Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights –...

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)