Following is a 3-part fact pattern (A, B & C). There are four (4) questions (two at the end of Part A, one at the end of Part B, and one at the end of Part C) . These questions are clearly numbered and appear in bold type. Please answer each question separately in your exam book Each question is equally weighted for grading purposes
If you are relying on a specific section of the statute for apart of your answer, it would be helpful, though not absolutely essential, to cite that section in your answer. Otherwise, I only ask that you read the fact pattern and the questions carefully and that you answer completely, but concisely.
You will have three hours to complete the exam. You may refer to your copyright statute during the exam. Your statute can be annotated with your own hand-written notes. You may not refer to loose papers or other material, other than the copyright statute, during the examination Foreign students are allowed to use foreign translations of the statute and foreign language to English dictionaries
NOTE: WIRED "is used throughout the exam to denote both the magazine and the company which publishes it.
DISCLAIMER: Aough the following fact pattern is based upon actual individuals and a real magazine, the situation described below is Rure& hypothetical. All of the events described below were made up by the professor, as was the written agreement between the parties.
1995, Kevin Kelly, Executive Editor of WIRED Magazine, contacted
Michael Murphy a money manager and publisher of his own investment newsletter,
to discuss Kelly's ideas for an investment-related column for 97RED
to see if Murphy would be interested in writing the column. Their discussions
culminated in an agreement dated January 20, 1996, under which Murphy would
write a monthly column called "Follow the Money" for WIRED. A copy
of that agreement, which is the only written agreement between the parties
concerning the column is attached. Please review that agreement now.
[ please click here or scroll down]
The first "Follow the Money" column was published in March 1996 and the column has been included in every monthly issue of WIRED since. Murphy has Written all of the "Follow the Money" columns, each of which has appeared in both the print and online versions of WIRED. A sample "Follow the Money" column is attached. Like all "Follow the Money" columns, it contains both a TWIT$ table and a narrative.
Each issue of WIRED contains a copyright notice on the title page of the issue, which is usually the page after the table of contents. A sample title page, with copyright notice, is attached. No separate copyright notice appears in any of the individual articles in WIRED including "Follow the Money." Wired Magazine Group, Inc. has taken all steps necessary to register each issue of WIRED with the Copyright Office. No separate registration has been made on any of the individual "Follow the Money" columns.
The relationship between Murphy and WIRED had been positive until recently, when Murphy learned that WIRED plans to include some of his past columns in a book they are publishing on "Cybereconomics." Murphy knew nothing about the WIRED book project and has in fact been working on his own book on the same topic, in which he plans to use much of the material from his "Follow the Money" columns. He feels that the WIRED book will compete with his and, while he is not adverse to competition, does not want any of his writings to appear in a competing work. He also feels that WIRED has no right to use the columns in their book without his permission and without even offering to pay him extra for that use.
Murphy has made numerous phone calls to Kelly to protest the planned inclusion of his columns in KVED's book. In a recent letter to Kelly, which is not reproduced here, Murphy threatened to stop writing "Follow the Money" and to begin reporting on the TWIT$ portfolio, which he would rename, in his own newsletter, if WIRED does not drop its plans to include his columns in their book. Kelly sent a reply letter dated ARM 15, 1997, which is also not reproduced here, stating that:
1) Wired Magazine Group, Inc. holds the copyright in each issue of the magazine and therefore in each article which appears therein.
2) Murphy, while not an employee of the magazine, always knew that he was "writing the column for WIRED" and that the magazine would thus own all rights in the column.
if Murphy did own any rights in "Follow the Money," he would have to share
those rights with Kelly, since Kelly had proposed the idea of a column
a model investment portfolio.
come to you for advice. He had not given much thought to the copyright
of his columns until now and is not sure where he stands vis-a-vis Kelly's
Usertions. He does know that he does not want to have his columns included
WIRED's book and is willing to sacrifice his relationship with WIRED in order to stop his columns from appearing in their book. He has asked you to prepare A memorandum for his sorting out some of the legal issues.
to point #1 from Kelly's April 15th letter.
b. Respond to point #2 from Kelly's April 15th letter.
c. Respond to Point #3 from Kelly's April 15th letter.
a. Assuming that WIRED does include past "Follow the Money" columns in its book, advise Murphy as to any potential copyright claim arising from such use, including any remedies which might be available should he prevail.
b. Notwithstanding your answer to part (a), are there any formalities with which Murphy would have to comply prior to bringing an infringement action against Wired?
Assume now that it's Novembgr 1997 and Murphy has terminated the agreement with Wired. His last 'Tollow the Money" column appeared in the August 1997 issue of WIRED. Murphy has renamed the TWIT$ model portfolio as Murphy's Interactive Technology Selections ("MITS") and began reporting on it in the September issue of his own newsletter. He has continued to move stocks (companies) in and out of the portfolio, adding four new stocks and dropping two previous stocks in September and October. The fund included I I stocks in October.
WIRED has continued the "Follow the Money" column and the TWIT$ portfolio without Murphy. The September and October TWIT$ fund remained unchanged from August (i.e. included exactly those companies which were in the fund when Murphy wrote his last "Follow the Money" column). The November TWIT$ fund, however, has dropped the same two stocks that Murphy dropped and added three of the four stocks that Murphy added in September and October. The end result is that the November TWIT$ portfolio contains 10 of the I I stocks in the October MITS fund. Further, 9 out of those 10 stocks in the November TWIT$ portfolio carried the same recommendation (buy, sell or hold) as were contained in the October NUTS report.
Murphy is furious over what he terms "this outright theft."
Advise Murphy as to what copyright protection, if any, he has in MITS and what would be required to win an infringement action arising from the facts in Part B.
The University of Franklin ("UF"), a non-profit institution, has developed a new course on "Investing in Cyber Industries." They are offering the course as a 2-credit elective in their graduate business program. UF has also entered into a unique arrangement with the Jerry Maguire Investment Company C'Maguire") to offer the "Investing in Cyber Industries" course to Maguire's analysts and brokers as part of Maguire's in-company training program. Under this arrangement, rather than making Maguire personnel travel to the UF campus to take the course, as UF students do, UF professors teach the course at Maguire's offices, during normal work hours. Maguire employees receive no college credit for the course, but successful completion of the course is looked upon favorably by the company when it makes promotions and sets salaries. UF students pay tuition to take the course at UF, while the Maguire company is- paying UF a lump-sum amount each semester to cover up to 30 Maguire attendees.
The materials for the "Investing in Cyber Industries" course include a number of photocopied newspaper and magazine articles, including all the 'Tollow the Money" columns which have appeared in WIRED UF used its own facilities to photocopy the material. UF students and Maguire employees taking the class pay for the photocopied material, which is priced only to cover UF's costs in producing the material. UF has not obtained permission to copy the newspaper and magazine articles from any copyright owners and is not paying any royalty or licensing fees for use of the material.
Question 4: Discuss UF's use of the "Follow the Money" columns in
a) the course as taken by UF students on the UF campus for credit, and
b) the course as taken by Maguire employees as part of Maguire's in-company training program
1000 Main Street
Kharmaville, CA 999000
This letter will confirm the arrangements which we discussed over the phone yesterday, under which you will write a monthly financial column for WIRED magazine. With your confirming signature, this letter will serve as the written agreement between us.
Our agreement is as follows:
1. You will write a monthly financial column, to be called "Follow the Money," for each issue of WIRED Each column shall be 900-1100 words in length and shall deal with investments in interactive high technology industries.
2. You will develop and track an imaginary investment portfolio consisting of interactive high technology stocks. The portfolio shall be called The WIRED Interactive Technology Fund ("TWITV) and a table summarizing the performance of the fund shall be included in every 'Tollow the Money" column. A portion of the narrative of each 'Tollow the Money" column shall be dedicated to the TWIT$ portfolio. You will be responsible for determining the stocks to be included in the fund, adding and dropping companies as you see fit, and for establishing recommendations (buy, sell, or hold) for each stock in the fund.
3. Each "Follow the Money" column shall be due at WIRED by the I 10th of each month, for inclusion in the following month's issue of the magazine. You will be paid $ 1,000 for each monthly column.
4. "Follow the Money" columns will be published in the print and online editions of WIRED The online version of the magazine, 97RED Online, is found on our website (www.wired.com).
5. This agreement will be in force until terminated by either party with ninety days written notice to the other party.
If you agree with these terms, please sign in the space provided below and mail the signed original back to me.
Executive Editor, WIRED
Confirmed and Accepted by:
Michael Murphy (signed)
* * * END OF EXAMINATION * * *
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