Copyright Law Ronald W. Staudt

Class 18October 29, 2013

Aereo Hit With Latest Copyright Suit In UtahIP Law360 news-alt@law360.com 10/29/2013

Television station operator Nexstar Broadcasting Inc. hit online streaming service Aereo Inc. with a new copyright infringement lawsuit in Utah federal court Thursday, opening up the latest front in broadcasters' nationwide legal war against Aereo.

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Both Aereo and FilmOn operate by creating vast banks of tiny antennae in each local market and assigning an individual antenna to each subscriber. Each personal antenna transmits a unique broadcast signal to individual users over the Internet, which the companies claim makes the retransmissions “private performances” — rather than public — which wouldn't violate copyright law.

Infringing Copying –

Steinberg SJ for P- it’s all in the details…

Firenze and Paris

Copying your own work:

Gross v. SeligmanPhotos of nude woman

Franklin Mint v. National WildlifePaintings of cardinals and branches

Shiller & Schmidt, Posner quote p. 627

Infringing Copying – more examples

Kurt Adler’s Santa Claus

Jayms Blonde v. The Rohan

Kisch

Pull My Finger Fred

Blore’s commercial

Adler v. World Bazaars

…there is no dispute that the stereotypical elements of a Santa Claus are unprotectible. …the Court further finds unprotectible the functional elements that enable these Santas to blow bubbles

Each of the Santas has a pear shaped head, a red underlip emphasized, an upcurving mustache, a skin tone bubble nose, rounded boots, a similarly shaded green basin held in front of Santa's midsection, and a hooked bubble wand held in Santa's right hand. To be sure, there are some minor differences in protectible elements. Adler's Santa has "crowfeet," and the irises of his eyes sit in the lower half of his eyeballs; WBI's Santa does not have crowfeet, and his irises sit in the center of his eyes. Adler's Santa has a small tuft of hair on his forehead; WBI's Santa does not. The beard of Adler's Santa is more full and detailed than the beard of WBI's Santa. And, Adler's Santa is wearing green mittens, whereas WBI's Santa is wearing black gloves. Although WBI also relies on differences in the two Santa's bases, postures and backs, the Court finds that these dissimilarities are all but irrelevant to the overall appearance of the Santas as displayed on their packaging or, more importantly, as they would appear to a consumer in their principal intended use, as ornaments hanging from a Christmas tree. The Court thus finds that "an ordinary lay observer would overlook the dissimilarities   between the artistic (protectible) aspects of the two works and would conclude that one was copied from the other.

Improper Appropriation or Infringing Copying –case pairs/trio

Two cases on infringing copying and merger: Herbert Rosenthal Jewelry v. Kalpakian ETS v. Katzman

Two cases on testing for infringing copying in literature Nichols v. Universal Sheldon v. Metro-Goldwyn Pictures

Two cases on tests for infringing copying in software Whelan Dental v. Jaslow Computer Associates International v. Altai

Two cases on graphical works Steinberg v. Columbia Pictures Kisch v. Ammirati & Puris

Two cases against authors by owners of © in authors’ own works Gross v. Seligman Franklin Mint v. National Wildlife Art Exchange

Two cases on sculptural works infringement Adler’s Santa Claus Pull My Finger Fred

Three cases on dissection and substantial similarity Blehm’s stick figures Harney’s amber alert photo X One X movie posters

A "derivative work"is a work based upon one or more preexisting

works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".  

Exclusive Rights: 106

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

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Derivative Works Horgan v. MacMillan

Facts Test: recreation or substantial similarity Remand Questions on 657-9—Addison-Wesley and WOW

Lee v. A.R.T. Co Are notecards mounted on tiles derivative works? Does 109(a) cover this use of cards? To violate 106(2) must the adaptation be original? 101?

National Geographic Society Questions on 662-4

Derivative Works

Microstar v Formgen Galoob and the pink screener What is the infringed work?

Questions on pp. 667

Derivative Works- Limitations

Family Movie Act Sanifilms hypothetical, p. 668

Software Adaptations - Sect. 117

Moral RightsGilliam v ABC

work? Lanham Act Dastar and list of cases pp. 676-7

VARA Painting, drawing, print, sculpture, photograph NOT- movies, magazines, posters, databases,

ads, books, diagrams, models, works for hire etc.

A “work of visual art” is— (1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited

edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

A work of visual art does not include— (A) (i) any poster, map, globe, chart, technical drawing, diagram, model, applied art,

motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

(iii) any portion or part of any item described in clause (i) or (ii); (B) any work made for hire; or (C) any work not subject to copyright protection under this title.

Phillips v. Pembroke Real Estate

Site-specific v. plop art, a park as a sculpture

Public presentationState’s MAPA-

broader and constitutional

Eastport Park