Exam #287 Question 1 (a): For Ashley to have any rights against either Brad or GoTube.

com, her work has to be copyrightable. 102 of the Copyright Act states that copyright subsists in original works of authorship fixed in any tangible medium of expression. Thus, Ashleys video art must be original, it must be a valid work of authorship, and it must be fixed in a tangible medium of expression. Under 101, a work is fixed in a tangible medium of expression when its embodiment in a copy is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. It also defines copies as material object from which the work can be perceived, reproducedeither directly or with the aid of a machine. In Midway, the court held that data from a video game which was saved in a ROM chip for a few seconds and can be played back identically from the computer machine was sufficiently fixed for a period of more than transitory duration. Like that data in Midway, Ashleys video art has been fixed because she has recorded it in digital format that can be played back identically through the use of a computer or other digital player. Thus, her video artwork satisfies the fixation requirement. Ashleys video art also must be a valid work of authorship because 201(a) states that the author is the owner of the copyright. In Burrow-Giles, the court defined author as he to whom anything owes its origin; originator; maker. Further, in Lindsay, the court held that someone is the author where there is a high degree of control, such that the final product duplicates his conception and visions of what the final product should look like. In Lindsay, a director was deemed the author of underwater footage because the final product captured his ultimate vision. Like the author in Lindsay, Ashleys final product (her video artwork) captures her vision and

Exam # 287 message and vision of her appropriation art. Namely, her social comment form advertising and mass media. Thus, Ashleys video artwork is a valid work of authorship. Lastly, Ashleys video artwork must be original in order to be copyrightable. Originality is not defined, but the court has stated in Bell v. Catalda that a copy of something in the public domain will support a copyright if there is a distinguishable variation, which is only a little more than a prohibition of actual copying. However, Baker v. Seldens merger doctrine makes it clear that where there is a lack of clarity between idea and expression, you cannot copy the expression if its the only way to express that idea. In Baker, blank accounting forms where not protectable because they were the forms that were necessary to express the idea of book keeping. Unlike the blank forms in Baker, there are numerous ways for other artists to make social comment; Ashleys video art is just one. Further, her incorporation of public domain advertising materials into her artwork is much more than a slight variation of the original advertising materials. Because her video artwork is not the only way to express her idea, her artwork satisfies the originality requirement and her work is protected by copyright law. Because Ashley is the owner of a valid copyright, 201(a) states that she is the owner of the exclusive rights. We must turn to 106 to determine whether any of her exclusive rights have been violated. 106 states that the owner of a copyright has the exclusive right to do and to authorize: (1) to reproduce the copyrighted work in copies, (3) to distribute copies of the copyrighted work to the public, and (5) in the case of a motion picture or other audiovisual work, to display the copyrighted work publicly. If there is a violation of one of these exclusive rights, Ashley may have a cause of action against Brad or 3rd party infringement action against GoTube.com. .

Exam # 287 Brad may have violated Ashleys exclusive 106 right to display and distribution. 106(1) grants the copyright owner the right to reproduce the work in copies. Here it is unlikely that Brad violated the reproduction right, because Ashley put the copies on his computer herself. However, if it can be shown that Brad copied any of those copies, he will be liable for violating Ashleys reproduction right. 106(3) grants the copyright owner the right to distribute her work publicly. In Hotaling, a library was found to violate this right when it made an illegitimate copy and made the copy available to people using the library. Similarly, Brad violated Ashleys distribution right because he set up a peer-2-peer file sharing system in which he makes his copy of Ashleys work available to people using his network. Just like the library in Hotaling, Brad had infringed Ashleys distribution right by allowing users to access the copyrighted work. 106(5) grants the copyright owner the right to display her audiovisual work publicly. In Columbia Pictures v. Aveco, the court found that a video store violated the public display right when it made rooms available to customers to view its legally owned copy a movie. Like in Columbia Pictures, Brad will be liable because his P2P network allows others to view his (potentially legal) copy of Ashleys work. Furthermore, he allowed the work to be displayed on GoTube.com, which is clearly more public than a private viewing room like the one in Columbia Pictures. Thus, it appears as though Brad has violated her exclusive rights to distribute and display her work publicly. Further, he may have violated her reproduction right if he made any unauthorized copies. GoTube.com may be liable for vicarious copyright infringement. They will not be contributorily liable to Ashley because they did not know of the direct infringement, it is possible

Exam # 287 that Brad was the owner of this copy, if he was the one who gave it to GoTube.com. Knowledge of direct infringement is required for contributory infringement. Ashley must prove that GoTube.com had the right and ability to supervise the act of direct infringement and that they derive a financial benefit from the act of direct infringement. In Fonovisa v. Cherry Auction, the court found a swap market had the right and ability to supervise because they had broad contractual rights to terminate their relationship with any vendor who were selling counterfeit goods. Like the broad contractual termination right in Cherry Auction, GoTube.com requires that its users be registered in order to use its features such as the my private library function. Because of these registrations, GoTube.com does have the right and ability to supervise the act of direct infringement of any of its users. Next, Ashley must prove that GoTube.com derives a direct financial benefit from the act of infringement. In Cherry Auction, the swap meet operators received a financial benefit from parking fees and concession sales. Similarly, GoTube.com receives a direct financial benefit from the infringing activities by selling advertising space to internet advertisers. Because GoTube.com has the ability and right to supervise any direct infringement and derives a financial benefit from this infringement, they may be held vicariously liable. It would be important to know if they did have actual knowledge of any infringing activity (Brads copying), because they may then contributorily liable as well. Besides knowledge, GoTube.com must also have induced or materially contributed to the act of infringement. In Cherry Auction, support services were found to be enough for inducement. Thus, GoTube.coms explicit advertising stating to share all your videos-wherever and however you find it would certainly be a material inducement to infringement.

Exam # 287 Question 1 (b): Ashley will likely be unsuccessful against Cathy in an infringement action because Cathy will be able to use the fair use defense. First, a defendant Cathy must have infringed one of Ashelys 106 exclusive rights. 106(2) grants the owner of a copyright the exclusive rights to prepare derivative works, which under 101 include remixes and revisions. Therefore, Cathys remix is a derivative work. Assuming that Cathys derivative work is an infringing derivative work, Ashley will still be unsuccessful because of the fair use defense. 107 allows states that the fair use of a copyrighted work for purposes such as criticism, commentis not an infringement of a copyright. 107 also includes 4 non-exclusive factors to use in a fair use consideration, which are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for 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; and (4) the effect of the use upon the potential market for or value of the copyrighted work. In Harper & Row, the court confirmed that these are not exclusive factors, and all must be weighed before a finding of fair use will occur. The four factors will be discussed below. (1) The purpose and character of the use In Campbell v. Acuff-Rose, the court found that 2-Live Crews version of the song Pretty Woman by Roy Orbison was a parody with transformative value because it comments upon the original. Further, the court stated that the works have to be similar enough so the audience knows what you are parodying. Similarly, Cathys art and her on her website is a parody of Ashleys art. It comments upon her work without superseding it. It simply adds a new criticism. Thus, this factor weighs in favor of finding fair use.

Exam # 287 (2) The nature of the copyrighted work Campell also said that the second factor, the nature of the work, is not very useful in parody cases because both works are highly protected works of art. In this case, both are highly protected. However, Harper & Row found that previously unpublished work may be less likely to be a fair use. Unlike the unpublished news in Harper & Row, Ashleys art has been published when it was shown it art galleries and sold to the public. Thus, this factor slightly favors a finding of fair use. (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole In Kelly v. Arribasoft, the court held that smaller thumbnail versions of pictures were a fair use even though the defendants copied the entire picture, partly because there was no other way to make the thumbnail without copying the entire picture. Here, Cathy did not copy exactly Ashleys art. Like Kelly, she merely took what was necessary for her to get her point across. Taking any less of Ashleys work would not serve its purpose. This factor weighs in favor of fair use. (4) The effect of the use upon the potential market for or value of the copyrighted work Next is the potential effect on the market for Ashleys work. In Harper & Row, the court did not find fair use because the defendant pre-emptive publishing of the plaintiffs news article literally killed the demand for the plaintiffs work. Unlike the news in Harper, it is unlikely that demand for Ashleys artwork will not be diminished at all because of Cathys commentary work. On the contrary, Cathys work will give Ashley another source of comment for which she may be able to base her artwork on. This factor favors strongly for finding fair use.

Exam # 287 Though these factors are not exclusive, they all favor Cathy and fair use. Thus, it is unlikely that Ashley will succeed in any legal action against Cathy. However, Cathy may encounter legal action from musicians and record labels. Cathy downloads mainstream popular music and adds it into her remix. This is a violation of the musicians 106 exclusive rights. It does not appear that Cathy had any authorization for these acts, so she may violated the artists 106 (1) right to reproduction when she copied the music, 106(2) right to prepare derivative works when she included it in her artwork, 106(3) distribution right when she posted in on her website, and 106(5) public display rights by posting it online. Question 1(c): Ashley would not be successful in a suit if the artwork was taken from the public domain. As the court states in Bleistein, authors are free to copy the original, but they cannot copy the copy. Further, Bell stated that even inadvertent departures of public domain material would be copyrightable. Because any work that Ashley copied would be in the public domain, any other artist or person would be free to copy that unprotected material, so long as they made some slight variations. If some of the work was made in the 1960s 301 and the CTEA would not apply. Works made from 1963 on would still be protected by copyright, because of the 28 year term plus the 67 additional year, including automatic renewal. These works would be protected for 95 years. The works published between 1960 and 1963 would still be protected if they were validly renewed. However, once again, she would be able to use this protected artwork in her new artwork, because it is likely that it will satisfy the fair use argument in the same manner as Cathys artwork did above.

Exam # 287

Question 1(d): An exception to the rule that the author is the copyright owner is found in collective works. 201(c) states that copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests in the author of the contribution. Further, 201(c) states that the owner of copyright in collective work is presumed to have the privilege of reproducing and distributing the collective work. Thus, Dennis would be the owner of the copyright to the entire collective work. However, as NY Times v. Tasini makes clear, the individual articles themselves are still copyrighted by the original owners, such as Ashley. Dennis merely owns the copyright to Best of Video Art DVD as a whole, collective work. Question 2: I agree and even disagree somewhat with the statement that the 9th Circuits fair use decisions in Kelly and Perfect 10 relate to the thinking that encouraging the development of new technology outweighs the copyright owners private interest. Consistent with the Constitution, I do believe the purpose of copyright is to promote the progress of science and the useful arts. This alone would seem to favor the rationale that the decisions in Kelly and Perfect 10 favor the development of new technology. However, upon taking a closer examination of the two cases, it is clear that the fair use analysis regarding both the thumbnail and in-line linking issues was done properly. Therefore, I would amend my statement to say that Perfect 10, Kelly and all fair use cases have always demonstrated that the public interest in encouraging the development of new technology outweighs the copyright owners private interests. In Perfect 10, the copyright owner

Exam # 287 wanted to protect mainly its images and photos of nude models. Google and other search engines merely shrank down the images to sizes that in all likelihood are not useful to the majority of the public, in order to make it easier for someone to find this picture. They took the entire picture, but needed to because a thumbnail version would be useless unless it was a smaller version of the entire picture. If the court decided that this was not fair use under its traditional analysis outlined above, it would be extremely difficult for a consumer to search for and purchase one of these pictures. It seems as though the copyright owner would benefit in this case through increased sales. Thus, whatever rights that have been violated are certainly incidental when compared not only to societys need to develop new technology, but also the copyright owners beneficial use of the new technology. Furthermore, the traditional analysis has always taken into account the effect on the potential market for the copyright holder. In other words, copyright law would protect a copyright owner if they were reasonably expected to bridge the gap and enter into the field of the alleged infringing work. Even in Perfect 10, the court seemed to say that if a copyright owner actually had a plan to go into marketing thumbnail nude pictures for cell phones, thumbnails on search engines may be an infringing work. Thus, copyright owners interest are well protected even in far-fetched examples such as the cell phone theory from Perfect 10. It would appear that new technological issues will be found fair use if they benefit society, therefore, while only slightly harming the copyright owners exclusive rights. This is because the copyright owners and society as a whole actually end up benefiting from the fair use of copyrighted materials.