Final Examination 1998
PLEASE READ ALL THE INSTRUCTIONS BEFORE YOU BEGIN
INSTRUCTIONS: This is an open book examination. You may refer to your text (Copyright for the Nineties, Gorman-Ginsburg) and text supplement (1998 Cumulative Supplement and Statutory Appendix) only. You should have no other materials with you in the examination room. Do not work with any of your classmates during the exam. Read each question carefully. You have three hours to complete the examination. This should be ample time but pace yourself accordingly. Only the answers marked on the answer sheets will be graded. Use care in marking the answer sheets since unclear answers will be counted against you. The examination has a total possible score of 700 points - 25 multiple choice questions worth 15 points per question (375 points of total), 10 True/False questions worth 5 points per question (50 points of total) and 14 short answer questions worth various points as indicated for each question (275 points of total).
For Parts I and II - use the Scantron answer sheet provided
Part I: Multiple choice - select the single best answer of the five given for each question and clearly mark your choice on the Scantron answer-sheet. Unclear or ambiguous answers will be counted as incorrect. Be sure you follow the proctor's instructions for filling out the Scantron answer sheet. Misplaced marks may be read by the scanning machine as incorrect answers.
Part II: True/False - select either T (true) or F (false) for each question and clearly mark your choice on the Scantron answer sheet. You will note a T at the top of the A column and an F at the top of the B column on the Scantron answer sheet. Again, be careful in filling out the Scantron answer sheet.
For both Parts I and 11 be sure you are answering the correct question.
For Part III use the ruled answer sheet provided
Part III Short Answer Questions - write your responses clearly and concisely in the space provided on the answer sheet, (Please - our tolerance wanes after reading over a hundred answers on the same question.) Microscopic writing or answers exceeding the space will be penalized. Answer the question posed. You will not receive credit for "disk dumping" everything you know about a certain area, in fact extraneous writing that is irrelevant or wrong will count against you. You will only receive credit for analysis and discussion that answers the question.
All statutory references are to the 1976 Copyright Act, as amended, unless otherwise indicated.
Make sure your examination number is on the answer sheets.
Do not open your examination or start reading the questions until you are instructed to do so. Although you should have sufficient time to finish the exam remember you must stop writing as soon as the proctor announces that the examination is over or you run the risk of a conduct code violation.
Pace yourself accordingly.Good luck and have an enjoyable vacation.
PART 1: Multiple choice - 25 questions worth 15 points each. There are five choices for each question (a through e). Be alert to multiple choice questions that span a page break.
1. Oscar Lamenta, an independent software programmer who operates as a free-lance programmer for large companies, has written a software program that lists the names and addresses of all law students in the United States. Oscar has given Softsell Corporation a non-exclusive license to distribute the program. Oscar did not charge Softsell Corporation for this license. Softsell Corporation sells the program to law school bookstores throughout the United States. Program Pirates Inc. purchased a copy of the program from a local law school bookstore and has posted the program on its internet site where anyone* can use it. Softsell Corporation brings a copyright infringement action against Program Pirates. What is the most likely result of that lawsuit?
a. Program Pirates will prevail because of the first sale doctrine.
b. Program Pirates will prevail because of the ruling in the Feist case.
c. Program Pirates will prevail because Softsell is not the proper party to bring this lawsuit.
d - Program Pirates will prevail because SoftSell received its license free of charge.
e. Softsell Corporation will prevail.
Fact situation for Questions 2 and 3
Kevin K irk, a literature major at a local University, is a rabid fan of the television series Star Trek -The Next Generation. For his final project in one of his writing and composition classes he wrote a screenplay for a Star Trek movie using the familiar characters from the series (Data the android, Captain Picard, Dr. Crusher, among others) in which the Klingon Empire unites with beings for another dimension to threaten military domination of the Federation. After the literature course was completed, Kevin decided to continue working on his Star Trek screen play and after a few months he had a polished version of the screenplay. Kevin took his completed screenplay to a meeting of the local Star Trek fan club, of which he is an active member. At that meeting he gave a dramatic reading from part of the screenplay. The members of the fan club responded with great enthusiasm and they encouraged Kevin to send the screenplay off to Paramount Pictures, the movie company that held the copyrights to the original Star Trek series.
2. After Kevin Kirk's dramatic reading of his screenplay at the Star Trek fan club, one of the attendees, Marla Misaprope calls up a friend of hers at Paramount Pictures and pitches them the concept of the Star Trek movie that is identical to Kevin's. Paramount executives are excited about the concept and sign an agreement with Marla to develop the concept into a screenplay. Marla receives $ 100,000 at the signing and a promise of an additional $500,000 upon completion of the screenplay and 5% of the movie's net if it is completed. Kevin finds out about Marla's deal with Paramount and is outraged. He comes to you for legal advice. Which of the following would be correct advice to give Kevin Kirk?
a. "Kevin, you have an excellent case of copyright infringement against Marla Misaprope because the work she sold to Paramount was substantially similar to yours and she had access at the fan club dramatic reading."
b. "Kevin, you have an excellent case of copyright infringement against Marla Misaprope because the work she sold to Paramount violated your right to create derivative works."
c. "Kevin, you have a case of copyright infringement against Marla Misaprope as soon as she writes the screenplay."
d . "Kevin, I regret to inform you that Marla has not done anything for which you are likely to recover under the copyright laws, although you might have a action in contract or tort."
e. "Kevin, I regret to inform you that Marla has not done anything for which you are likely to recover under copyright, contract or tort."
3. After signing the deal with Marla Misaprope the general counsel for Paramount
Pictures learns of Kevin Kirk's screenplay. Which of the following would be a legally correct response by Paramount Pictures' general counsel to this news?
a. A lawsuit against Kevin Kirk claiming copyright infringement of the Paramount Picture's copyright in Star Trek and its characters based on the right to produce a derivative work.
b. A lawsuit against Marla Misaprope for inducement to infringe another's copyright.
c. An immediate substitution of Kevin Kirk for Marla Misaprope to complete the screenplay.
d . There is no need to respond because the subject matter of the contemplated work is fairly characterized as a scene a faire.
e. There is no need to respond because the facts disclose no violations of Paramount Pictures' or Kevin Kirk's copyrights.
4. Video Yesteryear distributed videos of the 1950 film "Hillybilly Bob in Concert"
without authorization, in the mistaken belief that the film was in the public domain.
The film, however, was not in the public domain. Video Yesteryear was sued by John
Magnuson who claimed to represent the current owner of its copyright. Video
Yesteryear challenged Magnuson's ownership of the copyright on the grounds it had
never been validly transferred to him. When the film was made in 1966, Hillybilly
Bob initiated and directed the project. Magnuson paid for the film's production but
according to a letter written by Hillbilly Bob in 1950, contributed less than 5% of the
"creative input" to the film. Magnuson transferred his interest to a new corporation
formed and in which he had a controlling interest - at Hillybilly Bob's suggestion - for
the purpose of owning the film. Hillbilly Bob never transferred his interest in the film
to the new corporation, at least not in writing. Hillybilly Bob died in 1995 and the
heirs of Hillybilly Bob are now claiming exclusive copyright in the 1950 film. What is
the likely result of Magnuson's lawsuit against Video Yesterday?
a. Video Yesterday will prevail unless there is evidence that they knew or should have known that the film was not in the public domain.
b. Video Yesterday will prevail because a Hillybilly Bob is the true author of the film and any transfer of his copyright needed to be in writing to be effective.
c. Magnuson will prevail because Hillbilly Bob made the suggestion to create a corporation to hold the copyrights and Hillbilly Bob, or his heirs, will not be allowed to benefit from his subsequent claim of defective transfer.
d. Magnuson will prevail because he will be considered a joint author of the 1950 film.
e. Magnuson will prevail only if he gets Hillbilly Bob's heirs to join him in the lawsuit.
Fact Situation for Questions 5, 6 and. 7
John Walton is the owner of Kid-Vid a chain of U.S. video stores specializing in the rental and sale of videotaped movies targeting the under- 12 age group. In 1998, Mr. Walton purchased 1000 lawfully made copies of a film released earlier that year featuring The Mudpuppies, animated characters made popular in a Saturday morning cartoon series created in 1994 and airing since then. Assume that Mr. Walton purchased the videotaped copies in the U.S. from an authorized U.S. distributor and that the copies lack a copyright notice.
5. Mr. Walton wishes to rent and sell the videotaped copies but wonders if he should have negotiated a license to distribute the videotapes when he made the purchase. Mr. Walton:
a. must negotiate a license to distribute the videotapes because the right of distribution is one of the exclusive fights listed in § 106 as belonging to the copyright owner.
b. may sell the videotapes without a negotiated license from the copyright owner in reliance upon the first sale doctrine.
c. may sell the videotapes without a negotiated license from the copyright owner because the tapes do not contain a copyright notice.
d - must negotiate a license to distribute the videotapes or be in violation of the copyright owner's moral rights.
e. None of the above.
6. Mr. Walton would like to take a still from the movie and enlarge it into a life-sized poster, copies of which he plans to ship to the numerous stores in the F"id-Vid chain for use in promoting the videotapes. As his copyright counsel, you advise him:
a. that the contemplated action would amount to copyright infringement without the permission of the owner of the copyright in the movie and the owner of the copyright in any cartoon characters shown in the poster.
b. that the contemplated action is fair use under § 107, and he need not obtain any permissions.
c. that the contemplated action would not amount to copyright infringement because the first sale doctrine allows him to promote the videotapes using the method *described without first obtaining permission.
d. that the lack of a copyright notice injects the videotapes into the public domain, and he need not obtain any permissions to proceed with his plan.
e. None of the above.
7. Mr. Walton wishes to increase revenue in his stores through rental and sale of lawfully-obtained audiotapes and CDs containing motion picture sound tracks from the films that Kid-Vid carries. As his copyright counsel, you advise Mr. Walton:
a. that limitations on the reproduction and adaptation rights in sound recordings under §114(b) allow him to proceed as planned without exposing his chain to civil liability.
b. that, so long as he pays compulsory license fees under § 115, the rental and sale of the recordings will not expose his chain to civil liability.
c. that the recordings are ephemeral recordings under § 112(d) and, as a consequence, may be distributed as planned without exposing his chain to civil liability.
d . that the first sale doctrine prevents rental of the audiotapes and CDs as planned but
does not prevent sale of the audiotapes and CDs as planned.
e. None of the above.
8. Mr. Walton is considering asking each of his college-age employees to wear the costume of his or her favorite Mudpuppies character and to perform scenes from the movie in the Kid-Vid stores for promotional purposes. As his copyright counsel, you advise Mr. Walton:
a. that, so long as he pays compulsory license fees under § 115, the employees may perform as planned without exposing the chain to civil liability.
b. that, so long as the stores do not charge an admission fee to parents and their children as they enter the store, the employees may perform as planned without exposing the chain to civil liability.
c. that the employees may not perform scenes from the movie without a negotiated license or permission from the copyright owner of the movie and, if different, from the copyright owner of the cartoon characters.
d - that § 110(7) exempts the planned performance from the copyright owner's
e. None of the above.
9. Roberta Davis is the promoter of the world-famous boxer Harry "Hurricane" Hector, currently the world boxing champion. After months of detailed negotiations Ms. Davis set-up a title boxing match between Hector and Jimmy "KO" Smith, the leading contender. The fight aired live only on cable television in a pay-per-view arrangement and Davis owns the copyright. The delayed broadcast rights were sold to CBS Sports for $3 million on an exclusive basis. According to the contract CBS Sports would have the exclusive rights to broadcast the fight no earlier than one week after the live event was shown on cable. On the same day as the fight, a local NBC affiliate television station in Cleveland, WBNO, broadcast 30 seconds of the fight as pan of its late evening news program. WBNO obtained the 30 seconds from the live cable broadcast. The entire fight lasted the full 15 rounds at 3 minutes per round and Hector won on points. CBS Sports, furious that a competitor's affiliate has broadcast segments of the fight to which it had the exclusive delayed broadcast rights sues WBNO for copyright infringement. What defense for WBNO has the best chance for success based on the facts presented?
a. CBS Sports is not the proper party to bring the suit.
b. The use of the 30 seconds as part of the news constitutes a fair use.
c. Hector is a famous personality and the first amendment rights of WBNO preempt the Copyright Act.
d . The broadcast by WBNO occurred after the fight was over, so the 30 seconds were no more than facts that are unprotected by copyright under the ruling in Feist.
e. The broadcast by WBNO is covered by the compulsory licensing rules of the Copyright Act and is not the proper subject matter for an infringement suit.
10. Vista Records claims the copyright to a sound recording of the mating calls of dolphins. Pets-R-Us, a local pet store, buys a copy of the sound recording on a CD and plays it numerous times as "background music" in its fish department. Which of the following is correct?
a. Pets-R-Us has violated Vista's exclusive right of public performance.
b. Section 110(5) of the Copyright Act gives Pets-R-Us a valid defense for its actions.
c. Since there are no human authors, Vista does not have a valid copyright for Pets-R-Us to infringe.
d. Recordings of "natural sounds" are specifically exempted by the Copyright Act.
e. None of the above.
11. Doctor Diane Detrius is a famous endocrinologist and has written, by invitation of the text book's copyright owners, a new chapter to a famous medical text book to be published in 1999. The text book was originally written by Doctor Harvey Fenton in 1955 and revised annually by Doctor Fenton until his death in 1990. Beginning in 1985 Doctor Fenton was assisted in the annual revisions by Doctors Francis Friendly and Gina Ganglia. Which of the following is an accurate statement?
a. Doctor Fenton cannot be considered a joint author of the 1999 edition of the medical text because he is dead.
b. Doctors Ganglia and Friendly cannot be considered joint authors with regard to
Doctor Detrius new chapter unless they actually contributed to its writing.
c. The 1999 medical text is best described as a compilation.
d . If the 1999 edition of the medical text is classified as a collective work, Doctor Detrius only has a copyright in her contribution.
e. None of the above.
Fact Situation for Questions 12 and 13:
Heimlich Manoovr is an employee of Yippee, Inc., an innovative software company. In the course and scope of his employment, Heimlich created application software that analyzes satellite-transmitted weather data and provides a continuously updated database of worldwide weather advisories. Mr. Manoovr's software incorporated a unique graphic user interface created by Joseph Jenkins and Henry Choi, independent programmers under contract to Yippee for this project alone. Subsequent to creation of the software, Messrs. Jenkins and Choi agreed in writing that the software is a work for hire.
12. Yippee expects this software to have significant longevity and has asked you as the company's in-house counsel to indicate the copyright term for the software. Assume that the software was created in 1996 but that Yippee's query comes to you subsequent to the effective date of the Sonny Bono Copyright Term Extension Act. You advise Yippee:
a. that the term of the copyright is the life of Mr. Jenkins or Mr. Choi, whoever survives the longest, plus 70 years.
b. that the term of the copyright is 95 years from the year of creation of the software or 120 years from the year of first publication of the software, whichever expires first.
c. that the term of the copyright is the life of Mr. Manoovr, Mr. Jenkins, or Mr. Choi, whoever survives the longest, plus 70 years.
d. that the term of the copyright is the longer of the period indicated in answer (b) above or the life of the longest surviving author who did not work for hire plus 70 years.
e. None of the above.
13. Yippee has learned that Messrs. Jenkins and Choi have granted an oral non-exclusive license of all copyright rights in the software to the All Weather Television Channel. Yippee has consulted you for advice as to the validity of such a license. You advise Yippee:
a. that the license is invalid because Yippee is the sole author of the software under the work for hire doctrine and, therefore, is the only entity that can grant such a license.
b. that the license is invalid because Yippee is a co-author of the software under the work for hire doctrine and, so, must consent in writing to such a license.
c. that the license is valid because, although Yippee is the co-author of the software under the work for hire doctrine, its co-authors, Messrs. Jenkins and Choi, do not need Yippee's written consent to grant a non-exclusive license.
d . that the license to the All Weather Television Channel is invalid because it is not in writing.
e. None of the above.
14. Dietrik Deutsher is an employee of the New Hampshire Publishing Company (NHPC) who handles German to English and English to German translations for the company. Last week his boss at NHPC asked Dietrik to translate NHPC's most popular book, Sex Scandal at 1600 Pennsylvania Avenue, into German. Dietrik completed the project in a record four days and presented the completed work to his boss at NHPC. NHPC rushed the book to market two days later, Which of the following would be correct regarding the status of the translation.
a. NHPC does not own the copyright in the completed translation unless Dietrik's boss' request was in writing.
b. The copyright in the translation will expire in 2093.
c. Dietrik will be considered the joint author of the translation, but will have no rights in the underlying work.
d. Dietrik will be considered the author of a derivative work, but he will be unable to legally publish it because he has no rights in the underlying work.
e. Dietrik has a valid copyright in the translation but the duration of that copyright cannot be determined at this time because Dietrik is still alive.
Fact Situation for Questions 15, 16 and 17
In 1992, the artist, Ice-T, authored "Yo, it's the Big Guy," a rap version of the musical fanfare entitled "Hail to the Chief 'that traditionally announces the appearance of the U.S. President. Ice-T did not publish or record the work but put the sheet music and accompanying lyrics in a strongbox with his last will and testament, in which he had bequeathed all copyright rights in the work to the U.S. Government. Ice-T's wife and three children, the only other persons who stood to inherit under the will, became quite upset when he informed them of the bequest because they believed that the work would someday generate substantial revenue.
15. Upon Ice-T's untimely death in 1998, who owns the copyright rights in "Yo, it's the Big Guy"?
a. The musical work is injected into the public domain in accordance with § 105.
b - The musical work is owned by Ice-T's wife and three children because the transfer cannot be given effect under § 105.
c. The musical work is injected into the public domain because it does not meet the definitional requirements for a "work of the United States Government."
d. The musical work is owned by Ice-T's wife and three children because it does not meet the definitional requirements for a "work of the United States Government."
e. None of the above.
16. The probate attorney who drew up Ice-T's will is a frustrated performer; he secretly memorized the work when Ice-T showed it to him during a meeting. Shortly thereafter, the attorney recorded "Yo, it's the Big Guy" for a well-known record label although the recording was not distributed until after Ice-T's death. The probate attorney:
a. is not liable for copyright infringement because he memorized and did not photocopy the work prior to recording it.
b. is not liable for copyright infringement so long as he pays compulsory license fees.
c. is not liable for copyright infringement because his recording did not recapture the actual sounds of anyone else's recording.
d. is liable for copyright infringement.
e. none of the above.
17. Without considering who would prevail in such litigation, what formality must be satisfied in order to file a complaint for federal copyright infringement against the probate attorney? (Assume that Ice-T was a U. S. citizen and domiciliary.)
a. The copy of "Yo, it's the Big Guy" in the strongbox must contain a proper copyright notice.
b. The copyright owner of the musical work must have a U. S. Copyright Registration or an application for registration must have been denied by the Copyright Office.
c. No formalities are required due to U. S. adherence to the Beme Convention.
d. No formalities are required due to U. S. adherence to the Universal Copyright Convention.
e. None of the above.
Fact Situation for Questions 18 and 19
Mojo a sculptor of international renown, is a domiciliary of Atlantis, a tiny island nation located in the Atlantic Ocean, where, in 1991, he sculpted "Poseidon," the mythical god of the sea, holding his trident. Atlantis is not a party to any treaty involving copyright rights and it is not the subject of any other treaty with or presidential proclamation from the United States. Mojo transported "Poseidon" to New York in an effort to sell the sculpture to a U. S. purchaser. When the CEO of Gotham Shipping Lines, a company specializing in cargo transport by boat, saw the sculpture unloaded on the dock in New York City, he purchased it immediately for display in the lobby of the company's local headquarters. At the time of the sale, Mojo signed a writing assigning "any and all copyright rights in the sculpture, 'Poseidon,' to Gotham Shipping."
18. A photographer working for a cruise line took a photograph of the newly-installed sculpture and posted enlarged copies of the photograph throughout New York City to promote tourist cruises. As in-house counsel for Gotham Shipping, you advise your client:
a. that the photograph does not infringe because the owner of copyright rights in the sculpture injected the work into the public domain by putting it on display.
b. that the photograph does not infringe because the sculpture is not copyrightable subject matter.
c. that the photograph infringes because it is an unauthorized reproduction and/or derivative work.
d. that the photograph infringes only if Gotham Shipping can prove that it lost business to the cruise line.
e. None of the above.
19. Shortly after placing "Poseidon" on display, Gotham Shipping officials announced a plan to replace the trident with a surfboard in an effort to update the company's image. Mojo read of the planned alteration and sent an outraged letter to the company asserting his rights under the Visual Artists Rights Act (VARA). As in-house counsel for Gotham Shipping, you advise your client:
a. that "Poseidon" is not a work of visual art under VARA.
b. that Mojo can prevent the planned alteration only if he can prove that the sculpture is a work of recognized stature.
c. that Mojo waived his rights under VARA by selling the sculpture and assigning all his copyright rights in the sculpture.
d. that Mojo can prevent the planned alteration if he can show that replacement of the trident with a surfboard will harm his reputation as an artist.
e. None of the above.
Fact Situation for Question 20, 21 and 22
A jazz pianist known only as "Fingers" mulls over his next live performance, in his mind putting together the various rhythms, syncopation, and melodic variations. One month later, on May 1, 1995, he performs that same work, existing only in his memory, at the Java Hut. Barry Manatee, a music teacher disenchanted with his occupation, attends the performance and audiotapes it without Fingers' knowledge or consent. He later markets numerous copies of the audiotape. As it happens, a reporter from the local television news is broadcasting live from the Java Hut that same evening as part of an ongoing series by her station on the local nightclub scene. Fingers is aware of and has consented to being featured in the live television broadcast.
20. At the end of 1995, Fingers consults you, a private attorney, as to whether or not he would prevail in an action under the 1976 Copyright Act, as amended, against Barry Manatee. You advise Fingers:
a. that he would not prevail because his live jazz performance does not meet the statutory creation requirement.
b. that he would not prevail because fixation of his performance in the audiotape does not allow the work to be perceived by the human eye in intelligible notation form.
c. that he would prevail because his live jazz performance has been appropriately fixed by the simultaneous audiotaping and live broadcasting.
d . that he would prevail in an action under the anti-bootlegging provisions of Chapter 11 of the 1976 Copyright Act, as amended.
e. None of the above.
21. The next time that Fingers performs, he goes through the same mental creation process prior to performance, but, this time, he transcribes the results of that process on paper prior to performing the work. His performance is again broadcast, this time by the local radio station which, without his permission, audiotaped the performance in order to transmit it the next day. Fingers is not upset by the broadcast but wants to file a copyright infringement action on the basis of the unauthorized audiotape. As his private attorney, you advise Fingers:
a. that he would not prevail in such an action because his musical work does not meet the statutory creation requirement.
b . that he would not prevail in such an action because the audiotape is an ephemeral recording.
c. that he would prevail in such an action because the audiotape is an unauthorized reproduction and/or adaptation of the musical work.
d. that he would prevail in such an action because the musical work has been appropriately fixed by its transcription onto paper prior to the performance.
e. None of the above.
22. Now that he has started transcribing his musical works prior to performing them, Fingers has discovered that a record company has been paying his agent to photocopy the transcriptions secretly and sell them to the company which plans to hire another artist to record the works. Fingers has consulted you as his private attorney to determine if he has any legal recourse against the record company. You advise Fingers:
a. that, so long as the record company pays compulsory license fees, he has no
recourse against it.
b. that he has no recourse against the record company whether or not it pays
compulsory license fees.
c. that the record company cannot be sued as a contributory infringer under the
holding of the Betantax case.
d. that the record company can be sued as a contributory infringer.
e. None of the above.
23. Failure to deposit with the Copyright Office two copies of the best edition of a work within three months after publication results in which of the following?
a. Forfeiture of copyright.
b. Nothing, since the Berne Convention prohibits member states from imposing
c. Payment of a fine to the Copyright Office.
d. Prohibition of copyright renewal.
e. None of the above.
24. Under the Guidelines for Classroom Copying in non-profit educational institutions, which of the following is not a condition for the allowance of multiple copies made by a teacher?
a. The copying meets the test of brevity.
b. The copying is not a distortion of the work.
c. The copying meets the test of spontaneity.
d. The copying meets the cumulative effect test.
e. Each copy includes a notice of copyright.
25. The right of attribution is:
a. the right of a copyright owner to sell the work.
b. the night of an author of a copyrighted work to sell the work
c. the right of an author to be known as the author of a work.
d. the right of an author to prevent mutilation of his or her work.
e. All of the above.
PART 11: Ten true/false questions worth 5 points each. Mark you choice on the Scantron answer sheet.
26. All compilations are collective works but not all collective works are compilations.
27. The first sale doctrine does not apply to phonorecords.
28. In the Sega v. Accolade case assigned for class the court held that interim infringement from reverse engineering constitutes willful copyright infringement.
29. In a lawsuit for copyright infringement, the plaintiff must establish its ownership of a valid copyright, and that the defendant improperly copied the copyrighted work.
30. The unauthorized fixation of a live poetry reading in New York's Central Park would now be illegal under Chapter 11 of the Copyright Act.
31. The non-literal structures of literary works can be protected by copyright.
32. Under the 1909 Copyright Act the act of publication separated common law copyright from federal copyright protection.
33. Independent creation plus a modicum of creativity is all that is necessary to satisfy the Constitutionally mandated originality requirement of copyright.
34. "Conceptual separability" has been used by judges to help them separate copyrightable expression from utilitarian functions.
35. Attorney fees and costs can be awarded to either the prevailing plaintiff or the prevailing defendant in a copyright infringement case.
PART III: Fourteen short answer questions worth a total of 275 points. Each answer is worth the points indicated in brackets [I at the end of the question. Please confine your responses to the lined area on the answer sheet provided, but do not feel compelled to fill the entire area. Microscopic writing or answers exceeding the space will be penalized. Cite case law only if the question specifically asks you to do so.
36. When a particular idea can only be expressed in a limited numbers of ways courts often invoke what doctrine to determine copyright validity. [10 points]
Fact Situation for Questions 37, 38 and 39
In 1998, subsequent to the effective date of the Sonny Bono Copyright Term Extension Act, Anna Borinsky, a photographer/employee of Hallmark Cards, a famous greeting card manufacturer, took several color photographs of New England winter scenes for use in her employer's new Christmas card line. The photographs were used on cards marketed in time for the 1998 Christmas season. At the close of
the wholesale marketing for the upcoming holiday season, Papertree, a company specializing in the manufacture of Christmas ornaments, purchased all remaining inventory - 100 boxes - of the subject cards. One of Papertree's employees, an origami specialist, then folded the cards into unique paper ornaments that the company began marketing for the following Christmas season.
37. Who owns the copyright on the original photographs featuring New England winter scenes, and when is the copyright due to expire? [20 points]
38. Will the copyright owner identified in the response to the previous question be able to maintain a cause of action against Papertree under the Visual Artist's Rights Act? Give two reasons why or why not. [20 points]
39. Did Papertree prepare unauthorized derivative works in the process of creating the origami ornaments? Explain your response citing appropriate case law. [30 points]
40. Compulsory licensing has been of part of U.S. Copyright Law since the 1909 Copyright Act. In the space below give two reasons in favor of compulsory licensing and one against. [15 points]
41. Cite two sections of the Copyright Act that employ compulsory licensing. [20 points]
42. An assignee of all copyright rights in a work for which a U. S. Copyright Registration exists would be wise to record the written document of transfer with the Copyright Office in order to take advantage of what statutory notice provision? (Please cite the statutory section and subsection.) [10 points]
43. What must each author intend in order to create a "joint work" and when must that intention arise? [20 points]
44. If a non-exclusive licensee, whose license is evidenced by a written agreement signed by the licensor, takes the license before execution of any other transfer of copyright interests in the same work, but does not record his non-exclusive license with the U.S. Copyright Office, the non-exclusive licensee will have priority over what other types of conflicting transfers of copyright interests in the same work? [10 points]
45. The right of reproduction for sound recordings differs greatly from the right of reproduction for other copyrighted works such as musical works. Briefly describe how the right of reproduction for sound recordings differs from the reproduction right in a musical work. [30 points]
46. For what specific types of works is a mechanical license available? Briefly explain when the night to reproduce, adapt and distribute such a work under a mechanical license takes effect? [30 points]
48. In one sentence, describe what commentators are referring to when they cite the tension between the First Amendment guarantee of free speech and the copyright law. Generally, courts take the approach that the copyright law may accommodate First
Amendment concerns by application of what two established copyright doctrines? [20 points]
49. In a copyright infringement case, a plaintiff sometimes must prove copying through circumstantial evidence of access to the copyrighted work. Give two examples of situations in which the plaintiff may rely upon a presumption that the defendant had access to the copyrighted work. [20 points]
50. Jeb Black created a short subject film by copying substantially all the footage from the famous food fight scene in the movie, Animal House. Although Jeb's copying was unauthorized, he had been given a copy of Animal House by his idol, the film's star, John Belushi, shortly after it premiered, and, when Belushi died, devised his short subject film as a tribute to the star. Jeb did not know and had no reason to know that his copying was an infringing act. He distributed the short subject film to so-called "art houses," theaters that specialize in showing classic old films, all over the country. Over the course of a 2 year period, the film was shown in 80 different theaters and was performed a total of 400 times. How successful will Jeb be in defending an infringement action on the ground that he did not intend to infringe and, in fact, did not know he was infringing? If the plaintiff seeks statutory damages against Jeb, what is the likely amount that the plaintiff will be awarded and why? [20 points]