Copyright Law – Spring 2023 – Writing Assignments

• Syllabus and Readings
• 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:  Friday, February 24, 2023, at 3 pm.
• Assignment 2:  Friday, March 31, 2023, at 3 pm.
• Assignment 3:  Last day of exams (Thursday, May 4, 2023), at 12 noon.

Sample Questions

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

Assignments

Assignment Three

To: Junior Associate, Dewey, Cheatem & Howe Intellectual Property Group
From: Senior Partner, Dewey, Cheatem & Howe Intellectual Property Group
Re: Augmented reality investment
Date: April 12, 2023

Our law firm has been retained by Eataminweep Partners (EWP), a leading venture capital firm, to review the copyright risks associated with an investment that EWP is considering.  The detailed financial terms of the investment are not important for your purposes; like most venture capital firms, EWP will purchase a substantial percentage of the stock of the target company and become a significant owner of the firm. 

From a copyright law point of view, the concern is not EWP’s liability. As a shareholder, it is generally immune from liability for torts or other liabilities of the company they invest in.

The concern is the copyright risks associated with the target company’s business.  Like any prudent venture investor, EWP understands risk, so its goal is not to invest only in risk-free companies.  Its approach is to be sensible: taking on some risk is necessary and appropriate to create conditions for big success and returns on the investment – so long as the risk is known, so long as the risk isn’t an obvious or significant risk of catastrophic failure, and so long as strategies are in place to minimize or mitigate the risk.

I’ll describe that business below as well as I can. I’d like you to work up a short memo (email) – 1,200 words max – or slide deck – that outlines and explains the major possible sources of copyright risk here, the scale or character of those risks (big risks? small risks? catastrophic risks?  risks to the margins or edges of the business, or risks to the core?), and things that the company should do to mitigate those risks.

Here is the investment opportunity:

Company ABC is a start-up company being spun out of Wossamatta U, or WU, where the founders are members of the faculty. The founders have developed a mobile app in the “augmented reality” space.  They’ve created a digital database that users of the app can access to superimpose the costumes of movie characters onto “ordinary” humans captured by the mobile video camera.  With the app, aim your camera at a roomful of people or cluster of folks walking down the street, and while their faces stay the same (they are blurred, by default, to avoid privacy and identity issues), their bodies appear to be “wearing” Iron Man outfits, Superman costumers, Wonder Woman designs, Lord of the Rings togs, Pixar movie designs, Star Wars and Raiders of the Lost Ark material, and more.  Cars and other vehicles are transformed digitally, in the app, into film and TV equivalents, including not only cars, trucks, and buses but also space vehicles, chariots and wagons from movies about ancient Rome or the old West, and so on.  As people and vehicles move about, the “augmented” imagery moves with them.  The point of the app is to enable people to shoot short videos that would then be uploaded by users to TikTok, YouTube, and other videosharing sites.

I have been advised by our client that the app developers have not acquired the rights to “use” any of this material from the owners of copyrights in the films, partly to save time (negotiating with major studios is extraordinarily difficult and time consuming) and partly to save expense (if permission were obtained – and there is no guarantee that it would be – then the rights likely would be so expensive that the whole venture would be unprofitable). They have acquired the imagery itself by purchasing legitimate copies of Blu-ray discs of dozens of films and extracting the relevant code from those discs.

For purposes of this project, don’t worry about trademark law questions or other IP law or privacy  issues.  I am assured that the app does not use any relevant titles, logos, advertising materials or other conventional trademarks, and it does not use the names or likenesses of any actors or characters in the films.

Rules and Guidelines for Assignment Three

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

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

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

Format

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

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

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

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

Grading

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

Due date

One copy of the work product prepared for this assignment must be turned in not later than Thursday, May 4, 2023, at 12 noon.

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

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

Assignment Two

To: Junior Associate, Dewey, Cheatem & Howe Intellectual Property Group
From: Practice Leader [Senior Partner], Dewey, Cheatem & Howe Intellectual Property Group
Re: Generative AI and video games
Date: March 17, 2023

I assume that you’re aware of the ChatGPT technology, an example of “Large Language Model [LLM]” computer systems and of “Generative AI [Artificial Intelligence]” systems generally. I need your help in thinking through opportunities and risks associated with LLMs in the context of our work for our existing client and the possibility of recruiting new clients to the firm. Specifically, as you also know, our firm is proud to be a leader in providing intellectual property counsel to video game developers, including established companies, startups, freelancers, and contractors.

My goal is to assemble a newsletter or “recent developments” alert to our current and prospective video game clients that briefs them on questions that they should be asking themselves and should be asking us about what LLMs mean to them. I don’t need a draft of the newsletter from you; from you, I need a thoughtful sketch of critical points of interest and concern that we – collectively – can later refine, elaborate on, and shape into something to send out.

For a start on the background, see this recent article. You don’t need to do a detailed dive into precisely how these systems work. It’s enough to know that they generally begin with collecting massive amounts of source material by crawling or scraping the contents of online servers and by incorporating the copied contents of innumerable additional sources. The results are databases that contain gigabytes, even petabytes – enormous amounts – of data.

When prompted, these systems can produce outputs, such as text, images, sound, and combinations of those things, that are built by software that relies on the idea of prediction: based on the prompt(s) (which may be generated automatically rather than by humans or by hand), and given the contents of the database, one word or phrase is likely to appear in sequence after the preceding one, and so on. The same is true for other media. In response to a prompt to generate “x,” such as “the Mona Lisa,” an LLM system generally does not search for a stored digital version of the Mona Lisa but instead creates what is determined to be the Mona Lisa, or “a” Mona Lisa, based probabilities associated with on their volumes of stored data.

The piece that I linked to above includes a reference to copyright questions. Copyright is what I want you to focus on. How should we organize our message to our clients?

Rules and Guidelines for Assignment Two

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

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

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

Format

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

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

Using LLMs, Generative AI, and ChatGPT in Your Work (new for 2023, for obvious reasons)

Can you use ChatGPT or other LLMs in preparing your work? Should you? I don’t forbid it, so proceed however you wish.

I will note that I ran the assignment above through ChatGPT – Mar 14 on Friday, March 17 and received an answer that was linguistically reasonable but analytically inadequate. Really inadequate. A junior lawyer who delivered ChatGPT’s work product to me or worse, to a client, would run a real risk of resuming their career at a different law firm, or finding a different line of work entirely.

Grading

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

Due date

One copy of the work product prepared for this assignment must be turned in not later than Friday, March 31, 2023, at 3 p.m.

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

There were be no extensions or exceptions to the March 31 deadline. Work product that does not conform to the format instructions above, or that is turned in late, will be accepted, but it will be subject to grade reductions.

Assignment One

To:  Junior copyright lawyer, Dewey, Cheatem & Howe
From:  Senior copyright lawyer, Dewey, Cheatem & Howe
Date:  February 10, 2023
Re:  Ice Sculpture matter

Our client, Peter Gibbons, has come to us with a product idea that raises what appears to be an interesting copyright problem, and I need you to do some thinking and perhaps a little research to see if we can solve it for him.  Mr. Gibbons is a long-time entrepreneur and loyal client of the firm, so we should do everything we can to see his idea through to success.

The basic concept is an edible “ice pop” (a frozen treat on a stick) that is shaped like a famous sports trophy in ice hockey, called the Stanley Cup, and that is made out of the actual ice where each year’s Stanley Cup games are played. The games are played in the rinks where the competing teams are played, so I guess it’s possible – even likely – that the ice itself would vary from year to year.  I’m no expert on hockey.

Since no one would want to lick ice chips that have been skated on, Mr. Gibbons has arranged with the National Hockey League to collect ice shavings and filter and process them so that they’re safe for human consumption.  The ice pops would be flavored, of course, so that they’re sweet to eat. 

In addition to getting the NHL’s permission to use the ice, somehow he has talked the NHL into allowing him to use the shape of the Stanley Cup itself, which apparently is owned as a trademark or form of trade dress by the league.

But he is worried about copycats, meaning ice pop pirates who might mimic his design and substitute inauthentic ice, to boot.  Because he doesn’t own the Stanley Cup trademark himself, he wouldn’t be able to chase them via trademark law.  So, with us, he raised the idea of claiming a copyright in his ice pops.  Mr. Gibbons noticed a recent case involving a “Slice of the Ice” memorabilia item, where the entrepreneur lost his argument about copyright. He thinks that he’s on firmer footing than the plaintiff in that case.

How is he right and how is he wrong? I need a quick sketch from you of the opportunities, barriers, and risks associated with trying to claim a copyright in this Stanley Cup ice pop, and, more important, I also need a sketch of how Mr. Gibbons might – legitimately – mitigate the risks, overcome the barriers, and maximize his opportunities.  We don’t have any pirates in our sights right now, so this isn’t a litigation exercise; it’s an asset protection exercise.

I need your work product – absolutely no more than four (4) pages in length – not later than Friday, February 24, 2023 at 3 pm.

Rules and Guidelines for Assignment One

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

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

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

Format

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

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

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

No footnotes are permitted.

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

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

Grading

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

Due date

One copy of the work product prepared for this assignment must be turned in not later than Friday, February 24, 2023, 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.