Post on 19-Dec-2015
Intellectual Property
Boston College Law School
January 23, 2008
Copyright – Rights – Reproduction
Rights of Copyright Owners
• 17 U.S.C. §106– “Subject to sections 107 through 122, the owner of
the copyright … has the exclusive rights to do and to authorize any of the following:
• (1) to reproduce the copyrighted work …
• (2) to prepare derivative works …
• (3) to distribute copies … to the public …
• (4) … to perform the copyrighted work publicly …
• (5) … to display the copyrighted work publicly …
• (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission
Right to Reproduce
• Elements of infringement action– (1) Actual copying
• Independent creation is not infringing
• Factual issue for the jury
– (2) Improper appropriation• Perspective is the ordinary observer
• Did the copier copy “too much”?
Bright Tunes v. Harrisongs
Arnstein v. Porter
Access
Similarity
Actual Copying
Jury
No Jury
Striking Similarity
No Similarity
Arnstein
Webber
BeeGeesHarrison
Actual Copying
• Methods of proof– Direct evidence
– Circumstantial evidence• (1) Access
• (2) Similarity
• Procedural issues– Issue of fact: for the jury
– Expert testimony is often permitted
– Reviewed on appeal for clear error
Improper Appropriation
• Improper Appropriation– Standard: “substantial similarity”– Perspective: intended audience
• Types of cases– Fragmented literal similarity
• Literal copying of portions of original
– Comprehensive nonliteral similarity• Non-literal copying of ideas, structure, plot,
characters, etc.
Nichols v. Universal
• “Upon any work, … a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out.
• “The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas,’ to which, apart from their expression, his property is never extended.
• “Nobody has ever been able to fix that boundary, and nobody ever can.”
Abstractions Test
Idea
Plot Outline
Subplots, Characters
Specific Scenes
Text
Not Protected
Protected
Nichols v. Universal
Idea
Plot Outline
Subplots, Characters
Scenes
Text
Abie’s Irish Rose The Cohens and the Kellys
No copying
No copying ofprotectible material
Not protectible
Shakespeare v. Laurents
Idea
Plot Outline
Subplots, Characters
Scenes
Text
Romeo & Juliet West Side Story?
Improper Appropriation
• Substantive issues– Standard is “substantial similarity”
– Both quantitative and qualitative
– Generally look to “ordinary observer”• Sometimes modify if intended for a specialized market
• Procedural issues– Issue of fact: for the jury
– Expert testimony generally not permitted
– Reviewed on appeal for clear error
Steinberg v. Columbia
Infringing?
Copyrighting Styles
Sampling
Statutory Limits
• Statutory limits on reproduction right– Public library exceptions– Broadcast exceptions– Compulsory licensing for musical works– Audio Home Recording Act– Fair Use
Next Assignment
• Finish II.E (sections 2 through 4)