Chapter 4: ELEMENTS OF COPYRIGHT PROTECTION

Copyright law serves as the bridge that connects artistic creation, technological distribution, and
economic returns between producers and consumers of entertainment works.
- what is being taken from the copyright owner is the content of the movie story or musical sounds
that are contained in the original video or album, an item that the copier bought from the owner.

Layout of the chapter:

A. scope of copyrightable works, particularly the elements of originality and fixation
B. features of infringement actions, especially the need to prove both access and substantial
similarity
C. nonprotectable story parts, such as stock scenes and characters
D. elusive and controversial doctrine of fair use

A. COPYRIGHTABLE WORKS
COPYRIGHT ACT 102(c): Copyright protection extends only to “original works of authorship fixed
in any tangible medium of expression”
- requirements for “originality” and “fixations” up for dispute.

I. ORIGINALITY
“originality” requires independent creation of new intellectual products, something that is
intrinsically different from research and discovery of already-existing facts.
because- “copyright assures authors the right to their original expression, but encourages others to
build upon the ideas and information conveyed by a work”

Miller v. Universal City Studios, Inc.

* US Court of Appeals, Fifth Circuit, 1981
-A college-aged girl was buried alive. A reporter Miller researched and wrote a book with the girl-
83 Hours Til Dawn.
- Script writer was told that the use of the book in completing the script was “verboten”
- movie aired anyways on TV- The Longest Night
- The jury found numerous similarities between the works and awarded Miller over $200,000 in
damages and profits.
IS RESEARCH COPYRIGHTABLE

2. FIXATION
The original doesn’t have to be published to enjoy copyright protection, but it does have to be “fixed
in a tangible medium of expression” (S. 102 (a) of the Copyright Act).
- It is fixed “when its embodiment in a copy or phonorecord … is sufficiently permanent or stable
to permit it to be perceived, reproduced, or otherwise communicated for a period of more than
transitory duration.”

B. INFRINGEMENT
1. Access: The Music Scene
- To demonstrate illegal copying rather than independent creation, the copyright owner must
establish that the later author had access to the protected work and t hat the later work displayed
undue similarity to the original creation.

CASE: Bright Tunes Music Corp. v. Harrisongs Music

* U.S. District Court, Southern District of NY, 1976
-claim upheld that even if subconscious, “My Sweet Lord” is the very same song as “He’s So Fine”
with different words.

CASE: Selle v. Gibb

* U.S. Court of Appeals, Seventh Circuit, 1984
- Although there were striking similarities, it could not be proven that the defendant had access
to “Let it End” since it had not been recorded.
- Striking similarity may be sufficient to raise an inference of access
- similarity does not establish access; similarity tends to prove access in light of the nature of the
works, the particular musical genre involved and other circumstantial evidence of access.

2. SUBSTANTIAL SIMILARITY: BOOKS, PLAYS, MOVIES

Test for Substantial Similarity (from Nichols v. Universal Pictures Corporation)
- Copyright in literary works “cannot be limited literally to the text, else a plagiarist would escape
by immaterial variations.”

Abstractions Test for Copyright Infringement:

We are concerned with the line between expression and what is expressed.
- Judge must make the initial judgment about whether an objective comparison of the two works, as
dissected by the parties’ experts and lawyers, permits a finding of substantial similarity.
- Then, the jury makes its subjective judgment about whether the two works have an intrinsically
similar concept and feel

CASE: Denker v. Uhry, Warner Bros., Et Al.

- Plaintiff Henry Denker, author of novel Horowitz and Mrs. Washington and play of same title sues
Defendant- Alfred Uhry, author of play Driving Miss Daisy and screen play of the same title.
A. Theme
Racism differs
Horowitz- NY
Driving- South

B. Total Concept and Feel

Horowitz- comedy/ Driving- sentimental; poignant

C. Plot
Similarities include either unprotected scenes-a-faire--- “scenes that necessarily result from the
choice of a setting or situation” or are not similarities at all.

D. Characters

CASE: Beal v. Paramount Pictures, Eddie Murphy, and Art Buchwald

* U.S. District Court, Northern District of Georgia, 1992

Fink v. Goodson-Todman Enterprises, Ltd.

C. UNPROTECTABLE STORY PARTS

ideas do not receive protection under the Copyright Act
only expressions of an idea are protected.

1. SCENES-A-FAIRE
* Scenes-a-faire are defined as “incidents, characters, or settings which are as a practical matter
indispensable, or at least standard, in the treatment of a given topic.”
- scenes-a-faire are also scenes that necessarily result from the choice of a setting or situation.
- “comprehensive literal similarity” is sought between two works

2. CHARACTERS
Characters themselves within works of authorship subject to copyright protection (literary works,
dramatic works, pictorial, graphic, and sculptural works, and motion pictures) are not protected by
the Copyright Act.
- it is conceivable that the character really constitutes the story being told.

+ Walt Disney Productions v. Air Pirates (9th Circuit) Cartoon characters have visual images rather
than just a conceptual quality that allows them to be a form of protected expression.

CASE: Warner Bros., Inc. v. American Broadcasting Companies, Inc. (Appeals, 2nd Circuit, 1981)
Plaintiffs- own Superman character; comics, tv, movie both domestic and international.
Defendant- owns protagonist in Hero, Ralph Hinkley
RULE: parties’ works were not substantially similar, and even if they were, Hero was a parody of
Superman and therefore protected under fair use doctrine.

Judge Hand made the following remark:

“copyright never extends to the ‘idea’ of the ‘work,’ but only to its ‘expression,’ and … no one
infringes, unless he descends so far into what is concrete as to invade that ‘expression.’

D. FAIR AND UNFAIR USES OF ENTERTAINMENT WORKS

* The same law that confers property rights on the original author of a work also grants everyone
else a general privilege of “fair use” of such work.

FAIR USE: affirmative defense

-proponent would have the difficulty carrying the burden of demonstrating fair use without
favorable evidence about relevant markets

Section 107
* The fair use of a copyrighted work … for purposes such as criticism, comment, news reporting,
teaching... , scholarship, or research,” is not an infringement of copyright.
The use made of a work in any particular case is a fair use, the factors to be considered shall
include:
(1) the purpose and character of the use, including whether such use is a commercial nature or is
for nonprofit educational purposes
(2) the nature of the copyrighted work
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole
(4) the effect of the use upon the potential market for or value of the copyrighted work

CASE: Campbell a.k.a. Luke Skyywalker v. Acuff-Rose Music, Inc. (Supreme Court, 1994)
- how to best reconcile traditional copyright doctrine with the Court’s more recent commitment to
uninhibited freedom of speech, viewed as the underpinning of self-government in the public arena.
Plaintiff: Acuff-Rose Music, Inc., Roy Orbison and William Dees wrote “Oh, Pretty Woman”
Defendant: Campbell of 2 Live Crew who made a parody “Pretty Woman”

* district court- fair use of Orbison’s original

* Appeals- 6th Court reversed and remanded. “every commercial use … is presumptively … unfair.”

A. purpose and character of the use:

Was the work “transformative”?
The use, for example, of a copyrighted work to advertise a product, even in a parody, will be entitled
to less indulgence under the first factor of the fair use enquiry, than the sale of a parody for its own
sake, let alone one performed a single time by students in school.
B. nature of the copyrighted work
problem: parodies almost invariably copy publicly known, expressive works.

C. whether the amount and substantiality of the portion used in relation to copyrighted work as a
whole are reasonable in relation to the purpose of copying.
- using some characteristic features cannot be avoided in a parody
- it is not the case where the parody is so insubstantial as compared to the copying, that the third
factor must be resolved as a matter of law against the parodists.
- evaluation must take into account the song’s parodic purpose and character, its transformative
elements, and considerations of the potential for market substitution sketched fully below.

D. “the effect of the use upon the potential market for or value of the copyrighted work.”
CONSIDER
- extent of the market harm caused by particular actions of alleged infringer
- “whether unrestricted and widespread conduct of the sort engaged in by the defendant … would
result in a substantially adverse impact on the potential market” for the original.
- if commercial copyrighted use- then potential harm is presumed; if non-commercial purposes-
harm must be demonstrated. (refer to Sony case. In Sony case, the commercial use amounts to mere
duplication of the entirety of an original and clearly “supersedes the objects” of the original and
serves as a market replacement for it, making it likely that cognizable market harm to the original
will occur.)
- 2Live Crew’s use was tranformative- parody, in which case, market substitution is at least less
certain, and market harm may not be so readily inferred.
- What is the difference between “biting criticism that merely suppresses demand” and “copyright
infringement which usurps it?”

Michaels v. Internet Entertainment Group

Pamela Anderson Lee v. IEG and Paramount and its Hard Copy
- Is there a qualitative difference in the freedom under copyright law enjoyed by an over the air
broadcast program like Hard Copy and an Internet adult subscription series like Club Love?

Questions regarding movies:

1. Should there be either full copyright or no copyright at all in the publicly-visible
architectural “expression” of the Metropolitan Museum or the sculptural “expression” on the
National Cathedral?
2. Should the Metropolitan be able to claim instead a violation of the trademark in the outside image
of its building?
CHAPTER 5: ENTERTAINMENT INNOVATIONS AND
INTELLECTUAL PROPERTY
New issue: translating written story into a new technological vehicle.

General principle that the creator of the original work had the exclusive right to produce (or
authorize) a derivative version in a new medium was adopted at the beginning of the 20th century.

A. FAIR USE AND HOME VIDEO

New adoption: creator of the original work had the exclusive right to produce (or
authorize) a derivative version in a new medium. (Kalem Co. V. Harper Bros., 1911)

A. FAIR USE AND HOME VIDEO

TV (CATV) posed new issues for Copyright.

- The owners of shows had simply licensed the performance of their works by
networks and stations broadcasting over the air.
Broadcasters- active performer; Viewers- passive beneficiary for receiving the signals.

Relation between broadcasters and viewers is seen as analogous to the relation between exhibitors
and members of a theater audience. One is treated as active performer and the other, as passive
beneficiary.

One aspect of the relation that they don’t realize is that CATV operators, like viewers and unlike
broadcasters, do not perform the programs that they receive and carry. The viewers do not have a
choice in what is broadcasted.

Identified Uses:
a. Sampling
b. Space-Shifting
__________________
Universal Studio and Disney sued Sony
- studios claimed that the taping of television programs by viewers constituted illegal copying of
works that had been licensed for broadcast viewing only at specified times
- Sony was a participant in such illegal copying because it was producing and selling the equipment
which made it possible.

librarying was happening because people were recording the videos.

rentals also reduced studios’ profits because people didn’t want to pay a lot of money to purchase
when they can pay a small amount to see the video once.

Sony responded by saying

1. taping by viewers in the privacy of their homes, for personal convenience rather than for
commercial sale or rental, was “fair use.” In the same way that recordings of music, sounds were
never a violation of Copyright Act.
2. even if unauthorized copying by a private viewer was an unfair use of the product, this did not
make Sony liable for any such copyright violation. Sony sold the machine for legitimate uses.

CASE: Sony Corporation of America v. Universal City Studios, Inc.

A. Authorized Time-shifting
- copyright owners wanted video tape recorders to view shows at a later time.
- “seller of the equipment that expands those producers’ audiences cannot be a contributory
infringer if, as is true in this case, it has had no direct involvement with any infringing activity”
(417)
B. Unauthorized Time-Shifting
“equitable rule of reason” analysis
1. “the commercial or nonprofit character of an activity” be weighed in any fair use decision.
2. “the effect of the use upon the potential market for or value of the copyrighted work.”
- only some likelihood of future harm should be shown. A challenge to a noncommercial use of
a copyrighted work requires proof either that the particular use is harmful, or that if it should
become widespread, it would adversely affect the potential market for the copyrighted work.
In Summary, two conclusions:
1. Sony demonstrated a significant likelihood that substantial numbers of copyright holders who
license their works for broadcast on free tv would not object to having their broadcasts time-shifted
by private viewers.
2. respondents failed to demonstrate that time-shifting woud cause any likelihood of nominal harm
to the potential market for, or the value of, their copyrighted works.
*** Betamax- capable of substantial noninfringing uses
*** Sony sale of such equipment to the general public does not constitute contributory infringement
of respondents’ copyright.

Counter-argument to Sony Case:

- rather than focusing on personal and noncommercial character of home videotaping, the dissent
emphasized its lack of creative value:
- just because it isn’t resold doesn’t mean that it is noncommercial.
“Purely consumptive uses are certainly not what the fair use doctrine was designed to protect, and
the awkwardness of applying the statutory language to time-shifting only makes clearer that fair
use was designed to protect only uses that are productive” (420).
AUDIO HOME RECORDING ACT
- requires this equipment to incorporate systems that block multiple (or ‘serial’) digital copying of
music recordings
- requires the manufacturers of the digital audio recorder and the blank recording medium to pay
royalties of two percent and three percent respectively on all these items that are sold.

B. FAIR USE ON THE INTERNET

Audio Home Recording Act (AHRA) TEST
- digital audio recording device: “any machine or device of a type commonly distributed
… for use by individuals … the digital recording function of which is designed or marketed
for the primary purpose of … making a digital audio copied recording for private use ….”
- digital audio copied recording 1001 (1): “reproduction in a digital recording format of a
digital musical recording”
- digital musical recording: “material object … in which are fixed, in a digital recording
format, only sounds, and material statements, or instructions incidental to those fixed
sounds, if any....”

MP3.com- charged with direct copying, storing, and transmission of copyrighted music
SONY- charged with contributory infringement by facilitating this copying practice by
tens of million of service users around the planet.

Napster- offered “peer-to-peer file-sharing” over the Internet.

- did not itself download any CDs into its own computer files (like MP3.com)
- does not produce the technology for users to record home videos as with Sony.
* charged with contributory infringement
A Napster user who downloads a copy of a song to her hard drive ma make that song
available to millions of other individuals, even if she eventually chooses to purchase the CD.

CASE: A&M Records, et al. v. NAPSTER US Court of Appeals, 9th Circuit, 2001
Are Napster users engaging in copyright infringement or fair use?
* Identified Uses:
a. Sampling
i. Labeling sampling as a commercial use is wrong because it conflates a noncommercial
use with a personal use
ii. sampling does not adversely affect the market for plaintiffs copyrighted music- which
is a requirement if the use is noncommercial.
iii. sampling can be fair use; samplers may not also engage in other activity.
b. Space-Shifting
- occurs when a Napster user downloads MP3 music files in order to listen to music he
already owns on audio CD; merely makes copies in order to render portable, or “space-
shift” those files that already reside on a user’s hard drive. (time-shifting was considered to
be fair use.)
- space-shifting allows for other users to access this “space” It is not simply for the owner
of the CD.

Is Napster itself liable for contributing to the infringement by its users?

A. Knowledge
- contributory liability requires that the secondary infringer ‘know or have reason to
know’ of direct infringement.
- Napster knew had both actual and constructive knowledge of the fact that its users
exchanged copyright music
- Napster says that because the company cannot distinguish between infringing from
noninfringing files, it does not “know” of the direct infringement.
- different from time-shifting in Sony because Napster’s actual, specific knowledge of direct
infringement.
- The operator of Napster failed to remove the material known to be copyright
infringement. Mark the difference between the architecture of Napster system and
Napster’s conduct in relation to the operational capacity of the system.
B. Material Contribution
- Napster materially contributes to direct infringement (relying on Fonovisa v. Cherry
Auction) . Without Napster, people would not be able to download the music they want
with the ease.

Does Napster engage in vicarious copyright infringement?

(vicarious copyright liability is an “outgrowth” of respondent superior; extends beyond
an employer/ employee relationship to cases in which a defendant “has the right and
ability to supervise the infringing activity and also has a direct financial interest in such
activities”)
A. Financial Benefit
- Napster financially benefits from having more users and availability of protected works
on its system
B. Supervision
Napster’s failure to police the system’s ‘premises’ combined with a showing that Napster
financially benefits from the continuing availability of infringing files on its system, leads to
the imposition of vicarious liability.
Summary:
Interim injunctive relief to be granted the music industry against this Napster service.
REMAND
* contributory liability is to be imposed only if different factors are proven (441).
* Napster may be vicariously liable when it fails to affirmatively use its ability to patrol its
system and preclude access to potentially infringing files listed in its search index.
Napster appeals to free speech rights:
(1) its right to publish a directory
(2) its users’ right to exchange information

CASE: METRO-GOLDWIN-MAYER STUDIOS INC., ET AL. v. GROKSTER, LTD (Supreme)

I. Justice Souter’s:
Question: under what circumstances the distributor of a product capable of both lawful and
unlawful use is liable for acts of copyright infringement by third parties using the product.
RULE: one who distributes a device with the object of promoting its use to infringe
copyright, as shown by clear expression or other affirmative steps taken to foster
infringement, is liable for the resulting acts of infringement by third parties.
A) “A group of copyright holders sued Grokster and StreamCast for their users’ copyright
infringements, alleging that they knowingly and intentionally distributed their software to
enable users to reproduce and distribute the copyrighted works in violation of the CR Act.
Grokster and StreamCast’s “potential noninfringing uses of software”:
- some musical performers have gained new audiences
- distributors of unprotected content have been distributed e.g. Shakespeare
B) distribution of a commercial product capable of substantial noninfringing uses could
not give rise to contributory liability for infringement unless the distributor had actual
knowledge of specific instances of infringement and failed to act on that knowledge.
- Grokster and StreamCast did not have such actual knowledge due to the decentralization
of their software.
- they also did not materially contribute to their users’ infringement because it was the
users themselves who searched for, retrieved and sorted the infringing files, with no
involvement by the defendants beyond providing the software in the first place.

II.
A) must balance between -respective values of supporting creative pursuits through
copyright protection- AND -promoting innovation in new communication technologies by
limiting the incidence of liability for copyright infringement.
- artistic protection v. technological innovation
* indirect liability as an alternative: given the number of infringing downloads that occur
every day using StreamCast’s and Grokster’s software
(contributory infringement: happens by intentionally inducing or encouraging direct
infringement, and infringes vicariously by profiting from directinfringement while
declining to exercise a right to stop or limit it.

B) “secondary copyright infringement”

Justice Souter says that the secondary copyright infringement was misapplied by the
Appeals court. Summary judgement- made without a full trial- was unfair.

C) adoption of the inducement rule: one who distributes a device with the object of
promoting its use to infringe copyright, as shown by clear expression or other affirmative
steps taken to foster infringement, is liable for the resulting acts of infringement by third
parties.
- The inducement rule premises liability on purposeful, culpable expression and conduct,
and thus does nothing to compromise legitimate commerce or discourage innovation
having a lawful promise.

III. Theory of inducement

A) need on MGM’s part to adduce evidence that StreamCast and Grokster communicated an
inducing message to their software users.

3 notable features in evidence for showing unlawful objective:

1) the companies wanted to satisfy people’s desires to infringe copyright looking at
Napster’s users.
2) neither company attempted to develop filtering tools or other mechanisms to diminish
the infringing activity.
3) StreamCast and Grokster make more money with more customers who can look at
advertisements. thus, they would want to encourage infringement.
(The evidence would justify an inference of unlawful intent when viewed in context of
entire record.)

B) inducement theory: requires evidence of actual infringement by recipients of the device-

software in this case.
*case struck a balance between the interests of protection and innovation by holding that
the product’s capability of substantial lawful employment should bar the imputation of
fault and consequent secondary liability for the unlawful acts of others.
II.
(1) Has Sony worked to protect new technology?
- Sony’s rule is clear, technology protecting, forward looking, mindful of the limitations
facing judges where matters of technology are concerned.
(2) If so, should modification or strict interpretation significantly weaken that protection?
-
(3) If so, would new or necessary copyright-related benefits outweigh such weakening?
- highly general principles cannot by themselves tell us how to balance the interests at
issue in Sony or whether Sony’s standard needs modification. info is lacking.

_____________________________

E. COPYRIGHT OWNERSHIP
deals with which party will be able to exploit the legal prerogatives over a work, whether through
the initial assignment of ownership or through licensing arrangements in an increasingly complex
entertainment world.

1. WORKS FOR HIRE

I. the sculptor filed a certificate for copyright registration for the work that CCNV hired him to
sculpt; CCNV filed a competing copyright claim.
II. A
Copyright Act of 1976:
- provides that copyright ownership “vests initially in the author or authors of the work.”
B. Reid’s production of “Third World America”
*** In determining whether a hired party is an employee under the general common law of agency,
we consider
- the hiring party’s right to control the manner and means by which the product is accomplished.
* Other factors:
- the source of the instrumentalities and tools
- the location of the work
- the duration of the relationship between the parties
- whether the hiring party has the right to assign additional projects to the hired party
- the extent of the hired party’s discretion over when and how long to work
- the method of payment
- the hired party’s role in hiring and paying assistants
- whether the work is part of the regular business of the hiring party
- whether the hiring party is in business
- the provision of employee benefits
- tax treatment of the hired party
2. JOINT AUTHORSHIP
- a work prepared by two or more authors with the intention that their contributions be merged
into separable or interdependent parts of a unitary whole