COPYRIGHT LAW WRITING ASSIGNMENTS: AN INVENTORY
This page collects and reproduces writing assignments in Professor Michael Madison’s courses in Copyright Law between 2021 and 2013.
Assignment Three[The following is an entirely made-up set of facts. The videogame Pong was, and is, real, and you can read about it here.]
To: Senior Associate, Dewey, Cheatem & Howe
From: Senior Partner, Dewey, Cheatem & Howe
Date: April 16, 2021
Re: Film Clip Copyright Clearance Matter
As you know, we’ve done a fair amount of work over the years for Harry Zimm, who owns ZigZag Productions, a film and TV production company in Los Angeles. He is putting together a documentary film about the early years of the videogame industry, with investment from Netflix (which expects to distribute the film). Harry usually does high end feature film work, so he’s unfamiliar with some of the copyright clearance issues that come up with documentaries, and he’s asked us to take a look at one matter in particular. Fortunately, because of Netflix’s backing, we don’t have to pinch pennies; it’s a documentary but not a usual documentary budget.
Someone on Harry’s team found a thirty-minute film of two people playing an early version of the Atari game “Pong,” and Harry wants to use clips from the film in his documentary. I haven’t seen the footage yet – Harry is sending it over, along with a 1970s film projector that we can use – but he describes it to me as “exquisitely dull.”
As Harry describes it, the footage is shot over the shoulders of two kids, in the foreground, each of whom is moving a huge joystick to control their paddles on a TV screen as the simple “virtual tennis match” on screen unfolds. (As you may know, Pong consisted of a white blip batted back and forth “across” a white vertical line, against a black background.) In the footage, you can see the game play, and hear sounds associated with the game (beeps and boops), clearly. There is a soundtrack, which apparently consists of an introductory voiceover (something like, “1974: Welcome to the future of sports” followed by some 1970s synthesizer stuff. The beeps and boops seem to come from the game, but the sounds are relatively distinct, so maybe not. So far, no one recognizes the music from pop music of that era – and Harry grew up in the 1960s, so if anyone would recognize it, he would — so it may have been recorded specially for this Pong thing. The date makes sense, since the original Pong game was released in something like 1972.
Apparently, Harry’s person picked up the film at a local flea market for $5. The film canister was marked “Atari,” with the corporate logo. Nothing else. There’s no date on the canister. Maybe this was produced in connection with a TV commercial? Maybe it was a promotional film or an instructional film for Atari’s corporate use?
I’m going to have a junior associate or a paralegal run down all of the specifics in terms of what rights might exist in the film and what rights Harry needs to clear. (For various reasons, Harry does not want to go down the fair use rabbit hole.) That person is going to need a guide to the relevant law, so that they know where to look and what to look for, and Harry (who is pretty meticulous about this stuff) is going to want to know exactly where he stands.
Can you please put together an outline of relevant legal and factual issues, per the above, that helps the associate get started and tells Harry what’s happening?
I need your work by May 6.
Assignment Two[The following is an entirely made-up set of facts.]
To: Junior Associate, Dewey, Cheatem & Howe
From: Partner, Dewey, Cheatem & Howe
Date: March 19, 2021
Re: Copyright Infringement Matter? [dictated but not read]
I just got off the phone with a long-time client of the firm who is steaming about how a daughter – an aspiring screenwriter – is being given the runaround by some entertainment big shots. I need you to think through the following summary for me, so that I can call the client back, together with the daughter, and brief them about their likely options looking forward.
Here’s what I’ve been told so far:
The daughter (let’s call her Eve Jones, for now) has a drama degree and has been making the rounds of production companies in Southern California, pitching scripts and ideas for TV shows. She has sold a few items, so she’s building a reputation via word of mouth, and that helps her get her foot in the door at some better-known outfits. But she’s making just enough money to pay her bills.
Apparently she went to a pitch meeting for a hot shot company called Ace Productions, which is owned by a well-known actor (Let’s call him Cary James, for now) and has had a number of hit shows and films recently. She had a four-page typed “treatment” to share (a summary and outline of a proposed show, in this case a series of 30-minute episodes of unscripted reality TV having something to do with a pair of out-of-work radio hosts-turned-podcasters and their screwball misadventures with interviews, on and off the air). The idea for the treatment came out of her hours and hours of listening to podcasts while sitting in traffic on Los Angeles freeways.
When she arrived at the pitch meeting, the receptionist said that Eve had to sign a one-page pre-printed form in which she agreed that she was a temporary employee of Ace Productions during the time that she was on the premises and that any creative work that she shared with the company would be treated as a “work made for hire” and owned by the company. The form also said that she would be paid $10,000 as “salary” if the company accepted her work. If she didn’t sign, she wouldn’t be allowed into the meeting.
Eve apparently though that the whole thing was worth a $10,000 gamble, so she signed. She went in. She made the pitch based on her treatment. Apparently Cary James himself was there, and he loved the pitch. They kept the treatment, gave Eve a cashier’s check for $10,000, and she left.
I haven’t seen a copy of the form, but my client has seen it (Eve was given a copy), and aside from the employment reference and the work made for hire reference, there is no reference to an assignment of the copyright in her work. Eve agrees, however, that she signed it voluntarily; she had the option of leaving the office and offering her treatment to some other producer. But she used the money to pay off her credit card and cover her next month’s rent.
You won’t be surprised to learn that Eve has discovered that one of the big streaming platforms is now showing a multi-episode series called “Peace in a Pod,” an unscripted reality TV series of 30-minute episodes featuring 2 former FM radio DJs trying to make it in the world of – you guessed it – podcasting. Each episode focuses on their misadventures in lining up and trying to work with some strange (or interesting) celebrity guest. Eve looked into the production credits for the show and discovered the whole thing was produced by Ace Productions, and that the first episode was recorded about 3 months after her visit to their office. Based on her read of the industry’s trade media, “Peace in a Pod” is generating at least $500,000 in profit per episode for the production company.
She’s livid, and my client is livid, too. Eve wants to sue Ace and Cary James for appropriating her work. We’re a business law firm, but I don’t have a lot of experience with copyright; my client (the parent) usually comes to me for real estate advice. I don’t have time to think this through right now. I need you to do that. Can you please dig into what I’ve written, check into the relevant law, and come up with some good thoughts on what’s strong here, what’s weak here, and what additional information we need to turn up (if any)? I need to give these folks some guidance about their options.
Assignment One[The following is an entirely made-up set of facts.]
To: Outside counsel, Dewey, Cheatem & Howe
From: Bob Elliot, Executive Director, FanDocs
Date: February 12, 2021
Re: Robots Documentary
Our documentary film production company has launched several projects, one of which prompts this request for some copyright law guidance from you.
The project envisions a full-length documentary film that reviews the history and changing treatment of synthetic and artificial life forms in feature films and television during the 20th century. Androids and the like, in other words, all of which express struggles between their mostly human appearances and their machine-based attributes.
High on the list of things to talk about are the various androids, drones, and related characters in the Star Trek universe: Data, of course, originally from Star Trek: Next Generation; also 7 of 9 (the Borg drone) and the EMH (“Emergency Medical Hologram”) from Star Trek: Voyager, up to and including Dahj Sutra and Sofi Asher from the recent Star Trek: Picard. (7 of 9 also appears in Picard.) All of these characters are, as you may know, derived from the Spock character in the original Star Trek TV series (sometimes known as “TOS,” which stands for The Original Series). Spock had a human mother and a Vulcan father; his character struggled between humanistic expressions of emotion and the Vulcan obsession with logic. In a way, all of the later synthetic and artificial Star Trek characters were Spock, in slightly different forms and contexts.
There are, of course, other characters to discuss, notably the Cylons in the two Battlestar Galactica television series, the various droids from the Star Wars universe, and the robot from the Lost in Space television series, movie, and recent reboot. Even Rosey/Rosie the Robot from the Jetsons may make an appearance.
The point of the documentary film is to explore the synthetic and artificial life forms themselves, rather than to critique the films or television series in full.
We’ve secured the cooperation of several key actors involved in the Star Trek series and films: Brent Spiner (Data), Jeri Ryan (7 of 9), Bob Picardo (the EMH), and Isa Briones (from Picard). They’ll give interviews and end up in the film as themselves, talking about their characters. We also want to include short clips of the actors in character, excerpted from the source films and shows.
Paramount, which owns the copyrights in Star Trek films and shows, is notoriously stingy when it comes to granting permission to incorporate clips from Star Trek (any Star Trek) in other creative projects. Even if we were able to get the studio’s cooperation, our shoestring budget likely wouldn’t be able to meet whatever price Paramount is likely to quote.
We’d like to go ahead with our project anyway, and the Star Trek material is critical to the story that we want to tell. But we want to do our utmost to stay out of Paramount’s sights (one) and minimize our exposure and maximize the strengths of our position if Paramount decides to come after us (two).
What should we do in selecting and using possible clips, and in conducting our interviews, so that we minimize the copyright liability risks associated with the final documentary? Is there information that you need from us to help you formulate your counsel? In all respects, so that we’re aware of the “why’s” of what we’re doing as well as the “what’s,” what’s the reasoning behind your advice and your questions?
Our planning is in full swing right now, so we need your advice as soon as possible. Please get it to us by Friday, February 26, and please make it not more than 4 pages in total.
To: Junior Associate, Dewey, Cheatem & Howe
From: Senior Partner, Dewey, Cheatem & Howe
Date: April 15, 2020
Re: New pro bono copyright matter
This new matter just came in via our pro bono intake process. It was referred to us by a former corporate lawyer at this firm who has been helping her client get up and running with some business law and tax advice. Copyright isn’t in her comfort zone. The client knows that they will need to develop copyright expertise quickly, but events seem to be moving fast already. We may have a chance here not only to provide one-time service but to help this new venture grow.
The client is a new nonprofit called the “Institute for Collective Transformation,” or ICT. It’s so new that it doesn’t even have a formal website, yet, but the two people behind it, and their Board of Advisors (a bunch of law professors, as I understand it), have laid a lot of groundwork behind the scenes, getting the word out about their existence and starting to set up processes and governance.
The purpose of ICT, I’m told, is to advocate for the rights of ordinary people to create and distribute “fan fiction” – which, as you probably know, consists of audio, video, and text adaptations of popular culture that take characters and plots in new and different directions, everything from “memes” to full-length books, comics, and films. The advocacy would consist of writing amicus briefs in copyright and trademark cases; publishing op-eds; maintaining social media; and maybe even trying to give advice to Congress and the Copyright Office.
As I understand it, some of this fan fiction probably counts as parody or satire; some of it probably counts as something like literary criticism; and a lot of it is probably just silly and funny. Most of it likely counts as the sort of thing that is “free expression” under the Constitution. I’m told that a lot of it, and maybe all of it, counts as “fair use” under copyright. Apparently the two ITC founders and its Board are big “fair use” enthusiasts.
The ITC intends to be a “membership” organization and to collect fan fiction works from its members. The works will be displayed on its website through a kind of “curatorial” process – receiving submissions from fan “creators” but reviewing them before posting. Not everything will be posted, as I understand it, but it’s not clear to me whether that’s going to be a final policy. (Maybe membership will mean that any member can post all of the “fan fiction” material?) I’m told that purpose of collecting the works is that the ITC intends to use its website to show examples of the sorts of things that support its advocacy.
Apparently, as part of its “pre-launch” activities, the ITC has been posting some fan fiction images on its new Twitter feed (sorry – I don’t have the Twitter name handy). That’s where things have gotten sticky.
ITC has posted a couple of fan fiction images on its Twitter feed and related short videos to YouTube that are based on “Star Wars” characters, images, and plots. Apparently these are quite provocative in a “mocking” way – mocking the lead characters, mocking the entire idea of Star Wars, and mocking George Lucas and Lucasfilm, which made the movies. I’m told that the images say something about “Jar Jar Binks” being the true hero and wisdom behind the whole thing, “Rey” being a gullible fool, and “the Force” – along with Lucas – being merely a metaphor for “make me rich.”
Disney, which now controls all of the IP rights associated with Star Wars, sent a “takedown” notices to Twitter and YouTube, and both services took down the works and sent related notifications to ITC.
Among other things, it appears that Disney (like some other Hollywood entertainment enterprises), has a formal program by which it “licenses” fan uses of Disney-owned works. You can make a parody or satire of Peter Pan, but according to Disney, you have to play by Disney’s rules. Otherwise, Disney says, you’re an infringer.
The client doesn’t have the time or resources to fight with Twitter or YouTube over these specific images and videos, but it knows that Disney (like other big Hollywood players) watches social media and the Web carefully for this stuff.
Instead, the client has asked us:
Going forward, what are ITC’s rights, risks, obligations, and liabilities associated with posting fan fiction on the ITC website? (ITC says that it does not plan to use social media much to circulate content, precisely because it doesn’t want to be at the mercy of YouTube and Twitter.) What can ITC do to minimize the amount of “legal” work that it has to commit to, so that ITC can maximize its ability to engage in advocacy?
I’d like you to prepare a short email summary or PowerPoint presentation with your analysis, advice, and recommendations. Please submit it by 12 noon, Tuesday, May 5.
To: Junior Associate, Dewey, Cheatem & Howe
From: Senior Partner, Dewey, Cheatem & Howe
Date: March 20, 2020
Re: New Music Copyright Cases
As you may have seen, West Coast courts have been busy on the copyright front in recent days. The infringement lawsuit against Led Zeppelin was finally decided in the band’s favor, and shortly afterward, a federal District Court in Southern California used the Led Zeppelin ruling in tossing out a jury verdict in an infringement case against Katy Perry.
I’ve scanned the news accounts but haven’t read the opinions. I need you to do the detailed reading (both cases) and put together a short set of “talking points” on developments in the law of “substantial similarity” in the Ninth Circuit that I can use in speaking with clients – and prospective clients. We represent performers, composers, producers, recording labels, distributors, streaming services, studios – people across the entire entertainment industry.
What are the key takeaways? What’s changed? What’s the same? Where are the ambiguities and gaps that we (still) have to think about? I know that the Ninth Circuit’s role is to state the law (especially, as in this case, in an en banc opinion), and the trial court is supposed to simply apply the rule. But my scan of the headlines tells me that “substantial similarity” generally and especially for music copyright remains less than clear. Give me the guidance that I need to give our clients.
The cases are here:
Skidmore v. Led Zeppelin [I had my assistant edit the text a little bit, deleting some immaterial content and omitting the opinions other than the court’s] [PDF version] [MS WORD version]
Gray v. Perry [again, I had my assistant delete some immaterial content] [PDF version] [MS WORD version]
To: Junior Associate, Dewey, Cheatem & Howe
From: Managing Partner, Dewey, Cheatem & Howe
Date: January 31, 2020
Re: Copyright Question
Our client Impressions-R-Us has come to us with a question arising from a proposed new line of business for them. The company has developed an AI computer program that apparently can produce paintings in the style of the great Impressionist painter Claude Monet. To do that, the company “teaches” the computer program by copying and uploading into its memory hundreds of high-resolution photographs of scenes of nature and high-resolution digital images of Monet paintings. It obtains the photographs via simple Google image searches, which are automated.
The search software is programmed to use simple search terms such as “beach,” “forest,” and “mountains”; to review the results so that it selects only high-resolution images that are comparatively free of shade (sun shining at an awkward angle), cloudy skies, and anything else that obscures the most “pure” view of the natural setting pictured; and to exclude images that include humans, animals, or birds. The company’s database of digital images is compiled from images of hundreds of Monet’s paintings, also obtained via automated digital searches. Virtually all of these are copied from websites maintained by various museums and archives.
Given all of that source material, Impressions-R-Us has software that will “learn” the style of Monet and then produce paintings – actual paintings, produced robotically – that appear to be Monet’s interpretations of the natural scenery portrayed in the photographs.
The greater the inventory of photographs and images of Monet paintings in the database, the better (the more Monet-like) the paintings will be.
The company has been negotiating with a couple of national hotel chains as prospective purchasers of the paintings.
The company wants us to evaluate any possible liability risks that this system might pose under copyright law. The paintings, of course, are in the public domain. The digital versions of the paintings were created, I assume, relatively recently. The photos of nature are also of relatively recent vintage.
Can you please put together a brief (not to exceed four pages) summary of the key points that I need to review with the client? I’ll rely on you to assess the probability of claims arising, defenses that would be relevant, the probable strength of each, relevant authorities, and any practical strategies that the client might adopt to mitigate those risks and/or strengthen its position.
From: Chief of Staff, Senator S. Meyer
To: New Legislative Assistant to Senator Meyer
Re: Copyright Proposal
Date: April 19, 2019
Welcome to your new position working for Senator Meyer. As you know, Senator Meyer is expecting to be named to the IP subcommittee of the Senate Judiciary Committee.
Because Senator Meyer has a substantial entertainment industry and computer industry constituency, we’d like to take a crack at much-needed reform of copyright law. Copyright has gotten bizarrely complex and is more of a barrier to American progress than an asset. We’d like you to analyze a proposal that came to our attention from one of Senator Meyer’s law school classmates, who is now a law professor. It may need some tweaking, but we think that it may have traction, and we want to try to build some support for introducing it in the Senate.
This proposal would repeal the entirety of the current Copyright Act and replace the whole thing with these sections:
Section 1: It shall constitute copyright infringement for any person to copy an original work of authorship without permission or authority.
Section 2: Any party who prevails in a copyright infringement action may recover such remedies as the court in its discretion deems appropriate.
Section 3: Copyright in a work created on or after [the effective date of this statute] subsists from its creation and endures for a term consisting of the life of the author and 70 years after the author’s death or, in the case of a work prepared by two or more authors, the life of the last surviving author and 70 years after the death thereof.
For legislative history, the words “copy,” “original,” and “work of authorship” would have the meanings that they have developed in courts. We think that relevant constitutional provisions (Article I, Section 8; and the First, Fifth, and Fourteenth Amendments) mean that things like ideas, fair use, and access to government information would have the same effects that they do now.
The Senator and I are planning to meet shortly with industry representatives and public interest and consumer groups to share our vision and get their feedback. I need you to research and prepare a set of talking points and related analysis that we can use in those presentations.
To: Outside Counsel
From: Chief Financial Officer, Invest-a-Ton
Date: March 22, 2019
Re: Investment Opportunity – Copyright Question
As you know, Invest-a-Ton has made a lot of money over the last several years by investing in start-up digital publishing ventures. A new opportunity in this “space” has appeared, and before we move forward with an investment, we’d like your thoughts on what appears to be a tricky question of copyright law.
The opportunity in question is “Blue Egg.” Blue Egg’s business plan consists of buying and re-selling “digital access codes” that college and university students buy in order to access study aids, homework assignments, and other “supplemental” material that is delivered to them, online, as supplements to hard-copy textbooks. The textbooks are often relatively inexpensive. The “digital access codes,” which promise access to material that
may be required by teachers, for all practical purposes, can be quite expensive. The publishers claim that the “digital access codes” are, for all practical purposes, equivalent to access to hard-copy textbooks, because once a student has paid for the code, the student has permanent access to “their” digital content. My nephew is a law student, and I know that the big publishers of legal casebooks are saying the same thing. Students have always wanted to save money on books by selling them back to bookstores when their courses are completed. Now, though, the hard-copy textbooks are not worth much. Students are trying to keep up with the times and cut down on their expenses: they want to re-sell the codes.
The question here is whether the students have the right to re-sell the codes, under copyright law. If so, or even if it’s a close question, then maybe this investment is worth a bet by Invest-a-Ton. If not, or if the question is undecided but not close, then maybe we should back off. Maybe we need to do more research into these “digital access codes” and how they work. Basically, we need guidance. Proceed? Don’t proceed? Look harder – and if so, look for what?
I know enough about copyright law to know that you should probably look at recent developments in the “first sale” area, including the recent ReDigi case in New York and a recent case in Los Angeles called Disney v. Redbox. I’ve posted a copy of the Disney case below. It’s not clear to me that either case answers my question. Maybe the recent Supreme Court opinion in Impression Products v. Lexmark might help. Here is a link to that case. Obviously, of course, don’t limit yourself just to “first sale,” if your analysis takes you in a different direction.
Disney v. Redbox
To: Outside Counsel
From: Chief Financial Officer, GamesRUs, Inc.
Re: Fortnite lawsuits
Date: February 1, 2019
We’ve been following the news over the last few months regarding the lawsuits filed against Epic Games and Fortnite. Fortnite has emotes based on dance moves created by various minor celebrities. The Techdirt website usually does a pretty good job of explaining current digital copyright issues, so we read this piece, which sort of seems to say that dances can’t be copyrighted.
And we heard that Microsoft removed some dance emotes from its game “Forza Horizon 4,” but it didn’t really explain why.
We have been developing emotes for our new game, “Gotta Fly Now,” which hasn’t launched yet. As you know, we’re a small company; this is only our second product, and we can’t afford much in the way of legal expense. But we can’t succeed unless we stand out in the marketplace. The emotes in our development pipeline are all based on scoring celebrations in pro sports, especially touchdown celebrations from 2018-2019 in NFL football and goal celebrations from international soccer.
Here are some examples of what I mean:
We are particularly interested in the “group” celebrations, but we are also developing emotes in our game that are based on player celebrations that themselves are based on “Fortnite” emotes. (Does “Fortnite” have copyright in its emotes? That just occurred to me.)
A lot of these celebrations appear to be based on other events in sports and in entertainment.
We need some guidelines for what is fair and what is safe in our game development process. One, we’d really like to use a lot of this material, because it could be profitable for us and could really help us get a commercial foothold in the industry. It could also help us really stand out in a creative way. Two, we’d really like to avoid getting sued. Who likes to get sued? Three, if we do get sued, we’d like to have a pathway to clear wins. What do I tell my development team, and what do I tell my boss?
To: Junior Lawyer, Dewey, Cheatem, and Howe
From: Senior Lawyer, Dewey, Cheatem, and Howe
Date: April 17, 2018
Re: Client startup idea
We have a new client, a startup company called Celestial Jukebox, or CelJuke. Their basic idea is “Google Books meets Shazam.” This is the detailed plan, as I understand it:
CelJuke wants to sign up subscribers (users) to a free online service where users would upload short (5 to 10 second) music clips that users would capture on smartphones using Shazam and other music recognition apps. (Actual music recognition apps work by capturing and comparing “fingerprints” of musical recordings to a massive database of these “fingerprints,” so important technical details have to be worked out.) Users would upload short bits of musical recordings – what the client calls musical “snippets” and identifying data, generated by the Shazam-like app – to the CelJuke service, eventually creating a massive online storehouse of short musical clips.
CelJuke users who want to just hear the clips would be able to simply listen, via a stream at the service. Users would be able to download and save clips only via the “genre translator,” so that any clip downloaded from CelJuke would be transformed from its original musical genre to one of several dozen different musical genres. A rock ‘n’ roll clip could be downloaded as a blues riff, for example, but not as its original rock ‘n’ roll version. The reason for the “genre translator” is to prevent the musical snippets from being used, in their original forms, as ringtones.
The whole enterprise would be free to users. The business model would generate revenue by selling advertisements on the service.
The service is still in the design phase. The two founders have asked for a quick review of their plans, per the above. They are looking for advice on barriers posed by copyright law, and possible solutions. I have scheduled a presentation for the founders for the end of May. I would like you to research and prepare a set of talking points and related analysis that I can use in that presentation.
To: Junior Associate, Dewey, Cheathem & Howe
From: Senior Partner, Dewey, Cheathem & Howe
Date: March 23, 2018
Re: New Ninth Circuit cases
As you undoubtedly know already, the Ninth Circuit recently decided two cases dealing with copyright’s doctrine of infringement by substantially similar copying: Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir. 2018), and Williams v. Gaye, ___ F.3d ___, 2018 WL 1403577 (9th Cir. Mar. 21, 2018).
My brief review of legal news commentary on Williams v. Gaye suggests that there is a lot of uncertainty and confusion about the state of the law in the Ninth Circuit, given the earlier decision in Rentmeester. These two cases appear to be in some conflict with each other. Maybe there is a lot of conflict.
Our firm has a lot of California-based clients with strong interests in copyright law. I’d like you to do a deep dive into these two cases and come up with a relatively brief (1,200 words max.) summary of key takeaways that I can share with them. Please focus on the two opinions’ discussions of substantial similarity, and explain the key, important points about the law today in the Ninth Circuit: what’s strong, what’s weak, what’s clear, and what’s not.
Some of our clients are involved primarily in the music industry, some in film, some in photography, some in video game design and development, and some in software. It’s a broad and diverse bunch. As you know, our advice to clients sometimes differs depending on the client’s field, so if your read of the new cases is that field matters in some respects, that would be important to know as well.
You can find the two opinions at the links below. I’ve deleted a bunch of material from each one that you can safely ignore for purposes of this request.
Rentmeester v. Nike, Inc.: Madisonian.net/downloads/copyright/2018/rentmeester.pdf
Williams v. Gaye: madisonian.net/downloads/copyright/2018/williams.pdf
To: Tom Cheathem, Dewey, Cheathem & Howe
From: Lou Smith, Tre Linguine Analytics
Date: February 2, 2018
Re: Copyright question
Tom, you’ve been TLA’s outside lawyer and IP lawyer since we got this startup company off the ground last year. As TLA has evolved its business toward a focus on modern language processing and analytics, I’ve realized that we need some basic copyright advice.
The question is this: Does Google own copyrights in the output of its “Google Translate” service (translate.google.com)?
Here’s my reason for asking: TLA’s emerging business model consists of helping corporations translate into English business documents that were created in languages other than English. Google’s free online “Translate” service can handle content of up to modest length and up to modest complexity. TLA has developed computer software that acts as an interface with respect to Google Translate for purposes of translating longer, denser, and more complex material. Our clients will bring us documents that consist of hundreds of pages of legalese; we will prepare the documents using our software, then feed the output into the Google Translate service, and deliver the results to the clients.
It seems to us that Google shouldn’t own any rights in the output of a free translation service, but I’d like your opinion. Do we have anything to worry about here? We certainly do not want to get sued.
To: General Counsel, ACME Impossible Products Corp.
From: VP, Product Development, ACME Impossible Products Corp.
Date: April 19, 2017
Re: Product Idea
My team has come up with a prototype of what we think will be a revolutionary new technology. Before investing a full research & development budget to complete a finished asset and approaching possible corporate partners for funding, distribution, and/or acquisition possibilities, I’d like to get your input.
The team calls the technology the “Personal Copy Manager,” or PCM. The “elevator pitch” concept is this: It’s cloud storage in your body.
As my engineers pointed out, cloud storage services like Dropbox and Amazon Web Services have revolutionized electronic commerce, because they offer incredibly cheap online digital storage for customers without requiring that the customers maintain complex and sophisticated computer hardware or software. In addition, cloud computing takes advantage of so-called “distributed” computing concepts that we first saw in the original Napster: “distributing” computer processes across lots and lots of Internet-connected computers increased the scale of the work that could get done and reduced its cost, in effect, to the very low cost of the software and the equally low cost of the relevant computer chips. For most practical purposes, large mainframe computers are things of the past. Even IBM’s “Watson” artificial intelligence technology is moving away from implementation in giant IBM machines and toward implementation via apps on the smartphone.
According to my engineers, at least one large, continuing problem with the “distributed computing” concept remains: copyright. They read the Grokster and Aereo cases in the Supreme Court, and their reading suggested that so long as the tech remains in control of third parties (like the defendants in Grokster and Aereo), then big entertainment will still be able to throw up roadblocks to development of innovative new technologies and
startups – like ours. Admittedly, they are not lawyers, nor am I. But that sounds right to me.
In the language of tech folk, what if we could “hack” copyright?
Those insights led us to the PCM. Half of the system is a computer chip – roughly the size of a dime, but thinner and perhaps smaller – that the customer would implant just under his or her skin, probably on the upper arm, just below the shoulder. That’s more or less where nicotine patches get worn, but the PCM chip would be much smaller than a patch, and would be inserted just under the skin rather than worn on top of the skin.
The chip would act as a controller: a device that could be programmed with computer software transmitted wirelessly from an external source – presumably ACME, at least to start. But the chip itself would have no “permanent” storage (equivalent to what we still sometimes refer to as a “hard” drive or “flash” memory, as on a memory stick or USB key). It would have only enough processing power and temporary storage to run the relatively small amount of computer software that’s needed to run the rest of the PCM system.
The rest of the PCM system – the other half — is this: Software that turns the individual consumer’s brain and nerve system into a 21st century “neural network,” meaning that the software would enable the user’s brain to do three things: (1) the system uses the user’s own senses to capture content that the user want to save; (2) the system saves the content in the user’s brain and neural system, for instant recall for the user’s own benefit; and (3) the system allows the user to share the user’s personal stored content with other PCM users via one-to-one physical contact (handshakes, kisses, etc.). The key to using any of (1) to (3) is this: The software that ACME delivers through the chip interacts with the user’s brain. The user activates the PCM via a menu of “brain instructions” provided by the software. The menu includes different modes of thinking about the relevant activity. If the user sees a YouTube video that the user wants to store, the user simply needs to watch the video and think to herself, “I’d like to save this.” If the user hears a song that the user wants to store, the user simply needs to listen to the song and think the “save” thought. Sharing content simply requires activating the “share” thought.
Recalling content to watch or listen to simply requires thinking, “I’d like to watch [x]” or “listen to [y].” At that point, the content plays back in the user’s brain, and the relevant sensation consists of believing that the user is actually watching or listening to that content. This means that external screens and speakers are unnecessary, because the user is actually having the relevant experience inside her head. There are no limits on the amount of content that can be stored or shared via the PCM, because the system is designed to access both conscious and subsconscious memory functions in the user. PCM users could delete stored content by thinking “delete [x],” but deleting would never be complete or permanent, because the material would always be stored in the user’s subconscious and available for recall later – sort of like a song that you heard once, decades ago, but forget about until you hear it in a new setting, much more recently.
Looking forward, we imagine that we might approach Amazon and Uber as possible business partners for PCM. Amazon might build this technology into their shopping services. Right now, you can order Amazon items via the “Alexa” automated attendant, but using Alexa requires that you speak out loud to Alexa. What if you could order things from Amazon simply by thinking about what you want? Uber is another obvious candidate. You could order an Uber from your head, rather than from an app on your smartphone.
But Amazon and Uber are beyond the scope of my question right now. Currently, the question is this: My engineers think that PCM is a copyright killer, because it relies entirely on private activity rather than the “public” features that got other internet technologies into trouble. What do you think? We’re still in the brainstorming and design stage, so my question isn’t “will we win the court case?” Instead, what I need to know is what to tell the engineers. Where are the copyright land mines, and how can we avoid them?
I need a brief, not-to-exceed-four-pages summary of your advice by Tuesday, May 9, at 12 noon.
To: Junior Lawyer
From: Senior Lawyer
Date: March 24, 2017
Re: Photo Matter
I just got off the phone with our new client, Happy Photo. The owner, Sam Happy, is a well-known and successful commercial photographer here in town. Happy is grumpy with one of his business partners, and he’d like some advice. I need you to write up a short (4 pp max) memo outlining his options, including strengths and weaknesses and areas where we may need more information.
Sam sent me an email with the key language from the license at issue. It was signed back in 2012. Basically, Happy Photo has a deal with Summertime Apparel that grants Summertime the irrevocable nonexclusive right to reproduce on t-shirts, tank tops, and the like a series of photos produced by Sam – a portfolio of hi-resolution digital images of the three rivers area of Pittsburgh that he shot from the Point (where the Monongahela and Allegheny Rivers converge).
The specific language of the license allows Summertime the use of the photos as “guides, models, and examples for illustrations to be used on T-shirts and/or other sportswear,” which Summertime can sell however and wherever it wishes. Our firm didn’t draft the license. Sam told me over the phone that the point of the language was and is to prevent Summertime from printing photographic images on its shirts. He has a different business partner for that market, and of course he licenses the original photos for use on all kinds of other products.
Sam is agitated because he recently saw a collection of Summertime-branded t-shirts, polo shirts, and tank tops for sale in shops around Pittsburgh, featuring silkscreened color and black-and-white versions of Happy Photo’s color images. I pressed him for some details regarding the t-shirts; he admitted that the images on the shirts have been digitally modified (some of the images are cropped, for example), but that they are recognizable versions of Happy Photo’s originals. Up to this point, since 2012, Summertime has produced t-shirts and other things under the license that took Happy Photo’s images as starting points but modified them more dramatically, basically taking the photographic images and processing them to create images that look more or less like watercolor paintings.
Sam wants to know what his options are. The existing license with Summertime is open ended, but he doesn’t have any plans to work with them again in the future.
I need your work product not later than Friday afternoon, April 7.
To: Junior Lawyer
From: Senior Lawyer
Date: February 3, 2017
Re: Fair Use Guidelines
Our client WeMakeIt, a well-known producer of short parody films posted online, has asked for our review and opinion regarding the “fan film guidelines” recently posted by CBS and Paramount at http://www.startrek.com/fan-films. WeMakeIt was not a party to the “Axanar” litigation that those guidelines arose out of. Nonetheless, WeMakeIt regularly engages in adaptations and re-use of well-known pieces of popular media, including “Star Trek” and “Star Wars” films, among others.
Some of those adaptations are comic parodies; some are political or satiric, or both. WeMakeIt distributes its short films on its own site (WeMakeIt.com) and also on third-party sites. In both settings, the sites distribute paid advertising; that’s how WeMakeIt supports itself.
WeMakeIt has, up to this point, relied heavily on our firm’s advice regarding scope of copyright’s fair use doctrine. (In general, in the past we have advised that fair use applies to its works so long as WeMakeIt hews to the standards outlined in the Supreme Court’s Campbell opinion.) The question that the client has raised is whether our advice regarding fair use should be updated in light of these new “fan fiction” guidelines. If so, how; if not, why not?
Can you please take a close look at the guidelines and relevant fair use caselaw and give me a brief, not-to-exceed-four-pages summary of what I should tell the client?
I need your work product not later than Friday afternoon, February 17.
To: Outside Counsel, Dewey, Cheatem & Howe
From: Managing Editor, Big Bully Publishing, Inc.
Re: Rights Clearance Issue
Date: April 18, 2016
One of our authors is publishing a book about soccer. He wants to use an old photograph on the cover. We’ve told him that he needs to clear any relevant rights to the image. As you know, everything that we publish goes into multiple formats — print, e-book, online (including previews of chapters and pages at Amazon), and multimedia/Internet (parts of pretty much every one of our titles now goes onto an author’s website and social media streams with images, videos, etc.), and international equivalents.
The author is willing to do whatever is needed, but he wants to know what rights, exactly, he needs, and where and how he should get them. Can you write up a short (three or four page max) memo that summarizes that information for him? (It needs to be short because both he and our editors aren’t lawyers.) He’s a bright guy, so he’s going to want some explanation as to why, exactly, each of these things matters.
Here’s the photo: [OMITTED]
He says that the photo was taken in California in 1974 by a family friend, and that it appeared in print in the November 1974 issue of a magazine published in California called “Soccer America.” I think that we can safely rely on that information.
I need this from you by Thursday, May 5 at 12 noon.
To: Junior Lawyer, Dewey, Cheatem & Howe
From: Senior Lawyer, Dewey, Cheatem & Howe
Re: Prints problem
Date: March 18, 2016
Our client Posters Posters Posters (or P3, for short) just called me with a problem. I need you to look into this for me.
P3’s main business is producing high-quality poster versions of famous, public domain paintings, for sale in museum shops. The posters are produced with the permission of the relevant museums, which have to approve P3’s access to their paintings. Each poster is a faithful reproduction of the source painting, though frequently during the production process P3 technicians “re-balance” the colors in the source painting so that the poster version is a slightly brighter, more attractive version of the original. Each poster copy of a public domain painting sells for about $20.
P3 has learned that another company, Diligent Art (I’ll call it D, for short), has been buying copies of P3’s posters in these museum shops, then somehow transferring the content of the posters onto contemporary canvases. The posters themselves aren’t on the canvases, I think; instead, the images on the posters have been transferred to the canvases.
D sells these “paintings” – canvas versions of P3’s posters – to consumers, for hundreds of dollars per copy.
P3 doesn’t know exactly how D goes about making D’s “paintings,” but the color balances in D’s canvas products make it clear that D has somehow transferred the content of each poster to the new work.
P3 wants to challenge D in court. I need you to study the law and figure out whether P3 has a case. Does it? What are its strengths and weaknesses? Does it matter what D does with the posters or how it makes its paintings? What should I tell P3?
I need a short, four-page maximum writeup of your analysis by Friday, April 1 at 3 pm.
To: Junior Lawyer, Dewey Cheatem & Howe
From: Senior Lawyer, Dewey Cheatem & Howe
Date: February 1, 2016
Re: Statuette Question
I had a call today from our client Tom, president of the local Pittsburgh non-profit “FutureLaw.” FutureLaw is hosting a small conference in a couple of weeks, bringing to town about two dozen thought leaders for a closed, by-invitation-only conversation about the future of the legal profession and legal education. Tom would like to give each of them a small token of appreciation for their time and service, and that’s why he’s called us. He doesn’t want to run into copyright problems.
The gift that Tom has in mind is a three-dimensional four-inch tall plastic replica of the University of Pittsburgh Cathedral of Learning, which (in real life) is 42 stories tall. Tom is an adjunct professor of law at Pitt’s law school, and one of his law students is a graduate of the University of Pittsburgh engineering program. That student volunteered to use his personal 3D printer to manufacture a set of replicas of the Cathedral of Learning, using a 3D model of the Cathedral (an .stl format piece of digital code) that the student found on a “maker” site on the Internet. Each four-inch tall replica would be made of ABS, which is a strong, shiny plastic used by 3D printers to manufacture custom designed objects.
Each replica would be an exact copy of the Cathedral of Learning, subject to reductions in detail based on the object’s size and the capabilities of the material used.
Tom doesn’t know exactly where the model for the replicas came from. He says that the student told him that the model was posted on line by someone working for a design firm that was commissioned by the University of Pittsburgh to produce high-quality, highly-detailed 10-inch tall replicas of the Cathedral of Learning using a commercial grade 3D printer and a different, more durable plastic material. (The student would simply adjust the dimensions of the model in order to produce the smaller replicas for Tom.)
Those replicas were not manufactured for the university to sell, and so far as Tom knows, it isn’t possible to buy 3D printed versions of the Cathedral anywhere, for any purpose.
Tom was trained originally as an IP lawyer, and his instinct is that there may be a copyright problem in here. But he’s not sure. He’s asked us: Can he give these small models of the Cathedral to his conference attendees without running into copyright trouble?
I need a short, four-page maximum writeup of your analysis by Monday, February 15 at 3 pm.
To: Junior Lawyer, Dewey, Cheatem & Howe
From: Senior Lawyer, Dewey, Cheatem & Howe
Date: April 13, 2015
Re: Chuckles Again
Our client Snark Entertainment has come to us yet again with a copyright problem associated with the Chuckles characters and films, and this time (because we’ve done such a great job of counseling Snark), Snark has also brought us related Chuckles issues affecting MegaPictures and Engulf & Devour. See my two earlier memos to you regarding Chuckles copyright issues. You’ll recall that on our advice, Snark took a license to the Chuckles works in order to release its parody of Chuckles without interference from Engulf & Devour, and also that Snark faced down MegaPictures over its threats based on The Dark Clown. MegaPictures never sued Snark, and the Chuckles adapations produced by MegaPictures and Snark are now both thriving on YouTube and elsewhere online
The new problem involves Chuckles works produced by all three firms – namely, the original Chuckles movies and the two adaptations created by our clients – as well as other adaptations produced via Engulf & Devour’s “authorized adaptation” website. It seems that a fan who is obsessed with all Chuckles things – and all clown media – has created a “wiki” website and he is encouraging other fans to upload Chuckles related material there. As a result of the obsessed fan’s activities, excerpts of Chuckles works are being excerpted, and posted to the wiki, without permission of our clients, the copyright owners. In some cases, straight excerpts of the original films are being posted; in other cases, excerpts of the original films are being “re-mixed” before being posted; in still other cases, excerpts and re-mixes of the adaptations are being posted. I don’t know the contents of all of the “re-mixed” versions. It also appears that this fan encourages others to post clips from other films and TV shows that feature clown characters, though so far only Chuckles-related material has appeared at the site.
The Chuckles wiki is online at http://chuckles.wikia.com; in style and format, it appears to resemble other fan-created wikis, such as the Breaking Bad wiki (http://breakingbad.wikia.com/wiki/Breaking_Bad_Wiki). In some respects this may appear to be an innocent expression of fan support, but in other respects it is troubling to our clients. The fan who claims to be organizing the Chuckles wiki (whose name is Alan Alda, which by coincidence is also the name of a famous actor) includes text on the home wiki page that says, “Come one, come all! Give and get all of your clown media here! Chuckles the Clown content especially welcome!” And, of course, there is both an “Upload” button right next to that text, and a list of links to previously posted clown media. Several of the titles featured prominently on the site include the name “Chuckles” and take the visitor to unauthorized excerpts of our clients’ works that are hosted at the wiki. Because two of our clients are hosting authorized copies of their films on YouTube, and making money from associated advertising, of course they worry about lost revenues. Engulf & Devour, as a large Hollywood studio, wants to ensure that adaptations and re-mixes of its films are processed through its own website (see my first memo to you). Some of the other small companies that have downloaded the Chuckles content through E&D’s website and created their own adaptations have threatened to sue E&D because E&D appears to be allowing the wiki to produce and host competing adaptations.
Needless to say, all three of our clients want to put a stop to Alan Alda’s activities and have asked us for an immediate review and recommendation regarding their options.
Based on the above and your knowledge of copyright law, work up a short memo – 4 pages, maximum – that reviews the matter and develops relevant questions and recommendations for further action. Our clients are eager to see quick action. Is that possible? What are the obstacles? Where and how can we get quick results?
To: Junior Lawyer, Dewey, Cheatem & Howe
From: Senior Lawyer, Dewey, Cheatem & Howe
Date: March 20, 2015
Re: More Chuckles Problems
You will remember our earlier copyright conflict involving the Chuckles movies, reflected in the memo to us from Snark Entertainment of January 30, 2015 and your response.
Based in part on your advice, Snark decided to contact Engulf & Devour Pictures and obtain that company’s permission to release “Chuckles Comes Next.” Part of that negotiation included the agreement by Engulf & Devour that our client could retain the copyright in “Chuckles Comes Next.” That short film has been made available on YouTube, and both commercial and critical reaction has been positive. Our client is not making a lot of money with the project, but it is happy with the results.
However, a new copyright issue has arisen.
Our client has received a letter from a company identifying itself as “MegaPictures.” In that letter, MegaPictures asserts that “Chuckles Comes Next” infringes a copyright that MegaPictures owns in a short film titled “The Dark Clown.” According to the letter, “The Dark Clown” (which I have not seen) adapts the characters and plots of the Chuckles movies into a horror film, which addresses and builds on “coulrophobia,” or a fear of clowns. The result is a parody of the Chuckles movies, poking fun at the “action clown” (or action comic book figure) genre in general and Chuckles in particular by critiquing the reluctance to take Hollywood’s comic book violence to its logical, horrific extreme.
The letter goes on to say that both “The Dark Clown” and “Chuckles Comes Next” use all of the characters from the original Chuckles movies except one – Ted – and that several specific plot points appear in both films: clever workplace dialogue between the characters known as Mary and Lou; sexual innuendo in the dialogue spoken by the character known as Sue Ann; Mary’s recurrent efforts to build a stable relationship with a man; and the climactic confrontation between Chuckles (the action clown) and the villain, known in both movies as Peter Peanut. The letter is wrong on that point at least; in “Chuckles Begins,” the character is named “Peter the Peanut.” (In the Chuckles movies, the climatic confrontation takes place between Chuckles and a circus performer wearing a peanut costume.) Finally, the letter confirms that “The Dark Clown” was produced and released on YouTube with the express permission of Engulf & Devour, and that it was released six months before “Chuckles Comes Next” was released.
I had a preliminary conversation with Grant, the president of Snark Entertainment, who admits that he is a fan of all clown-based entertainment and a devout consumer of YouTube films but who denies having seen The Dark Clown. He wants to fire back an angry response to the letter from MegaPictures and to be prepared to fight the case if MegaPictures decides to file one. As Snark’s outside copyright counsel, I need to prepare Grant both with great arguments but also with a realistic sense of where concerns and risks might pop up.
Based on the above and your knowledge of copyright law, work up a short memo – 4 pages, maximum – that sets out the key elements of how we should strategize the factual and legal basis of a defense. What do we need to know, and why? Where are our strengths likely to lie? Where might the case have weaknesses? I’ll use your memo as the basis for my next briefing, when I meet with Grant.
To: Outside Counsel
From: Chief Creative Officer, Snark Entertainment
Date: January 30, 2015
Re: Chuckles Parody
We need your expert copyright assistance in connection with Snark Entertainment’s latest project. As you probably know, Engulf & Devour Pictures, a major Hollywood movie studio, owns the copyrights associated with the blockbuster series of three live action films known generally as “the Chuckles movies.” (The titles are “Chuckles Begins,” “Chuckles,” and “Chuckles Rises.”) The main character, Chuckles, is an “action clown,” a sort of cousin of the comic book heroes in The Avengers movies. Chuckles is surrounded by a cast of regular characters named Mary, Ted, Lou, Murray, Sue Ann, and Rhoda.
Fan response to the Chuckles movies has been overwhelmingly positive, but Chuckles and the associated characters have come in for some friendly criticism in popular culture. Ted, in particular, is believed to be a useless blowhard, and many fans think that the movies would be better without Ted in them.
Snark Entertainment has tried to fill this popular demand, by making a short film that copies and re-edits clips from each of the Chuckles movies into a new story, one that uses all of the Chuckles characters except Ted, who all Chuckles fans seem to hate. We have edited this short film for comic effect, instead of using the dark, dramatic tone that characterizes the original movies. What we’ve done, in short, is make a parody. It is titled “Chuckles Comes Next.”
We have not yet released the film in any format (we’d like to distribute it via YouTube, and collect advertising dollars), because of the following circumstance. While we were producing “Chuckles Comes Next,” Engulf & Devour posted all 3 Chuckles movies on a website (www.usechuckles.com), with text indicating that anyone who wishes to download the Chuckles movies and remix them (or parts of them) into a new film has Engulf & Devour’s permission to do so! The thing is that when you download the movies, you have to click on a “terms and conditions” screen in which you agree that you will pay to Engulf & Devour half of all revenues associated with distributing any Chuckles remix that you make.
Snark Entertainment didn’t download the Chuckles movies from the website; we just bought DVDs and ripped them, then edited the files using ordinary commercial software.
So we didn’t agree to the “terms and conditions” screen. We think that we’re engaging in fair use under the copyright law, but we’re worried that if we distribute “Chuckles Comes Next” on YouTube, Engulf & Devour will come after us for copyright infringement anyway, and we’re worried that Engulf & Devour might have a good case.
Do they? Where do we stand, legally speaking, under copyright law? I’d appreciate your analyzing the strengths and weaknesses of our fair use argument, and telling us what you think we should do from this point forward.
To: Junior Lawyer
From: Senior Lawyer
Date: April 16, 2014
Re: Stayin’ Alive Issue
Our firm has been approached with an unusual request by Barry Gibb, the last remaining member of the Bee Gees, the superstar musical group that had its greatest fame during the disco era of the 1970s.
Apparently, Bruce Springsteen recently released a new album, and as part of Springsteen’s tour he played several concerts in Australia, where the Bee Gees (the B and G stand for “Brothers Gibb” — Barry and his brothers Maurice and Robin) were raised. During at least one of Springsteen’s Australia tour stops, he performed a live cover of the song Stayin’ Alive, composed jointly by all three Bee Gees and released as part of the Saturday Night Fever soundtrack in late 1977 or early 1978. Springsteen’s people apparently secured permission for the performance through the firm that owns the publishing copyright in Stayin’ Alive rather from the Bee Gees themselves. Barry confirmed to me that in their pre-Saturday Night Fever, pre-superstar phase, as songwriters the brothers were willing to assign copyrights in their music to third-party music publishers. They assigned the copyright to Stayin’ Alive to the American arm of Pickwick, which is owned by a UK parent.
As a result, while the Bee Gees received handsome royalties from their publishing agreements, and continue to do so, they do not own the copyrights themselves and cannot and do not control uses of the works. Moreover, the copyright owner – Pickwick – is pretty promiscuous with licensing the publishing. Section 115 and Harry Fox licenses in the US permit any qualifying person to record and distribute a cover, but Pickwick will permit virtually anyone, such as Bruce Springsteen, to pay for the right to perform the songs.
Stayin’ Alive is in the BMI (Broadcast Music Inc.) repertoire; Springsteen’s people (and anyone else, for that matter) can obtain public performance rights by navigating the BMI website.
Here’s the problem: Barry Gibb’s brothers Maurice and Robin are now deceased. Stayin’ Alive was the Bee Gees song most beloved by Maurice and Robin. Barry – who claims that he believes personally that Bruce Springsteen is a musical genius – claims that his late brothers hated the man that fans call “the Boss” and would be horrified to learn that Springsteen is performing Stayin’ Alive in public. Barry loved his brothers, and to honor their wishes he wants to stop Bruce – and stop anyone else – from playing that song in public.
Barry wants us to outline his options. He wants to put a stop to all public performances of Stayin’ Alive, anywhere, except those specifically authorized by him personally. Is that even possible? If so, how? If not, why not?
I need your memo, four pages maximum, by Wednesday, May 7, 2014, at 12 noon.
To: Junior Lawyer
From: Senior Lawyer
Date: March 20, 2014
Re: E-Books Issue
As you know, our firm represents a number of publishers of electronic books. As you probably also know, a large portion of their catalogs consist of e-book versions of previously published works. For several years, we have advised those firms that their business models were relatively safe, as a matter of copyright law, in light of the well-known decision in Random House v. Rosetta Books.
A very recent District Court decision calls that advice in question. I need you to take a look at the new opinion and put together a short memo that I can use in advising clients regarding its implications for their business. Among the things I need to understand are these: Is the law changing? If so, how? If not, why not? When our clients identify authors and works to use in producing new e-books, in light of this case what are the legal and factual questions that they should ask in order to minimize their copyright risk? What are the answers they should be looking for?
You can find a copy of the new case (HarperCollins Publishers v. Open Road Integrated Media) here.
I need your memo, four pages maximum, by Friday, April 4, 2014.
To: Junior Attorney
From: Senior Attorney
Date: February 5, 2014
Re: Luminous Fish Matter
Our firm represents GlowFish, a firm that creates and sells transgenic animals, specifically fish. Glowfish engineers use existing recombinant DNA technology to insert foreign genetic material into the genome of an existing animal. In their case, GlowFish inserts a green fluorescent protein (gfp) gene into the genome of the zebrafish. The foreign gene codes for luminescence – that is, color; it originally was extracted from jellyfish. These genetically-modified (GM) fish are now sold in pet stores and come in several fluorescent or luminous colors: bright red, green, orange-yellow, blue, and purple. Needless to say, zebrafish do not otherwise come in colors.
Our client has obtained relevant patents on the technology behind the GlowFish and trademark registrations on the product names. However, it badly wants to complete its intellectual property portfolio and obtain copyright registrations for each of the fish. As you know, registering a copyright is not required in order to prove that a work is protected by copyright. But Glowfish wants to get the registrations anyway, because (as you also know) a certificate of registration provides a strong presumption of copyright validity.
As a test case, our firm submitted an application to the Copyright Office to register the red Glowfish as a sculptural work. The theory is that the fish is a work of art, much like the “glowing” rabbit named Alba that was once created by the artist Eduardo Kac using similar recombinant DNA technology. But unlike Alba, which was a one-of-a-kind rabbit, the fish sold by GlowFish are products. Glowfish wants to copyright the Glowfish products to prevent the kind of anti-competitive conduct that copyright is usually meant to prevent or punish: piracy.
Anyway, the Copyright Office rejected the Glowfish registration on the ground that registration was barred by Section 102(a) of the Copyright Act. (That is all that the Office said – it provided no details.) We have the right to submit a response to the Office, contesting the denial. Can you write up a memo – not more than 4 pages total – that outlines how Glowfish should argue its case? Be sure to indicate where the case remains weak. Even if we go ahead, I want to be sure that the client understands the odds of prevailing.
To: Outside Copyright Counsel, Yubet, Urlyfe & Hope
From: General Counsel, Bongo Beans Coffee, Santa Monica, California
Date: April 17, 2013
Re: Demand Letter Recently Received
I need your help in crafting a response to a demand letter that Bongo Beans Coffee recently received from Random House and Penguin concerning a copyright matter. I contacted your colleague in the employment law department about this, because most of the BBC legal work that I deal with and refer to your firm consists of employment law matters; when it comes to copyright law, I am out of my depth. She referred me to you.
As I’m sure you know, RH and Penguin are two major book publishers and e-book distributors in the United States. Bongo Beans Coffee is a small company that operates 9 upscale coffee boutiques in the greater Los Angeles area. BBC prides itself on offering great coffee products (drinks and beans) and a comfortable environment where our customers can sit quietly and read, socialize, or work. We try to market our stores as havens for lovers of books and literature. (Our advertising features the slogan, “Curl Up With Us.”)
We offer meeting spaces where book clubs meet, we sell books (printed books) in partnership with local bookstores, we hire English majors and people with graduate degrees in literature to make the coffee (and offer literary criticism to our customers), and our stores look a bit like 21st century libraries.
We’re not Luddites, however; we embrace literature in all of its forms, including e-books. Lots of our customers bring Kindles and iPads and Nooks to our stores and wile away the hours, drinking our coffee and reading on these devices. Because of our partnerships with local bookstores, we have experimented with sometimes offering Kobo eReaders for sale in our stores. Kobos, as you probably know, are e-book readers that are often favored by independent bookstores and their customers. We have sold some Kobos, but under our deals with the bookstores we haven’t received any profits. The point is to make our stores welcoming to readers of all sorts. We also offer free wireless service in our stores, so I assume that our customers take advantage of that to download e-books while they are in our stores.
It’s the e-book part of the story that has us in apparent hot water with RH and Penguin. Their demand letter, which I’m sharing below, claims that BBC is liable for contributory and vicarious copyright infringement in connection with the public display of e-books in BBC stores by our customers. RH and Penguin are threatening to sue BBC if we don’t come to an acceptable licensing arrangement within 30 days. While I think that RH and Penguin are crazy – how can it be illegal for a coffee shop to permit people to read books while drinking their coffee? – I can’t afford a lawsuit. At least I can’t afford to lose a lawsuit. But I also can’t afford their demand – 1% of gross revenues. Our ASCAP and BMI licenses already eat up more of our revenues that I can afford.)
Can you please put together a review of the legal issues here, assessing our strengths and weaknesses and giving me a sense of how I should respond? I don’t want the response to come from outside counsel; I’m guardedly optimistic that a response from me will keep tempers from flaring. But I need your guidance regarding what points to make.
Here is the demand letter. [Update posted April 24, 2013: The reference to Section 106(4) in the original demand letter has been changed to a reference to Section 106(5), per a suggestion by a sharp-eyed reader. Was the original reference to Section 106(4) a typographical error, a bit of sloppy analysis by the author, or a genuine suggestion that Section 106(4) might have something to do with this matter? It was clearly the first, although the other possibilities are worth some thought. Prof. Madison]
To: Junior Copyright Lawyer
From: Senior Copyright Partner
Date: March 22, 2013
Re: Re-Generator Research
Our client, Wunderbar Comics, is in the middle of a negotiation with Engulf and Devour Studios, a major Hollywood movie studio, regarding the rights to Re-Generator, one of the Wunderbar portfolio comic characters and action heroes. The negotiations have hit a snag, and we need you to do some research to see whether we can put the deal-making back on course.
As you may know, Re-Generator is a key part of the Wunderbar comics universe. ReGenerator has been the featured character in over 250 comic books over the last dozen years (the first was published in the US in 2000, and translations appeared in China, Japan, South Korea, Germany, and Spain beginning in 2005). The character has also made guest appearances in several other Wunderbar comic series during that time. ReGenerator is a being of indeterminate gender and does not wear any special costume.
The character has an essential character trait, which is the ability to re-generate part or all of its body if it is wounded or even killed. Each full-body re-generation yields a human-like form (overall size and appearance, including face and hair) that differs from the character’s prior form; mere limbs, etc. are re-generated as they were before.
ReGenerator was the product of two other Wunderbar characters mating at a point in time when both of them had been irradiated, but when neither was aware of that fact. ReGenerator’s DNA is, therefore, subject to a unique mutation. This makes the Re-Generator effectively indestructible, although the re-generation time lasts from an hour to a full day depending on the severity of the injury. Villians, accordingly, can do real harm and escape to fight another day.
Here’s the issue for research: Engulf and Devour, the studio, wants to acquire an exclusive license to all rights to the Re-Generator character and relatives and all Re-Generator stories published and yet to be published, worldwide and through the universe. Engulf and Devour intends to use the character in feature films, animated films, TV shows, webisodes, music videos, and video games and intends to produce a variety of ancillary merchandise – figurines and children’s toys, games and stuffed (plush) figures, clothing, and so on. Engulf and Devour is particularly interested in producing a series of Re-Generator theme park rides.
However, Wunderbar has already developed an existing and highly lucrative line of figurines and ancillary Re-Generator merchandise, including children’s toys, based on the Re-Generator comic books. Wunderbar has also licensed images of the Re-Generator character to the Six Flags theme parks, and to a line of energy drinks. Because Wunderbar makes a lot of money from these deals and insists on continuing to collect those revenues, Engulf and Devour is willing to permit Wunderbar continue to produce and distribute its existing Re-Generator merchandise, and to see these other deals through to their planned conclusions (the existing Wunderbar deals are due to expire in five years) so long as Wunderbar does not introduce any new items or re-new any of its current licensing deals. Wunderbar would continue to produce new Re-Generator comic books.
Both sides, however, are worried about the risk that imported counterfeit and pirate ReGenerator products may appear shortly after Engulf and Devour launch new Re-Generator films. They are worried that the fact that both Wunderbar and Engulf and Devour will have interests in Re-Generator will complicate Engulf and Devour’s ability to enforce their rights against the pirate products. Engulf and Devour doesn’t want to have its power to block counterfeit products complicated by Wunderbar’s presence in the marketplace.
How substantial is that concern? Is there a way to design the deal between Wunderbar and Engulf and Devour so that the power to deal with counterfeit Re-Generator merchandise can be maximized and simplified? Can you either come up with a deal structure that solves this problem, and explain how that structure provides a workable solution, or explain why the problem is not worth worrying about. Wunderbar doesn’t want to lose this deal, but it also does not want to lose its existing revenue streams.
To: Outside Copyright Counsel
From: General Counsel, Poster Child Fine Arts Institute
Date: February 8, 2013
Re: Fair Use Guidance
Thanks for sending over the recent District Court opinion in Morris v. Guetta (the “Mr. Brainwash case”). I agree, as you wrote in your cover note, that it’s a troubling opinion from the standpoint of visual artists who train as and style themselves as appropriation artists and street artists in the tradition of Jeff Koons, Shepard Fairey, and Banksy.
As an educational institution committed to training the next generation of artists, Poster Child Fine Arts Institute believes that it should educate its students not only in relevant artistic disciplines but also in ways to work effectively and constructively with relevant law – particularly copyright law. Often, as you know, it is simply impractical for our students and our alumni to secure permission from all of the rights’ holders with respect to work that becomes the subject of new work. Fair use is an essential tool in our students’ artistic repertoire, so to speak.
Taking account of what the court wrote recently in the Morris case, against the background of fair use cases that the court relies on, can you write up a set of guidelines that I can use with our students to maximize the likelihood that they can avoid copyright problems, and confidently rely on fair use justifications, in the future? What I need is a short summary of do’s and don’ts, justified and explained with reference to the cases. I take it that you think that some or even all of the Morris case is badly reasoned, and if you think that other courts would not follow it, you should, of course, indicate where our students may, in your judgment, safely chart a different course.
Some relevant information – a link to the Morris opinion, for your easy reference, and a link to the website of “Mr. Brainwash” (Guetta, the defendant in the case) – appears below. I’ve also included links to copies of the Morris photograph of Sid Vicious and to one of the infringing works at issue in the case, and to a blog post that points to other instances in which Mr. Brainwash has been accused of improper appropriation.