearl (2d Cir., 1980) - belt buckles - test for whether
industrial design" - looks @ the INTENT of the creator + PROCESS of creation artistic features are "primary" and utilitarian aspects "subsidiary"
PGS Separability Pivot Point International v.
Subject Matter 7th Cir. 2004 Hungry runway model haircut mannequin (1) is it physically separable? - Carol Barnhart (2d Cir., 1985) - torso forms - test for whether it is
("Useful Articles") Charlene Products
(2) if not, is it conceptually separable? conceivable that the expression is separate from utilitarian fxns
- test individual parts first, then the unit as a whole - Brandir (2d Cir., 1987) - ribbon racks - test for whether the art is
influenced by the function (applies Denicola test)

Star Athletica TEST - a feature incorporated into the design of a useful article is
Cheerleader uniforms designed by Varsity
CR'able only if:
Brands copied by Star Athletica; does CR "(1) can identify the decorations as features having PGS qualities
(1) can be perceived as a 2D or 3D work of art separate from the useful article, and
protect the particular combo of chevrons, (2) if the arrangement of colors, stripes, and chevrons were separated
(2) would qualify as a protectable pictorial, graphic or sculptural work (either on its
PGS Separability Star Athletica, LLC v. Varsity zigzags and stripes that characterizes from the uniform and applied in another medium (for example, on a
Subject Matter SCOTUS 2017 own or fixed in some other tangible medium of expression) if it were imagined
("Useful Articles") Brands, Inc. Varsitys uniforms? Star Athletica argues painters canvas) they would qualify as 2D works of art. And imaginatively
separately from the useful article into which it is incorporated
industrial design largely influenced by removing the surface decorations from the uniform and applying them in
utilitarian considerations does not another medium would not replicate the uniform itself."
If designs hav[e] . . . graphic . . . qualities . . . [that could be] applied . . . on
warrant CR protection
a painters canvas, then the test for CR'ability is met!

Standard for derivative works is higher


- reproduction must contain "original contribution not present in underlying work of
Uncle Sam bank mass production (Uncle art" (for art in the public domain?)
Subject Matter Derivative Works L. Batlin & Son v. Snyder 2d Cir. 1976 An exact copy in a different medium CR'able
Sam is in the public domain) - "more than a mere copy" = substantial variation
- BAD DECISION - dissent says to award thin CR bc otherwise this is passing
judgment (Bleistein ND principle) on Batlin's variations
SECTION TOPIC CASE CT YR FACTS HOLDING NB
majority view - same originality standard for derivative works BUT
Schrock v. Learning Curve Derivative works are NOT subject to more exacting originality requirement
Subject Matter Derivative Works 7th Cir. 2009 Thomas the Tank Engine photos Batlin implies that derivative works off of work in the public domain
International - CR is thin and applies to any original parts
requires substantial variation (higher standard)
Prediction of future car prices = "professional judgment" that is sufficiently original
CCC Info Services v. MacLean MacLean Red Book copied by Blue Book;
Subject Matter Compilations (data) 2d Cir. 1994 for thin CR (Red Book sufficiently original)
Hunter Reports prediction of future car prices
- Hard facts v. opinion-based
Bender put judicial opinions (not CR'able
Matthew Bender v. West West's page numbers merely coincide with arrangement and is not CR'able Consider: databases only receive thin CR protection (EU allows for
Subject Matter Compilations (data) 2d Cir. 1998 material; public domain) on CD-ROM but
Publishing - What is CR'able? Summary of cases, selection of cases, headnotes "sweat of the brow")
included the West pagination
Total Concept / Overall Feel TEST - even if individual elements are not CR'able,
Compilations (non- Roth Greeting Cards v. United United copies Roth's cards (similar analyze the whole unit (for pictoral works) to assess CR'ability
Subject Matter 9th Cir. 1970
data) Card looking characters and text) - card as a whole was CR'able
- protect total concept, look, and feel of the cards
Combination of unprotectable elements is elegible for CR ONLY IF numerous enough
Compilations (non- Satava makes glass jellyfish sculptures
Subject Matter Satava v. Lowry 9th Cir. 2003 elements OR arrangement is original enough CRO circular - compilations must have 4 separate elements
data) and Lowry copies
- Scenes a Faire - elements that Lowry took are common to forming glass jellies
Cinematographer directs video of RMS
Authorship Author = originator, maker (Burrow-Giles)
Sole Lindsay v. RMS Titanic SDNY 1999 Titanic; sues RMS Titanic for licensing
(Ownership) - Au provided original intellectual conceptions and exercised "high degree of control"
footage w/o permission
Erickson wins

Trinity Theatre claims joint Au'ship of De Minimis TEST - only combined product must be CR'able; joint Au's contribution
Authorship
Joint Erickson v. Trinity Theatre 7th Cir. 1994 Erickson work bc actors contributed to must be "more than a word or a line"
(Ownership)
development of the play - Ct says NO! This discourages collaboration!
- each Au's' contributionmust be CR'able
- more predictable

Joint Authorship TEST -


(1) CR'able work
Aalmuhammed contributes to Lee's
Authorship (2) 2+ Au's
Joint Aalmuhammed v. Lee 9th Cir. 1999 Malcom X (wrote part of script, translated Creative contributions joint Au - needs broader and more original control
(Ownership) (3) "intent to merge" - intent for contributions to be merged into unitary
Arabic, edited) and wants writing credit
whole (look at decisionmaking authority, billing, quantity of contribution,
etc.)
"employee" (101) has agency common law meaning
Re: tax treatment, e'ees = W2; independent K'ors = 1099
Authorship Works Made For Community for Creative Non- "Third World America" sculpture by Reid - Nonexhaustive factors: skill required, source of instrument/tools, location of
SCOTUS 1989 - Consider: hiring party's right to control, actual control over creation,
(Ownership) Hire ("employee") violence (CCNV) v. Reid for CCNV ownership dispute work, duration of employment, hiring party's right/discretion to assign add'l projects,
salary, etc.
method of payment, role in hiring, regular business, e'ee benefits, tax treatment
Byce is family by marriage with Just; Byce 9th Cir. relaxed rules on e'ee v. independent K'or debate - more likely to find as e'ee
Authorship Works Made For
JustMed v. Byce 9th Cir. 2010 work/code for JustMed to create digital - "startup nature" of business can affect some of the factors listed in CCNV
(Ownership) Hire ("employee")
audio larynx software - Byce = e'ee bc of tasks, salary, nature of JustMed biz, etc.
Rouse = professor at Iowa State Rouse loses
Works Made For University research project on cattle - If an agreement alters the "work made for hire" default presumption that e'ee work "Teacher" exception - teachers as owners of CR in their writings and
Authorship
Hire ("scope of Rouse v. Walter S.D.Iowa 2007 scanning (LAIPS, live animal belongs to e'or, that agreement must be EXPRESS course materials, despite being a full-time e'ee of an institution
(Ownership)
employment") intramuscular fat prediction software); - Consider: (1) kind of work e'ee handled to perform? (2) time & space limits? (3) - 1976 Act didn't preserve, so potentially up in the air
creates USOFT too purpose or motivation to serve e/or?
De minimisTEST - whether the lay observer would not be able to discern any Consider:
Statutory distinctive elements of the design - Extent to which the CR work is copied in the allegedly infringing work
Reproduction (de Gottlieb Development v. Silver Slugger pinball machine
Rights of SDNY 2008 - Copying = copy of protected expression + amount copied > de minimis - How readily observable the CR work is
minimis copy) Paramount Pictures appearances in Mel Gibson movie
Owner - Decided from perspective of the average/ordinary lay observer to avoid judges - Length of time the CR work is observable
arbitrary judgments - Focus, lighting, camera angles, and prominence
"Access" proof?
Absent direct evidence of copying, proof of infringement involves fact-based - direct evidence
Statutory Reproduction Bolton claims that he subconsciously
Three Boys Music Corp. v. showings: - circumstantial evidence - (1) a particular chain of events established
Rights of (nonexact copy; 9th Cir. 2000 copied the Isley Brothers Love is a
Michael Bolton (1) had access to 's work, and between work and s access to work, (2) work has been widely
Owner copying-in-fact) Wonderful Thing
(2) two works are substantially similar disseminated (subconscious copying), (3) striking similarity (implied
access)
Consider:
Statutory Reproduction Expert witness testifies to the striking Strikingly Similar TEST - similarities must appear in a sufficiently unique or complex - Unexpected deviations
Rights of (nonexact copy; Selle v. Gibb 7th Cir. 1984 similarity of Selles Let It End and the context to make it unlikely that both pieces were copied from a prior common source - Repeated errors
Owner copying-in-fact) Bee Gees How Deep Is Your Love OR that was able to compose the accused work as a matter of independent creation. - Sufficiently unique/complex context
- Evidence of relative uniqueness/complexity
Access (and copying) may be inferred when two works are so similar to each other
Statutory Reproduction
J. POSNER re: Preston the pig v. Squealer and not to anything in the public domain that it is likely that the creator of the second
Rights of (nonexact copy; Ty, Inc. v. GMA Accessories 7th Cir. 1997 Access inference (implied access when strikingly similar)
the pig work copied the first, but the inference can be rebutted by disproving access or
Owner copying-in-fact)
showing independent creation..."
The two plays may correspond in plot closely enough for infringement, but at too
general a level to violate the law bc the theme was too generalized an abstraction
Statutory Reproduction - Non-literal infringement/copying - non-literal similarity may occur, even in the Theories of infringement:
Abies Irish Rose v. The Cohens and the
Rights of (Substantial Nichols v. Universal Pictures 2d Cir. 1930 absence of copying-in-fact of CR'd elements, when one work appropriates "the - Detail-oriented dissection (Satava) - comparison of elements
Kellys play
Owner Similarity) fundamental structure or pattern" of another - Impression-oriented (Roth) - total concept/feel
- Scenes a Faire - stock characters, stereotypes, or general feelings of love
CR'able
The question, therefore, is whether took from 's works so much of what is
Statutory Reproduction Arnstein alleged that Porter copied his
pleasing to the ears of lay listeners, who comprise the audience for whom such Valid CR infringement claim = improper appropriation + > de minimis
Rights of (Substantial Arnstein v. Porter 2d Cir. 1946 songs, and that Porter had hired stooges
popular music is composed, that wrongfully appropriated something which belongs copying-in-fact
Owner Similarity) to ransack his apartment for song ideas
to
SECTION TOPIC CASE CT YR FACTS HOLDING NB
evidence is so overwhelming that a court would be justified in ordering a directed Total Concept / Overall Feel TEST - even if individual elements are not
Statutory Reproduction
New Yorker cover v. Moscow on the verdict at trial CR'able, analyze the whole unit (for pictoral works) to assess CR'ability
Rights of (Substantial Steinberg v. Columbia Pictures SDNY 1987
Hudson - Bleistein ND Principle implicated here - BAD DECISION - Ct erroneously holds that a lesser degree of similarity
Owner Similarity)
- admitted access and copying; Ct analyzes pictures to find substantial similarity is required for infringement when has admitted access
ordinary observer v. discerning observer standards for substantial similarity Lay observer - generally, substantial similarity is found where the Lay
Statutory Reproduction observer, unless directed to detect the disparities, would be disposed to
Rights of (Substantial Boisson v. Banian 2d Cir. 2001 School Days quilts v. Indian ABC quilts - Discerning observer TEST - filter out the public domain elements and compare overlook them
Owner Similarity) what remains; look at the overall look and feel to look for substantial similarity and - discerning observer test only appropriate when only part of the design is
then remove the non-CR'able elements CR'able (e.g. alphabet constituted part of the design)
Statutory Reproduction Coors commissioned ad where model was
Ambivalent about the dissection approach
Rights of (Substantial Mannion v. Coors Brewing Co. SDNY 2006 dressed and posed exactly like Mannion's
- protectable elements of the Mannion photograph should NOT be viewed in isolation
Owner Similarity) original photo
No infringement (random similarities scattered throughout books); where a satisfies
the Extrinsic TEST, Ct may not grant SJ against by finding no substantial similarity
as a matter of law (LawQ) under the Intrinsic TEST
Statutory Reproduction
Nicky Moonbeam v. Good Night Elmo - Subjective/Intrinsic TEST - substantial similarity of IDEAS - would ordinary,
Rights of (Substantial Cavalier v. Random House 9th Cir. 2002 - Extrinsic TEST allows for prejury dissection and expert testimony
book case reasonable audience would find the works substantially similar in the total
Owner Similarity)
concept/feel?
- Objective/Extrinsic TEST - substantial similarity of EXPRESSION - requires
dissection by expert (plot, theme, mood, setting, pace, characters, sequence of
events)
Swirsky wrote a song that was a minor
Statutory Reproduction
hit; Mariah Carey wrote a similar- Objective factors to consider:
Rights of (Substantial Swirsky v. Carey 9th Cir. 2004 Intrinsic TEST = jury = FactQ; not appropriate for SJ
sounding song that also became a hit; chords, progression, tempo, key, rhythm, genre, etc.
Owner Similarity)
Swirsky sued for copyright infringement.

"Substantial Similarity" abstraction-filitration-comparison TEST for computers:


Altai wrote a derivative program called
For Step (2): filter out...
OSCAR from Computer Associates
Reproduction - (1) Abstraction: court should dissect the allegedly copied programs structure - Merger,
Statutory SCHEDULER program; the program did
(abstraction- and isolate each level of abstraction contained within it . . . this process begins with - Scenes a Faire (mechanical specs of host computer, compatibility
Rights of Computer Associates v. Altai 2d Cir. 1992 the same thing, but only used about 30%
filtration- the code and ends with an articulation of the programs ultimate function requirements, design standards, industry demands, widely accepted
Owner of the code; Computer Associates argues
comparison) - (2) Filitration: successively filter out protectable expression from non-protectable programming practices),
that OSCAR is substantially similar to
material - Public Domain elements
SCHEDULER .'. Infringes
- (3) Comparison: compare what is left as the core of protectable expression

Unlawful Appropriation TEST:


Lexicon = Guide and does not recast, transform, or adapt HP plot (only presents an
Statutory - Quantitatively - how much copying of direct quotations, close
Warner Bros. Entertainment v. Harry Potter Lexicon; ruled to be assortment of plot elements); BUT new and different PURPOSE = derivative work
Rights of Derivative Works SDNY 2008 paraphrasing, and other protectable expression
RDR Books infringement, but not derivative - quantitative test - a troubling amount of direct quotation or close paraphrasing
Owner - Qualitatively - reproducing original expression in fragments or in a
- qualitative test - draws its content from creative, original expression
different order, does not preclude a finding of substantial similarity
Statutory A.R.T. didn't reproduce the work
Mirage Editions v. A.R.T. cut art prints out of book and
Rights of Derivative Works 9th Cir. 1988 - A.R.T. has certainly recast or transformed the individual images by incorporating
Albuquerque A.R.T. Company pasted them on tiles
Owner them into its tile preparations
Statutory A.R.T. took individual art pieces (as
More like framing a picture; binding prints to tile does not recast or transform the
Rights of Derivative Works Lee v. A.R.T. Company 7th Cir. 1997 opposed to cutting art prints from a book)
workholding as such would illegalize most art collectors, framers, preparers
Owner and placed onto tiles
Statutory "Nuke It" was like a sequel, and a CR owner holds the right to create sequels derivative work must exist in a sufficiently stable or permanent form and
Nuke It expansion pack of user-created
Rights of Derivative Works Microstar v. FormGen 9th Cir. 1998 - "Nuke It" exists in a concrete or permanent form and substantially incorporates must substantially incorporate a protected material from the preexisting
levels
Owner protected material (MAP files contained AV info called up by the original game) work in a sufficiently stable and permanent form
"Making available" "distribution" WIPO Article 8 - authors enjoy exclusive right of authorizing any
Statutory
Soccer mom made 24 music files available - distribution requires dissemination (transfer of ownership) and publication communication to the public of their works, including the making
Rights of Distribution Capitol Records v. Thomas D. Minn. 2008
over Kazaa - Charming Betsy Doctrine - adopt the interpretation that allows the US to comply available in a way that the public may access these works at a place/time
Owner
with treaty obligations individually chosen by them
Canonical "First Sale Doctrine" case; 109(a) First Sale Doctrine - "[T]he owner of a particular copy or
Statutory
Distribution (First publisher had included instructions to CR statutes do not create the right to impose a limitation at which the book shall be phonorecord lawfully made under this title, or any person authorized by
Rights of Bobbs-Merrill v. Straus SCOTUS 1908
Sale Doctrine) booksellers not to sell the book for less sold at retail by future purchasers (no K'ual privity) such owner, is entitled, without the authority of the copyright owner, to
Owner
than a dollar sell or otherwise dispose of the possession of that copy or phonorecord."
ReDigi operates a website offering users First sale doctrine applies ONLY to the particular copy that has been sold by the CR
Statutory First Sale Doctrine still protects a lawful owners sale of her particular
Distribution (First the ability to resell (and buy) digital music owner
Rights of Capitol Records v. ReDigi SDNY 2013 copy (i.e. copy may be sold on the hard-drive, ipod, or other memory
Sale Doctrine) files, including those songs where Capitol - ReDigi service infringes reproduction right by making another copy on cloud server
Owner device onto which the file was originally downloaded.)
Records holds CRs - also violates the right of distribution with the electronic file transfer
First Sale Doctrine applies to goods manufactured outside of US and CR is not
Statutory Distribution limited by geography National Exhaustion - sale within a particular national market exhausts
Kirtaeng import Wiley books and resell at
Rights of (Importation & Kirtsaeng v. Wiley SCOTUS 2013 - First Sale Doctrine applies to all copies legally made anywhere (not just in US) first sale rights within that particular national market
lower price
Owner Exhaustion) - wherever a copy of a book is first made and sold, it can be resold in the US w/o - International Exhaustion - sale anywhere is exhaustion everywhere
permission from publisher

Cable buffer in a DVR system; Cablevision


sends viewing stream and DVR stream; To determine whether a transmission is made to the public, consider only the
Statutory
Cartoon Network v. CSC Cartoon network argues that the buffer potential audience for that particular copy of the CR'd work
Rights of Public Performance 2d Cir. 2008
Holdings and playback storage are unauthorized - playback transmissions are made to [given subscribers] using a copy made by that
Owner
copying, and the playback itself is public subscriber . . . not to the public
performance
SECTION TOPIC CASE CT YR FACTS HOLDING NB
Aereo offers an online live streaming
(re: DIRECT INFRINGEMENT claim) "Transmit" = to communicate by any devise or process whereby images
Statutory service of broadcast TV programs
Subscribers = PUBLIC or sounds are received beyond the place from which they are sent
Rights of Public Performance ABC v. Aereo SCOTUS 2014 (subscribers can view live and time-
- Public means non-owners or possessors of underlying work - "Perform" = showing scenes in any sequence and making any part of
Owner shifted streams of over-the-air television
- Public does not need to be situated together spatially or temporally them audible
on Internet-connected device)
Statutory
Google indexed thumbnails of Perfect 10s Google has not fixed the full-size images anywhere; HTML code calls the images up
Rights of Public Performance Perfect 10 v. Amazon 9th Cir. 2009
models and linked to full-size displays from locations on the Internet
Owner
Where only the sound recording is licensed, the issue is whether the use
of the underlying composition is substantial enough to sustain a claim of
Statutory Held de minimis use - the average audience would not recognize the appropriation
Musical Works, Sampling; Beastie Boys used a three-note infringement
Rights of Newtown v. Diamond 9th Cir. 2004 - sampling involves fragmented literal similiarity, and the dispositive question is
Sound Recordings sample from a jazz song - "substantiality" is measured by considering the qualitative and
Owner whether the copying goes to trivial or substantial elements
quantitative significance of the copied portion in relation to copier's work
as a whole
"Get a license or do not sample"
Statutory Sampling; NWA used a George Clinton - Performers may duplicate the work (record the work themselves) w/o actually
Musical Works, Bridgeport Music v. Dimension
Rights of 6th Cir. 2005 sample and admits that NWA used the copying
Sound Recordings Films
Owner sample - Market will control license prices
- Sampling is never accidental
Gilliam may sue for derivative work rights from script (he holds uncontested rights) moral rights do not exist in U.S. CR law. but contents that the economic
Statutory - allegation of presenting a distorted version of the work will fall under 1125(a) incentive for artistic and intellectual creation that serves as the
Monty Python sues over edited version of
Rights of Moral Rights Gilliam v. ABC 2d Cir. 1976 (Lanham unfair competition) foundation for American copyright law cannot be reconciled with the
show; CR transferred by K
Owner - "right of integrity" claim = must show injury to reputation, balancing... (1) Aus inability of artists to obtain relief for mutilation or
view of the harm (subjective) & (2) public view (objective) misrepresentation . . . .
Dastar took an old Twentieth Century
Statutory Film series from the public domain and origin = the producer of the tangible product sold in the marketplace
Moral Rights Dastar Corp v. Twentieth
Rights of SCOTUS 2003 repackaged it w/o attribution; TWF - right to copy and to copy w/o attribution passes to the public upon expiration of CR
(Lanham Act) Century Fox
Owner argues that this is false designation of - Lanham Act does not grant a moral right of attribution for public domain works
origin under Lanham Act
Statutory "Training Ground for Democracy" Buchel
Moral Rights VARA codifies the rights of attribution and integrity to visual arts and applies to
Rights of MassMoCA v. Buchel 1st Cir. 2010 (famous artist) football-field installation at
(VARA) unfinished, fixed works
Owner MassMoCA
Martin did not prove "willful" destruction of his sculpture
Statutory Martin (local artist, not famous) sues "Recognized stature" TEST:
Moral Rights - Au of a work of visual art shall have the right to prevent any destruction of a work of
Rights of Martin v. City of Indianapolis 7th Cir. 1999 Indianapolis under VARA for destroying - Visual arts viewed as meritorious
(VARA) recognized stature, and any intentional or grossly negligent destruction of that work
Owner his sculpture - Recognized by art experts, other members of the art community
is a violation of that right
Netcom is not liable, bcsome element of volition or causation is required (or else
Church of Scientology v. alt religion Infringement is STRICT LIABILITY
everyone who loads the posting board is liable for copying)
RTC v. Netcom On-Line Scientology BBS; ARS board posted
Infringement Direct N.D. Cal. 1995 - storage on s system of infringing copies and retransmission to other servers is
Communications Services excerpts from the work of Hubbard; - Policy - Imposing liability here would not serve a deterrent effect, and
not a direct infringement (by BBS operator) of reproduction right when copies are
Church of Scientology suing Netcom (ISP) would hinder the expansion/uses of the Internet
uploaded by an infringing user.

Cable buffer in a DVR system; Cablevision


An intermediary (technology developer/ISP) is not directly liable for infringement
sends viewing stream and DVR stream;
where it is not responsible for the volitional act that causes the infringing conduct
Cartoon Network v. CSC Cartoon network argues that the buffer
Infringement Direct 2d Cir. 2008 - "transmission to public" - must discern who is capable of receiving the performance
Holdings and playback storage are unauthorized
being transmitted
copying, and the playback itself is public
- Here, only specific customer who made the specific copy .'. "public performance"
performance

Cherry Auction is both vicariously and contributorily liable (Evidence of at-will ability Vicarious:
to terminate a tenant supports a finding of right and ability to supervise) - Legal Right + Practical Ability (to Control)
- Direct financial benefit
Vicarious Liability,
Fonovisa (Latin music recordings) v. swap - VICARIOUS - even in the absence of an employer-employee relationship one may - No knowledge of specific instances requirement
Infringement Contributory Fonovisa v. Cherry Auction 9th Cir. 1996
meet (vendor booth fair) be vicariously liable if he has the right and ability to supervise the infringing activity
Infringement
and also has a direct financial interest in such activities" Contributory:
- CONTRIBUTORY - one who, with knowledge of the infringing activity, induces, - Knowledge
causes or materially contributes to the infringing conduct of another - Induces or materially contributes to

No affirmative duty for ISPs to monitor sites (3P websites posting infringing
ISPs w/ knowledge of specific instances have an obligation to take
thumbnails and images)
affirmative steps to remove content
Vicarious Liability,
Google indexed thumbnails of Perfect 10s
Infringement Contributory Perfect 10 v. Amazon 9th Cir. 2007 - CONTRIBUTORY - Ct remands for factual inquiry into whether Google had
models and linked to full-size displays CONTRIBUTORY - ISPs knowing failure to prevent infringing actions
Infringement reasonable and feasible means for limiting access to infringement
can create liability; computer system operators with actual knowledge
- VICARIOUS - Google does not contract with image posters, and filtering technology
may be liable
is not available; advances in filtering tech could create liability!

CONTRIBUTORY liability requires direct connection to infringement


- Here, cc companies did not have this connection; did not help locate and are not
Visa continues to process credit card
Vicarious Liability, used to distribute the images
payments to websites that infringe Perfect J. KOZINSKI (Dissent) - cc companies knowingly provide a financial
Infringement Contributory Perfect 10 v. Visa International 9th Cir. 2007
10's IP after Perfect 10 notified them bridge between buyers and sellers of pirated works
Infringement VICARIOUS liability requires right and ability to control
about those infringing websites
- the mere ability to withdraw a financial carrot does not create the stick of right
and ability to control
SECTION TOPIC CASE CT YR FACTS HOLDING NB
DMCA 512(c)(A)(i) - service provider needs actual knowledge; must
YouTube not liable show that service provider had specific knowledge of specific
infringement
Viacom sued YouTube alleging that - YouTube knows theres infringement but this general knowledge isnt enough to
OSP Liability Viacom International v. YouTube engaged in infringement by make them responsible for their users infringement DMCA 512(c)(1)(A)(ii) (red flag test) - no duty to monitor BUT, if
Infringement 2d Cir. 2012
(DMCA) Youtube allowing users to upload and view Viacom - YouTube must have a specific awareness of specific instances of infringement and no ISP becomes aware of red flag, then ISP lose safe harbor if takes no
videos right to control the infringing activity action
- Control satisfied by ability to control the conduct (not just block access) = high - subjective awareness - whether service provider was aware of red flag
levels of control, purposeful conduct, or direct involvement with infringing activity - objective awareness - whether infringing activity would be apparent to
a reasonable person
9th Cir. affirmed - fair use arises procedurally as an affirmative defense
OSP Liability "Let's Go Crazy" Prince song in the back AND CR holders have a "duty to consider in good faith and prior to
Infringement Lenz v. Universal Music N.D. Cal. 2008 CR owners must consider fair use before issuing DMCA takedown notices
(DMCA) of Youtube video of young kids gettin' it sending a takedown notificationwhether allegedly infringing material
constitutes fair use"
Staple Article of Commerce Doctrine - "if the product is widely used
Device Mfr Liability VCRs have commercially significant noninfringing uses and .'. not liable for
Infringement Sony v.Universal City SCOTUS 1984 Sony Betamax case; device mfr for legitimate, unobjectionable purposes need merely be capable of
("Inducing") contributory infringement
substantial noninfringing uses" then NO LIABILITY
Liability fordecentralized P2P file-sharing Doctrine of Inducement - one who distributes a device with the object
Grokster mere conduit of illegal activity (not facilitator like Napster) and not directly
Device Mfr Liability service (e.g. Kazaa, Morpheus) premised of promoting its use to infringe copyright, as shown by clear expression
Infringement MGM v. Grokster SCOTUS 2005 liable for infringement (no actual knowledge, did not partake, did not monitor)
("Inducing") on objective promotion or inducement of or other affirmative steps taken to foster infringement, is liable for the
infringement resulting acts of infringement by third parties
4 elements to Inducement:
Infringed! Added factors to "inducing" (1) distribution of a device or product
7 film studios sued Gary Fung, the owner
OSP Liability Columbia Pictures Industries - DMCA safe harbor does not apply, bc Fung had "red flag" knowledge (2) actual infringement - users of isoHunt infringed by uploading
Infringement 9th Cir. 2013 of isoHunt (bitTorrent), for contributory
("Inducing") v. Fung - VICARIOUS - financial benefit (revenue stream dependent on broad availability of torrents
infringement of CR'd works
infringing materials) + ability to control (went beyond just removing access) (3) object of promoting its use to infringe CR - "Box Office movies"
(4) causation - just need show acts of infringement by 3Ps
Harper wins;
(1) purpose/character of use - Nation wanted to make money CR is allied with 1Am.!
Cultural Harper & Row Publishers v. Nation leaked some of President Fords (2) nature of CR'd work - CR narrower wrt unpub'd work
Fair Use SCOTUS 1985
Interchange Nation Enterprises forthcoming biography (3) amount/substantiality used - exact quotation of qualitatively important NO "public figure" exception - public interest concern was important
passages wrt Kennedy assassination video; nonfiction generally gets more fair use
(4) effect on market - Ford lost serialization deal with Time magazine
"Parody" special consideration! - Parody needs to mimic an original
(1) transformative use - rest of the lyrics are satirical; different meaning/message
to make its point, and so has some claim to use the creation of its victims
(2) published
Cultural "Oh, Pretty Woman" song (rap); Roy imagination
Fair Use Campbell v. Acuff-Rose Music SCOTUS 1994 (3) parodies must mimic original
Interchange Orbison v. 2 Live Crew
(4) successful parodies may naturally damage the commercial value of the original
cf. Satire can stand on its own two feet and so requires justification for
work they lampoon, but not likely a market original owner would enter
the very act of borrowing

(1) SAT is not transformative and therefore not a parody (if anything, the SAT is
more of an homage)
Cultural Castle Rock Entertainment v.
Fair Use 2d Cir. 1998 Seinfeld Aptitude Test (S.A.T.) (2) work was fictional, pub'd
Interchange Carol Publishing
(3) infringement was substantial (Qualitative & Quantitative)
(4) market effect was clear - is a market Seinfeld might want to enter

work was transformative and fair use


(1) images were shrunk and mixed in w/ other images, constituted an inconsequential
"Illustrated Trip" book; collage of Grateful
Cultural Bill Graham Archives v. part of the work
Fair Use 2d Cir. 2006 Dead images used some Bill Graham
Interchange Dorling Kindersley (2) use was transformative; historical rather than creative use
photos
(3) use of entire photographs was necessary for any use at all
(4) negligible

Looks at "transformativeness" of Prince's art ("reasonably be perceived")


Prince (appropriation artist) takes "Yes
Cultural - most of Prince's works were "transformative" to a "reasonable observer" .'. fair use
Fair Use Cariou v. Prince 2d Cir. 2013 Rasta" pics and uses them to make art;
Interchange - held that district court erred in saying that the only way a work can be
exhibits and then sells
transformative is if that work comments on the original work (too narrow!)

Disassembly (reverse-engineering) is fair use where it is necessary to gain access to a


work for independently creative purposes
Accolade reverse-engineered and
(1) purpose -modestly transformative bc permits PlayStation games on the
Fair Use Technology Sega Enterprises v. Accolade 9th Cir. 1992 disassembled Sega games in order to
computer; favors Connectix
make its own compatible cartridges
(2) nature - disassembly necessary to access the work; favors Connectix
(3) substantiality - entire BIOS copied; favors Sony
(4) market effect - transformation takes it out of Sonys market

Ct rules in favor of Google on the merits of its significant transformative use against
Perfect 10s hypothetical mobile phone use

(1) purpose - highly transformative; indexing for search; favors Google, outweighs
Google indexed thumbnails of Perfect 10s
Fair Use Technology Perfect 10 v. Amazon 9th Cir. 2007 superseding mobile phone and commercial use
models and linked to full-size displays
(2) nature - images are creative in nature; slightly favors Perfect 10
(3) substantiality - entire photo must be copied for use; neutral factor
(4) effect on market - thumbnails may be used on mobile phones, but impact is
hypothetical; neutral factor

(1) purpose - Full-text searchable database is quintessentially transformative use


Libraries + Google created a search and result of word search is different in purpose, character, expression, meaning and
database of scanned books which shows message from book
Fair Use Technology Author's Guild v. HathiTrust 2d Cir. 2014
number of times a term appears in books (2) nature - limited, bc transformative purpose (Cariou)
and what page (3) substantiality - 100% text reasonably necessary (Library purposes)
(4) effect on market - secondary use is not a substitute for the original, little harm
SECTION TOPIC CASE CT YR FACTS HOLDING NB
General publication occurs:
MLK maintained copyright in his speech;
CBS aired without asking permission;
(1) if tangible copies of the work are distributed to the general public in
Estate of Martin Luther King issue is whether the public delivery of Ct holds that Kings oral delivery general publication
Due Diligence Formalities 11th Cir. 1999 such a manner as allows the public to exercise dominion and control
Jr. v. CBS the speech constituted a general - distribution to news media is only limited publication
over the work
publication of the speech so as to place it
(2) if the work is exhibited or displayed in such a manner as to permit
in the public domain
unrestricted copying by the general public

DISSENTS:
Eldred maintained a website of public Ct holds CTEA complies with the limited times clause; also is rational in order to - J. STEVENS - Congress has failed to protect the public interest in free
domain works; sued on grounds that the comply with the Berne Convention and in light of demographic [e.g. longevity], access to the products of inventive and artistic genius
Due Diligence Duration Eldred v. Ashcroft SCOTUS 2003
1998 Copyright Term Extension Act economic, and technological changes - J. BREYER - [rational basis review] (1) extended term benefits are
(CTEA) was unconstitutional - extended CR is generally compatible with First Amendment private, not public; (2) threatens to undermine expressive values of
copyright; (3) unsupported by objectives in IP clause

Woolrich wrote some murder mysteries


if the author dies before the renewal period, then the assignee may continue to the
and sold (assigned) the rights to make a CR owner's right to permit the creation of a derivative work passes to the
use the original work only if the authors successor transfers the renewal rights to the
movie based on his story (derivative heirs of the Au of the work, who are not bound by the original Au's
assignee
work); Woolrich died before CR ran out, agreement to permit such use
- Woolrich's promise (to renew for another 28 years and assign to movie studio) was
Due Diligence Renewals Stewart v. Abend SCOTUS 1990 and Abend bought the rights from
an unfulfilled contingency, which is not binding under the principles of K law
Woolrich's estate; Abend renewed the - control of the work reverts back to the Au, or authors successors,
copyright, but refused to assign it to the when renewal comes up. This protects the Au (and heirs) from being
ONLY RELEVANT FOR WORKS PRODUCED BEFORE 1976!
movie studio. When the studio licensed deprived of the surprising value of the work.
the movie to be shown on tv, Abend sued.

Ct holds that the Schoenberg test is too vague and not in accord with fed jx; reaffirms
Bassett wrote a movie about the Pequots; T.B. Harms test as appropriate, and finds that Bassetts claim falls under 1388 (SMJ) Schoenberg (2d Cir., 1992) TEST for CR/K claims:
Bassett v. Mashantucket the Pequots terminated contract and (1) is claim merely incidental to CR?
Litigation Jurisdiction 2d Cir. 2000
Pequot Tribe produced a version of her movie w/o T.B. Harms (2d Cir., 1964) TEST: (2) does the complaint allege a breach of K licensing/assigning the CR?
permission a suit arises under the CR Act if (1) the complaint is for a remedy expressly granted (3) is the breach so material as to create a right of recission?
by the Act, OR (2) the complaint asserts a claim requiring construction of the Act

Paddington Bear creators licensed the


design to Eden in the U.S.; Florelee made
If Paddington granted Eden an informal license to sell Paddington Bear products in
a knock-off pattern on some underwear;
the market in which Florelee soldadult clothingand that informal license was later
Florelee claims that Eden does not have post hoc agreements ok for standing!
Eden Toys v. Florelee confirmed in writing signed by Paddington, Eden may sue in its own name
Litigation Standing 2d Cir. 1982 standing to sue, since it was not the - informal agreements may be grounds to sue if the licensor confirms the
Undergarment - the note or memorandum of the transfer need not be made at the time when the
exclusive licensee of the Paddington agreement post hoc in writing
license is initiated; the requirement is satisfied by the copyright owners later
design on underwear (agreement was
execution of a writing which confirms the agreement
informal and would not stand up under
the written instrument requirement)

In 9th Cir., must (1) demo "real and reasonable" apprehension that will be subject
Au of book re: James Joyce's daughter; to liability if continues to mfr the product that (2) caused by its actions
threatened with CR suit by Joyce Estate; - Ct holds that Au has real and reasonable apprenehsion of CR liability that caused
material that arguably should have fallen by their actions
Litigation Standing Schloss v. Sweeney N.D. Cal. 2007 under the aegis of fair use was stripped
from the book; Au created electronic " does not need to being distribution of potentially infringing product to have
supplement to book to house potentially controversy ripe for declaratory judgment adjudication"
infringing material - product presented to the court must be the same product that will be produced if
granted declaration of noninfringement

Chavez brought suit against publishing


CR infringement claim can not be brought against a state entity bc 11Am. provides
arm of the University of Houston to Invalidates the abrogation provisions of the Copyright Remedy
Litigation Standing Chavez v. Arte Publico Press 5th Cir. 2000 immunity to the state
enforce her right in a her CR'd work; UH Clarification Act ("CRCA") of 1990
- property interest in a CR is not a property right protected by Section 1 of the 14Am.
publishing her book w/o her consent

Under 114, registration or


preregistration is a prerequisite for filing If the Legislature clearly states that a threshold limitation on a statutes scope shall
a civil suit; dispute arose regarding count as jurisdictional, then [proceed] . . . But when Congress does not rank a
federal jdx over a class of s that included statutory limitation on coverage as jurisdictional, court should treat the restriction as federal courts may exercise jurisdiction over CRs that are not
Litigation Timing Reed Elsevier v. Muchnick SCOTUS 2010
unregistered CR holders; issue of whether nonjurisdictional..." registered
registration constitutes a jurisdictional - 411(a) is not clearly labeled as jurisdictional, is not located in a jdx-granting
requirement that would remove provision, and admits of congressionally authorized exceptions
unregistered CRs from the federal courts?

Petrella died in 1981, renewal rights equitable defense of laches is not available to CR s in claims for damages
reverted to his heirs (Stewart v. Abend); - laches cannot be invoked as a bar to pursuing a claim for damages brought w/in
equitable defense of laches is not available to CR s in claims for
Litigation Timing Petrella v. MGM SCOTUS 2014 daughter managed to renew screenplay & 507(b)s 3-yr window
damages
sued MGM for "Raging Bull" movie - in extraordinary circumstances, laches may, at the very outset of litigation, curtail
(exploitation of derivative work) the relief equitably awarded
Feltner's TV stations running shows (but
Feltner v. Columbia Pictures if there is to be an award of statutory damages in a CR infringement case,
Litigation Timing SCOTUS 1998 delinquent on royalty payments so license
TV then the opposing party has the right to demand a jury trial
revoked); Columbia sue Feltner
SECTION TOPIC CASE CT YR FACTS HOLDING NB

Ct holds that refraining from injunction is consonant with the CR Acts remedial
scheme and does not amount to compulsory license .'. Galloway retains the right to
sell his house

(1) irreparable injury often derives from the nature of CR violations insofar as they Ebay (US, 2006) factors:
Galloway built a retirement home from deprive the CR holder of exclusive rights - win (1) irreparable injury
Remedies Christopher Phelps &
Litigation 4th Cir. 2007 Phelpss plans without permission; Phelps (2) damages are usually inadequate to remedy CR violations and would entail a (2) damages are inadequate to compensate
(injunction) Associates v. Galloway
seeks to enjoin future sale of the home substantial amount of speculation and guesswork - win (3) balance of hardships favors injunction
(3) injunction against sale would neither undo the prior infringement, nor diminish (4) public interest would not be disserved by a permanent injunction
the chances of future copying, and would be a comparatively draconian burden
insofar as has a substantial interest in living in and selling his house - win
(4) injunction would punitively undermine an ancient reluctance by the courts to
restrain the alienability of real property, disserving the public interest - win

Liability fordecentralized P2P file-sharing Ct rejects MAI approach - skeptical that all infringement is irreparable and can
MAI (9th Cir., 1993) rule as an alternative to Ebay - a permanent
Remedies service (e.g. Kazaa, Morpheus) premised support a presumption of injunctive relief
Litigation MGM v. Grokster N.D. Cal. 2007 injunction will be granted when liability has been established and there is
(injunction) on objective promotion or inducement of - but in this particular case, there is a showing of irreparable harm, and an injunction
a threat of continuing violations
infringement is granted under Ebay
Preliminary Injunction (4 factors):
(1) that the is likely to succeed on the merits,
9th Cir. (in accord w/ 2d Cir.) decided that finding likelihood of success on the
Remedies (2) that is likely to suffer irreparable harm in the absence of
Litigation Perfect 10 v. Google 9th Cir. 2011 [same issue as Perfect 10 v. Amazon] merits NO longer automatically leads to a finding that the would suffer irreparable
(injunction) preliminary relief,
harm if an injunction is not granted
(3) that the balance of equities tips in favor, and
(4) that an injunction is in the public interest

No presumption that infringer's revenues = wholly attributed to infringement


Bouchat created the Ravens logo; asserts
- s are entitled to SJ with respect to any given revenue stream if:
that lower court failed to attribute DISSENT:
Remedies Bouchat v. Baltimore Ravens (1) there exists no conceivable connection between the infringement and those
Litigation 4th Cir. 2003 statutory presumption that infringers Walker (4th Cir., 1994) implies BOP shift to to prove by a
(damages) Football Club revenues
revenues are entirely attributable to preponderance that certain profits are not attributable to infringement
(2) despite the existence of a conceivable connection, only speculation is offered in
infringement
regard to a causal link

direct profits - modifies lower court award as clearly erroneous; Act IV was
MGM used parts of Kismet (MGM's
essentially Kismet and plaintiffs contribution should be set at 75%
Remedies motion picture based off of a musical
Litigation Frank Music v. MGM 9th Cir. 1989 indirect profits - upholds lower court award of 2% of total casino operations
(damages) drama) w/o license in a MGM Grand
prejudgment interest - remands to lower court to enter an award of prejudgment
musical revue "Hallelujah Hollywood"
interest, which should ordinarily be awarded consistently with the Act

no rational deterrent function, consistent with the enforceable scope of


2 video recordings (beatings in 1992 LA Where acts of CR infringement occur mostly was outside US, a CR holder is entitled
U.S. copyright, would be served by making an infringer, whose de minimis
riots) by LANS; NBC copies in US, sends to recovery of the infringers profits attributable to the extraterritorial infringement,
domestic act of infringement leads to widespread extraterritorial
Remedies LA News Service v. Reuters TV via satellite to Euro org; Euro org makes but not actual damages for injuries the infringements caused overseas
Litigation 9th Cir. 2003 infringement, liable for the copyright owners entire loss of value or profit
(damages) International copy and transmits to Reuters; Reuters - Ct carved out a narrow exception to the general rule against extraterritorial
from the non-actionable overseas activities
then shows these videos via feed to its application by allowing recovery of the infringers extraterritorial profits, but
- recognized that the resulting over-deterrence might chill the fair use of
subscribers disallowing recovery of actual damages resulting from the infringement
copyrighted works in close cases

Evenhanded approach - s and s are to be treated alike, but attorney's fees are
Fogerty wrote a song and then sold the only awarded based on equitable discretion Other approaches:
rights to it to Fantasy; Fogerty later wrote - "Equitable discretion" isn't a precise rule or formula, but there are many - Dual standard - prevailing s were generally awarded fees as a matter
Remedies
Litigation Fantasy v. Fogerty 9th Cir. 1996 a similar song and Fantasy sued for CR considerations that could be used to make the determination of course, while prevailing s had to show that the original lawsuit was
(attorney's fees)
infringement (Fantasy was accusing - FACTORS (non-exclusive) - "frivolousness, motivation, objective unreasonableness frivolous or brought in bad faith
Fogerty of plagiarizing himself!) (both in the factual and in the legal components of the case), and the need in - British rule - prevailing party automatically receives fees.
particular circumstances to advance considerations of compensation and deterrence"
An award of atty's fees to the prevailing party in a CR action is left to ct
Remedies Positive Black Talk v. Cash Applies Fogerty factors re: 505 to find that lower ct did not abuse discretion in
Litigation 5th Cir. 2004 "back that ass up" v. "back that azz up" discretion but "is the rule rather than the exception and should be
(attorney's fees) Money Records finding that s were not entitled to atty's fees
awarded routinely"
Gagnon developed custom software for
3 prongs were upheld! 3 prongs for implied license:
AMS through a technical service
Transfer Asset Marketing Systems v. - especially wrt to (3) - Gagnon granted AMS an unlimited, nonexclusive license to (1) did the licensee request the creation of the work?
Contract 9th Cir. 2008 agreement; dispute arose over the
(Implied License) Gagnon retain use, and modify the software (2) did the licensor deliver it to the licensee?
assignment of rights to the software once
- bc consideration was paid, license was irrevocable (3) did the licensor intend that the licensee copy and distribute the work?
agreement ended

NYT, in licensing back issues of the newspaper for inclusion in electronic databases
such as LexisNexis, could not license the works of free-lance journalists contained in
LexisNexis case; NYT argued that
the newspapers
submission of articles to the Lexis
Transfer DISSENT:
Contract New York Times v. Tasini SCOTUS 2001 database constituted a revision under
(Revision Privilege) - database is not a revision, but like a new form of library in which all individual transfer of NYT issue into a collection of files constitutes a revision
201(c), allowing NYT to maintain
articles are available
ownership in the new medium
- NYT is liable for infringement by submitting the articles to be published in an
entirely new form

Rite of Spring and Fantasia; Stravinsky n. 4:


Ct held that evidence that a nascent market for video tapes existed as early as 1939
argues that license to use the Rite of "Motion picture producers would be reluctant to explore and utilize
- the burden fell on Stravinsky, if he wished to exclude new markets arising from
Boosey Hawkes Music Spring only extended to movies and not innovative technologies for the exhibition of movies if the consequence
subsequently developed motion picture technology, to insert such language of
Contract New Uses Publishers v. Walt Disney 2d Cir. 1998 videos; K gave license to record in any would be that they would lose the right to exhibit pictures containing
limitation in the license
Company manner, medium or form and stipulated licensed works."
that music may be used in whole or in - presumption in favor of distributors - if had to renegotiate all rights
- broad language put burden on licensor to foresee technological developments
part and may be adapted..." every time they developed new technology, might not develop new tech
SECTION TOPIC CASE CT YR FACTS HOLDING NB
Boosey distinguishable because (1) rights granted were broader, (2) the
movie-to-video transition is less significant, but also (3) the movie was a
Random House K gave the right to print, publish and sell the work in book form
separate work from the music, and (4) it cannot be said that licensees
ebook case; Au's K'd with Rosetta to make - Ct finds that this is limited, by definition, to old-style books; also, separate clauses
Random House v. Rosetta such as book publishers and movie producers are ipso facto more likely to
Contract New Uses SDNY 2001 ebooks; Random House sued for about braille books, etc., implied that other forms were not covered
Books make advances in digital technology than start-up companies (counters
infringement, tortious interference with K - Ct holds that correct remedy for breach of non-compete clauses would be a suit
n. 4)
against the Au's
- usually Ks are construed against the drafters
Vernor re-sold copies of AutoCAD on US v. Wise (9th Cir., 1977) interpreted licensing Ks to determine whether they Ct recognizes that the MAI (trio series of cases) conflict with Wise by
W.D.
Contract Licensing Vernor v. Autodesk 2009 EBay; AutoCAD argues that it never constitute transfers of ownership deferring to CR holders characterization of licensing agreements, so Ct
Wash.
sells software to anyone, only licenses it - Ct applies to find that AutoCAD Licenses were transfers chooses Wise
"CR holders who engage in open source licensing have the right to control the
For-profit model RR computer program
modification and distribution of CR'd material
used open source program during
Contract Licensing Jacobsen v. Katzer Fed. Cir. 2008 - Ct holds for CR holders who expressly stated the terms upon which the right to
development; did not follow instructions
modify and distribute the material depended and invited direct contact if a
(re: attribution, etc.) for using the code
downloader wished to negotiate other terms

Video Pipeline offers short previews of


Ct extends Misuse Doctrine to CR and holds that it may be applicable outside of
Disney movies online; claims that Disney Misuse Doctrine - courts may appropriately withhold their aid where
anticompetitive situations
is misusing its CR via restrictive Ks that the is using the right asserted contrary to the public interest
Contract Misuse Video Pipeline v. Buena Vista 3d Cir. 2003 - does not rule against Disney here, since there is no evidence that the K clauses limit
limit criticism (Ks maintain that websites - SCOTUS has not recognized CR misuse as a doctrine, bc usually related
the publics ability to obtain criticism
featuring previews cannot also feature to allegations of anticompetitive behavior
- misuse may only be used as a defense
criticism)

Napster brings suit in regard to a Antitrust violations can give rise to copyright misuse if those violations offend the
restrictive contract it entered into with public policy behind the copyright grant (Lasercomb)
In re Napster Copyright must establish a nexus between the anticompetitive actions and the 's
Contract Misuse N.D. Cal. 2002 MusicNET (prevents Napster from - wrt Napsters motion for further discovery, Ct holds that Ks raised "specter of
Litigation power over the material
obtaining individual licenses from possible antitrust violations" related to CR market power dominance
MusicNet competitors) - Napster can proceed

hackers argue:
Violated 1201(a)(2)
(1) CSS did not effectively control access bc they were able to break it;
Hackers created DeCSS to break Ct says "whether or not it is a strong means of protection doesn't matter
(1) that computer programs are protected speech, but does not decide on 1Am. issue
Technological Access v. Copy Universal City Studios v. encryption on DVDs; argued did not (2) the created DeCSS within the meaning of 1201(f) (reverse
SDNY 2000 with DVD copying
Protections Protection Reimerdes violate DMCA and that DMCA violates engineering for interoperability); Ct says neither of the s . . . was
(2) there may be no... liability for linking to a site containing circumvention
1Am. involved in good faith encryption research
technology... absent clear and convincing evidence that: (a) knows the tech is on the
(3) fair use; Ct says that Congress has essentially prohibited fair use of
site, (b) knows the tech is illegal, AND (c) Dintends to distribute it"
encrypted copyrighted material through the DMCA