intellectual property boston college law school january 23, 2008 copyright – rights –...

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

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Page 1: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

Intellectual Property

Boston College Law School

January 23, 2008

Copyright – Rights – Reproduction

Page 2: 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

Page 3: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

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”?

Page 4: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

Bright Tunes v. Harrisongs

Page 5: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

Arnstein v. Porter

Access

Similarity

Actual Copying

Jury

No Jury

Striking Similarity

No Similarity

Arnstein

Webber

BeeGeesHarrison

Page 6: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

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

Page 7: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

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.

Page 8: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

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.”

Page 9: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

Abstractions Test

Idea

Plot Outline

Subplots, Characters

Specific Scenes

Text

Not Protected

Protected

Page 10: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

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

Page 11: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

Shakespeare v. Laurents

Idea

Plot Outline

Subplots, Characters

Scenes

Text

Romeo & Juliet West Side Story?

Page 12: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

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

Page 13: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

Steinberg v. Columbia

Page 14: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

Infringing?

Page 15: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

Copyrighting Styles

Page 16: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

Sampling

Page 17: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

Statutory Limits

• Statutory limits on reproduction right– Public library exceptions– Broadcast exceptions– Compulsory licensing for musical works– Audio Home Recording Act– Fair Use

Page 18: Intellectual Property Boston College Law School January 23, 2008 Copyright – Rights – Reproduction

Next Assignment

• Finish II.E (sections 2 through 4)