Franklin Pierce Law Center
Copyright Law
Fall 1997
Final Exam

This is an open-book, take-home exam, to be returned to the Registrars office by 4:30 p.m. on Friday, December 12 1997. Read the following instructions carefully, please.

In answering the questions, you may consult your class materials and your class notes; you may also consult other published materials, though it should not be necessary to do so. You may not discuss the exam with any other person until after you (and if applicable the other person) have turned in your answers.

Your answers may be typed or handwritten. You must limit the length of your answers to the spaces provided. The required length will indicate the level of detail expected of your answer. As you will see, significant detail is not expected. These are short-answer questions. Your objective should be to summarize the key point or points involved so that I understand the basis for your answer. Though you have eight hours before you must return your answers, I estimate that you should need no more than 3-4 hours to complete this exam--so don't drive yourself crazy!

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Answer all of the questions below. Some or all of your answers may be on separate sheets as long as you (1) clearly identify the question to which the answer applies, and (2) carefully observe the length limitations.

In all questions, assume that the described events took place in the U.S. in 1997 unless otherwise specified. Obviously, you are being asked to apply U.S. copyright law.

1. What is the ending date of copyright protection for each of the following. If more information is required to make the determination, state what information is needed and why.

(a) Work first published in 1960 with a copyright notice.
(b) Work created and first published in 1990.
(c) Work created in 1882, and never published or registered.
(d) Work created in 1882, registered in 1966, and never published.

2. Indicate whether the following statements are good or bad legal advice to the FPLC librarian. Explain each answer.

(a) A student asks the librarian to copy a law review article. "Don't do it because under the Texaco decision, such copying is not permitted."

(b) Professor Williams wants 100 copies of an article for his copyright class. It's the same article you copied for him last year. "Since the copies are for classroom use, the copying is very likely to be considered fair use."

3. On January 1, while in Japan, A sold the copyright in her photograph to B. On January 8, having returned to the US, A sold the same copyright to C. Both are written transfers. Answer the following. If more information is needed to make the determination, state what information is required and why?

(a) What date must B do, and by when, to be sure of priority over C?

(b) Assuming B fails to do the above, when must C record to achieve priority over B?

(c) Assume C records first and B second. Does C clearly win? Why or why not?

4. The guitarist in a three-person country music band wrote the lyrics for a song about a romance between a man and a woman who work on a space station. He got the idea for the lyrics from the drummer. The bass player, with minor help from the guitarist, wrote the music for the song. The band rented time at a local recording studio, recorded the song, but the recording was never distributed or broadcast. But the band did publish a few thousand copies of the song in the form of sheet music. Subsequently, the band broke up. Answer the following questions based on the foregoing facts.

(a) What works of authorship are involved?

(b) Who are the authors of the works involved?

(c) I want to make my own recording of the song. Are the following true or false? Explain briefly.

(1) 1 cannot rely on the compulsory license provisions of the Copyright Act?

(2) If I cannot or do not wish to rely on a compulsory license, I need permission from all of the band members.

(d) I own the tape copy of the band's own recording of the song. I want to broadcast the recording on my radio program. I am told that I need a license to do so with respect to any and all of the works involved. Is that good or bad legal advice? Explain.

(e) I did play the band's recording of the song-- on my folk/country music radio program on WJNW in Concord, NH. In fact, I played it occasionally throughout the summer. Now a new hard rock song has been playing nationwide on the radio, which I think may infringe the band's song. The two songs share a couple of musical measures which are nearly identical. One other measure in the new song is somewhat similar to a measure in the band's song. The musical patterns involved are, however, rather common in both country and rock music. The lyric of the new song is about two astronauts who have a romance on the Space Shuttle. The copyright owners of the band's song plan to sue the composer of the new song for copyright infringement.

To test the strength of the band's case, briefly explain and evaluate what the defendant will argue in the case. (Do NOT discuss fair use, and also assume that the plaintiff owns a valid copyright as reflected in the copyright registration for the band's song.)

(f) Assuming the plaintiff establishes that the new song is an infringement, are the following statements true or false?

(1) Plaintiff can probably get an injunction against further use of the infringing song, because even though reasonable money damages could be established, irreparable injury will probably be presumed by the court.

(2) If plaintiff does not elect statutory damages, plaintiff is entitled to all of defendant's revenues from the infringing song.

(3) If plaintiff elects statutory damages, plaintiff is entitled to an award of at least $500 (or $200 if defendant is an innocent infringer) for each time the infringing song was broadcast.

5. In the following questions, did I get good or bad legal advice? Briefly explain your responses.

(a) I took a photograph of Leonardo's Mona Lisa. I was told that since it is a copy of a public domain painting, my photograph is not protected by copyright.

(b) I own a video store. I just paid a lot of money for 1000 lawfully-made copies of the film "Star Wars". Obviously, I'd like to sell them to my customers. I was told that I do not need permission from the copyright owner of the film to re-sell them.

(c) One of my friends is a singer; another friend is a poet. Both improvise new works during live performances on stage. I was advised that if the singer improvises a song on stage, no one may record it or copy it without his consent, but that the poet's improvised work will not be protected by the Copyright Act.

(d) I am a computer programmer. I was planning to copy a lengthy computer program written by another person, and incorporate it into an even larger program. I was told that my right to do so depends on whether the first program is in human-readable form.

(e) XYZ published a monthly mystery magazine back in the 1970's. Smith was a fulltime, salaried employee of XYZ, and as such wrote a story for the magazine which was first published in 1972. Smith died in 1987. 1 was told that since Smith was an employee of XYZ, Smith's heirs will not be able to prevent the continued publication of his story by XYZ.

(f) I was sent a copy of a novel written and published in 1996 by a non-US author. I was told that I can publish it in the U.S. without permission unless the author is a national of a Berne country.

(g) I plan to make a motion picture based on a non-fiction book--a biography of President Ronald Reagan. I was told that since the book is factual in nature, then as long as I don't use actual text from the book, there is no need to license the rights from the author (at least from the perspective of copyright law).

(h) I own a computer software store. I purchased and own 20 lawfully-made copies of a computer program, Turbo Tax, that helps prepare tax returns. I want to rent these copies to my customers for $10 a day. I was told that I will be violating the rights of the copyright owner if I do that.

6. A has designed and built the chair shown on the bottom half of page 209 of the Casebook. B has taken a simple photograph of the chair (the whole chair with nothing else in the picture), and published copies of the photograph in a book. C has purchased a copy of the book, torn out B's photograph of the chair, and used it in combination with C's own material to create one poster for a museum exhibition of furniture design. In that exhibit C is displaying the actual chair which it bought at an auction. Except for the actual sale of the chair, A did not authorize any of the above activity by B and C, and B did not authorize C use of B's photograph.

(a) Regarding A's possible claims against B,

(1) A may have a good copyright claim against B since the photograph is a copy of the chair design. True or false?

(2) Whether or not the photograph is a copy of the chair design, is A's chair design protected by copyright? Summarize A's argument that it is protected or B's argument that it is not protected (your choice).

(b) Regarding A's possible claims against C,

(1) A may have a good copyright claim against C because C may have made a derivative work using A's protectible chair design. True or False.

(2) Does A have a good claim against C based on C's public display of the chair at the museum? Why or why not?

(3) A does not have a good claim against C because C purchased a lawfully made copy of the chair. True or False.

(c) Regarding B's possible claims against C,

(1) If A's chair design is protectible, then in some Circuits, B will have a strong claim against C for the unauthorized use of B's photograph in the museum poster. True or false? Why?

7. The next section of the test consists of 12 multiple choice questions. In each question, put a circle around the letter of the correct statement.

7- 1. Debra Defendant is a 2nd year law student who commutes to law school more than 20 miles each way. Defendant has a tape deck in her car, but not a CD player. She has a CD player in her apartment, but not a tape deck. Defendant purchases music CDs and then makes tapes of them (using a friend's tape recorder). Defendant plays the tapes in her car, and the CDs in her apartment; she does not sell or give the tapes to anyone. Which of the following is true?

A. Defendant is infringing both song and sound recording copyrights, and if she were sued by the owner of any of those copyrights, she would lose.
B. Defendant will win, because the Copyright Act now prevents copyright infringement actions from being brought against consumers based on their making recordings of music.
C. Defendant is infringing the copyrights to the songs, but not to the recordings; and thus she would lose to the owners of the copyrights to the songs, but not to the owners of the copyrights to the recordings.
D. Defendant is infringing the copyrights to the recordings, but not to the songs; and thus she would lose to the owners of the copyrights to the recordings, but not to the owners of the copyrights to the songs.

7-2. Kaleidoscope Studios produces (and owns the copyrights to) movies, videocassettes of which Kaleidoscope sells to video stores. Several of these movies have legal themes, and Granite State Law School, a private but nonprofit institution, has purchased genuine copies of these movies. During finals week, the Law School exhibits these movies in several small study rooms in the Library, for the students' enjoyment and relaxation. The study rooms used for this purpose seat no more than 6 people at a time. Only students enrolled in the Law School are admitted to the study rooms, but no admission fee is charged to those who are admitted. Kaleidoscope has sued the taw School for copyright infringement. The likely outcome of the case is:

A. Kaleidoscope will win, because the Law School is publicly performing its movies.
B. Kaleidoscope will lose, because the First Sale Doctrine permits the Law School to exhibit videotapes it actually has purchased and owns.
C. Kaleidoscope will lose, because the non-profit performance limitation permits the Law School to exhibit the videotapes.
D. Kaleidoscope will lose, because the educational performance limitation permits the Law School to exhibit the videotapes.

7-3. WordMaster is a word processing program, the copyright to which is owned by WordMaster Corp. The program contains several "macros" for performing specific functions, including one that formats text in the special manner required for movie scripts. WordMaster's movie script macro is good but not great. Compumovie, Inc., has created a movie script macro, called CompuMovie, that works with the WordMaster program and is far superior to the built-in WordMaster script macro. The CompuMovie macro does not contain any material copied from WordMaster, but when the CompuMovie macro is used, it automatically disables and replaces WordMaster's own built-in script macro. WordMaster objects to CompuMovie's sale of its macro to WordMaster customers, because WordMaster intends to improve its macro and offer it as part of a new version of WordMaster. WordMaster expects that many of its customers would upgrade to the new version in order to get the improved script macro if the CompuMovie macro were not available; but those who already have installed CompuMovie will have no such incentive to upgrade their copies of WordMaster. If WordMaster Corp. were to sue CompuMovie, Inc., alleging that CompuMovie infringes the copyright to WordMaster, the issue in the case would be:

A. Whether CompuMovie violates WordMastpr's exclusive right to reproduce its program.
B. Whether CompuMovie violates WordMaster's exclusive right to prepare derivative works and adaptations.
C. Whether CompuMovie violates WordMaster's exclusive right to display its program.
D. Whether CompuMovie violates WordMaster's exclusive right to distribute is program.

7-4. CompuMovie is merely a macro that works with WordMaster and thus cannot work by itself. But sometimes, potential customers for CompuMovie do not own a copy of WordMaster. In order to accommodate such customers, CompuMovie sells a package containing both programs. In order to assemble the package, CompuMovie purchases genuine copies of WordMaster from a legitimate computer software distributor. If WordMaster Corp. were to sue CompuMovie, Inc., for re-selling copies of WordMaster without authorization, the result in the case is likely to be:

A. CompuMovie would win, because the First Sale Doctrine authorizes it to resell genuine copies of WordMaster it has purchased.
B. CompuMovie would win, because once it purchases genuine copies of WordMaster, it may do anything it wants with those copies.
C. WordMaster would win, because CompuMovie's resales violate WordMaster's exclusive right to distribute copies of its program.
D. WordMaster would win, because the First Sale Doctrine does not apply to the resale of computer programs.

7-5. Dan and Debra Celebrity were recently married. They hired Peter Photographer to take photographs during their wedding. In a conversation between Debra and Peter it was agreed that Peter would be paid $100 per hour for his time during the wedding and $2 per print for each photograph they thereafter ordered. The parties said nothing about ownership of the copyrights to the photographs. After the wedding, Dan and Debra ordered several dozen prints of photos of their wedding, for which they paid Peter in full. Dan and Debra also wanted 5 very large re-prints of several of the photos. Peter wanted too much money for the large re-prints, so they took the smaller prints they had purchased to an independent photo laboratory, QuickPhoto. QuickPhoto made the 5 reprints using the smaller prints, and for a cheap price. Peter then sued Dan and Debra for infringing what he said was his copyright in the photographs to their wedding. Who owns the copyrights to the photographs of Dan and Debra's wedding?

A. No one is the owner, because photographs are not protected by copyright.
B. Peter is the owner, because he was the "author" of those photos and thus the owner of the copyrights to them.
C. Dan and Debra are the owners, because the photographs were works for hire, taken at their request and paid for by them.
D. Dan and Debra are the owners, because the agreement between them and Peter constituted an implied assignment to them of the copyrights to the photographs he would be taking.

7-6. Assuming --for the sake of argument only-- that Peter were held to be the copyright owner of the photos, which of the following would be true about QuickPhoto?

A. QuickPhoto would not be held liable for infringement because it did not have actual or constructive knowledge of who owned the copyright in the photos.
B. QuickPhoto may be held liable as a direct infringer of the copyright in the photos.
C. QuickPhoto cannot be held liable as a direct infringer but may be liable as a contributory infringer.
D. QuickPhoto cannot be held liable as a direct infringer but may be liable as a vicarious infringer.

7-7. Laurie Leagle is a full-time, in-house attorney for Stupendous Studios. She does not have a written employment agreement. She works in the Studio's legal department, drafting contracts and giving advice on copyright, trademark, defamation and related matters. Leagle also likes to write screenplays. She does her screenplay writing at home in the evenings and on weekends, using a laptop computer that is owned by Stupendous Studios (but which she takes with her wherever she goes with the Studios' knowledge and consent). Leagle recently completed a marvelous screenplay. She did not, however, submit her screenplay to Stupendous Studios. Instead she sold her screenplay to Prodigious Pictures which is one of Stupendous' key competitors. When Stupendous learned about Leagle's screenplay, Stupendous took the position that it--not Leagle--owns the copyright to the screenplay. Which of the following is the best advice to Leagle?

A. Stupendous is the owner of the copyright to the screenplay, because it was written by an employee and thus is a work-made-for-hire.
B. Stupendous is the owner of the copyright to the screenplay, because works that are "part of a motion picture" are specifically mentioned in the Copyright Act as works-made-for- hire, even in those cases where the work was not created by an employee within the course and scope of his or her employment.
C. Stupendous is not the owner of the copyright to the screenplay, because writing the screenplay was not within the course and scope of her employment.
D. Stupendous is not the owner of the copyright to the screenplay, because there was no written agreement between Stupendous and Leagle concerning the screenplay, and written agreements are required by the Copyright Act in order for a work to be a work-made-for-hire.

7-8. "Murder on the Law Review" is a mystery novel written by Arthur Author. It was first published in 193 5. Author died in 1940. Prior to his death, Author transferred the movie rights in his novel to Dynamic Studios for the "entire duration" of the novel's copyright "including all renewals and extensions thereof." In 1950 Dynamic produced a movie based on the novel. The movie was exhibited in movie theaters and was later broadcast on television, but it hadn't been exploited since the late 1950s. Author's widow renewed the novel's copyright in 1963 -- 28 years after its first publication. This year, 1997, Dynamic wants to release the movie once again, on videocassettes. Which of the following is true?

A. Dynamic must obtain a license from the widow in order to continue distributing the movie, because Author's transfer of movie rights for his novel's renewal term is not binding on the widow as a result of his death prior to the vesting of the renewal term.
B. Dynamic must obtain a license from the widow in order to continue distributing the movie, because videocassette distribution was an unknown technology at the time of Author's grant of rights.
C. It is not necessary for Dynamic to obtain a license from the widow, unless the widow takes affirmative action and exercises her right to terminate the original transfer to Dynamic with respect to the last 19 years of the renewal term.
D. It is not necessary for Dynamic to obtain a license from the widow, because if widow wanted to exercise her right to terminate the transfer, she had to do so within 5 years of the date she renewed the copyright in 1963, and that date has long since passed.

7-9. Go-Video Corporation manufactures and sells "dual-deck" video recorders which are VCRs that contain (within a single case) two side-by-side videocassette decks that are wired to one another (as well as to television tuner circuitry). The purpose of the "dualdeck" circuitry is to enable people to easily copy videocassettes. Thus, "dual-deck" recorders can be used by people to make copies of videos they have made themselves using their own video cameras. "Dual-deck" recorders also can be used to make copies of videocassettes of copyright-protected movies, rented from retail video stores. Assume that statistically valid surveys would show that 95% of all copies made using "dual-deck" recorders are copies of videocassettes of copyright-protected movies rented from retail video stores; and that 5% of all copies made using "dual-deck" recorders are copies of videos originally made by the same people who then made the copies (for example, copies of videos taken by vacationers, by couples of their weddings, by parents of their children, and the like). If the copyright owners of movies that have been copied using "dual-deck" recorders were to sue Go-Video (the company that manufactures dual-deck recorders), what result is likely?

A. Go-Video would win, because its manufacturing activities do not violate any of the exclusive rights conferred on the movie copyright owners by the Copyright Act.
B. Go-Video would win, because its "dual-deck" video recorder is capable of substantial non-infringing uses.
C. Go-Video would lose, because although its "dual-deck" video recorder is capable of substantial non-infringing uses, in fact, its recorder is used far more often to make infringing copies; and thus, Go-Video is liable for contributory infringement.
D. Go-Video would lose, because manufacturers are contributorily liable for copyright-infringing activities committed by their customers, since the manufacturers supply the instrument by which the direct infringement occurs.

7-10. Plaintiff has won a copyright infringement lawsuit against Defendant on account of Defendant's unauthorized sale of infringing copies of "Brief It," a computer program used by law students in preparing briefs of judicial opinions. At trial, Plaintiff proved that Defendant's infringement was "willful." Plaintiff also proved that it suffered actual damages of $150,000; these damages were profits Plaintiff would have earned, but did not, because law students bought copies of Defendant's infringing computer program instead of buying copies of Plaintiffs legitimate program. Plaintiff also proved that Defendant earned profits of $200,000 on account of its sale of its infringing program; these profits amounted to the $150,000 in profits that Plaintiff would have earned from sales of its program, plus an additional $50,000 in profits. If Plaintiff asks the court to award it the greatest amount of money the court is authorized to award, how much will the court award?

A. $100,000 in statutory damages for willful infringement.
B. $150,000 for Plaintiff's actual damages.
C. $200,000 for Plaintiff's actual damages plus Defendant's profits.
D. $350,000 for Plaintiff's actual damages plus Defendant's profits.

7-11. In addition to the money damages awarded to Plaintiff in the preceding question, Plaintiff is probably entitled to which of the following:

A. Punitive damages on account of Defendant's willful infringement.
B. Injunctive relief, attorneys' fees and court costs.
C. A and B.
D. None of the above.

7-12. Anne Attorney has developed a technique for using WordPerfect to balance checking accounts. (WordPerfect is a popular and powerful word processing program which can be used to perform other functions as well. The copyright to WordPerfect is owned by Corel Corporation.) The technique developed by Attorney requires WordPerfect users to perform specific keystrokes in a specific order. Attorney has written a one-page description of the technique, which consists of a list of those keystrokes. This one page document is original (in the sense that Attorney did not copy it from elsewhere) and creative. Attorney claims a copyright in the one page document, Which of the following is true?

A. No one may copy the document or use the technique, without Attorney's permission.
B. People may use the technique without Attorney's permission, but no one may copy the document without her permission.
C. People may use the technique and copy the document, even without Attorney's permission because of the so-called "merger" doctrine.
D. People may use the technique and copy the document, even without Attorney's permission, because she has made an unauthorized derivative work based on WordPerfect.

8. FPLC engages a famous Artist to paint an oil painting to hang in the front lobby. The written agreement signed by the parties provides that "Artist transfers all right, title and interest in the painting, including the copyright to FPLC". It also provides that the painting "shall be deemed a work for hire" for FPLC. The subject matter is a portrait of President Viles, who posed at Artist's studio. Two months later Artist delivers the painting and receives the agreed cash payment. The painting is hung, but President Viles is unhappy with it. He hires a talented student to alter the painting by adding a beard. Are the following statements True or False? Explain your answer briefly.

(a) Because the Artist sold the copyright in the painting, and thus FPLC is the copyright owner, FPLC may alter the painting free of any moral rights claim by Artist under the Visual Artists Rights Act.


(b) Because the parties deemed the painting a work made for hire, the painting is not within the scope of the Visual Artists Rights Act.