Midsemester Quiz

October 20, 1999

Professor Susan M. Richey

General Instructions: This quiz has two sections-a multiple-choice section, worth 16 pts., and a short answer section, worth 14 pts., for a total of 30 pts. The quiz is openbook and you may take any written material that you wish into the exam with you. Do not work with any of your classmates during the quiz. All statutory references are to the 1976 Copyright Act unless otherwise indicated. You have one hour to complete the quiz unless otherwise instructed by the proctor. Place your exam number in the space given above.

Section I (Multiple Choice): Use the Scantron answer sheet provided and select the single best answer for each question. Clearly mark your choice on the Scantron answer sheet. Be certain to follow the proctor's instructions for filling out the Scantron answer sheet; misplaced marks may be read by the scanning machine as incorrect answers. Place your exam number on the Scantron sheet.

Fact Pattern for Questions 1 and 2
Byte-Size Greetings, is an innovative greeting card company that places its offerings on the Internet. Subscribers to the Byte-Size Greeting website may select a greeting card from a gallery of cards mounted on the site and transmit the selection by e-mail to a recipient or print it out for conventional mailing. In exchange for the annual subscription fee, usually submitted electronically in the form of a credit card charge, subscribers have access to the entire gallery of cards but may select each card only once in the course of the year. Each card has a "cover" page depicting a color image and an inside pagewhich one reaches by clicking on the image--containing a preprinted message, ByteSize Greetings takes pride in the fact that the color images depicted on its cards are the original artwork of its skilled, in-house artists.

1. (2 pts.) Laslo Burton, a college student who supplements his academic loans by selling poster art, discovered the attractive images on Byte-Size Greetings' site shortly after it was mounted on the Internet and paid a fee to become a subscriber. Laslo then printed off a color copy of each of the cards from the Internet, isolated the cover page of each card, enlarged and enhanced resolution of each page, and sold each cover page as a single poster. If Byte-Size Greetings sues Laslo for copyright infringement, Laslo is likely to rely on the holding in which of the following cases to defend his actions?

(a) L. Batlin & Son v. Snyder

(b) The Bridgeman Art Library, Ltd. v. Corel Corp.

(e) Lee v. A.R. T

(d) Alfred Bell & Co. v. Catalda Fine Arts, Inc.

(e) Feist Publications, Inc. v. Rural Tele hone Service

2. (2 pts.) Assume for purposes of this question that Laslo's defense, referred to in Question No. 1, is not successful. Despite his difficulties with Byte-Size Greetings, Laslo sues his roommate for copyright infringement because his roommate secretly photographed each poster before sale and then sold numerous copies of each photo as postcard sets. Laslo claims that his contributions in developing the images as poster art, while not extensive, meet the constitutional requirement of minimal creativity and, so, his posters are copyrightable subject matter. He further claims that his roommate has violated his exclusive rights of reproduction, adaptation, and distribution. Laslo will:

(a) not prevail because he cannot claim copyright protection under 103.

(b) not prevail because copyright protection is extended only where an author can show an extraordinarily high level of originality.

(c) prevail because The Bridgeman Art Collection v. Corel Corp. stands for the proposition that a faithful reproduction of two or three dimensional art can never be the subject of copyright protection.

(d) prevail because photographs are never subject to copyright protection.

(e) prevail because he was the first person to think of utilizing Byte-Size Greetings' images for products other than greeting cards.

Fact Pattern for Questions 3 and 4

Hatstack Co. is an entity that manufactures hat and coat racks, free standing as well as the type that can be fastened to a wall. Hatstack's best-selling design is little more than a straight, thick tension pole that can be wedged between the ceiling and floor. The pole is covered from top to bottom in an adhesive fabric--coats and hats immediately attach when they come into contact with the fabric and easily detach from the fabric with a slight tug. The benefit of this particular rack is that it can be utilized in small rooms and other areas with limited space. In addition, the rack is particularly useful for sloppy people because they can hang up their outerwear by flinging it in the direction of the rack without having to walk over to the rack and place the item on a specific hook.

3. (2 pts.) Hatstack discovers that a competitor is selling copies of its pole design and files a copyright infringement suit against the competitor, asserting that the pole design is the proper subject of copyright under 102(a)(5). If the court adjudicating Hatstack's claim applies the test for conceptual separability utilized in Brandir Int'l v, Cascade Pac. Lumber Co., Hatstack will:

(a) not prevail because the bottom of the rack cannot be unscrewed from the top of the rack.

(b) prevail because there are numerous other designs for hat and coat racks.

(c) prevail because the rack can be used in large open spaces and can be used by people who are not sloppy.

(d) not prevail because form appears to be dictated by function in the design of the pole rack.

(e) None of the above.

4. (2 pts.) Using the test for conceptual separabilty articulated by Judge Jon Newman, which of the following facts could be used to support Hatstack's claim?

(a) The pole rack has been included in a layout for an article in Architectural Digest magazine on how to furnish cramped, studio apartments.

(b) A young sculptor has used an empty pole rack as the centerpiece of his popular, one-man show protesting the urbanization of man, in a local gallery,

(c) Hatstack's own advertising touts the utilitarian advantages of the pole design.

(d) The pole rack is pictured in Parents magazine, illustrating an article on ways to encourage your teenager to clean up his room.

(e) None of the above.

Fact Pattern for Questions 5 and 6

Horatio Ralston is a national and domiciliary of the Quotidian Islands, a small Pacific island nation that is not a party to any treaty involving copyright. Horatio is a talented programmer who, within the last few days, completed work on an application program that calculates earthquake probability by geographic region worldwide, on a continuous basis. In light of recent seismic activity, Horatio is anxious to get his product on the market. Horatio travels to Los Angeles with his program and makes sales calls on various institutions--banks, movie studios, colleges-literally, any entity that he thinks is a potential customer for an earthquake warning system. Sadly, Horatio miscalculates the aplomb of Southern California residents to shaking beneath their feet and makes no sales.

5. (2 pts.) Does Horatio's application program meet the national origin requirements for federal copyright protection?

(a) Yes, under 104(a).

(b) Yes, under 104(b)(1).

(e) Yes, under 104(b)(2).

(d) Yes, under 104(b)(5).

(e) None of the above.

6. (2 pts.) Horatio's application program is offered for sale on CD ROM. This disk constitutes a material embodiment of

(a) a literary work.

(b) a sound recording.

(c) an audiovisual work.

(d) a graphic work.

(e) none of the above.

Fact Pattern for Question 7

A Concord High School student assigned to write for the school newspaper seeks and is granted an interview with the Concord, New Hampshire, Police Chief regarding his department's policies in dealing with teenagers who skateboard in public parking lots. The issue has been a controversial one, so, the Police Chief insists that the student submit his written questions to the Chief a week ahead of the interview. The Chief has the Police Department's Public Relations Director draft responses to the questions, and the Chief reviews the written responses. On the day of the interview, the Chief responds orally to the questions posed by the student, tracking the written responses almost verbatim. The enterprising student decides to sell the interview to a national skateboarding enthusiasts' magazine, On the Boardz.

7. (2 pts.) The biggest obstacle to a successful suit for federal copyright infringement by the Concord Police Department against the magazine is:

(a) The inability of a municipal agency to be an author under 105.

(b) The fact that the Chief s oral responses were a performance and, so, are not fixed for purposes of copyright protection.

(c) The fact that the Chief s oral responses were not broadcast live at the time of the interview.

(d) All of the above.

(e) None of the above.

Fact Pattern for Question 8

Greta Garbled was a star of the silent film era in the early 1900's. She had a talent for physical comedy and has often been compared favorably by historians to film legend, Charlie Chaplin. Although exceptionally long-lived, Greta passed away last year, and, Turner Enterprises decided to put together a 30-minute montage for television of her more memorable moments in film. The clips that Turner Enterprises used to create the television special on Greta were all taken from films in the public domain. The television special aired on a Monday night but was missed by many sports-minded film buffs who watched Monday Night Football instead. ABC copied the broadcast without Turner Enterprises' authorization and rebroadcast the montage portion of the special on a Tuesday night.

8. (2 pts.) Turner Enterprises will prevail in a suit for copyright infringement against ABC if it proves:

(a) that the editing of the film clips evidences originality in the choice and sequencing of the clips.

(b) that the montage constitutes a copyrightable compilation.

(c) the elements missing from the phone books at issue in Feist Publications, Inc. v. Rural Telephone Service.

(d) All of the above.

(e) None of the above.

Section H (Short Answer): Please confine your responses to the lined area. Do not cite case law.

9. (4 pts.) Congress has enacted sui generis protection to prohibit unauthorized copying of certain forms of useful articles, such as mask works and boat hull molds. Why did Congress legislate copyright protection for architectural works as opposed to sui generis protection from copying?

10. (4 pts.) What two requirements of copyrightability are mandated by Art. 1, section 8, clause 8, of the U. S. Constitution?

____________________________ and _______________________________

11. (2 pts.) What established doctrine in copyright law underlies the U. S. Copyright office's blank forms rule?

12. (4 pts.) Under 10 1, and
comprise all the material objects in which works of authorship are capable of being

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