This is part of the course website for LAW 5328 – Copyright Law for the Spring 2024 edition of the course.
The course will meet on Mondays and Wednesdays from 9:00 am to 10:20 am. The class will meet on Zoom rather than face to face. Class meetings will be recorded, and the class recordings will be posted afterward to YouTube.
- Syllabus and readings (home page)
- Important course information: materials, mechanics, policies, and grading
- Writing assignments and related instructions
- Open Educational Resources (OER) copyright and permissions information
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: Monday, February 26, 2024, at 3 pm.
- Assignment 2: Friday, April 5, 2024, at 3 pm.
- Assignment 3: Last day of exams (Wednesday, May 1, 2024), at 12 noon.
Sample questions
Assignments
Assignment Three
To: Outside Pro Bono Copyright Counsel
From: Senior Counsel, Association for American Libraries (AAL)
Date: April 10, 2024
Re: Digital Lending Proposals
This request for advice arises in the wake of the district court’s judgment in Hachette v. Internet Archive, which (as you know) held that a Controlled Digital Lending (CDL) program was not lawful under the Copyright Act despite a well-argued defense that CDL constitutes fair use.
Integral to the fair use argument was the proposition that the public policy animating the statutory first sale doctrine should be imported into fair use reasoning in this instance, bolstering the argument that the CDL program constitutes a “transformative use” within the meaning of the Campbell case. The district court was unpersuaded. The case is on appeal to the Second Circuit. Right now, although the AAL is supporting the Internet Archive’s position in Hachette, we are not optimistic that the Second Circuit will reverse the district court.
Meanwhile, a thoughtful law professor currently teaching at the Ohio State University has shared a draft law review article that addresses both the specifics of the case and the general controversy surrounding CDL. I’m sharing the full article with you but would like you to review specifically and advise regarding the series of proposals that the author offers at pages 49-60. These consist of overlapping proposals — some involving technology-driven strategies, some involving legislative revisions – that the author contends would both align with copyright principles and policies that balance owner and readers interests and also advance the broader goal of bringing CDL more broadly into market and community acceptance.
Our starting position, and his, is that requiring public libraries simply to pay market rates for e-books and accept whatever licensing terms are offered by publishers is inconsistent with copyright history and policy and unsustainable as an economic matter. The increase in expense and restrictions on patron access that would follow are inconsistent with the basic framework for public library operations that has existed, in the context of copyright law, for decades.
The AAL would like you to prepare a brief synopsis of the author’s reform proposals and an assessment of their respective strengths and weaknesses. Legal, historical, technological, cultural, social, political, and economic considerations are all fair and potentially useful perspectives to bring to bear. The author does some of that work himself, examining his own ideas, but the law review format isn’t helpful to us, and it’s entirely possible that your expert assessment will differ from his. We’d like your judgments, rather than his.
In a nutshell, it is clear that library patrons value access to digital books. It is also clear, to the AAL at least, that simply litigating the lawfulness of CDL under current law is not likely to help libraries fulfill their classic mission of providing patron access in the context of contemporary book publishing practices. Are there better ways forward? AAL wants to position its advocacy in the most effective way possible. How should it draw on this new piece of scholarship, if at all?
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.
Added as of Fall 2023: If you use ChatGPT or any equivalent AI-based service in preparing your response to this assignment, you must disclose the identity of the service and how, precisely, you used it.
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 Wednesday, May 1, 2024, 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
For this assignment, you have no client; you are not a pretend practicing lawyer. You are a thoughtful law student, a lawyer in training who has learned the fundamentals of contract law, property law, tort law, and copyright law. Your objective is to put your own knowledge to use in drafting written guidance about copyright law for local governments and building owners, relative to public art.
Start by reading this news article from PublicSource from March 2023, describing a specific conflict between a muralist and a property owner. You’ll see your professor – me – quoted in a broad and nonspecific way about the Visual Artists Rights Act, or VARA, codified at Section 106A of Title 17.
The location of the mural and building in that article is the Borough of Wilkinsburg, an independent community that is adjacent to the City of Pittsburgh. Wilkinsburg has its own government, history, community and business culture, and challenges. You may wish to do some independent research about Wilkinsburg, to give you some of the context for this specific matter. You may even wish to go to Wilkinsburg and look around. I like to eat occasionally at Nancy’s Revival, an excellent little diner there, so consider trying Nancy’s for breakfast or lunch. You may also wish to do some independent research about the muralist. This is not the first time one of their murals has been the source of IP-related conflict.
What you’ll take away from that framing is that the VARA is not well-known to or well-understood by owners and developers of commercial real estate, whether in Wilkinsburg, Pittsburgh, or anywhere else. That lack of knowledge can be especially problematic in a region such as Pittsburgh, with compelling needs for new investment in commercial real estate (whether new construction or renovations) but also with a lot of pre-existing public art of multiple sorts. See this recent article — by me — for one introduction to the public art topic. Some public artists have important rights under the VARA; those rights may appear to conflict with community interests in economic development.
Better information about the law should help everyone make better decisions about building and renovating. Where is better information going to come from? My bet is that it can come from local governments and from private organizations that play key roles in financing, coordinating, and approving real estate development projects. Real estate developers and their allies and partners, in other words.
Your assignment is to write a document, not to exceed 1,200 words, that provides guidance about the VARA for that audience and that might be distributed via multiple “real estate business” channels in the Pittsburgh community, or in any analogous community. It might also be distributed via planning departments or other units of local governments. This project involves translating the law into action for a specific non-legal audience, in other words. If it helps you to imagine a specific entity that might value this work, you might focus on the Green Building Alliance (GBA), a leading Pittsburgh-area resource for community-friendly construction and planning. The president and CEO of the GBA is a friend of mine; if your work is especially excellent, with your permission I might just share it with her.
In part this should be a “How To”: how to know that the VARA might apply; how to navigate possible concerns and conflicts under the VARA in advance of beginning a project; and how to deal with a VARA claim if one appears later on. In part it should be a clear explanation of the risks and potential liabilities associated with complying or not complying with relevant portions of the statute and also a road map to what to do, what not to do, and where and how to get help, whether from copyright lawyers, or real estate lawyers, or others.
In a text of 1,200 words, it likely will not be possible to cover every detail of the statute, and it likely will not be wise simply to review the statute by going through its sections and subsections sequentially. Organize and prioritize your presentation in a thoughtful way, taking advantage of the fact that your work need not be in a “legal research memo” format. What’s important, and why?
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.
Added as of Fall 2023: If you use ChatGPT or any equivalent AI-based writing service in preparing your response to this assignment, you must disclose the identity of the service and how, precisely, you used it.
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 and any computer services that 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, if you wish, 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. No hyperlinks 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. Please upload your memo to TWEN as an attachment; do not cut and paste the text of your work into the submission “box.”
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, April 5, 2024, 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 Two 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.
Assignment One
To: Junior Associate, Dewey, Cheatem & Howe’s IP Group
From: Senior Associate, Dewey, Cheatem & Howe’s IP Group
Date: February 9, 2024
Re: Style Matter
Unsurprisingly, Drake’s complaining publicly about “style infringement” relative to his music has spawned a number of “copycat” claims about unauthorized copying of musical “style.” One of those claims has landed in our office, and I need you to put together some quick analysis.
The matter involves a country artist who composes music and performs under the name “Hayseed.” (I’ve read that the name is a kind of ironic, post-modern effort to reclaim the country genre in the name of its Southern, rural roots. That’s not our concern, however.) Hayseed has released six albums over the last ten years, each of which has sold enough copies (including downloads and streams of individual tracks) to justify his label’s continuing to back him. But he’s a working musician, rather than a giant star.
Hayseed is complaining that our client, a YouTuber with the handle “PalE,” produced and released a “soundalike” track using an artificial intelligence (AI) model that was trained, in part, on copies of Hayseed’s songs.
I haven’t heard the tracks myself, yet, but I am told that the soundalike track does not copy any specific Hayseed song, either in the overall songwriting (music and lyrics) or in the production (how it sounds). Instead, Hayseed complains that the new song has a musical structure that closely resembles the musical structure that characterizes a lot of Hayseed’s music. What that means is this: the new track is a recognizably “country” song, just as Hayseed’s music typically is, and it includes multiple musical phrases consisting of the words “Hay there” at the end of a line of lyrics. Hayseed’s songs consistently use a similar phrase – “say there” to “punctuate” lines of his lyrics. He believes that the phrase “say there” is a kind of consistent signature across multiple songs that constitutes a “work of authorship” in copyright terms, and that the phrase has been copied in the AI soundalike.
All of this comes to our firm because Hayseed’s counsel submitted a “take down” request to YouTube. YouTube usually handles these things via its automated system, but in this instance a lawyer for YouTube saw the demand letter from Hayseed’s lawyer, knows about the Drake matter, and thought that this is a sufficiently unique situation that YouTube wants to reflect on the relevant law before deciding what to do. YouTube gave PalE the time to hire a lawyer (and told Hayseed that this question is being reviewed). YouTube suggested that PalE retain this firm. As you know, we’re well-known in the music industry, and the YouTube lawyer and I went to law school together.
The specific request for you is this: I need an analysis of the proposition that Hayseed’s repeated and regular use of the phrase “say there” in many of his songs could amount to a “work of authorship” for copyright purposes. Is Hayseed right? If so, why and how? If not, why not? If I’m missing or have skipped over elements of the matter that would be important to your thinking, tell me what those are and why they’re important, so that we can dig into some fact-finding.
As a music industry law firm, I think that we’re likely to be worried (on behalf of our musician and record label clients) about the idea that “signature” pieces of their art could be copied by YouTubers and TikTokers using AI systems. Copyright is an important element of this picture, because possible alternative legal frameworks, such as trademark law, do not (as a rule) come with expectations that social media platforms will take down infringing works.
Please limit your work to a memo that is a maximum of four pages long, and get it to me no later than Monday, February 26.
Thank you.
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.
Added as of Fall 2023: If you use ChatGPT or any equivalent AI-based writing service in preparing your response to this assignment, you must disclose the identity of the service and how, precisely, you used it.
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 and description of any AI consultation 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 Monday, February 26, 2024, 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.