Topic Name Holding

Publishing of "night time" books after P proposed story

9th Circuit
Cavalier v. boards amounted to infringement in the design of a
Substantial
Random House moon nighlight design only, but not to the story line or
Similarity
other artwork.

9th Circuit
Substantial Swirsky v. Carey
Similarity

9th Circuit Computer

No infringement: public domain. Experts are much
Substantial Associates Int'l v.
more relevant in technical cases. Well duh.
Similarity Altai, Inc.

Architectural work is "the design of a building as

embodied in any tangible medium of expression,
including a building, architectural plans, or drawings.
Architectural
17 USC 101 The work includes the overall form as well as the
Works
arrangement and composition of spaces and elements
int he design, but does not include individual standard
features."
 The term building means humanly habitable structures
that are intended to be both permanent and stationary,
Architectural 37 CFR such as house and office buildings, and other
Works 202.11(b)(2) permanent and stationary structures designed for
human occupancy, including but not limited to
churches, museums, gazebos, and garden pavilions.

Nelson- Salabes,
P's design of an assisted living center was an original
Architectural Inc. v.
work of art as a combination of common features in
Works Morningside
archiectural works.
Holdings.

Intervest
Construction, D's design of a house with common elements was
Architectural Inc. v. different enough in the protectable expression for
Works Canterbury compilations (the arrangement and selection of the
Estate Homes, common elements) that it did not infringe P's design.
Inc.
Corporate
Close relationship required for the corporate receipt
Receipt Tower v. Sayles
doctrine to apply.
Doctrine

Corporate Jorgensen v. Bare corporate receipt insufficient to raise triable issue

Receipt Epic/Sony of access absent some connection between the
Doctrine Records recipients and the alleged infringers.
 Evidence that package containing demo CD was
Corporate
opened by record company was insufficient to create
Receipt Jones v. Blige
responable possibility of access by another recording
Doctrine
artist represented by the company.

Defendant Andrew Lloyd Webber defeated an

infringement claim brought by an American composer
Copying in Fact Repp v. Webber
of liturgical folk music because of geographic and
social differences.

Possession of a work by one employee of a corporation

Corporate 4 Nimmer on
can be deemed to constitute possession by another
Receipt Copyright
employee or agent who allegedly infringed the
Doctrine 13.02(A)
copyright.

"A compilation is a work formed by the collection and

assembling of preexisting materials or of data that are
Compilations 17 USC 101 selected, coordinated, or arranged in such a way that
the resulting work as a whole constitutes an original
work of authorship."

CCC Information
Services v. Publisher of Red Book car valuations retained copyright
Compilations
Maclean Hunter protection in the compilation of valuations.
Mkt Reports
 Matthew Bender Published legal opinions with embeded citations that
Compilations & Co. . West show the page numbers in P's compilation of legal
Publ'n opinions does not infringe P's compilation.

Greeting cards with cartoons and text are original and

Roth Greeting
copyrightable and D's similar greeting cards that
Compilations Cards v. United
copied the text and made very similar cartoons
Card Co.
infringed.

P's compilation of unprotectable elements in glass-in-

Compilations Satava v. Lowry glass jellyfish sculpture is not copyrightable as a whole.
D's similar jellyfish sculpture did not infringe.

Apple
Computer Computer,Inc. v. Computer Programs are protectable as both source
Software Franklin code and object code.
Computer, Inc.
 Apple
Computer Computer,Inc. v. Apple operating system is a protectable expression as
Software Franklin a literary work.
Computer, Inc.

Computer Three-step test for idea/expression dichotomy and

Computer
Associates Int'l v. merger doctrine in copyright cases involving computer
Software
Altai, Inc. programs.

Lotus
Computer Development User interface developed by P is an uncopyrightable
Software Corp. v. Borland "method of operation."
Int'l, Inc.
 Oracle America, Java's declaring code, and the structure, sequence,
Computer
Inc. v. Google and organization of the Java "packages" are
Software
Inc. copyrightable.

"one who with knowledge of the infringing activity,

causes or materially contributes to the infringing
conduct of another, may be held liable as a
Contributory Gershwin Publ'g
contributory infringer." The court found that, by setting
Infringement Corp. v. CAMI
up community concerts where local artists performed
copyrighted works without a license, CAMI was liable
for contributory infringement.

Providing the site and facilities for known infringing

Fonovisa Inc v.
Contributory activies is sufficient to establish contributory
Cherry Auction
Infringement infringement (where D operated flea markets where
Inc.
leasing vendors sold counterfeit records).
 Under the Napster test, "Google could be held
contributorily liable if it had knowledge that infringing
Contributory Perfect 10, Inc. v. Perfect 10 images were available using its search
Infringement Amazon.com enginge, could take simple measures to prevent further
damage to Perfect 10's copyrighted works, and failed
to take such steps."

Contributory A&M Records v.

Napster materially contributed to infringement
Infringement Napster

Contributory Perfect 10, Inc. v. By continuing to process credit card payments made to
Infringement Visa infringing websites, Visa was not contributorily liable"

Jury found (and appelalte court upheld) that Michael

Three Boys Music Bolton's song "love is a wonderful thing" was an
Copying in Fact Corp. v. Michael infringement of a song by the same name published by
Bolton Motown's the Isley Brothers' in 1966 on the basis of
widespread dissemination and subconscious copying.
 P could not prove access for music infringement
through expert testimony that "the two songs had such
Copying in Fact Selle v. Gibb
striking similarities that they could not hae been
written independent of one another."

Competitor of TY copied from TY in making a stuffed

Ty, Inc. v. GMA
Copying In Fact animal (pig). The court inferred access on the following
Accessories
grounds:

Gottlieb
Inclusion of SILVER SLUGGER pinball machine in the
De Minimis Development v.
background of one scene in the movie "What Women
Copying Paramount
Want" was not copyright infringement.
Pictures
De Minimis Ringgold v. Black Unauthorized use of a copyrighted poster in an HBO TV
Copying Ent'mt TV series was not de minimis copying (cited in Gottlieb).

A derivative work is a work based upon one or emore

preexisting works, such as.or any other form in which
Derivative a work may be recast, transformed, or adapted. A work
17 USC 101
Works consisting ofor other modifications which, as a whole,
represent an original work of authorship, is a derivative
work.

D's plastic version of a cast iron Uncle Sam bank, with

Derivative Batlin & Son v.
other small changes, was not different enough from the
Works Snyder
origin, public domain work to be copyrightable.
 D's photos of P's Thomas and Friends toys are
derivative works and have their own limited copyright
Schrock v. protection separate from that of the underlying toys.
Derivative Learning Curve Authors of derivative works do not need permission
Works International, from the owner of the copyright of the original work to
inc. obtain copyright for their derivative works. But they do
need permission from the original owner to make
derivative works in the first place.

Derivative
17 USC 106(2) Right to prepare derivative works
Works

Warner Bros.
Derivative Defendant's Harry Potter encyclopedia called "The
Entertainment v.
Works Lexicon" was not a derivative work.
RDR Books

Beanie Baby collector guides did not infringe the right

Derivative Ty, Inc. v. Publ'ns
to prepare derivative works in the original expression of
Works Int'l Ltd.
the Beanie Babies
 D infringed P's derivative work right when it purchased
Mirage Editions artwork prints, gluing them onto rectangular mounts,
Derivative
v. Albuquerque applying transparent plastic film over the prints, and
Works
ART Company selling it (contrast this 9th Cir. Decision with a 7th Cir.
Decision involving the same defendant).

D did not infringe P's derivative work right when it

Derivative Lee v. ART
purchased P's notecards and lithographs and mounted
Works Company
them on ceramic tiles.

D copied user-generated maps to be used in the Duke

Derivative Micro Star v. Nukem game and compiled them and sold them. The
Works FormGen Inc. court found that the Map data infringed P's derivative
work right.

Defendant, who sold a Game Genie which allowed

Lewis Galoob
Derivative players to alter individual features of a Nintendo video
Toys v. Nintendo
Works game, did not in doing so create an infringing
of Am. Inc.
derivative work
 Playboy Internet service provider was directly liable for violating
Direct
Enterprises, Inc. the plaintiff's right to publicly distribute and display
Infringement
v. Frena copies of erotic images owned by Playboy.

Religious
Technology Defendant internet service providers are not directly
Direct Center v. Netcom liable for copyright infringement because an internet
Infringement On-Line subscriber took copies of L. Ron Hubbard's bullshit
Communication book and posted it on the the internet.
Services

Applied the rule in Religious Technology Center to

Cartoon Network
Direct Cablevisions DVR system to conclude that its
v. CSC Holdings,
Infringement customers created copies of the copyrighted works, not
Inc.
Cablevision.

Distribution Capitol Records Just making something available is not the same as
Rights v. Thomas infringing the distribution right.
 The meaning of "facts and circumstances" in the DMCA
Viacom safe harbor is "knowledge of specific and identifiable
DMCA Safe
International v. infringements." In other words, the plaintiff must show
Harbors
YouTube that the defendant had knowledg of specific
infringements or red flag knowledge.

Viacom Willful blindness in the DMCA context is equal to

DMCA Safe
International v. conscious avoidance of confirming facts about
Harbors
YouTube infringing material.

DMCA Safe Lens v. Universal A copyright owner must consider whether a use is fair
Harbors Music Corp. use before issuing a take-down notice.

D's copying of 353 pages of a 7000 page biography of

Fair Use Folsom v. Marsh
President Washington was not a fair use.
 Harper & Row,
D's copying of portions of unpublished manuscript in
Publishers, Inc. v.
Fair Use news article one week before book was to be published
Nation
was not a fair use.
Enterprises

Campbell v.
Orbison/Dees wrote "Pretty Woman"; 2 Live Crew wrote
Fair Use Acuff-Rose Music,
"Pretty Woman" as parody/satire
Inc.
 "Where disassembly is the only way to gain access to
the ideas and functional elements embodied in a
Sega Enterprises copyrighted computer program and where ther is a
Fair Use
v. Accolade legitimate reason for seeking such access, disassembly
[of computer software for video games] is a fair use of
the copyrighted work, as a matter of law."
 Perfect 10 v. Google's display of thumbnails of Perfect 10's images
Fair Use
Amazon was a fair use.

The Authors
Libraries' partial-text search and full-text search
Fair Use Guild Inc. v.
functions was a fair use of authors' works.
HathiTrust

Extraction of images from publicity materials for

Warner Brothers various motion pictures was an infringement of P's
Fictional
v. X One X copyright in the characters portrayed in the films when
Characters
Productions D's use expressed destinctive traits of the film
characters.

"A stock character, once he was drawn and named and

Fictional Gaiman v.
given speech [in a comic book series]because
Characters McFarlane
sufficiently distinctive to be copyrightable."
 Fictional MGM v. Am. James Bond films established a copyright in the James
Characters Honda Motor Co. Bond character

Main characters of The Wizard of Oz and Gone with the

Warner Brothers
Fictional Wind are exhibit "consistent, widely identifiable traits,"
v. X One X
Characters in the films making them "sufficiently distinctive" to
Productions
earn individual copyright protection.

P's "Mr. Bob Spongee" did not exhibit consistent

clothing, color, eye and nose shape, and hair among
Fictional Walker v. Viacom
the variousa appeaances in comic strips, dolls, and
Characters int'l
advertisements to warrant copyright protection for the
individual character.

"The owner of a particular copy or phonorecord lawfully

made under this title, or any person authorized by such
First Sale
17 USC 109(a) owner, is entitled, without the authority of the
Doctrine
copyright owner, to sell or otherwise dispose of the
possession of that copy or phonorecord."

Notice provision dictating price of resale in "vending

First Sale Bobbs-Merrill Co.
language" was unenforceable under the first sale
Doctrine v. Strauss
doctrine.
 First Sale Capitol Records D's infringed reproduction rights when they resold their
Doctrine v. ReDigi digital music via the internet.

Defendant who bought textbooks in another country for

First Sale Kirstaeng v. John cheaper and sold them in the U.S. did not infringe the
Doctrine Wiley & Sons plaintiff's distribution right because of the "importation
provision" of the Copyright Act

Williams The fixaction requirement is met whenever the work is

Electronics v. sufficiently permanent or stable to permit to be
Fixation
Artic reproduced, or otherwise communicated for more than
International a transitory period.

Cartoon Network Buffering in a DVR system does not constitute creating

Fixation v. CSC Holdings, copies because there is no fixation for more than a
Inc. transitory time.

Creating a book about book-keeping does not create a

Idea/Expression
Baker v. Selden right in the system of book-keeping itself, only in the
Distinction
expression of that system.
 An historical interpretation of the Hindenberg disaster
AA hoebling v.
Idea/Expression put forth by P, in which P theorized that the explosion
Universal City
Distinction was the result of a plot to destroy the ship by a
Studios, Inc.
particular crew man, is not copyrightable.

"In works devoted to historical subjects,a second

AA hoebling v.
Idea/Expression author may make significant use of prior work, so long
Universal City
Distinction as he does not bodily appropriate the expression of
Studios, Inc.
another."

ATC Distribution
Catalog, part numbers, illustrations, and manual for
Group, Inc. v.
Idea/Expression transmission parts lacked originality for copyright
Whatever It
Distinction protection. D's copying was not an infringement of
Takes
copyright.
Transmission

"The sale of copying equipment, like the sale of other

Sony Corp. of articles of commerce, does not constitute contributory
Inducement America v. infringement if the product is widely used for
Liability Universal City legitimate, unobjectionable purposes." Accordingly,
Studios Sony was not liable for contributory infringement by
selling a VCR that could record television programs.
 In re Aimster Aimster was liable for contributory infringement by
Inducement
Copyright providing software that allowed AIM users to see the
Liability
Litigation files available by connecting to other AIM users.

Grokster and StreamCast, makers of P2P software,

were liable for indirectly liable for copyright
infringement. Introduction of the "inducement rule":
Inducement "one who distributes a device with the object of
Liability 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." pg. 547

Columbia
Fung's providing of torrent websites met all four
Inducement Pictures
elements of the Grokster test, meaning he was liable
Liability Industries v.
for inducement liability.
Fung
 Subafilms Ltd v. There can be no liability for authorizing another to
Infringement by
MGM pathe make an infringing copy when the authorization
Authorization
Communications occurred in the U.S. but the copying occurred abroad.

"Domestic violation of the authorization right is an

infringement, sanctionable under the Copyright Act,
Infringement by Curb v. MCA
whenever the authorizee has commited an act that
Authorization Records
would violate the copyright owner's sec. 106 rights,"
including when the actual copying occurred abroad.

Founder of Trinity theatre was not a co-author and co-

Erickson v. Trinity owner of coypright in plays put on at the theatre solely
Joint Authorship
Theatre, Inc. based on the fact that she made "suggestions" that
were incorporated into the plays.

Copyrightability Each author's contribution to the work must be

Joint Authorship
Test copyrightable to create a joine work.
 Aalmuhammed's contributions to the Malcolm X film,
Aalmuhammed including voice-overs, rewritten scenes, and editing
Joint Authorship
v. Lee movie parts, did not make Aalmuhammed a co-owner
in the copyright for the final film.

The federal court had jurisdiction over plaintiff's hybrid

copoyright/contract claim because the complaint
Bassat v.
alleged that D violated the Copyright Act and sought a
Jurisdiction Masshantucket
remedy afforded by the Copoyright Act (where P wrote
Pequot Tribe
a script and upon delivery, D used the script without
P's permission to produce its own history film).

Reed Elsevier
Jurisdiction check class notes
Inc. v. Muchnick

Where only one or a limited numer of ways exist to

Merger express an idea, the idea and expression merge, and
Definition
Doctrine copyright cannot be used to prevent another from
using the same or similar expression.
 Morrissey v.
Merger Instructions for a sweepstakes context could not be
Proctor &
Doctrine copyrighted.
Gamble Co.

Merger Kregos v.
Merger Doctrine can be a defense to infringement.
Doctrine Associated Press

NOT GOOD LAW. ABC infringed Monty Python's

copyright when it severely edited skits written for the
Gilliam v. BBC and licensed to ABC. It was also found a valid
American cause of action under Section 43(a) of the Lanham Act
Moral Rights
Broadcasting on the basis that the edited version impaired the
Companies integrity of the appellant's work. Court issued an
injunction preventing ABC from making changes to the
work without approval of the authors.

OVERRULED GilliamS. Ct. found that defendants who

Dastar Corp. v.
purchased television episodes, revised and edited
Twentieth
Moral Rights them, and republished them without giving credit to
Century Fox Film
the original authors, were not liable under Section
Corp.
43(a) of the Lanham Act because
 The Museum violated Buchel's right of integrity under
VARA when it continued working on his exhibit without
his permission and disregaring his specific instructions
Massachusetts and intentionalliy modifying it in an unapproved
Museum of manner. The museum did not violate VARA, however,
Moral Rights
Contemporary when it threw tarps over the work to prevent patrons
Art v. Buchel from seeing it. The court also refused to interpret VARA
to include an additional moral right of disclosure.
Damages cannot be sought under the right of
attribution, only under the right of integrity.

City that destroyed artists' work when it bought a piece

Martin v. City of
Moral Rights of land was liable under VARA for the artist's right to
Indianapolis
prevent destruction for statured rights.

Burrow-Giles
Photograph of Oscar Wilde was an original work of art
Originality Litogrphic v.
worthy of copyright protection.
Sarony
 Bleistein v. Unposed photographs also get copyright protection.
Donaldson The copying involved in the creation of the lithograph
Originality
Lithographing circus advertisement constituted fixation of an original
Co. expression of creativity.

Alfred Bell v. P's mezzotints (sketchings of previous works) were

Originality
Catalda Fine Arts copyrightable.

Feist Publ'ns v. More modern definition of originality. P's telephone

Originality Rural Telephone directory is not copyrightable even as a compilation of
Serv. Co. facts.

More Modern version of originality. "An artist who

Mannion v. Coors arranges and then photographs a scene often will have
Originality
Brewing Co. the right to prevent others from duplicating that scene
in a photograph or other medium."
 Meshwerks v.
Digital renderings and manual digital imaging of a
Originality Toyota Motor
model of a car is not an original work of authorship.
Sales USA

Infringement of
ASCAP successfully convinced the S. Ct. that a
Public Herbert v.
performance is not for profit only when tickets are sold
Performance Shanley
at the door.
Right

Infringement of When a small fast-food shop played the radio over its
Twentieth
Public four speakers in the ceiling Mr. Aiken was not the
Century Music
Performance performer of the songs in the way the radio station
Corp. v. Aiken
Right was.

A Cable Television provider that "neither edited the

Infringement of
Fortnightly Corp. programs received nor originated any programs of its
Public
v. United Artists own" but instead amplified existing broadcast signals
Performance
Television for the benefit of its subscribers, also was more like a
Right
viewer than a performer.
 A Cable television provider that retransmitted
Infringement of
broadcast programming over distances spanning
Public Teleprompter
hundreds of miles did not become a performer simply
Performance Corp. v. CBS, Inc.
because it made an initial choice about which
Right
broadcast stations to retransmit.

See pgs. 378 and

Infringement of 379 for
Public definitions of
Performance "performance,"
Right "display," and
"publicly."

Playback of transmissions that were originally

Infringement of broadcast by Cablevision and recorded onto
Cartoon Network
Public Cablevisions DVR system were not public peformances
v. CSC Holdings,
Performance because the playback transmission was made to a
Inc.
Right single subscriber using a single unique copy produced
by that subscriber.

Infringement of
PrimeTime's transmission of signals first to a satellite
Public NFL v. PrimeTime
and then to its subscribers constituted a public
Performance Joint Venture
performance
Right
Infringement of American By supplying equipment that allowed users to stream
Public Broadcasting television shows that were already being broadcast,
Performance Companies v. Aereo engaged in a public performance that infringed
Right Aereo Inc. the plaintiffs' performance rights.

Public
Performance of In re Pandora
Sound Media, Inc.
Recordings

Harper & Row,

Copying before first publication does not automatically
Right of First Publishers, Inc. v.
disqualify a fair use defense, but it weighs against a
Publication Nation
finding of fair use.
Enterprises
Infringement of Warner Bros.
Defendant's Harry Potter encyclopedia infringed
Right of Entertainment v.
plaintiff's right of reproduction
Reproduction RDR Books

"such works shall include works of artistic

craftsmanship insofar as their form but not their
mechanical orutilitarian aspects are concerned; the
17 USC 101:
design of a useful articleshall be considered a
Conceptual "Pictorial,
pictorial, graphic, or sculptural work only if, and only to
Separability graphical, and
the extent that, such design incorporates pictorial,
scultpural works"
graphic, or sculptural features that can be identified
separately from, and are capable of existing
independently of, the utilitarian aspects of the article."
 Adopts a process oriented approach for conceptual
separability which asks whether the design primarily
Pivot Point Int'l v. reflects aesthetic concerns or functional concerns to
Conceptual
Charlene Prods., the extet that the artistic features "can be identified
Separability
Inc. separately from" and can exist independently of its
utilitarian features. The court found that "Mara"
mannequin face was copyrightable.

Conceptually separable sculptural elements appeared

in a belt buckle's ornamental design, which was the
Kieselstein-Cord
Conceptual primary aspect of the design because people used it
v. Accessories by
Separability for ornamental design other than on the waist, and the
Pearl
utilitarian function, which was a secondary aspect of
the design.

Carol Barnhart v.
Conceptual
Economy Cover Mannequin torsos were not copyrightable because
Separability
Corp.
 Brandir
Sculptural bike rack was not copyrightable because it
Conceptual International v.
had been modified from its original work to perform as
Separability Cascade pacific
a functional industrial design.
Lumber

Plaintiff had protectable rights in footage of the

wrecked titanic even though he did not physically dive
down to the bottom of the ocean and film it himself. His
storyboards and direction for the technical aspects of
Lindsay v. RMS
Joint Authorship lighting and angle demonstrated that he had control
Titanic
over the film such that "the final product duplicates his
conceptions and visions of what the film should look
like," meaning Lindsay is an "author" within th
emeaning of the copyright act.
 Eden Toys v. Exclusive licensee of Paddington Bear products can sue
Florelee alleged infringers without joining its licensor, provided
Standing
Undergarment that the licensee is suing for infringement of "that
Co. particular [exclusive] right."

Plaintiff who made demand on defendant 7 years after

Statute of obtaining copyright registration and then negotiated
Patrella v. MGM
Limitations with defendant for 11 years before bringing suit was
not barred by laches.

Jury found (and appelalte court upheld) that Michael

Three Boys Music Bolton's song "love is a wonderful thing" was an
Subconscious
Corp. v. Michael infringement of a song by the same name published by
Copying
Bolton Motown's the Isley Brothers' in 1966 on the basis of
widespread dissemination and subconscious copying.
 Jury found (and 2d circuit upheld) that George Harrison
Subconscious ABKCO Music v.
subconsciously copied The Chiffons' "He's So Fine" in
Copying Harrisongs Music
his own song "My Sweet Lord."

Nichols v. Two plays about marriages between irish catholics and

Substantial
Universal jews and disapproving parents were not substantially
Similarity
Pictures Corp. similar.

Substantial Summary judgment finding no infringement for Bing

Arnstein v. Porter
Similarity Crosby's don't fence me in reverse.
 Steinberg v.
Substantial Movie poster was substantially similar to cover of New
Columbia
Similarity York Times that was drawn by plaintiff.
Pictures

Substantial Boisson v. D's choice of color combination in alphabet quilt was

Similarity Banian substantially simlar to P's.

Substantial Mannion v. Coors D's advertising was substantially similar to P's photo of
Similarity Brewing Co. Kevin Garnett.
 Defendant who created a program to circumvent DVD
encryption was subject to a claim under Section
Universal City 1201(a)(2)(A) and 1201(a)(2)(B) of the DMCA. The
Technological
Studios, Inc. v. court also rejected the fair use argument because D
Protections
Reimerdes was not sued for infringement--it was only sued for
trafficking under the DMCA; therefore fair use did not
apply.

"Where an expression is, as a practical matter,

Johnson Controls
indispensable, or at least standard, in the treatment of
Thin Copyright v. Phoenix
a given idea, the expression is protected only against
Control Sys.
verbatim, or virtually identical copying."

Copyright registrations for statuettes that were

Useful Articles Mazer v. Stein reproduced to be used as lamps were valid
registrations.
 A useful article is "an article having an intrinsic
utilitarian funciton that is not merely to portray the
Useful Articles 17 USC 101 appearance of the article or to convey information. An
article that is normally part of a useful article is
considered a 'useful article'"

Shapiro Chain store owner was vicariously liable for

Vicarious
Bernstein & Co v. infringement committed by a "record concessionaire"
Liability
H L Green Co. operating on the store's premises.

Plaintiffs successfully stated a claim for vicarious

Fonovisa Inc v.
Vicarious infringement by a defendant who operated flea
Cherry Auction
Liability markets where infringing copies of plaintiff's
Inc.
copyrighted works were sold
 Google did not have contractual power or legal power
Vicarious Perfect 10, Inc. v. to prevent third parties from reproducing copyrighted
Liability Amazon.com content and, therefore it did not meet the two step
Shapiro test for vicarious liability.

By continuing to process credit card payments for

Vicarious Perfect 10, Inc. v.
infringing images, Visa was not vicariously liable for
Liability Visa
infringement

A work made for hire is: (1) a work prepared by an

employee within the scoep of his or her employment;
or (2) a work specially ordered or comissioned for use
as a contribution to a collective work, as a part of a
Statutory
Works Made for motion picture or other audiovisual work, as a
Definition 17
Hire translation, as a supplementary work, as a compilation,
U.S.C. 101
as an instructional text, as a test, as answer material
for a test, or as an atleas, if the parties expressly agree
in a written instrument signed by them that the work
shall b econsidered a work made for hire.
 Reid was an independent contractor, not an employee,
Community for
Works Made for when he was hired to create a Nativity scene sculpture
Creative Non-
Hire efor CCNV, meaning the work was not a work for hire--
Violence v. Reid
Reid retained the copyright in the sculpture.

Source code for a digital audio larynx written by Byce

Works Made for
JustMed v. Byce was not a work made for hire because Byce was an
Hire
employee of JustMed.

USOFT software program was created within the scope

Works Made for Rouse v. Walter of their employment at the University of Iowa. So the
Hire & Associates University owned the copyright, not Rouse, Wilson, and
Amin.

Dr. Martin Luther King's performance of his "I have a

Martin Luther
dream" speech was not a "general publication" under
King v. CBS Inc.
the 1909 Act. So he retained the copyright.
 Reasoning

In the stories: more words and more elaborate story line

meant that D passed the extrinsic test. No shared sequence of
events or plot lines/locations. In the artwork: the moonlight
design presented triable issues of fact, the illlustration of stars
relaxingo n clouds was not sufficiently similar, and the
illustration of stars being polished was not sufficiently similar.

Lower court should have filtered out what was not protectable
before deciding and then focusing on protectable expression.

Comes form the Architectural Works Copyright Protection Act

which amended Section 102(a) of the 1976 Act.
Component parts of a collective work that are not original to
the author does not preclude a finding that a combination of
such elements as a separate work is original and
copyrightable. Expert testimony that he had never seen the
same combination of elements used together.

4th Circuit

2d Circuit
 6th Circuit

More than "bare corporate receipt" is typically required. See

Jones v. Blige, Jorgensen v. Epic/Sony Records, and Towler v.
Sayles.

"These choices as to selection and arrangement, so long as

they are made independently by the compiler and entail a
minimal degree of creativity, are sufficiently original that
Congress may protect such compilations through the
copyright laws" Feist, 499 U.S. at 348.

The compilation of valuations (ideas) contained originality in

the selection and arrangement of them. The expression did
not merge with the ideas because they included ideas infused
with opinion that explained no method, process, or procedure.
Kregos.
 P's page numbers are not creative enough for copyright
protection. A work that allows the perception of a protectible
element of a compilation through the aid of a machine does
not amount to a copy under the 1976's definition of "copy"
because that would expand the definition. See Dissent:
"Allowing Bender to use the pagination enables them to
feature West's same selection and arrangement."

While the text itself is not copyrightable on its own, the

combination of text and artwork as a whole (and the total look
and feel) is original and copyrightable. Because D copied the
text verbatim and made very simlar artwork, D infringed.

"A combination of unprotectable elements is eligible for

copyright protection only if thos eelements are numerous
enough and their selection and arrangement original enough
that their combination constitutes an original work of
authorship." P's copyright protection is thin because his
selection and arrangement were only original as to the
elements of jellyfish that are not natural and common to all
jellyfish and all sculptures of jellyfish.
 Operating system can exist independently of the computer
they are installed on, so they are not merely a funciton of the
computer.

If other programs can be written or created which perform the

same function as Apple's operating system, then that program
is an expression of the idea and therefore copyrightable.

three-step test for substantial similarity in copyright

infringement for computer software: 1) Abstraction--to
separate the component parts of the program and 2)
Filtration--to examine whether inclusion of the component part
was "idea" or was a necessary implementation of the idea
(idea/expression and merger doctrine), and 3) a comparison of

It is a method of operation that is necessary for users to

operate the computer program. Once that is found, asking
whether the work could have been designed differently is
irrelevant because it already lacks valid copyright protection.
The user interface is like the buttons on a VCR--they are the
method of operating and are therefore uncopyrightable.
 Nothing prevented google from writing its own declarating
code and implementing code to achieve the same result as
the Java packages (a/k/a the Java packages did not merge).
The structure, sequence, and organization of the Java
packages also did not merge--google could have assembled
them differently and had the same result.

Origin of Contributory Infringement.

"it would be difficult for the infringing activity to take place in

the massive quantities alleged without the support services
provided by the swap meet."
The district court did not resolve the underlying factual issues
to ultimately conclude this issue, so the case was remanded.

because Napster "knew of the availability of infringing music

files, assisted users in accessing such files, and fialed to block
access to such files." Established the Napster test.

Visa's services did not materially contribute to infringement. It

didn't help users find infringing copies of images, it just
processed the payments for them.

Bolton admitted that he grew up listening to the Isley Brothers

and other similar groups. Radio DJ's testified that the Isley
Brothers' song was extensiveliy played on radio and television
stations where Bolton grew up; Bolton thought that his
songwriting friend had borrowed from a different in writing
their song.
The jury could not infer access as a matter of law from merely
the expert testimony because it did not refer to the relative
complexity or uniqueness of the two songs.

D's pig was more similar to TY's pig than it was to a real pig.
They had tied tails and toes (when pigs have curled tails and
hooves). Differences between designer's drawings (which
designer alleged were original to her) and final product
evidenced that her designs had been changed to copy the TY
beanie. Even though P could not, strictily speaking, prove that
D had gotten access to the Beanie Babie, "it is unbelievable
that a substantial company like GMA which is in the sma eline
of business as TY could not have located and purchased [the
original work] if it wanted to copy it."

Inclusion of the pinball machine amounted to de minimis

copying: the machine was always in the background, it was
almost always at least partially obstructed from view, it is
never mentioned, it plays no role in the plot. The lay observer
would not be able to recognize the distinctive aspects of the
pinball machine.
 The poster was shown nine times during a five minute scene
and was "plainly observable." The poster had thematic
relevance to the television show and the 2d circuit saw this as
the production staff's attempt to use it as a set decoration.
The whole poster was observable for the "average lay
observer."

"To extend copyrightability to miniscule variations would

simply put a weapon for harassment in the hands of
mischievous copiers intent on appropriating and monopolizing
public domain work." Dissent more on point: coypright would
only protect D's modifications of the original work, which
would have been very thin.
 The originality requirement for derivative works is not more
demanding than the originality requirement for other works. If
the photographer's rendition of a copyrighted work varies
enough fro the underlying work to enable the photograph to
be distinguished from the underlying work, then the
photograph contains sufficient incremental originality to
qualify for copyright. D's photos of the toys are highly
accurate product photos but contain minimally sufficient
variation in angle, perspective, lighting and dimension to be
distinguishable from the underlying works.

It is not derivative just because it is based on another work. It

does not recast, transform, or adapt the original HP books;
rather, it gives the original copyrighted material another
purpose. Therefore, it is not a derivative work.

"The textual portions of a collectors' guide to copyrighted

works are not among the examples of derivative works listed
in the statute, and guides don't recast, transform, or adapt the
things to which they are guides."
The court found that D's conduct recast the original work into
a different medium, meaning it was a derivative work.

7th Cir. Expresslyr ejected the 9th Circuit's analysis. Simply

mounting the work does not change the work at all--it is a
"distinction without a difference." the court also had policy
reasons on pg. 328

Because the maps existed in "concrete or permanent form"

(as opposed to the facts under Galoob), they were derivative
works and D infringed P's copyright.

"The audiovisual displays geneated by combining the

Nintendo System with the game Genie were not incorporated
in any permanent form; when the game was over, they were
gone" (quote is from MicroStar).
 Note: According to Religious Technology Center, Playboy did
not conclude that the internet service provider's conduct
violated the plaintiff's right to reproduce its copyrighted
works. The Religious Technology Center declined to follow the
Playboy holding.

"The mere fact that Netcom's system incidentally makes

temporary copies of plaintiffs' works doesnot mean Netcom
has caused the copying." The court compares Netcom's
conduct to that of a copy machine: just because it can make
infringing copies doesn't mean the maker of the copy machine
is directly liable for infringement when the true cause of the
copy was a third party.

Same reasoning as Religiousn Technology Center: "In the case

of the VCR, it seems clearthat the operator of the VCR
supplies the necessary element of volition, not the person
who manufactures [it]. We do not believe that an RS-DVR
customer is significantly distinguishable from a VCR user."

Courts are split on this issue.

 Red flag knowledge: when you should know that there is a
problem bse don the circumstances. In other words, you don't
need to show that D had item-specific knowledge.

While willful blindness is not mentioned in the DMCA, the

statute envelopes the willful blindness concept from common
law.

Sec. 512(f) gives a cause ofa ction for anyone who alleges
that someone has knowingly or materially misrepresented
that material or activity is infringing. The plain meaning of
"authorized by law" should include affirmative defenses.
Cautionary tale: be careful before issuing take down notices
and be confident that the conduct is infringing.

if you take from a work that which is really integral and the
most important part of the work and you use it in a way not to
recast it or comment on it but just to substitute the use of the
original work, that is not fair use.
D added nothing--no comentary, no analysis, etc.--just copied.
D wanted to scoop the book. D did not just recast facts
present in the book; he took expressive language and
published it. Four factors: news article was commercial,
tipping against fair use; (1) character and purpose of the use
was to scoop the release of the book and to supplant the
owner's valuable right of first publication tipping against fair
use; (2) nature of the copyrighted work was expressive and D
took the expressive aspect, not just the underlying facts;
(3) .... (4) Effect of publication would lower demand for P's
book, tipping against fair use.

(1) character and purpose: parody v. satire - found that it was

parody which has broader fair use protection, (2) nature of
the copyrighted work - if parody, doesn't really matter (needs
to take the "heart" of expression to be recognizable), (3)
amount/substantiality: if parody, may need to take more and
even the "heart" of the work, (4) market harm: effect of use
upon potential market (derivative works market) is NOT like a
commentary on the song, but is a substitute/usurpation
(effect on the derivative rap market)
 D's bought Sega games, copied them, and converted them
into source code in order to reverse engineeer their own
games that would be compatible with the Sega console.
Statutory factors: (1) while purpsoe was commercial,
commercial explottation was indirect--the direct purpose was
just to study the functional requirements of Sega's games in
order to learn of compatibility with Sega console; (2) nature of
thecopyrighted work weighed in favor of fair use because
Sega's games contained unprotected aspects that could not
be examined without copying; (3) amount of copying weighed
against fair use because D copied the whole work, but only
slightly because the ultimate use by D was so limited (4) the
effect on the market was minimal because consumers would
not buy D's game in place of P's games.
 (1) Purpose and character of the use weighed in favor of fair
use--google's use was transformative b/c it put the images in
a different context to serve a different purpose; in addition
Google's use had substantial public benefit; (2) Nature of the
copyrighted work did not weighed only slightly against fair use
because once P published its images, it was no longer entitled
to enhanced protection that is reserved for unpublished
works; (3) Amount of use did not weigh in favor of either party
in light of use of the images in a search engine; (4) Effecto on
the market did not favor either party because
transformativeness of the use did not allow for a presumption
of market harm--in fact, market harm remained only
hypothetical.

Providing access to the disabled public was a meritorious

purpose of the use. The only harm is whether the use usurps
the market for the original work--in this case the court said it
didn't.

The cour talso held that exact copying of the images and only
the images in the publicity materials was not an infringement
because the publicity materials were in the public domain.

Cited in Warner Bros. v. X One X Productions.

 Cited in Warner Bros. v. X One X Productions.

The court also held that the precise images in the publicity
materials could be copied because they were already in the
public domain. But when those photos were juxtaposed with
other elements that identify the distinctive traits of the
characters presented in the films, copying was an
infringement.

Cited in Warner Bros. v. X One X Productions.

Once it is sold, the original owner cannot exercisee anyr ights

on subsequent purchases of that copy of the work.
 Because the digital music did not have a physical
embodiment, the first sale doctrine did not apply. There is a
material object requirement. The court differentiated between
the copyrighted musical work and the phonorecord.

Ninth Circuit disagrees with this decision.

Where the original features of P's game repeate themselves

over and over, even when users interact with the game, it
earns copyright protection.

Loading a program into a computer's RAM can result in

copying, but not always. Copyrighted works are emboddied in
the buffer, but its transitory nature meant that it did not
remain emboddied. For an infringement there must be both.
 "Where, as here, the idea is an interpretation of an historical
event, our cases hold that such interpretations are not
copyrightable as a matter of law." To avoid a chilling effect,
authors writing about historical issues should be afforded
plenty of freedom to do so. If Ds' historical accounts had been
virtually identical, they would infringe. But in this case, Ds' tell
the story differently.

All of the creative aspects of the transmission catalog and

manual are only ideas, which are not copyrightable because
they lack originality and because they merge with the
expression. This case was distinguished from American Dental
(pg. 107).

The "Sony Standard"

Aimster's encryption-based strategy (as opposed to Napster's
central directory of files) was willful blindness. Aimster bore
the burden of showing that its service had noninfringing uses,
which it could not show. In fact, Aimster could not produce any
evidence of nonifringing uses of its software.

Sony did not apply. When compared to the VCR, which had a
legitimate purpose, the software, which is really only used for
copyright infringement (based on the fact that 90% of the files
transferred through the system were copyrighted),is not the
same. Intent is relevant. There was no real purpose for the
software other than to infringe, based on the fact that over
90% of the files shared through the software were for
copyrighted material.

Providing a website qualifies as "the distribution of adevice or

product;" the mere fact that 90-96% of the files on his
websites were for copyrighted works is evidence of "acts of
infringement;" clear communications from Fung's websites
and messages posted by himself showed "promoting its use to
infringe copyright;" and Fung had "causation" on the basis
that "if one provides a servicethat could be used to infringe
copyrights, with the manifested intent that the service
actually be used in that manner, that person" can be said to
have "caused" the infringement.
 Courts are split on this issue. See Curb v. MCA Records.

Courts are split on this issue. See Subafilms.

Adoption off copyrightability test in the 7th Circuit. "To qualify

as an author, oine must supply more than mere direction or
ideas.

Policy: "This test also enables parties to predict whether their

contributions to a work will entitle them to copyright
protection as a joint author." Erickson v. Trinity Theatre.
 Aalmuhammed did not have superintendence of the work.
There was not object manifestation of intent to be coauthors
(Warner bros retained the copyright, and didn't even make
Spike Lee a joint author).

The court rejected the Schoenbergtest for federal jurisdiction

and returned to the T.B. Harms test for federal jurisdiction.
The TB Harms test says "a suit 'arises under' the Copyright
Act if (1) the complaint is for a remedy expressly granted by
the Act, e.g. a suit for infringement or for the statutory
royalties for record production or (2) the complaint asserts a
claim requiring construction of the Act.
 This was before the Berne Convention was adopted into the
Copyright Act. The court found that the "unauthorized editing
of the underlying work, if proven, would constitute an
infringement of the copyright int hat work similar to any other
use of a work that exceeded the license granted by the
proprietor of the copyright." The edited version "represented
to the public as the product of [Monty Python] what was
actually a mere caricature of their talents.

The original television episodes were already in the public

domain, so the D's were able to create their own version of
the works. In addition, the language of the Lanham Act
(specifically "origin of goods" referred to the "producer of the
tangible goods that are offered for sale, and not to the author
of any idea, concept, or communication embodied in those
goods."
VARA applies to incomplete works, as long as they are "Fixed"
under the meaning of the term in the Copyright Act. "The NY
Times noted that the exhibition would 'certainly give people
unfamiliar with his obsessive, history-driven aesthetic an
inaccurate sense of his art, and this is indeed a form of
damage."

Plaintiff's sculptural work had sufficient stature (on the bais of

public notoriety). But see dissent calling for expert testimony
on the work's stature.

The author is "he to whom anything owes its origin; originator;

maker; one who completes a work of science or literature."
And the author here selected and composed all of the
elements of the photograph. Photographs fall under the
umbrella of "writings" as it appears in the Constitution.
Non-discrimination principle. Rejects the notion that copyright
only covers esteemed work of art. It can include things that
are not literally in the IP clause, including advertisements.

Original" means the work "owes its origin" to the author. The
Copyright Act specifically includes reproductions of a work of
art as well as other versions of works in the public domain. All
of the original portraits had expired their copyright term.

Original means that the work was created by its author and
that it possesses at least some minimal degree of creativity.
Simply listing telephone numbers alphabetically lacks
creativity, especially considering P was required to publish the
number by law.

Orchestration of the minute details of a photo of Kevin Garnett

made it an original work of authorship, especially when
considering originality in rendition, timing, and creation of the
subject.
 "Its models reflect none of the decisions that can make
depictions of things or facts in the worldnew expressions
subject to copyright protection." The model was of the car as
car, not a particular one.It is clear that P intende dmerely to
copy and not to create or add any original expression.

"The defendants' performances are not eleemosynary. They

are part of a total for which the public pays, and the fact that
the priceof the whole is attributed to a particular item which
those present are expected to order, is not important."
 Analysis of the "transmit clause" In the 1976 Copyright Act.

"The most logical interpretation of the Copyright Act is to hold

that a public performance or display includes each step in the
process by which a protected work wends its way to its
audience."
Aereo's actions are a "performance" within the purpose of the
Copyright Act. Under the 1976, both the broadcaster and the
viewer of the program "perform" the work. The Transmit
Clause of the Act specifies that a performance is "public"
when it is transmitted "to the public." Aereo's subscribers
were members of the public and they were getting copies of
the same work, so the fact that each subscriber got its own
"copy" of the broadcast does not mean that their performance
of the works was not public. But see dissent arguing that
Aereo should only be secondarily liable for infringement.
 D admitted actual copying, but argued that it was not
substantially similar to the original HP books and that D had
added something by reproducing the expression of the HP
books in a different order. The court disagreed and held that it
drew its content from created original expression.
Fragmenting and reordering the same information does not
alter the original protected expression.
Copyright protection is valid when a "conceptual separability"
exists between the material seeking protection and the
utilitarian aspect of the material.

"Mara can be conceptualized as existing independent from its

use in hair display or make-up training because it is the
product of Heerlein's artistic judmgnet" which was not guided
for function, but only to give it the "hungry look" of high-
fashion runway models.

citing Kieselstein, Carol Barnhart, and Brandir.

Aesthetic features of the mannequins were inseparable from

thir use as utilitrian articles. The fact that the mannequins
were displayed as decoration did not change that fact.
 Adoption of Denicola test for separability: "if design elements
reflect a merger of aesthetic and functional considerations,
the artistic aspects of a work cannot be said to be
conceptually separable from the utilitarian elements.
Conversely, where design elements can be identified as
reflecting the designer's artistic judgment exercised
independently of functional influences, conceptual separability
exists."

The fact that Lindsay did not actually do any of the diving or
filming does not mean that he does not retain the copyright in
the footage. Lindsay's storyboards and directions for building
and placing lightowers in the ocean to shoot a motion picture
about the wreckage of the Titanic indicated that the final
footage would be the product of Lindsay's "original intellectual
conceptions."
 The holding articulated over there <-- is the general rule. In
this particular case, clothing items were excluded from the
licensing agreement, meaning Eden did not have "that
particular exclusive right." However, Eden was able to sue
without joining its licensor because it could memorialize an
implied oral license with its licensor to to be the exclusive
licensor for clothing items after the fact.

Three year statute of limitations starts anew each time an

infringement occurs.

Bolton admitted that he grew up listening to the Isley Brothers

and other similar groups. Radio DJ's testified that the Isley
Brothers' song was extensiveliy played on radio and television
stations where Bolton grew up; Bolton thought that his
songwriting friend had borrowed from a different in writing
their song.
 Harrison admitted hearing the song; the song was no. 1 on
billboard charts when it came out. The court still said that this
does not conclusively prove access. But that's crazy because
Harrison admitted access. Even without "proof" of access, the
court found it anyway because how "strikingly similar" the
songs were.

"The only mater common to the two is a quarrel between a

Jewish and an Irish father, the marriage of their children, the
birth of grandchildren and a reconciliaation." Substantial
similarity in terms of infringement only applies to protectable
elements and the idea of a story like the above is not
protectable. The rest of the intricacies of the stories are very
different.

Dissection and expert testimony are irrelevant to the lay

observer, meaning there was an issue of fact that the jury
should have resolved.
 Access was proven. D's art director hung the original work in
his office to achieve a "new york look." Original work did not
include real buildings, making the D's inclusion of the same
buildings very suspicious. The vantage point was the same
between the two, when there are millions of possible vantage
points in NYC. D mimicked P's iconic "sketchy, whimsical" style
and "childlike, spiky block" lettering. "Where proof of access is
offered, the required degree of similarity may be somewhat
less than would be necessary in the absence of such
proof...Here, however, the demonstrable similarities re such
that proof of access, although in fact conceded, is almost
unnecessary."

D admitted copying in fact, but alleged that design was not

copyrightable. Court found that quilts were protectable as
compilations, including the selection and arrangement of
colors and designs, which were overwhelmingly similar to the
D's copy.

The idea of a young black man "chilled out" with lots of bling
agains ta blue background could have been expressed in a
multitude of ways.
 1201(a)(2)(A): the CSS "effectively controls access of the
work", so D's workaround fell within the statute; 1201(a)(2)
(B): the only prupose of the software was clearly to
circumvent the CSS, as evidenced by D's own admission.

1909 Act, further legislative history, and the practice of the

copyright office demonstrate the copyrightability of the
statutes. Their use as lamps does not invalidate their
copyright, in congruence with the promotion of "Science and
the useful Arts."
 Origin of vicarious liability. Set up a two prong test that was
better articulated in Gershwin (see notes).

Because (1) defendant had supervision over the flea market

vendors and could terminate their sales for any reason, and
(2) defendant reaped "substantial financial benefits from
admission fees, concession stand sales and parking fees, all of
which flow directly from customers who want to buy the
counterfeit recordings at bargain basement prices."
 because it failed the first step of the Shapiro test: it did not
have the right or ability to control the websites which sold the
infringing images.
 The Supreme Court adopts the common-law agency law
meaning of "employee." Congress did not use the word
"employee" to describe anythign other than the traditional
relationship between employer and employee. Factors that
went into finding Reid an independent contractor include was
control.

Software developers commonly work from home and at weird

hours; he was paid a salary; he came in a sa replacement for
another employee; JustMed's particular business plan
demonstrated that Byce was an employee. The truth is that
there are just as many factors that lead to the opposite
conclusion: no W-2 or W-4 forms, no benefits, taxes were not
withheld for him, etc. The court treated these factors
differently because it was a startup company.

the software research was within the same research they were
conducting for the university, the software was paid for by
funds raised for the larger university project, and the software
was important for the ultrasound project which was the
ultimate reason they were employed there.

"A performance, no matter how broad the audience, is not a

publication; to hold otherwise would be to upset a long line of
precedent."