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Direct Infringement
• Elements of claim– Ownership of valid copyright– Infringement
• (1) Actual copying– (i) Access
– (ii) Similarity
• (2) Improper appropriation– Substantial similarity
Actual Copying
Access
SimilarityYes
No
Striking Similarity
No Similarity
Arnstein
Webber
BeeGees HarrisonTy
Hypo• Facts
– Plaintiff is a ventriloquist, performs w/ dummy– Dummy uses phrase “You Got the Right One, Uh-Huh”– Has been performing since 1984– Elementary schools, job corp camps, 1984 World’s Fair– Mails info packets to corporate executives, including a Pepsi exec– In 1991, Pepsi launches massive ad campaign– Featuring Ray Charles, singing “You Got the Right one Baby, Uh-huh”
• Questions– Sufficient evidence of actual copying?– Sufficient to get before a jury?
Actual Copying
• 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
• Learned Hand:– “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
• Different Approaches– Subtractive Approach– Totality Approach
• “Total concept and feel”
• Extrinsic and intrinsic tests
• Procedural Aspects– Issue of fact for jury– Expert testimony generally not allowed– Generally reviewed on appeal for clear error