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the right to make copies

Notes:
    A later author may copy a prior work by mixing fragments of a prior work into a new work, or by substituting new words in the place of the prior author's expression. The substitution of new words raises the issue of non-literal copying and whether an author has right to claim a particular style of expression.

    Keep the fair use doctrine in its proper place. It is a defense to infringement and does not disprove the occurence of infringement.

    Note the intersection of technology and copyright enforcement; digitized information can be searched quickly for characteristic patterns. An author might search an online database for a string of words to detect copyists.

    According to Judge Clark's dissent in ARNSTEIN, some similarities are of such a simple and trite character that the dissected comparison of two compositions does not prove infringement. Clark's analysis would forgive de minimus copying.

    A plaintiff might prove copying by proving defendant's access to his work, or by proving the works are too similar to have been created independently.
    DZ: These methods of proof might substitute for each other; proof of similarity might make up for scant evidence regarding defendant's access to plaintiff's work.

    Questions subsequent to merger analysis. What amount of variance is possible? Is there sufficient room for originality and competition?

    Essential themes and characters are unprotected "ideas" in the public domain.

    In some cases, the defendant might argue that he based his work on the same public domain source that plaintiff used as inspiration for his work. Defendant might have argued this in SHELDON, except that there was strong evidence that defendant had copied book material directly from an earlier play based on real events. Facts are not protected. Also, there might be a finite number of ways to accurately express what happens in the real work (merger issue).

    Protection of a work against non-literal copying might be based on the copyrightability of arranging and sequencing underlying material is a compilation.

    Applying an abstraction test to creative works. Unprotected elements excluded: public domain material; facts; ideas; expressions that have merged with function. Elements range a spectrum between broad, unprotected ideas to specific, protected expressions. Of course, a very strict filtration of unprotected elements will leave little basis for a finding of infringement (and vice versa).

    Applying a look and feel test to creative works. Increasingly popular approach, reasoned like ROTH WORKS (protection of simple greeting cards). Courts might pay particular attention to the memorable parts of the original work, including the characteristic rhythms and patterns that made the author's work memorable. Consider the decision in ALEXANDER v. HAILEY where court held the elements common to defendant's novel Roots and plaintiff's work were commonplace depictions of the Old South.

    Cases where non-fiction dramatized. Examples include the production of creative works from the John Dillinger's Not Dead Theory, the events underlying Amy's Irish Rose, the source material of Roots. Although the underlying facts of a non-fictional work are unprotected, the author's selection and arrangement are protected.

    Cases involving the commercial reproduction of animal parts. Where sculptural work made with reference to a particular living model, there may be a small range of possible expressions. Examples include BANNANA REPUBLIC (involving the production of stuffed zebra heads, defendant wins merger issue) and ANIMAL FAIR (involving bear slippers, defendant loses the merger issue).



Issues:
    Porter is a famous musician. Arnstein is a chronic litigant. Should this enter the judicial opinion?

    How can a plaintiff prove his work was copied? If the plaintiff was able to produce the work independently, prehaps the defendant was too. A basic question is whether courts wants to ferret out plagarists or preserve narrow authorship right.

    What level of wilfullness required to establish that defendant copied the plaitiff's work? Consider BRIGHT TUNES MUSIC and the sleepwalker defense in substantive criminal law.

    At some point does a musical motif become so essential to a particular form of music that copyright protection raises merger issues? In other words, at some point does an innovative sound become standard faire? Is the musical vocabulary so limited that expressions will necessarily be repeated? Is the musical vocabulary more limited than the vocabulary of written words?

    Who should determine whether a musical motif is too common for copyright protection: the judge or the jury? Is expert opinion helpful? Is it a matter of law or fact?

    When is it appropriate to hear expert testimony? Some opinions in literary works cases hold that it is inappropriate to use experts because the standard is ordinary observer. But the technical complexity of some writings may require expert testimony (e.g. computer softare cases). Consider the litigation costs involved in retaining and examining expert witnesses. Also whether an expert is likely to overwhelm the jury with critical analysis.

    Is it possible for an artist to "purify" his illicit source of inspiration by combining his work with another's independent contribution? Consider the fact that George Harrison wrote the music for "He's so Fine" in collaboration with other artists.

    What interests does infringement threaten? Perhaps a copyist is trying to appropriate another's market and profits. That formulation implies that plaintiff and defendant seek similar audiences. What about personal and natural rights theories of ownership? Do these theories support an author's action against misuse of his work? Consider case where the defendant is alleged to have infringed the "look and feel" of the plaintiff's work.

    Is it important to allow subsequent artists to rework the creations of their predecessors? Note that reworking master paintings was a key element of a classic art education. Consider how Bach embroidered new musical patterns on Vivaldi's compositions and built new themes by this process. Compare artistic evolution to precedent-based law.

    Copyright protection does not forbid later artists from using a prior work. Later artists may still bargain for a license to use the work. Do we want to encourage licensing agreements?

    Consider case where later artist samples prior work and plays in reverse.

    What are the protected elements of a fabric design? Don't fabric styles like plaid and paisley merged together along a common theme?

    Many creative works apply a general theme to a particular context. Sometimes the particular language and characters are merely place holders that establish theme in a context that the audience can appreciate. Consider the movie Clueless as an adaption of Austen's Emma, or the musical West Side Story as an adaptation of Shakespear's Romeo and Juliet. Does the production of these parallel works prove that there is a room for creative expression in the selection of context, or do these works prove the range of expression is circumscribed by the existence of transcendent themes?

    Are there a finite number of literary themes and characters? Some literary critics have argued that there are a finite number of dramatic situations. Similarly, psychologists like Jung have argued that particular archetypes and symbols are essential reference points of human understanding.

    How should a judge decide a case of non-literal copying? Consider J. Hand's approach in NICHOLS and SHELDON of abstracting the creative subject matter in concentric circles with different levels of protectability. Is there are principled way to distinguish the work of "serious" and "rip-off" artists? Would it be helpful to know how a work was produced? Are these cases necessarily decided on an ad hoc basis? Should these cases be decided with reference to "look and feel"?

    Deciding which test of infringement to apply is often driven by the result a judge wants to reach in a given case. Are the tests reliable in any sense? Are the test of similarity anything more than word formulas? Are the methodological tools too flexible and indeterminate to produce predictable results? Should different tests of "substantial similarity" be used depending on the underlying subject matter in dispute? Some academic argue (Kaplan) that courts should stop protecting plots and works of fiction because the results are too incoherent.

    Do artists have a characteristic style that is essential to their livelihood and deserving of copyright protection? Consider how an artist like Monet produces a series using the same subject matter using slightly varied expressions. Consider also as example, how a writer like Hammett develops a particular character who appears in a series of fictional works. If style and expression are the same thing, does an artist sell his style when he transfers ownership of a painting or novel? Should an artist be permitted to do such a thing?



Illustrative Cases:
    Arnstein v. Porter (2d Cir., 1946)
    J. Frank establishes in this case a methodology for evaluating the facts in an infringement action. A litigant needs to establish: (1) that a copyright exists, (2) evidence of copying (defendant might admit or circumstances might establish access) (similarities also help to prove copying) (3) the copying was illicit (not protected by a privilege). Frank further notes that permissible and illicit takings are distinct. A plaintiff must establish that the original elements taken were elements protected by copyright.

    Dawson v. Hinshaw Music, Inc. (4th Cir., 1990)
    Determination of substantial similarity should be made from the perspective of the intended commercial audience. Where the work is intended for a specialized audience (e.g. choral compositions or computer programs), specialized expert testimony is relevant.

    Bright Tunes Music Corp. v. Harrisongs Music, Ltd. (So. Dist. NY, 1976)
    George Harrison's "My Sweet Lord" contains a melody reminiscent of the Chiffon's "He's so Fine" which was a popular song Harrison likely heard on the radio. The Court held that Harrison's subconscious copying of an earlier composition is actionable infringement. According to the court, even though Harrison did not deliberately plagiarize the eariler work, "his subconscious knew . . . a song his conscious mind did not remember."

    Peter Pan Fabrics, Inc. v. Martin Weiner Corp. (2d Cir., 1960)
    J. Learned Hand. Fabric, fashion, and jewelry designs have questionable copyrightability. The original is protected where the design is separable from its utilitarian purpose. An ordinary observer might conclude that some similarities are immaterial and unrelated to the overall character of the two works. The issue is whether the similiarities or differences predominate from the perspective of an ordinary observer.

    Chosun International, Inc. v. Chrisha Creations, Ltd. (2nd Cir. 2005) (Full Text - PDF)
    Halloween costumes may be subject matter of copyright law because some elements, like the head portion, incorporate creative design elements that are separable from the utilitarian function of clothing the costume wearer.

    Galliano v. Harrah’s Operating Co. (5th Cir. 2005) (Full Text - PDF)
    Casino uniforms cannot be the subject matter of copyright where the garmet designs do not have marketable quality independent of their utilitarian function as casino uniforms.

    Herbert Rosenthal Jewelry Corp. v. Kalpakian (9th Cir., 1971)
    Case concerning production of "bee pin" jewelry. Despite strong circumstantial evidence of copying, there is no infringement where copyright monopoly would preclude access to ideas. The merger doctrine stated: "The guiding consideration in drawing the line is the preservation of the balance bwtween competition and protection. . . . When the idea and its expression are thus inseparable, copying the expression will not be barred, since protecting the expression in such circumsatnces woud confer a monopoly of the idea upon the copyright owner free of the conditions and limitations imposed by the patent law."

    Nichols v. Universal Pictures Corp. (2d Cir., 1930)
    Judge Learned Hand. Plaintiff author claims defendant's motion picture infringed on his play. Although at some abstract level, the works are substantially similar, the similarity exists in unprotected ideas, themes, and standard literary devices. It is for the lay observer to distinguish between illicit and permissible copying and not expert witnesses nor piece-by-piece analysis of the elements of the two works. The distinction between illicit and permissible copying is related to the distinction between expressions and ideas.

    Sheldon v. Metro-Goldwyn Pictures Corp. (2d Cir., 1936)
    Judge Learned Hand. Action for non-literal copying where defendant copies the sequence of original expressive details. Movie producers want to use real life tragedy as the subject matter of movie. Evidence of public domain content is more relevant to defendant's copying than the copyrightable of plaintiff's work. It is relevant "so far as it may break the force of the inference to be drawn from the likeness between the work and the putative piracy." The copyrightability of a sequence of events in a literary work varies over a continuum: from unprotected ideas, to thinly protected themes, to an arguably protected plot, to almost certainly protected dialogue and narration. Well quoted line: "No plagarist can excuse the wrong by showing how much of the work he did not pirate."

    Educational Testing Services v. Katzman (3d Cir., 1986)
    Case concerning standardized test questions. Princeton Review copied the Educational testing service because some review questions were so similar that an ordinary reasonable person would conclude they were copied.

    Steinberg v. Columbia Pictures Industries (So. Dist. NY, 1987)
    Plaintiff's depiction of New York City on the cover of New Yorker magazine is similar to the Moscow on the Hudon poster used to promote defendant's movie. The issue is whther similarities or differences predominate. There are a number of similarities, but most are not protectable elements of the plaintiff's work (typeface, perspective, theme of New York's central place in world, buildings, placement of shadows. The court holds that differences between the work (e.g. that they are not identical) does not disprove existence of substantial similarity.

    Kisch v. Ammirati & Puri, Inc. (So. Dist. NY, 1987)
    Photographs set in similar nightclub setting. Where there are both similarities and differences between photographs, a rational trier of fact might find substantial similarities.