COPYRIGHT EXAM

SPRING 1996

William S. Strong

Instructions:

Attached you will find the factual narration and questions that make up this exam.

Please either type your answers or write them legibly on lined paper, in either case on 8 1/2 x 11 paper.

Try to be concise, though not telegraphic. Verbosity will slow you down and make it harder for me to see the brilliance and clarity of your answers - if you catch my meaning.

In organizing your answers, you may find it useful to use a "decision tree" approach: if A is true, then X follows, and from that Z results; but if B is true, then Y follows.

You are free to cite cases if you think it will help convey your thoughts. But do not cite any that are not reproduced in the casebook in whole or in part.

Please do not repeat for me the language of statutes or cases; a simple reference will do.

Good luck, or, as they say in the theater break a leg.
 


Question I

In 1994 Jack Brahms made a big splash in the world of Serious Music with the first public performance of his symphonic piece entitled - "Variations on a Theme by Haydn." (Frank Haydn is a professor at a small Midwestern college.) The performance was by the Concord Symphony Orchestra under the. direction of Gus Mahler. The "Variations" begins with a repetition in symphonic format of a simple melody written by Frank, continues with a number of complex, intricately arranged segments, each of which in some way imitates the note sequence of the original theme, in many cases barely recognizably, often with many additional notes added in, a different rythmic pattern, etc. Writing variations on another composer's theme used to be a common practice among composers, but has fallen out of fashion. Century.

Frank was at first flattered by the attention given him by Jack, and perhaps secretly a bit grateful. Since 1985, when he completed his 4-hour long opera from which the 'theme" comes, manuscript copies of the opera have been circulating around the world of Serious Composers, but he has never managed to find anyone who wanted to sell or record it - so in a sense the 'Variations" give him publicity he could never had achieved otherwise. But then he became jealous of the attention and money that Jack's composition started to receive. Jack has received substantial royalties from his publisher from sales of shed music, and substantial so-called "mechanical" royalties from sales of phonorecords made by Sony Records of the premier (and only) performance of the Variations.

Frank asks you to sue lack for copyright infringement. You check the Copyright Office records and find absolutely nothing relating to any of the works under discussion hem. Who if anyone is liable to ]Frank, and for what? Does any of them have any defenses, and if so what?

Question 2

Last year a software developer named Slim Halo was hired by a large software firm, SoftRock, to work on a piece of a new product they were developing, called Winesap. SoflRock gave Slim an agreement that said everything he created for it would be work made for hire, but he never signed it.

Slim, who was employed fulltime by another company and was doing this work at night, already bad a lot of code that he had developed previously and that seemed to fit SoftRock's requirements. So he did a cut-and-paste job of it, wrote a small amount of additional code to customize the package to fit SoftRock's needs, and handed it in. He billed the company for 120 hours' work at $50/hour, was paid that amount, and rode off into the sunset. Subsequently, Slim fell on hard times and sold his entire portfolio of software to another company, NetPlay.

You represent Xyl-O-Fon, which is interested in acquiring all of Softrock's assets. Your client gives you the above information and asks you what code of Slim's, if any, SoftRock owns. What is your answer to that question?

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