Copyright Law - IPSI 97 - Final Exam -- page 1 of 5 - Exam number

Introduction: Please look over the entire exam before beginning and budget your time thoughtfully. Read the questions carefully. You may refer to your casebook, the 1996 casebook supplement, and the statutory supplement when answering the questions. Notes written in any of these materials are acceptable, but loose pages of notes are not. Please relax and just do your best on the exam. Remember that this exam makes up 75% of your grade in the course, with the remaining 25% attributable to class participation.

Answer Part I on the exam itself and Part II in the bluebook. Please put your exam number on each page of the exam, in the space provided in the upper right corner of each page.

Part I

Answer each of the following 25 questions (3 points each - 75 points total). Circle the letter for multiple choice questions and the word for True/False and Yes/No questions. Fill in the blank(s) for fill-in-the-blank questions. Tricky, eh?

I . In order for a copy of something in the public domain to be copyrightable, the copy must:

A. Improve upon the original.
B. Be a distinguishable variation from the original.
C. Invoke in the mind of a reasonable observer something other than the original.
D. Be in a completely different medium than the original.

2. "Conceptual Separability" refers to the requirement that the following be separately identifiable:

A. The idea and the expression of that idea.
B. The artistic features from the utilitarian aspects of an object.
C. The contributions of joint authors to a joint work.
D. None of the above.

3. When a radio station plays a record, it must pay a royalty to:

A. The copyright owner of the sound recording.
B. The copyright owner of the song.
C. The artist(s) who perform on the sound recording.
D. All of the above.

4. Smith writes a novel in English and owns the copyright in the novel. Jones, without Smith's authorization, translates the novel into French. Can Jones copyright the translation? Yes or No.

5. The duty of a joint owner in a copyrighted work to her co-owner is:

A. To notify her co-owner and obtain the co-owner's authorization before using the work or licensing any rights in it to a third party.
B. To account to the co-owner for any profits earned through the use or licensing of the work.
C. Not to destroy the work or cause it to deteriorate. D. All of the above.
E. B and C only.

6. In a work made for hire, initial ownership rights

A. Vest in the employee, then pass to the employer via a "deemed transfer under employment."
B. Vest in the employer.
C. Are shared equally by the employee and employer.
D. Can only be determined by looking at custom and practice in the industry.

7. The intent requirement for the creation of a joint work can be met in a situation in which only one of the parties intends that the work be a joint work, so long as that party can show that he relied to his detriment upon this intention. True or False.

8. A written transfer of copyright ownership must be:

A. Signed by the owner (transferor).
B. Signed by the transferee.
C. Written and signed at the time of the transfer.
D. All of the above.

9. In a conflict between two transfers in the same work, a non-exclusive license can prevail over an exclusive license. True or False.

10. Dick and Jane created a joint work in 1980. Dick died in 1985. Jane died in 1990. When (in what year) will the copyright expire?

11. Jane copyrighted a work in 1940. She renewed the copyright when the initial term ran out. When (in what year) will the copyright expire?

12. Dick created a work on January 1, 1978 and transferred the entire copyright on the same date. During what years may the transfer be terminated. [Note: you are being asked when the termination right may be exercised, not when the notice of termination would be delivered.]
First year of termination period:_____________
Last year of termination period:______________

13. Jane created a work in June 1997 and published the work without notice in July 1997. In order to preserve her copyright (i.e., in order to avoid having the work go into the public, domain for lack of notice), Jane must:

A. Distribute a relatively small number of copies without notice.
B. Register-the work within five years of the publication without notice and make a reasonable effort to add notice to all previously distributed copies.
C. A or B.
D. A and B.
E. None of the above.

14. The section 106 reproduction right can only be infringed in cases where the distribution right is also infringed. True or False.

15. Emily has written a song. She makes a demo tape of herself singing the song, accompanied only by a friend on piano, and sends the demo to Big Company. An executive at Big Company listens to the demo, loves the song, but does not like Emily's singing voice. Can Big Company record Emily's song with another artist simply by taking a section 115 compulsory license? Yes or No.

16. The primary rights associated with "moral rights" are:

A. Decency and Propriety.
B. Attribution and Integrity
C. Compensation and Adaptation
D. Paternity and Adaptation

17. In a conflict between two transfers of the same work, a non-exclusive license can prevail over an exclusive license.True or False.

18. In order to be able to avoid liability for contributory infringement, the manufacturer of copying equipment must show that its customers use the equipment for primarily noninfringing purposes.

19. The two facets of proof (sub-elements) of improper appropriation in an infringement action are _________________________ and ______________________.

20. The protectible expression, if any, in a compilation of facts, rests primarily in the ________________________and _________________________ of those facts.

21. Five university libraries in Boston decide to pool their resources and coordinate periodical (Journal) subscription between them. They review their respective periodical lists and find 150 journals to which three or more of them subscribe. They decide that for these 150 journals, only one library will subscribe and that the subscribing library will then photocopy and fax articles to the others on an "as needed" basis. The photocopying and sharing of articles under this program:

A. Qualifies as fair use.
B. Is not fair use.
C. Is fair use only if no CCC license is available for these journals.
D. Is fair use only if each library is open to the public.

22. Plaintiff can prove actual damages of $75,000 from Defendant's infringement. Defendant earned $50,000 in profits from its infringement, of which $25,000 represents profit that Plaintiff had also planned to make (i.e. where Plaintiff's and Defendant's markets overlap). Plaintiff is entitled to recover:

A. $75,000.
B. $125,000, plus enhanced statutory damages if the infringement was willful.
C. $125,000, but only if the $25,000 of Defendant's profit which Plaintiff also expected to make is not included in Plaintiff's actual damage figure of $75,000.
D. $100,000, regardless of how Plaintiff computed its actual damages.

23. In 1980, Judy wrote a collection of poems which she keeps hidden in a drawer until the year 2003. In 2003, she publishes the poems anonymously. Judy dies in 2010. In what year will the copyright in the poems expire?

24. Fred is a painter. One of his paintings, a portrait of a beautiful woman, was made into a print and has sold over 1000 copies. Fred sold the original painting to an art gallery some months ago. Fred is shocked one day to see the original painting hanging in a local pub with a mustache drawn onto the woman's face! Assuming that this constitutes a prejudicial distortion, mutilation, or modification, can Fred assert his section 106A rights?

A. Yes. This is precisely the type of situation addressed by 106A.
B. Yes, but only if Fred has registered the work.
C. No, because 106A only protects reproductions of original works, not the original works themselves.
D. No, because Fred's painting is not a work of visual art protected under 106A.

25. The "filtration" part of the "abstraction/filtration/comparison" test for improper appropriation consists of stripping away from the defendant's work (the allegedly infringing work) all elements dictated by efficiency or which do not come from the plaintiffs work. True or False.

Part 11

Choose one (and only one) of the following questions (25 points). Write an essay response in the bluebook. You will not be penalized for using more than one bluebook, though it is anticipated that a single bluebook should be sufficient .

BI. Does the "subtractive approach" to substantial similarity in copyright infringement have a built-in bias, generally favoring the plaintiff or defendant? Does the "totality approach?" (see Note 7, page 716 of the casebook.)

B2. The Mirage Editions (p. 195) and C.M. Paul (p. 535) cases deal with the conflict between the adaptation right and the first sale doctrine, arriving at different answers to essentially the same fact situation. Which holding do you prefer and why?

B3. In class, we discussed the Sony language that "every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright." That "presumption" was shot down by Justice Souter in Campbell After Texaco can you describe a situation, outside of parody, where commercial use would be found to be fair use?

B4. As technologies advance, it becomes more and more possible for computers to "create" works (e.g. computer-generated art and music, intelligent software agents that can perform "research" on the internet or in databases, et al.). Who, if anyone, is the author of such a work?

B5. If you could change one aspect of U.S. copyright law, what would you change, why would you change it, and how would you change it?

B6. It has been said that copyright law now offers little or no protection to the most valuable elements of a software program. Do you agree or disagree with this assessment and why?

B7. It has been proposed that the basic term of copyright be extended from life plus 50 years to life plus 75 years. What arguments can you think of in favor of and against adding 25 years to the basic term?

B8. Should U.S. copyright law provide more protection for "moral rights?" If not, why not? If so, identify areas of potential conflict between U.S. copyright law as it exists today and broader protection for moral rights.