This is the home page for LAW 5328 – Copyright Law for the Spring 2025 edition of the course.
The course will meet on Mondays and Wednesdays from 9:00 am to 10:20 am. The class will meet on ZOOM rather than face to face. Class meetings will be recorded, and the class recordings will be posted afterward to YouTube.
- Syllabus and readings (home page)
- Important course information: materials, mechanics, policies, and grading
- Writing assignments and related instructions
- Open Educational Resources (OER) copyright and permissions information
How to read the syllabus and find the reading assignments
One assignment per class. Except as noted below, each assignment below corresponds tentatively to one class period, though the amount of material to be covered in class, the order of the assignments, and/or the contents of a particular assignment may be changed by prior announcement. Every effort will be made to incorporate new developments in trademark law into the syllabus, where appropriate.
The key cases. Some classes have more cases and pages than others. The key cases are noted with an asterisk (*). For some class meetings, no case is more “key” than others,
The reading materials are online. All of the assigned and optional readings for the course are available online, for free. You can read them online. You can download them to your own device(s). You can print them out. You can even combine them and have them printed and bound, as your own “book” copy. And, of course, you can edit them, annotate them, and cut them and paste them (or parts of them) in other things, such as course outlines. See the Important Course Information page for detailed information about the reading materials. Most of the assigned materials are available on this page as both .DOCX and .PDF files. A handful are available only as .PDF files.
Look up the statute. Within each assignment, the syllabus notes the required reading, including the principal case(s) covered in the text. In addition to the assigned readings, where a case or other material refers to the Copyright Act (Title 17 of the United States Code), students are responsible for locating and reading the section(s) of the Act to which the text refers. At least three free online resources are available for that purpose: One is this free, online version of the Copyright Act hosted at Cornell University. Two is this free online publication of the United States Copyright Office. Three is “Intellectual Property: Law & The Information Society / Selected Statutes & Treaties / 2019 Edition” (James Boyle & Jennifer Jenkins, eds.).
How to read. You still have lots to learn and lots to practice when it comes to reading primary source materials – cases and statutes – in law. How to Read a Legal Opinion by Professor Orin Kerr (UC Berkeley Law School) is an excellent primer when it comes to making sense of a single case. When it comes to making sense of a body of cases, additional tools are needed. My best initial advice is this: read each case both for its function (“what’s the rule?” “what’s the holding?” “what are the relevant facts?”) and also as literature. That may involve reading the case twice, or even three times. As you would do with a novel or a poem, bear in mind that reading involves making sense of settings, characters, motivations, conflicts, and resolutions. Stories, in other words. Stories require reader involvement, meaning both you and also others. What you take away from a novel is based in part on what you know about what other people (teachers, friends, family, colleagues, reviewers) take away from it. Talk to people about what you read. Interpretation is an ongoing, collective, collaborative process. Law often operates the same way: you can and should read cases for what they say about other, earlier cases, teaching you what those other cases “mean” as they exist in the world over time – “meaning” that includes both “this is what the law is” and also “this is what you can do with the law, as a lawyer.”
CALI Lessons. For several units, under the “Review” heading the syllabus includes references to review material identified as CALI Lessons. These are available via the TWEN page for this course. CALI is the “Center for Computer-Assisted Legal Instruction,” a well-established nonprofit organization that produces high quality, free materials for law students. Each CALI lesson indicated as part of a unit on the syllabus offers a review of rules and principles of copyright that relate to the cases and statutes assigned for that unit.
Have some theory! For several of the units of reading, optional law review articles are included. Some of these are relatively short. Some are quite long. Reading some or all of them will give you a deeper picture of the current state of copyright law, practice, and policy than you will get by focusing on appellate cases and the statute alone.
Extras. Many of the assignments include links to optional (but possibly entertaining and useful) supplemental material. Some provides historical context for the assigned cases. Some consists of clips from motion pictures and television shows that illustrate copyright themes. There are music videos. In some cases, these, too, illustrate the assigned readings. In some cases, they are (one hopes) funny takes on relevant legal points. Some of the optional material contains spicy and/or possibly offensive [NSFW] – but contextually appropriate – language, sounds, and/or images.
Why the optional materials? Learning and knowing the law is difficult, but it is never enough. Great lawyers need to learn and know context. Copyright law, like any body of law, exists to solve social problems. As a solution, copyright law may not work terribly well, and it may create additional problems, but we start by talking about the problems that copyright evolved to solve. Some of those are ancient (the origins and character of knowledge, or “learning”). Some are recent, even modern (the origins and character of “originality” and “creativity” in art and entertainment.) We talk about other dimensions of those problems and their solutions. Copyright conflicts and copyright negotiations exist in companies, in markets, and among human beings. History matters. Culture matters. Economics and business matter. Systems matter. Other bodies of law matter, beyond copyright law and beyond intellectual property. Great lawyers need to learn how to investigate those things and how they relate to their clients and the problems that their clients are trying to solve.
Day by day syllabus and reading assignments
TOPIC 1: THE PROBLEMS THAT COPYRIGHT SOLVES (OR DOESN’T, OR CREATES)
Way back in the mid-19th century, Justice Joseph Story referred to copyright and patent as “the metaphysics of the law.” We start our “metaphysical” journey with two preliminary exercises that illustrate both why, in a way, copyright law has come to be and also why, in a way, copyright causes massive social, cultural, and economic problems. The first exercise focuses on “the work of authorship,” the created “thing” which is the object of copyright’s property-like character. When and why is a “work” a copyrightable “work of authorship”? When and why is that not the case? The second exercise focuses on the systems, patterns, practices, and industries that copyright sometimes enables and sometimes obstructs. These are the objects of copyright’s tort-like character.
Class 1 (the first day of class): Why Copyright? An Introduction to Copyright’s Objects
Required Readings
- Oil painter’s prize-winning canvas looks an awful lot like another artist’s photo Boing Boing (June 4, 2022)
- Is the Batmobile subject to copyright? DC Comics v. Towle [pdf] [docx]
- WATCH: Movie trailer #1 for “levels of abstraction” analysis: Rear Window (1954) – official trailer / and WATCH: Movie trailer #2 for “levels of abstraction” analysis: Rear Window (1954) – re-cut, modern trailer / and WATCH: Movie trailer #3 for “levels of abstraction” analysis: Disturbia (2012) trailer
- On copyright protection for AI-generated works: The Copyright Office refuses to register a work titled “Théâtre D’opéra Spatial” [pdf]
- More on AI: Thaler v. Perlmutter, in which Thaler argues that the Copyright Office erred in refusing to register his AI-based work (the case is on appeal to the DC Circuit) [pdf] [docx] [UPDATED March 2025: The Court of Appeals for the DC Circuit has issued an opinion in Thaler, which is available here.]
- Total PDF page count for cases: 24
- Other PDF pages: 9+
Review
Optional Materials
- History of the Batmobile
- The On-Screen Evolution of the Batmobile (Car and Driver) (March 3, 2022)
- 13 Incredible Facts About Gotham Garage’s Mark Towle (Hotcars) (January 29, 2023)
- Wonder Woman and Her Evolving Look (If you’re unable to access the NYT “Wonder Woman” article, see these very similar pieces from The Atlantic Monthly, EW, and Wonder Costumes.)
- Copyright is frequently in the news, especially when famous musicians appear in court to defend themselves. Ed Sheeran has, so far, avoided liability in cases alleging that he copied the music of Marvin Gaye. Read Structured Asset Sales, LLC v. Sheeran [pdf] [docx]
- LISTEN: to the Marvin Gaye tune Let’s Get It On (or this excellent cover, by Barry Jive and the Uptown Five), and then to Sheeran’s Thinking Out Loud. Or don’t. The case focused on the songwriting, not the recordings.
- WATCH: The original Mickey Mouse character is now in the public domain; “horror Mickey” is already a genre
- WATCH: Why Disney’s Most Iconic Character is Entering the Public Domain
- The person at the center of the “Music-Copyright Enforcers” article has had quite the career in the music industry since that piece was published, according to her LinkedIn
- WATCH: The classic film Rear Window (1954) (the film was added to the National Film Registry in 1997)
- WATCH: The modern mediocrity based on Rear Window, Disturbia (2007) (if you must)
- About the work titled “Théâtre D’opéra Spatial”
- So-called generative artificial intelligence is the latest in a long line of alleged existential threats either to copyright or to artists or both. Skim through these materials relating to the US Copyright Office’s ongoing “Copyright and Artificial Intelligence” review
Class 2: Why Copyright? An Introduction to Copyright’s Institutional Settings
Required Readings
- The Music-Copyright Enforcers (New York Times) (August 6, 2010) (If the NYT website requires a subscription, find the article via the University Library System using your Pitt credentials)
- Google & the Future of Books (New York Review of Books) (Feb. 12, 2009) (The author, Professor Robert Darnton, is the former Director of the Harvard University Library.) You can find the article via the University Library System using your Pitt credentials; use the NYRB “search” button and the title of the article to find the piece)
- Science’s pirate queen, The Verge (February 8, 2018)
- READ sometime during the first two weeks of class: Critically important history, theory, and public policy: Boyle & Jenkins, Ch. 1 [pdf] [docx] and (also) Ch. 10 [pdf] [docx]
- Total PDF page count for cases: 0
- Other PDF pages: 63+
Review
Optional Materials
- For those students with deeper interests in copyright history and theory, much of which is quite relevant today: Boyle, The Public Domain, Ch. 1 [pdf] and Ch. 2 [pdf]
- BREAKING (1): January 1 is the annual “public domain day” (not a formal holiday!), when a trove of creative works – many of them quite famous – move from “copyright protected” to “free for anyone to use” Duke’s Center for the Study of the Public Domain has a list for 2025, The Internet Archive goes one better, and adds a “remix” contest.
- BREAKING (2): One long-time copyright observer has this list of the worst judicial opinions in copyright cases in 2024.
- BREAKING (3)
- Pamela Samuelson, Mapping the Digital Public Domain: Threats and Opportunities (2003) (Professor Samuelson teaches law at UC Berkeley and previously taught law at the University of Pittsburgh)
- Rebecca Tushnet, Payment in Credit: Copyright Law and Subcultural Creativity (2007) (focusing on fan communities) (Professor Tushnet teaches law at Harvard Law School)
- Creativity Without Law: Challenging the Assumptions of Intellectual Property, Kate Darling and Aaron Perzanowski eds., NYU Press (2017) (Kate Darling is a research scientist at MIT; Professor Perzanowski teaches law at the University of Michigan)
- WATCH: Prelude to Axanar (2014) / and WATCH: Frasier, Star Mitzvah (2002)
- WATCH: The greatest Star Trek film or TV show of all time: Galaxy Quest (2000) (you can find it on several of the usual streaming services)
- A message to the entertainment industry: nurture fandom or risk losing control of your IP (Midia Research) (November 29, 2024)
TOPIC 2: THE PURPOSES OF COPYRIGHT, AS MEASURED BY LIMITATIONS: FAIR USE
Copyright law courses usually begin with “the subject matter of copyright” and walk through the law using a “typical” infringement lawsuit as a template. A “work” earns a copyright. The copyright owner sues an infringer. Even if the defendant appears to infringe, “fair use” is offered as an affirmative defense. So fair use shows up relatively late in the course. I do things differently, partly because fair use is an “affirmative defense” only by custom and practice, not by the terms of the Copyright Act; partly because reasoning through the law of fair use illuminates the public policies (plural) animating copyright law as clearly as reasoning through the law of copyright “protection,” and partly because fair use is an intuitive place to start working through copyright problems and solutions. Fair use is interesting! It’s fun! And it’s also unexpectedly difficult.
Class 3: Fair Use Basics – Cultural Interchange
Required Readings
- Section 107 of the Copyright Act
- Campbell v. Acuff-Rose Music, Inc. [pdf] [docx]
- Bill Graham Archives v. Dorling Kindersley Ltd. [pdf] [docx]
- Kienitz v. Sconnie Nation LLC [pdf] [docx]
- LISTEN: Roy Orbison, Oh, Pretty Woman and [NSFW images and lyrics] The 2 Live Crew, Pretty Woman
- Total PDF page count for cases: 35
Review
- Slides
- Recording of the class
- CALI lesson(s): Fundamentals of Fair Use; Fair Use and Parody
Optional Materials
- WATCH: C-SPAN overview of Campbell v. Acuff-Rose Music, Inc.
- Bill Graham at the Rock & Roll Hall of Fame
- WATCH: Some fun with culture: Star Wars Robot Chicken
- SEARCH the “memes” subreddit and identify the best and worst of fair use
- There is always something happening in the world of fair use. Take the Tiger King, for example.
Class 4: Fair Use Basics – Market Failure or “Productive Consumption”?
Required Readings
- A&M Records, Inc. v. Napster, Inc. [pdf] [docx]
- Kelly v. Arriba Soft Corp. [pdf] [docx]
- De Fontbrune v. Wofsy [pdf] [docx]
- Total PDF page count for cases: 32
Review
Optional Materials
- American Geophysical Union v. Texaco, Inc. [pdf] [docx]
- XEROX, The Story of Xerography
- SONY, Corporate History: The Video Cassette Tape
- SONY, Corporate History: Sony Goes to Battle for Its Favorite Child
- VHS Comes to America (Wired) (June 4, 2010)
- Buy and read James Lardner, Fast Forward: Hollywood, the Japanese, and the VCR Wars (1987)
- 15 Years After Napster: How the Music Service Changed the Industry (The Daily Beast) (June 6, 2014)
Class 5: The Cutting Edge of Fair Use: What is Art? What is Function? Does Fair Use Operate Differently in Different Industries, Market Sectors, or Types of “Work”?
Required Readings
Review
Optional Materials
- The special case of fair use for computer software: Google LLC v. Oracle America, Inc. [pdf] [docx]
- About Oracle v. Google/Google v. Oracle
- Cariou v. Prince [pdf] [docx]
- Warhol a Lame Copier? The Judges Who Said So Are Sadly Mistaken (New York Times) (September 24, 2021)
- Oral argument in Warhol v. Goldsmith [transcript and audio]
- Sotheby’s, Andy Warhol and His Process
- Creating an Andy Warhol Photocopy and Screen Printing Real Effects with Photoshop
- Art Institute of Chicago, Retrospective: Andy Warhol – From A to B and Back Again
- Art Institute of Chicago, 13 Things You Might Not Know About Andy Warhol
TOPIC 3: THE SUBJECT MATTER OF COPYRIGHT
Combined, the introductory material about copyright’s history and purposes and the dive into the rhythms of fair use provide a rich foundation for exploring copyright’s doctrinal and practical operations. We start by asking: what’s a copyright, anyway? That’s a difficult question. Let’s start with something that seems easier, at least initially: what’s a copyright (or copyrighted) “work of authorship”? The law is “metaphysics” all the way down, unfortunately.
Class 6: Fixation
Required Readings
- Section 102(a) of the Copyright Act and relevant selections from Section 101
- Williams Electronics, Inc. v. Artic International, Inc. [pdf] [docx]
- Cartoon Network LP, LLP v. CSC Holdings, Inc. [pdf] [docx]
- WATCH: Defender
- WATCH: Defense Command
- Total PDF page count for cases: 30
Review
- Slides
- Recording of the class
- CALI lesson(s): Statutory Interpretation; Fixation
Optional Materials
- It’s alive! Can a garden (design) be a copyrightable work? Read Kelley v. Chicago Park District – a summary. Or the whole thing. [pdf] [docx]
- Chapman Kelley has assembled a treasure trove of data about the works at issue in Kelley
Class 7: Originality
Required Readings
- Section 102(a) of the Copyright Act and relevant selections from Section 101
- Meshwerks, Inc. v. Toyota Motor Sales U.S.A., Inc. [pdf] [docx]
- Mannion v. Coors Brewing Co. [pdf] [docx]
- Total PDF page count for cases: 44
Review
- Slides
- Recording of the class
- CALI lesson(s): Compilations
Optional Materials
- Feist Publications, Inc. v. Rural Telephone Service Co. [pdf] [docx]
- Burrow-Giles Lithographic Co. v. Sarony [pdf] [docx]
- Bleistein v. Donaldson Lithographing Co. [pdf] [docx]
- The case of the monkey selfie
- Who owns the monkey selfie?
- Naruto v. Slater in the district court [pdf] [docx] and on appeal [pdf] [docx]
- The Beasties: Newton v. Diamond [pdf] [docx]
- LISTEN: James Newton, Choir and Beastie Boys, Pass the Mic
Assignment Number One will be distributed around this time. The Assignment will be due on Friday, February 21, 2025.
Class 8: The Idea/Expression Distinction
Required Readings
- Section 102(b) of the Copyright Act and relevant selections from Section 101
- Baker v. Selden [pdf] [docx]
- Bikram’s Yoga College of India v. Evolation Yoga, LLC [pdf] [docx]
- Corbello v. Valli [pdf] [docx]
- Total PDF page count for cases: 36
Review
Optional Materials
- The Plagiarism Plot is Having a Moment. Copy That (New York Times) (January 5, 2025)
- Yoga: Its Origin, History and Development
- Hanagami v. Epic Games [pdf] [docx]
- WATCH: Kyle Hangami Choreography
- WATCH: It’s Complicated Emote
- Official site for Jersey Boys (the show)
- Jersey Boys (2014), the film version (directed by Clint Eastwood)
- WATCH: Trailer for the Jersey Boys film
- Is the Bluebook (A Uniform System of Citation) protected by copyright?
- Some scholars and activists say “no”
- LISTEN: Oral Argument podcast, Baby Blue, with the leader of the Baby Blue project
Class 9: Authorship and Ownership
Required Readings
- Sections 201 and 202 of the Copyright Act and relevant selections from Section 101
- Lindsay v. The Wrecked and Abandoned Vessel R.M.S. Titanic [pdf] [docx]
- Garcia v. Google, Inc.* [pdf] [docx]
- Aalmuhammed v. Lee* [pdf] [docx]
- Community for Creative Non-Violence v. Reid [pdf] [docx]
- Total PDF page count for cases: 56
Review
- Slides
- Recording of the class
- CALI lesson(s): Ownership of Copyright; Joint Works
Optional Materials
- WATCH: Explorers of the Titanic
- WATCH: The film at issue in Garcia v. Google
- New York Times Magazine profile of Spike Lee: Thomas Chatterton Williams, The Culture Caught Up with Spike Lee – Now What? (New York Times) (November 21, 2017)
- Are film directors “authors” for copyright purposes? Read16 Casa Duse, LLC v. Merkin [pdf] [docx]
- Heads Up, the film at issue in 16 Casa Duse.
- An introduction to auteur theory in film criticism
- Some celebrated sculptors are renowned for their ideas and visions rather than for their handwork. Read Moi v. Chihuly Studio, Inc. [pdf] [docx]
- The Unrivaled Legacy of Dale Chihuly (Smithsonian Magazine) (November 22, 2022)
- Joint authorship claims can arise in the most unlikely settings, including ownership of the copyright in “Bolero” – which debuted in Paris in 1928. Listen. And watch Jayne Torvill and Christopher Dean’s legendary ice dancing performance to “Bolero,” from the 1984 Olympic Games.
- LISTEN: Natalie Cole & Nat Cole, Unforgettable
- Producing the Unforgettable duet (Sound on Sound) (January 2004)
- James Earl Reid: biography
- James Earl Reid: website
- What does an employee do? Avtec v. Peiffer [pdf] [docx]
Class 10: Formalities, Preemption, and State Law
Required Readings
- Sections 301, and 401 through 412, of the Copyright Act and relevant selections from Section 101
- Michael J. Madison, Formalities [pdf] [docx]
- Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. [pdf] [docx]
- Bowers v. Baystate Technologies, Inc.* [pdf] [docx]
- Georgia v. Public.Resource.org [pdf] [docx]
- Total PDF page count for cases: 41
- Other PDF pages: 14
Review
- Slides
- Recording of the class
- CALI lesson(s): Copyright Formalities: Notice and Registration
Optional Materials
- US Copyright Office Circular 3, Copyright Notice
- Martin Luther King, Jr. And Copyright: Five Things You Should Know
- WATCH: KJ Greene, Copyright Formalities as the Bane of African-American Artists from Blues to Hip-Hop
- Maloney v. T3Media, Inc. [pdf] [docx]
Class 11: Boundary Problems – Copyright and/vs. (Design) Patent Law: Useful Articles with Pictorial, Graphic, or Sculptural [PGS] Aspects
Required Readings
- Relevant selections from Section 101 of the Copyright Act (“Pictorial, graphic, and sculptural works”)
- Mazer v. Stein [pdf] [docx]
- Star Athletica v. Varsity Brands* [pdf] [docx]
- Total PDF page count for cases: 41
Review
- Slides
- Recording of the class [Mysteriously, the 2025 class session did not record properly. So here is the recording of the 2024 equivalent.]
- CALI lesson(s): Useful Articles; Architectural Works
Optional Materials
- The “Balinese dancers” that were the subjects of Mazer v. Stein, along with a catalog of statuettes used as lamp bases
- Before the Supreme Court decided Star Athletica, principles for copyright in “PGS” works followed a series of cases from the Second Circuit: Kieselstein, Carol Barnhart, and Brandir International.
- Kieselstein-Cord v. Accessories by Pearl, Inc. [pdf] [docx]
- Carol Barnhart Inc. v. Economy Cover Corp. [pdf] [docx]
- Brandir International, Inc. v. Cascade Pacific Lumber Co. [pdf] [docx]
- Meet Rebel, the $20 Million Cheerleading Startup Living Up to Its Name (Inc.) (March 2016)
- A bananas copyright ruling from 2019: Silvertop Associates v. Kangaroo Manufacturing, Inc. [pdf] [docx]
- Thoughtful running commentary on design rights in IP law: Professor Sarah Fackrell at Chicago-Kent College of Law
- WATCH fashion in art: Uptown Funk and Zoolander
Class 12: Boundary Problems – Copyright and/vs. Trademark Law
Required Readings
- Section 103 of the Copyright Act and relevant selections from Section 101
- Dastar Corp. v. Twentieth Century Fox Film Corp. [pdf] [docx]
- Gilliam v. American Broadcasting Co. [pdf] [docx]
- Re-read the Batmobile materials from Class 1
- Total PDF page count for cases: 26
Review
Optional Materials
- Crusade in Europe at Amazon.com; at the Internet Archive; at Google Books
- Monty Python Goes to Court: Naughty Bits (The New Yorker) (March 22, 1976)
- The story of Gilliam from the Pythons’s mouth (2014)
- WATCH: Monty Python sketches selected more or less at random
- Derivative Works and New Music (Train)
- Derivative Works and Old Music (We Shall Overcome)
- LISTEN: The Velvet Underground, Sunday Morning
TOPIC 4: THE STATUTORY RIGHTS OF COPYRIGHT OWNERS
As a species of property, copyright – like all property systems – consists of a set of limited legal rights, referred to (sometimes inappropriately) as “exclusive” rights. Those rights often operate in a tort-like way (subject to flexible standards, modified per context) rather than as absolutes. The statutory list of the copyright owner’s exclusive rights, and their definitions and interpretations, blends historical attachments and contemporary business demands. Changes in the technologies and mechanics of printing, publishing, distribution, and circulation of copyrighted works suggests that a list that may have been sensible 50 years ago (more or less), when it was adopted by Congress, is less than clear and consistent today. “Metaphysics” change.
Many of the cases below feature claims of infringement in musical compositions and sound recordings. The Music Copyright Infringement Resource, hosted at George Washington University, contains an enormous volume of information about the works at issue in these and many other cases. A similar resource, the Visual Arts Infringement Database, was launched at Columbia University in 2025.
Class 13: The Elements of Copyright Infringement
Required Readings
- Sections 106 and 501 of the Copyright Act and relevant selections from Section 101
- Three Boys Music Corp. v. Bolton [pdf] [docx]
- Selle v. Gibb [pdf] [docx]
- Ty, Inc. v. GMA Accessories, Inc. [pdf] [docx]
- Nichols v. Universal Pictures Corp. [pdf] [docx]
- LISTEN: Isley Brothers, Love is a Wonderful Thing and Michael Bolton, Love is a Wonderful Thing
- LISTEN: Bee Gees, How Deep is Your Love and Ronald Selle, Let It End
- Total PDF page count for cases: 39
Review
- Slides
- Recording of the class [This 2025 recording has flawed audio. The equivalent 2024 recording is available here.]
- CALI lesson(s): A Primer on Copyright Infringement
Optional Materials
- WATCH: The HBO documentary on the Bee Gees, How Can You Mend a Broken Heart
- About Abie’s Irish Rose
- About The Cohens and Kellys
- LISTEN: Axis of Awesome, 4 Chord Song
- LISTEN: The Chiffons, He’s So Fine and George Harrison, My Sweet Lord
- LISTEN: Ray Parker, Jr., Ghostbusters and Huey Lewis & the News, I Want a New Drug
- LISTEN: John Lee Hooker and Canned Heat, Boogie Chillen No. 2 and ZZ Top, La Grange
- LISTEN: Fats Waller, Muskrat Ramble and Country Joe and the Fish, Fixin’ to Die Rag
Class 14: The Reproduction Right
Required Readings
- Section 106(1) of the Copyright Act and relevant selections from Section 101
- Steinberg v. Columbia Pictures Industries, Inc. [pdf] [docx]
- Rentmeester v. Nike, Inc.* [pdf] [docx]
- Skidmore v. Led Zeppelin* [pdf] [docx]
- LISTEN: Taurus, Spirit (as it was recorded) and Led Zeppelin, Stairway to Heaven
- LISTEN: Taurus, Spirit (one law professor’s guitar rendition of the composition as deposited with the Copyright Office; the “deposit copy” was the foundation of the copyright infringement lawsuit)
- Total PDF page count for cases: 53
Review
Optional Materials
- WATCH: H.R. Pufnstuf
- WATCH: McDonaldLand (accused of infringing H.R. Pufnstuf)
- Substantial similarity and character copyright in Dubay v. King [pdf only]
- LISTEN: Taylor Swift, Shake It Off and Sean Hall & Nate Butler, Playas Gon’ Play
- Hall v. Swift (the “Playas Gon’ Play” case) [pdf] [docx]. In December 2022, the case was dismissed and settled.
- Wilson v. Walt Disney Co. (the “Frozen” case) [pdf] [docx]
- Alfred v. Walt Disney Co. (the “Pirates of the Caribbean” case) [pdf] [docx] Continuing proceedings: Disney’s motion for summary judgment and the court’s order denying that motion. In September 2022, the case settled.
- Zindel v. Fox Searchlight Pictures [pdf] [docx]
- Katy Perry was sued: Gray v. Hudson [pdf] [docx]
- Mariah Carey, too: Swirsky v. Carey [pdf] [docx]
- LISTEN: Xscape, One of Those Love Songs and Mariah Carey, Thank God I Found You
- Read about the lawsuit between the estate of Marvin Gaye and Robin Thicke and Pharrell Williams over Blurred Lines and Got to Give It Up, and listen to the music:
- LISTEN: Marvin Gaye, Got to Give it Up and Robin Thicke, Blurred Lines
- A summary of the Blurred Lines case
- Williams v. Gaye [pdf] [docx]
- Joe Bennett, Did Robin Thicke steal ‘Blurred Lines’ from Marvin Gaye?
- Dan Reitz, Blurred Lines case: An analysis of the piano arrangements as they were presented to the jury
- Robert Fink, Blurred Lines, Ur-Lines, and Color Lines
- Toni Lester, Blurred Lines – Where Copyright Ends and Cultural Appropriation Begins – The Case of Robin Thicke versus Bridgeport Music and the Estate of Marvin Gaye
- LISTEN: (podcast) Whomst Among Us Let the Dogs Out
- LISTEN: Flame, Joyful Noise and Katy Perry, Dark Horse
- WATCH: Video of the Gray v. Hudson argument before the Ninth Circuit
Class 15: The Distribution Right and the First Sale Doctrine [Exhaustion]
Required Readings
- Sections 106(3) and 109(c) of the Copyright Act and relevant selections from Section 101
- Bobbs-Merrill Company v. Straus [pdf] [docx]
- Kirtsaeng v. John Wiley & Sons, Inc. [pdf] [docx]
- Capitol Records, LLC v. Redigi Inc.* [pdf] [docx]
- Total PDF page count for cases: 37
Review
- Slides
- Recording of the class
- CALI lesson(s): The Distribution Right; Limitations on the Distribution Right
Optional Materials
- The United Kingdom and Ireland each have a Public Lending Right, which does not exist in the United States. Read more here.
- About the ReDigi technology (there’s not much)
- About the Star Trek transporter (there’s a lot)
- Hachette Book Group, Inc. v. Internet Archive [pdf] [docx] “Controlled digital lending,” which the Internet Archive argued is the equivalent of a library’s exercising its rights under the first sale doctrine, is held to be infringing.
Class 16: The Right to Prepare Derivative Works
Required Readings
- Sections 106(2) of the Copyright Act and relevant selections from Section 101
- Lee v. A.R.T. Company [pdf] [docx]
- Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.* [pdf] [docx]
- Micro Star v. FormGen, Inc. [pdf] [docx]
- Warner Bros. Entertainment, Inc. v. RDR Books* [pdf] [docx]
- Total PDF page count for cases: 45
Review
- Slides
- Recording of the class
- CALI lesson(s): The Adaptation Right
Optional Materials
- Licensed derivative works: Star Wars isn’t a movie franchise. It’s a toy franchise (Hollywood Reporter) (February 9, 2012)
- The producers of Star Wars could not prevent the production of competing space-war action figures, in Ideal Toy Corp. v. Kenner Products [pdf] [docx]
- WATCH: Harry Potter fan videos
Assignment Number Two will be distributed around this time. The Assignment will be due on Friday, April 4, 2025.
Class 17: The Public Performance and Public Display Rights
Required Readings
- Section 106(4), 106(5), 109(c), and 110 of the Copyright Act and relevant selections from Section 101
- Columbia Pictures Indus. v. Redd Horne, Inc. [pdf] [docx]
- Perfect 10, Inc. v. Amazon.com, Inc. [pdf] [docx]
- American Broadcasting Companies, Inc. v. Aereo, Inc.* [pdf] [docx]
- Total PDF page count for cases: 30
Review
- Slides
- Recording of the class [the recording is from Spring 2024; the Spring 2025 session captured video but not audio. Ugh. Sorry!]
- CALI lesson(s): Rights of Public Performance and Display
Optional Materials
- The paradoxes of Aereo: Dan L. Burk, Inventing Around Copyright
- The Limits of the Supreme Court’s Technological Analogies: The misguided Aereo decision shows why technical details matter (Slate) (June 26, 2014)
- The defendant’s name says it all: Fox Television Stations, Inc. v. Aereokiller, LLC [pdf] [docx]
- The status of the “server test”: Goldman v. Breitbart News Network, LLC [pdf] [docx] and Hunley v. Instagram, LLC [pdf] [docx]
- Gymnasts, Figure Skaters, and Other Artistic Athletes Are Up Against an Unlikely Foe (Slate) (November 30, 2024)
Class 18: “Moral” Rights in US Law and Elsewhere
Required Readings
- Section 106A of the Copyright Act and relevant selections from Section 101
- Cheffins v. Stewart* [pdf] [docx]
- Castillo v. G&M Realty L.P.* [pdf] [docx]
- Total PDF page count for cases: 29
Review
Optional Materials
- Berne Convention Art. 6bis
- Is this a work of art? A work of authorship? Massachusetts Museum of Contemporary Art Foundation, Inc. v. Buchel [pdf] [docx]
- MASS MoCA: Training Ground for Democracy
- The Burning Man Aesthetic: From Apotheosis to Artful Cities: Ra$pa’s Ride Through Burning Man’s Evolution (The Burning Man Journal) (October 20, 2019)
- Facebook group: Friends of La Contessa
- The construction of La Contessa
- The destruction of La Contessa
- 5Pointz
- Disney Enterprises, Inc. v. VidAngel, Inc. [pdf] [docx]
- 9th Circuit’s VidAngel decision vindicates lawful video filtering service (Thompson Coburn) (September 12, 2017)
Class 19: Building Copyright Businesses and Institutions – Of Customs, Practices, Licenses, Deals, and the Mechanics of Transfers
Required Readings
- Section 204 of the Copyright Act and relevant selections from Section 101
- Effects Associates, Inc. v. Cohen [pdf] [docx]
- Boosey & Hawkes Music Publishers, Ltd. v. The Walt Disney Company* [pdf] [docx]
- Vernor v. Autodesk, Inc. [pdf] [docx]
- Jacobsen v. Katzer [pdf] [docx]
- F.B.T. Productions v. Aftermath Records* [pdf] [docx]
- Total PDF page count for cases: 51
Review
- Slides
- Recording of the class
- CALI lesson(s): Copyright and the Open Source Movement
Optional Materials
- More “new uses”: Random House v. Rosetta Books [pdf] [docx]
- Curious George goes to court: Rey v. Lafferty [pdf] [docx]
- So many implied license possibilities: Concannon v. LEGO Systems, Inc. [pdf] [docx]
- Tattoo you? Solid Oak Sketches, LLC v. 2K Games, Inc. [pdf] [docx]
- Creative Commons
- About open source licenses
- The scope of Creative Commons licenses: Great Minds v. FedEx Office & Print Services, Inc. [pdf] [docx]
- Institutions (1): Michael J. Madison et al., The University as Constructed Cultural Commons (2009)
- Institutions (2): Michael J. Madison, Of Coase and Comics, or The Comedy of Copyright (2009)
- Institutions (3): Robert Spoo, Informal Publishing Norms and the Copyright Vacuum in Nineteenth-Century America (2017)
- Animated Chart: Recorded Music Sales by Format Share, 1973-2022
- LISTEN: Eminem, The Real Slim Shady [NSFW]
- LISTEN: Dr. Dre, Dre Day (and Everybody’s Celebratin’) [NSFW]
- For an intricate tale of the logistical and financial challenges of “clearing” rights to pre-existing works, read the Frequently Asked Questions page at the site for “Sita Sings the Blues,” an original animated film
- For a longer review of contemporary music industry practices and how they affect the character of the music we hear, read Kembrew McLeod and Peter DiCola, Creative License: The Law and Culture of Digital Sampling (Duke University Press 2011)
- WATCH (just for fun): the original Let’s Make a Deal
TOPIC 5: COPYRIGHT ENFORCEMENT – WHO IS LIABLE AND HOW?
Copyright deals are where the money usually is, for both parties and their lawyers. But copyright litigation is where the headlines usually are, and where many of the rules of the business game are laid down.
Class 20: Identifying Defendants (and Business Partners)
Required Readings
- Sections 106 and 501 of the Copyright Act and relevant selections from Section 101
- Religious Technology Center v. Netcom On-Line Communication Services, Inc. [pdf] [docx]
- Fonovisa, Inc. v. Cherry Auction, Inc. [pdf] [docx]
- MGM Studios Inc. v. Grokster Ltd.* [pdf] [docx]
- Total PDF page count for cases: 54
Review
- Slides
- Recording of the class
- CALI lesson(s): Contributory and Vicarious Liability
Optional Materials
- The Cherry Avenue Auction in Fresno, California
- A Brief History of BBS Systems
- A Brief History of Netcom
- Tertiary liability? No. Perfect 10, Inc. v. Visa Int’l Service Ass’n [pdf] [docx]
- The “volitional conduct” (causation) requirement today: Perfect 10, Inc. v. Giganews, Inc. [pdf] [docx]
- Bringing together copyright, licensing, derivative works, remixes, digital technology, the maker community, and functional and three-dimensional “things” (s/k/a “PGS works”): the new-for-2025 “Benchy” and “Boaty” brouhaha in the 3D printing world. This Reddit thread explains. As does the 3D Printing Professor, on YouTube.
Class 21: Remedies
Required Readings
- Sections 502 through 507 of the Copyright Act
- Engel v. Wild Oats [pdf] [docx]
- Bouchat v. Baltimore Ravens Football Club, Inc. [pdf] [docx]
- Salinger v. Colting* [pdf] [docx]
- United States v. Liu [pdf] [docx]
- Total PDF page count for cases: 41
Review
- Slides
- Recording of the class
- CALI lesson(s): Copyrights in Sound Recordings; What is a “song” and protection for live performances
Optional Materials
- 1959: Legislative history – Remedies Other Than Damages for Copyright Infringement
- How this often works, today: News from the National Cyber-Forensic and Training Alliance
- A summary of one creator’s efforts to secure recognition and compensation for his work: Frederick Bouchat and the Baltimore Ravens
- The limits of copyright, or, one law professor learns about the new vocabulary of digital piracy: Their Songs Were Stolen by Phantom Artists. They Couldn’t Get Them Back (New York Times) (January 15, 2024)
- What’s a work of authorship (1)? Bryant v. Media Right Productions* [pdf] [docx]
- What’s a work of authorship (2) (an entirely different result)? Columbia Pictures Television v. Krypton Broadcasting of Birmingham, Inc. [pdf] [docx]
- The late Senator Everett Dirksen is famous for being credited – incorrectly – with the quote: “A billion here, a billion there, pretty soon, you’re talking about real money.” Similarly, a recent Supreme Court opinion that seems to be interesting only to copyright-meets-civil-procedure nerds may turn out to have deep and lasting impacts on the scale of damages awards in copyright cases. Read Warner Chappell Music, Inc. v. Nealy [pdf] [docx]
Class 22: Service Providers
Required Readings
- Section 512 of the Copyright Act
- EMI Christian Music Group, Inc. v. MP3tunes, LLC [pdf] [docx]
- Capitol Records, LLC v. Vimeo, LLC [pdf] [docx]
- Total PDF page count for cases: 37
Review
Optional Materials
- Who is responsible for implementing “fair use” in a notice-and-takedown system, and how? Lenz v. Universal Music Corp. [pdf] [docx]
- Review the further record of proceedings in Lenz (Electronic Frontier Foundation)
- WATCH: The Let’s Go Crazy video in dispute – on YouTube
- Prince, identity, and music: a complex relationship (1): I’m a gender and sexuality scholar. Here’s how the media blew it on Prince (Vox) (April 24, 2016)
- Prince, identity, and music: a complex relationship (2): Prince and the Revolution of the ‘Black Male Identity’ (Yahoo!) (June 10, 2020)
- WATCH: Prince, Let’s Go Crazy
- A Step Toward Protecting Fair Use on YouTube (Google) (2015)
- For a few truly bad DMCA takedowns, YouTube offers to cover legal costs
- Even sophisticated copyright lawyers wrestle with copyright filters at YouTube and Spotify. Here is one story. Here is another one.
TOPIC 6: “REGULATORY” COPYRIGHT
The core of copyright law consists of a handful of key principles and policies, elaborated through voluntary transactions (deals) and litigation (courts). But copyright is increasingly intertwined with the details of both statutory interpretation and administrative law. More than one copyright scholar has compared the complexity of copyright – unfavorably – to the tax code. The details matter, not only because they give us copyright winners and copyright losers but also because like all of copyright, they shape the content and character of culture. “Metaphysics,” like onions (and Shrek), has layers.
Class 23: Duration, Renewals, and Termination of Transfers
Required Readings
- Re-read Michael J. Madison, Formalities [pdf] [docx]
- Eldred v. Ashcroft [pdf] [docx]
- Stewart v. Abend* [pdf] [docx]
- Peretti v. Authentic Brands Group [pdf] [docx]
- Inside 2 Live Crew’s Latest Legal Battle: Copyright Termination (Copyright Lately) (December 12, 2022)
- Total PDF page count for cases: 50
- Other PDF pages: 14
Review
- Slides
- Recording of the class
- CALI lesson(s): Copyright Duration
Optional Materials
- LISTEN: Elvis Presley, Can’t Help Falling in Love
- Rupa Marya v. Warner Chappell Music Inc. (the Happy Birthday to You case) [pdf] [docx]
- ‘Happy Birthday’ Copyright Case Reaches a Settlement (New York Times) (December 9, 2015)
- The saga of the Phillie Phanatic, involving copyright in mascots and termination rights (Copyright Lately) (August 10, 2021)
- WATCH: The King, Can’t Help Falling in Love (Live in Honolulu version)
Class 24: Copyright, Compulsory and Statutory Licensing, and Collective Rights Organizations
Required Readings
- Michael J. Madison, Compulsory Licenses and Regulatory Copyright [pdf] [docx]
- VMG Salsoul, LLC v. Ciccone* [pdf] [docx]
- Newton v. Diamond [pdf] [docx]
- Bridgeport Music, Inc. v. Dimension Films* [pdf] [docx]
- The Music Modernization Act of 2020, a summary
- Total PDF page count in cases for cases: 45
- Other PDF pages: 14
Review
Optional Materials
- Before Taylor, in her time, Madonna was the one. LISTEN: Madonna, Vogue. Watch Madonna’s legendary MTV Awards performance. Watch Paris is Burning (1990), the incredible documentary film that first brought the New York scene to broader audiences and that Madonna shredded by adding a commercial, pop sensibility.
- LISTEN: The Salsoul Orchestra, Ooh, I Love It (Love Break)
- COMPARE: Paula Watson’s recording of A Little Bird Told Me (on Supreme, 1949) with Evelyn Knight and the Stardusters‘s recording of the same song. The songwriter was Harvey Brooks. Read about Paula Watson. Read about Evelyn Knight. Then read about copyright history and the lawsuit involving those two versions of the same song
- LISTEN: Examples of mechanical licensing in action, with some fun contrasts to cases of appropriation, mashups, and sampling (suggest your own)
- LISTEN: Senior music industry exec Jeff Pollack published this Spotify playlist of “Memorable Cover Songs” in December 2023
- American CROs: ASCAP, BMI, SESAC, Harry Fox
- On the Future of ASCAP and BMI Consent Decrees (Remarks of the Assistant Attorney General, January 15, 2021)
- Litigation over the classification of different online music services was, for a time, quite involved. Read Music Choice v. Copyright Royalty Board [pdf] [docx] and Arista Records, LLC v. Launch Media, Inc. [pdf] [docx]
TOPIC 7: THE FUTURE OF COPYRIGHT (OR “DE-REGULATORY” COPYRIGHT)?
Copyright law has roots in 18th century England and 15th century Venice, yet it seems to be in almost constant motion. Because, of course, both culture and technology are in almost constant motion. Both “reform” and more comprehensive changes are frequently on the table.
Class 25: The Future of Copyright? Law Reform Past, Law Reform Present, and Law Reform Yet to Come
Required Readings
- Reform past (intended to be big changes): Section 1201 of Title 17, added by the Digital Millennium Copyright Act of 1998
- Reform present (small changes): the CASE Act (2020)
- About the Copyright Claims Board (CCB)
- Reform future? (big changes): Maria Pallante, The Next Great Copyright Act (2013)
- Total PDF page count for cases: 0
- Other PDF pages: 30+
Review
Optional Materials
- Jessica Litman, Pamela Samuelson et al., The Copyright Principles Project (2010)
- Towards a modern, more European copyright framework (European Commission proposal of Dec. 9, 2015)
- American Law Institute, Restatement of the Law, Copyright project (launched in 2015)
- What if focusing on authorship alone were … wrong, and more, better, and more equitable knowledge were grounded instead in structured collaboration and sharing?
- The CASE Act: a deep dive
- The US Copyright Office’s new Strategic Plan
Class 26: The Future of Copyright? Sci-Fi, or More of the Same
Required Readings
- The One Redeeming Quality of NFTs Might Not Even Exist (Slate) (April 14, 2021)
- Brian Frye, NFTs & the Death of Art (published as a chapter in Posthumous ARt, Law, and the Art Market (Routledge 2022)
- Timothy B. Lee and James Grimmelmann, Why The New York Times might win its copyright lawsuit against OpenAI (February 20, 2024)
- Matthew Sag, A response to Lee and Grimmelmann (February 21, 2024)
- Jennifer Rothman, Copyrighting People (March 3, 2025)
- Total PDF page count for cases: 0
- Other PDF pages: 9+
Review
Optional Materials
- The Bored Ape Yacht Club
- Brian Frye, After Copyright: Pwning NFTs in a Clout Economy (2022)
- The Rise of the Copyright Bots (Pillsbury) (May 6, 2020)
- Henning Grosse Ruse-Khan, Automated Copyright Enforcement Online: From Blocking to Monetization of User-Generated Content (2020)
- WATCH: Prof. Christa Laser – Intellectual Property Law Issues in Non Fungible Tokens (NFTs)
- WATCH: Line Goes Up – The Problem With NFTs [a long but accessible explanation of what NFTs have to do with blockchain and 21st century politics and economics generally]
Assignment Number Three will be distributed during the last week of class. The Assignment will be due on the last day of exams, which is May 7, 2025.
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