Copyright Infringement II Intro to IP Prof Merges

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Copyright Infringement II Intro to IP – Prof Merges 2. 23. 09

Copyright Infringement II Intro to IP – Prof Merges 2. 23. 09

Nichols V. Universal Pictures (2 d Cir. 1930) • Did the film “The Cohens

Nichols V. Universal Pictures (2 d Cir. 1930) • Did the film “The Cohens and the Kellys” infringe the play “Abie’s Irish Rose”?

NY Times Abie's Irish Rose: Review Published: May 24, 1922 The play has its

NY Times Abie's Irish Rose: Review Published: May 24, 1922 The play has its little sermon that earned one of the heartiest bits of applause last night. Priest and rabbi, it appeared, also had met "over there. " "I gave the last rites to many Jewish boys, " said the fighting chaplain. "And I to many of your Catholic lads, " the Jewish chaplain replied. "We're all on the same road, I guess, even though we do travel by different trains. "

Judge Hand Opinion • “It is of course essential to any protection of literary

Judge Hand Opinion • “It is of course essential to any protection of literary property, whether at common law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations. ” • -- p. 484

Types of infringement • “block in situ” (in whole), vs. • “an abstract of

Types of infringement • “block in situ” (in whole), vs. • “an abstract of the whole”

Nichols : Abstractions test “Upon any work, and especially upon a play, a great

Nichols : Abstractions test “Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out…there is a point in this series of abstractions where they are no longer protected. ” [since they are idea]

Abstraction Test • Abie’s Irish Rose • Cohens and Kellys – I. Jewish and

Abstraction Test • Abie’s Irish Rose • Cohens and Kellys – I. Jewish and Irish families – One wealthy, one not – Both poor (at start) – Strangers to each other – Long-time enemies – A. Son and daughter marry – Twins born – Single child born

Nichols Abstraction Test I. A. 1. B. 1. 2. II. I. A. 1. a.

Nichols Abstraction Test I. A. 1. B. 1. 2. II. I. A. 1. a. b. c. i. B. 1. 2. a. b. i. ii. II.

Nichols Abstraction Test I. II. I. A. 1. a. b. c. i. B. 1.

Nichols Abstraction Test I. II. I. A. 1. a. b. c. i. B. 1. 2. a. b. i. ii. II.

Levels Of Abstraction Story - Main Idea Plot Outline Subplots General Characters and Scenes

Levels Of Abstraction Story - Main Idea Plot Outline Subplots General Characters and Scenes Specific Character Elements Text

Why are “high level” abstractions of plot not copyrightable? • Ideas, not expression •

Why are “high level” abstractions of plot not copyrightable? • Ideas, not expression • Theory of relativity, or evolution: basic ideas, too general to be protected • Similar to section 101 of Patent Act. . .

“Character test” • Can a character, standing independent from plot, be copyrighted? • If

“Character test” • Can a character, standing independent from plot, be copyrighted? • If so, how? And how far would that copyright reach?

“Stock Characters” • Low-comedy ethnic characters • Example of “scenes-a-faire” – standard “setups” or

“Stock Characters” • Low-comedy ethnic characters • Example of “scenes-a-faire” – standard “setups” or scenes • Drunken Irishman, nosy neighbor, irritating mother in law, comic sidekick, etc

Play it Again, Sam

Play it Again, Sam

Ideas cannot be protected • “[Plaintiff’s] copyright did not cover everything that might be

Ideas cannot be protected • “[Plaintiff’s] copyright did not cover everything that might be drawn from her play; its content went to some extent into the public domain. . . ” • P. 486

SHELDON V. MGM (1936) • Does the motion picture “Letty Lynton”infringe the play “Dishonored

SHELDON V. MGM (1936) • Does the motion picture “Letty Lynton”infringe the play “Dishonored Lady”? • How would you distinguish this case from Nichols? • Note the judge is the same: Learned Hand

Sheldon v. Metro-Goldwyn Pictures Corp. 20

Sheldon v. Metro-Goldwyn Pictures Corp. 20

Steinberg v. Columbia Pictures, Inc. • New Yorker cover, movie poster

Steinberg v. Columbia Pictures, Inc. • New Yorker cover, movie poster

Elements • Ownership • Copying – Access – Improper Appropriation

Elements • Ownership • Copying – Access – Improper Appropriation

Analysis • Lay Observer • Common sense’ side-by-side comparison

Analysis • Lay Observer • Common sense’ side-by-side comparison

Similarities and Differences • 4 block view • Details of distant city?

Similarities and Differences • 4 block view • Details of distant city?

What do you compare? • The whole of the copied portions of the Plaintiff’s

What do you compare? • The whole of the copied portions of the Plaintiff’s work, including individually uncopyrightable elements like ideas and scenes a faire? • OR only the copied portions that are copyrightable?

Sampling • Bridgeport Music, Inc. v. Dimension Films, 410 F. 3 d 792 (6

Sampling • Bridgeport Music, Inc. v. Dimension Films, 410 F. 3 d 792 (6 th Cir. 2005).

Bridgeport Music

Bridgeport Music

George Clinton: The Funkadelics

George Clinton: The Funkadelics

NWA

NWA

The letters may have been taken more as a means of capitalizing on the

The letters may have been taken more as a means of capitalizing on the interest in Salinger than in providing a critical study of the author. (Salinger v. Random House, 811 F. 2 d 90 (2 d Cir. 1987).