Writing Assignments – Copyright Law – Spring 2022

COURSE NAVIGATION

WRITING ASSIGNMENTS: BASIC REQUIREMENTS AND MECHANICS

The graded work for this course consists of three short (3-4 pp.) writing assignments. These may consist of legal memoranda (to colleagues, clients, or others); explanatory email messages (again, to one or more audiences); or PowerPoint [or equivalent] slide decks (in which the lawyer communicates by the content of the slide deck, not by delivering a presentation orally). Each assignment will be posted here approximately two weeks before the assignment is due. Also before the assignment is due, time in class will be set aside to discuss questions relating to each assignment.

FORMAT EXPECTATIONS

Prior versions of this course have required that writing assignments be produced in solely in the format of traditional legal memos. That expectation has changed, because lawyers today increasingly communicate in other formats and other media. This course may require different formats.

HOW TO SUCCEED

Although the formats may change, professional expectations regarding effective communication have not changed. Legal writing in every setting should be clear, consistent, polished, expert, ethical, responsive, and trustworthy. Those expectations apply to this course. For guidance regarding those expectations and how they apply to the graded work for this course, students are strongly encouraged to read and re-read this “Modern Legal Writing” document, which summarizes advice for producing a great work product in Professor Madison’s courses.

For help with basic writing questions (grammar, syntax, word choice, active vs. passive voice, and so on), consider trying editing / writing correction / grammar checking software. A good choice – with a free option – is Grammarly. An alternative choice that may be better suited to professional writing but one that costs real money, is WordRake. WordRake may be a useful investment now that pays off over a full professional career; the founder and creator of WordRake, Gary Kinder, is a tremendous writer in his own right. I took a writing seminar from him when I was a junior lawyer, and I still remember and use his lessons even today.

RUBRIC

The rubric used to mark the assignments is available here.

WRITING ASSIGNMENT DUE DATES

  • Assignment 1:  Friday, February 25, 2022, at 3 pm.
  • Assignment 2:  Friday, April 1, 2022, at 3 pm.
  • Assignment 3:  Last day of exams (Thursday, May 5, 2022), at 12 noon.

SAMPLE QUESTIONS

For students who want to know more about the assignments for this course, here is a page containing the text of some prior assignments.

ASSIGNMENTS

Assignment Three

To: Outside counsel, Dewey, Cheatem, and Howe
From: General counsel, The Walt Disney Company
Date: April 15, 2022
Re: Copyright question

As you know, most copyright infringement questions raised by YouTube uploads relative to Disney properties are handled quickly and efficiently by my team and YouTube’s ContentID system. We come to you for guidance in unusual situations.  This is one.

The YouTube user operates under the account name “Bud Frump.” The user appears to be a recent graduate of the University of Oregon.  All of the videos in the account – aside from the one in question today – consist essentially of snippets of smartphone footage of University of Oregon football games. Sometimes the footage includes images of the University of Oregon mascot, a large “duck” apparently (but possibly unofficially) called “Puddles.”

The unusual video, and the one I need your advice on, is a video short (about 5 minutes long) that has a dark tone. It appears to be an “original” production, in the sense that the footage does not simply capture a sporting event or other activity. It features an actor in a large duck costume, wearing a flat “Oregon” hat composed of the green-and-yellow color scheme that is usually associated with the University of Oregon. The duck “speaks” (though the costume lips do not move) in a squeaky voice that clearly evokes the voice of the Disney character Donald Duck, which is both a valuable Disney property and the subject of numerous copyright registrations.

Throughout the video, the “duck” walks through the University of Oregon campus (I believe), enraged that the University of Oregon football team has never won an NCAA national championship despite spending more money on players and equipment than some National Football League teams. The “duck” acts out its anger with violent attacks on other “mascots” that it encounters on its walk, which include actors costumed as a bulldog (likely intended to evoke the “Hairy Dawg” mascot of the University of Georgia, the most recent NCAA champion), a tiger (likely intended to evoke Clemson University, or Louisiana State University, or both), an elephant (likely intended to evoke “Big Al,” the mascot of the University of Alabama), and several mascots that appear to be intended to refer to universities in Oregon’s football conference on the West Coast: a bear (for UCLA’s “Joe Bruin”), a Trojan warrior (for USC), a tall green tree (for Stanford), and a red-tailed hawk (for Utah’s “Swoop”).  I had my assistant look up the references and the names. She reports to me that the “duck” costume is a close replica of the “official” Puddles mascot and that it has big eyes, large orange “lips”, and an overall shape and appearance that closely evokes but is not identical to the contemporary Donald Duck character. The “imitation” mascots are close but non-identical copies of the mascots who appear at college football and basketball games. 

Throughout “Bud Frump’s” video, the “duck” can be heard in the “Donald Duck”-ish voice, muttering “Die, die, die!,” complaining about coaching tactics, overpaid players, and missed opportunities to beat weaker teams. The “duck” attacks the “rival” mascots with a paddle. The other mascots do not speak, but they fight back, using a variety of “weapons” (clubs, bats, fake swords, trunks, claws, and so forth).  In the end, the duck is defeated, and lies motionless on the ground. The duck’s final words are “Aw, phooey,” which is a famous Donald Duck catchphrase. The video closes with a slide of text that calls for students and alumni of the University of Oregon to rise up, denounce the hyper-commercialization of popular culture and entertainment, and demand changes to the university’s athletic programs. The text includes a call to replace what it refers to as the “corporate mascot,” Puddles, with a more neutral, family-friendly substitute.

This video has recorded more than 2,000,000 views on YouTube.  A number of senior managers at Disney have become aware of it and asked me when the Law Department will do something about it. I would share a link to the video, but I want to avoid amplifying the effect of something that already has caused significant consternation in the company.

As you will learn quickly via online accounts, the University of Oregon mascot originally was based on the Disney character, with the company’s permission. In a recent negotiation directed to the company’s trademark concerns, Disney and the university agreed that the university could continue to use the mascot, without fear of litigation and without any obligation to compensate Disney, as a matter of trademark law. As part of that negotiation, the University of Oregon and Disney agreed that “Puddles” today is not substantially similar to Donald Duck.

Here’s my request to you:

Can Disney submit a takedown notice to YouTube, consistent with copyright law? My concern is the Lenz case from the Ninth Circuit. As a copyright veteran, I have a strong instinct that the video qualifies as fair use of Donald Duck character, even if it qualifies as infringing in the first place. I also have a strong instinct that it qualifies as fair use as a matter of trademark law, but I want to keep trademark considerations separate for purposes of this referral to you. 

As with all instincts, it’s always possible that I’m off base. Regardless, and setting aside my initial judgment, the company’s broader business concerns are obviously legitimate, and I want to do everything I can to protect the company’s assets, consistent with the law. What do you advise and why?  I’d appreciate your including your best counsel as to intermediate steps that the company should take or should avoid and as to the character of the risks that we are exposed to if we do or do not act. Whatever call I make on this matter, I need to be certain that it is well-justified.

Rules and Guidelines for Assignment Three

To the extent that these rules may appear to conflict with general advice regarding work product that appears in course-related webpages, these rules take precedence.

This is an “open” problem, meaning that there are no limits on the resources that you may bring to bear on your work. Among other things, you may consult with your classmates and other human beings. If you discuss the merits of the assignment with anyone, however, you must disclose that person’s identity on or in your work product. Write the names of any of these “consultants” at the top of the first page of the document.

Use your own name in the “From” field. Your work product is not anonymous.

Format

Your work product in response to this assignment should be formatted in one of two ways: (i) as an email rather than as a default or standard “legal research memo.” Your email should consist of not more than 1,200 words, excluding the header (To, From, Subject line, Date). In printed form, it should have 1″ minimum margins on all sides. OR (ii) as a set of PowerPoint slides, prepared for delivery as a printed work product, rather than as a guide or accompaniment to an oral presentation. Including a title slide, the total PowerPoint “slide deck” should consist of no more than 25 slides. [For guidance and suggestions regarding how to prepare professional PowerPoint slides, review these examples.]

You do not need to include a comprehensive statement of the facts; instead, you may refer to the factual background in my memo to you. A factual summary may be helpful, however, in framing and presenting your analysis. No footnotes are permitted.

You may use any font that you wish, but of course take care that all aspects of your work product should look, as well as be, professional.

So that your work product can be uploaded to the TWEN system in Westlaw (see below) and graded electronically, you must use Microsoft WORD (in the case of option (i)) or Microsoft PowerPoint (in the case of option (ii)).

Grading

Work product will be graded based on form, format, and writing quality as well as on content. The assignments are designed so as not to have any single correct or even best solution. Each problem may present a range of issues that your work should identify, analyze, and solve in a creative way.

Due date

One copy of the work product prepared for this assignment must be turned in not later than Thursday, May 5, 2022, at 12 noon.

Your work product must be turned in via the course TWEN page (on Westlaw), by depositing an electronic copy in the TWEN “Drop Box” for Assignment Three for this course. Although the work product may be formatted as an email or as an electronic PowerPoint file, electronic (e-mailed) copies are not acceptable. Documents slipped under anyone’s door are not acceptable.

There were be no extensions or exceptions to the deadline. Work product that does not conform to the format instructions above, or that is turned in late, will be accepted, but is subject to grade reduction.

Assignment Two

To: Junior copyright lawyer, Dewey, Cheatem, and Howe
From: Senior copyright partner, Dewey, Cheatem, and Howe
Date: March 18, 2022
Re: New matter

We have a client coming in for an initial consultation on a new matter.  I need your help in preparing me for the meeting.  Of course, you’ll be invited to attend, but for now, I just need your assistance with some brainstorming and sharp thinking.

Here’s what I’ve been told so far:

The client – Carla – has developed a service that she is calling the “Improbability Drive.” I don’t know exactly how it works, but the basic idea is this.  She wants to sell a package of transparent, heavy rubber panels, roughly rectangular in shape, that would be attached to the outside of a car or pickup truck.  Each one would be magnetic on one side.  The other side would consist of a super-thin screen that’s linked wirelessly to the internet connection from a smartphone or other device in the car. Through an app on the device, the Improbability Drive service would provide content that connects to the panels, links them to each other, and then generates an image that transforms the outward appearance of the car.  Instead of, say, a Honda Accord looking like a Honda Accord, the Honda Accord using the Improbability Drive would look like the Batmobile. Or something. 

I’m not a videogame person, but I’m told that the idea is to give the actual car something like a “skin” that could be applied to a videogame character.

Carla has assembled an inventory of virtual “skins” for cars that would be available via the Improbability Drive app.  All of these relate to famous imaginary vehicles in movies and television, including Batmobiles of various sorts; the time machine from the Back to the Future movies; Herbie the Love Bug from the Disney movies; the Mutt Cutts van from Dumb and Dumber; the Mirthmobile from Wayne’ World; KITT and KARR from Nightrider; Lightning McQueen from Cars; the Interceptor from Mad Max; the landspeeder from Star Wars; the Heart of Gold from Hitchhikers’s Guide to the Galaxy. Her idea, I think, is to capitalize on the celebrity of fictional cars via a kind of high-tech “fan art” strategy.  I’m pretty sure that she hasn’t contacted any of the movie or television producers to ask about re-creating their cars this way.

My first reaction, as a lawyer, is to wonder about copyright law here.  (I also wonder about trademark law, but I’ll have a different associate look into trademark issues, so don’t worry about those for now.)

Help me out with the below:

When I meet with Carla for an initial interview, what questions should I ask her?  What do I need to know that I haven’t included in the summary above? Why are those questions relevant and possibly important?

What are the copyright risks and concerns that stand out here?  How substantial are those risks?  In other words, should push come to shove, from a copyright standpoint where is Carla likely to be on stronger ground and weaker ground?

Given those risks and concerns, what should I advise Carla in this initial conversation? 

We may learn more as we go, of course, so this won’t be the final statement on anything.  But maybe there are legal arguments to think through carefully.  Maybe there are ways I can suggest that she re-design her product that make it less risky while still delivering the experience that she wants to deliver.  I’m not sure what’s possible, but of course all options should be on the table.

Last, for now, I should note that Carla is a highly successful tech entrepreneur, with plenty of resources and strong support from investors. (She has no previous experience in entertainment. Apparently this project is a labor of love, because she’s a long-time Comic-Con participant.) So we need to be as creative and imaginative as we can be, to give her the best opportunity to succeed.  I have heard hints that the transparent rubber material that she wants to use can be molded in thinner forms as wearable bodysuits.  Imagine being able to put on a sweater, activate an app, and look like Spiderman!  That’s a product that I’d buy myself.

Rules and Guidelines for Assignment Two

To the extent that these rules may appear to conflict with general advice regarding work product that appears in course-related webpages, these rules take precedence.

This is an “open” problem, meaning that there are no limits on the resources that you may bring to bear on your work. Among other things, you may consult with your classmates and other human beings. If you discuss the merits of the assignment with anyone, however, you must disclose that person’s identity on or in your work product. Write the names of any of these “consultants” at the top of the first page of the document.

Use your own name in the “From” field. Your work product is not anonymous.

Format

Your work product in response to this assignment should be formatted as an email rather than as a default or standard “legal research memo.” It must be typed or printed using a computer. Your email should consist of not more than 1,200 words, excluding the header (To, From, Subject line, Date) and information about humans you consulted. In printed form, it should have 1″ minimum margins on all sides.

You do not need to include a comprehensive statement of the facts; instead, you may refer to the factual background in my memo to you. Including a factual summary may be helpful, however, in framing and presenting the analysis of the memo. No footnotes are permitted. The following font must be used: Twelve [12] point Times New Roman.

So that your email can be uploaded to the TWEN system in Westlaw (see below) and graded electronically, you must use Microsoft WORD.

Grading

Work product will be graded based on form, format, and writing quality as well as on content. The assignments are designed so as not to have any single correct or even best solution. Each problem may present a range of issues and/or problems that the work product should identify, analyze, and solve in a creative way.

Due date

One copy of the work product prepared for this assignment must be turned in not later than Friday, April 1, 2022, at 3 p.m.

Your work must be turned in via the course TWEN page (on Westlaw), by depositing an electronic copy in the TWEN “Drop Box” for Assignment Two for this course.

There were be no extensions or exceptions to the April 1 deadline. Work product that does not conform to the format instructions above, or that is turned in late, will be accepted, but it will be subject to grade reductions.

Assignment One

[The fact pattern below refers to a real world entertainment but to an imaginary copyright practice question. Energetic researchers will learn quickly that the real world Hall v. Swift lawsuit is not – yet – headed to trial.]

To: Junior copyright lawyer, Dewey, Cheatem, and Howe
From: Senior copyright partner, Dewey, Cheatem, and Howe
Date: February 11, 2022
Re: Upcoming trial in Hall v. Swift; fair use cross-examination

As you know, our firm represents the plaintiffs in the ongoing copyright infringement lawsuit against Taylor Swift and others over appropriation of our clients’ musical composition, “Playas Gon’ Play.”  I need your help in preparing me to conduct one aspect of the trial: I expect that Taylor Swift will argue that her appropriation should be excused as fair use.

A brief recap will put this in context. Our clients sued Swift and her co-defendants alleging that some of the lyrics in their song “Shake It Off” infringed lyrics in “Playas Gon’ Play.” The initial trial court proceedings (which dismissed our clients’ Complaint), the Ninth Circuit (which reversed the dismissal and reinstated the case), and the most recent trial court proceeding (denying Swift’s motion for summary judgment, and setting the case for trial) all focused on whether those lyrics are original and therefore covered by copyright. The order denying Swift’s motion for summary judgment addressed the question of infringement by substantial similarity.  The Ninth Circuit order and the recent trial court order are available for you, at links that I’ve included below. They indicate the relevant facts, as we’ve developed them so far.  The recordings are available on YouTube.

Swift did not put fair use at issue in her summary judgment motion. We expect that issue to come up at trial, as part of her defense.  Fair use is rarely litigated in music cases, and it is almost never tried to a jury in music copyright cases.

I am familiar with the text of Section 107 of the Copyright Act. I am less familiar with current developments in the law of fair use, particularly in the Supreme Court and, as I understand it, in the Second Circuit. I don’t need a briefing on the law.  I do need an outline of fair use-related topics and questions to ask Taylor Swift in cross-examination, with annotations and explanations that help me understand how each of those topics and questions fits into our argument that her work does not constitute fair use of our clients’ work. 

(I do expect Taylor Swift to testify at trial, and I do expect that her testimony will be central to the defendants’ case. That’s why I need to be fully prepared to cross-examine her.)

As part of that outline, I also need you to point out possible land mines.  Where is our fair use case weak and why, and what topics or questions should I avoid to ensure that I don’t expose our weakness(es) and/or don’t make a weak case worse?

I need your work product – absolutely no more than four (4) pages in length – not later than Friday, February 25, 2022 at 3 pm.


Here are links to relevant background material on Hall v. Swift:

Rules and Guidelines for Assignment One

To the extent that these rules may appear to conflict with general advice regarding work product that appears in course-related webpages, these rules take precedence.

This is an “open” problem, meaning that there are no limits on the resources that you may bring to bear on your work. Among other things, you may consult with your classmates and other human beings. If you discuss the merits of the assignment with anyone, however, you must disclose that person’s identity on or in your work product. Write the names of any of these “consultants” at the top of the first page of the document.

Use your own name in the “From” field. Your work product is not anonymous.

Format

You should use the default or standard “legal research memo” form and format for this assignment. For the content, be guided by the advice in the “Modern Legal Writing” document cited above.

Memos must be typed or printed using a computer. Each memo, including any attachments, must be not longer than four [4] typewritten or printed pages, double-spaced, with 1″ minimum margins on all sides. “To,” “From,” “Re,” and “Date” headings may be single spaced, and the “consultants” list may appear inside the 1″ margin at the top of the first page.

You do not need to include a comprehensive statement of the facts; instead, you may refer to the factual background in my memo to you. Omitting a factual summary may be unwise nevertheless. A factual summary may be helpful in framing and presenting the analysis of the memo.

No footnotes are permitted.

The following font must be used: Twelve [12] point Times New Roman.

So that the memos can be uploaded to the TWEN system in Westlaw (see below) and graded electronically, you must use Microsoft WORD for the final, submitted version of the memo.

Grading

Work product will be graded based on form, format, and writing quality as well as on content. The assignments are designed so as not to have any single correct or even best solution. Each problem may present a range of issues that your work should identify, analyze, and solve in a creative way.

Due date

One copy of the work product prepared for this assignment must be turned in not later than Friday, February 25, 2022, at 3 pm.

Your work product must be turned in via the course TWEN page (on Westlaw), by depositing an electronic copy in the TWEN “Drop Box” for Assignment One for this course. Electronic (e-mailed) copies are not acceptable. Documents slipped under anyone’s door are not acceptable.

There were be no extensions or exceptions to the deadline. Work product that does not conform to the format instructions above, or that is turned in late, will be accepted but is subject to grade reduction.