Copyright Law

Professor Susan M. Richey

Fall 1999-Final Exam

General Instructions: This exam has three sections-a multiple choice section, worth 24 points, a short answer section, worth 32 points, and a short essay section, worth 14 points. The exam is open-book 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 exam. All statutory references are to the 1976 Copyright Act unless otherwise indicated. You have three hours to complete the exam unless otherwise stated by the proctor.

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.

Sections II and III (Short Answer/Short Essay): Do not use a blue book. Please confine your responses to the lined area of this exam but do not feel compelled to fill tile entire lined area. Do not cite case law in response to any of the questions in Section II. Cite relevant case law in the short essay required in Section III.

Section I

Fact situation for Questions 1 and 2

JoJo is a popular mime who specializes in live performances oil the streets of San

Francisco. Because she does not employ speech or music of ally type, JoJo's performances are silent and limited to movement. Jojo's performances are spontaneous and are not choreographed beforehand. Early this year, one of JoJo's performances was captured on videotape and, shortly thereafter, the video was transmitted, using digital

technology, over the Internet. The Shays, owners of a web page devoted to performance art, were responsible for the Internet transmission but they did not obtain JoJo's consent for the transmission nor did they compensate her for her performance in any way.

1.  (2 pts.) Assume for purposes of this question only that JoJo authorized the videotaping of her live performance. When she learned of the uauthorized transmission of the video over the Internet, JoJo sued the Shays for federal copyright infringement. In the lawsuit, JoJo is likely:

(a) to lose because her performance constitutes a general publication divesting JoJo of all copyright rights and injecting her performance into the public domain

(b) to lose because the lawsuit is preempted under 301.

(c) to prevail because a public performance of a work does not constitute publication.

(d) to prevail because her 106(4) right has been infringed.

(e) to prevail because her 106(6) right has been infringed

2. (2 pts.) Assume for purposes of this question only that the Shays videotaped JoJo's live performance without her authorization. When she learned of the unauthorized videotaping and transmission, JoJo sued the Shays. What theory of liability should she pursue?

(a) state common law copyright infringement.

(b) federal copyright infringement.

(c) infringement of JoJo's rights under Chapter 10 of the 1970 Act.

(d) infringement of JoJo's rights under the Visual Artists Rights Act.

(e) infringement of JoJo's rights under Chapter I I of the 1970 Act.

3. (2 pts.) What provision of the 1976 Act replaced the 1909 Act's dual system of federal and state copyright protection, whose dividing line was publication, with a single system of federal protection for all published and unpublished works?

(a) 101

(b) 104

(c) 301

(d) 408

(e) none of the above.

4. (2 pts.) In 1990, Baron von Souffle a New Orleans food critic of some renown, completed an autobiography entitled The Gastronome's Guide to Gluttony, detailing his struggle with obesity. Hollywood sensed a hit and several movie studios clamored for the right to adapt the novel to the cinema. At a lunch meeting with representatives of Warmer Brothers Studios (WBS), the Baron orally agreed to grant WBS an exclusive license of the exclusive right of adaptation. Although Warmer Brothers promptly forwarded a written license agreement for his signature, the Baron decided to cloister himself in a monastery in an effort to lose weight, leaving the document behind unsigned. Assume that WBS released a movie of the Baron's calorie-ridden life in 1992, without the signed document in hand, relying on the theory that it held an exclusive license from the Baron nevertheless. Under that theory:

(a) the movie would not be an infringement of the Baron's novel because written contracts are not generally required in the movie industry.

(b) the movie would not be an infringement of the Baron's novel because the agreement between the Baron and WBS had been put into writing by WBS.

(c) the movie would not be an infringement of the Baron's novel because an exclusive license is not a transfer.

(d) the movie would be an infringement of the Baron's novel because the exclusive rights enumerated in 106 are not divisible and may only be transferred as a unitary whole.

(e) the movie would be an infringement of the Baron's novel because an exclusive license must be in writing and signed by the copyright owner.

5. (2 pts.) While in the monastery referred to above, the Baron entertained himself by reading cookbooks and soon became a devotee of Dom DeLuise, an overweight actor and author of numerous cookbooks. Immediately upon returning from the monastery in 1994, the Baron contacted DeLuise to arrange collaboration on a cookbook featuring fat-free meals, with various inspirational stories of weight loss interspersed between recipes. The Baron acted as an editor for DeLuise, suggesting recipes, revising drafts of the weight loss stories, and generally providing helpful hints. The collaboration came to a halt when the Baron insisted that he be designated a co-author and DeLuise denied that a joint work had ever been intended. Under the test set forth in Childress v. Taylor, it is likely that:

(a) the Baron and DeLuise are co-authors of the cookbook because both have written books previously.

(b) only DeLuise is an author of the cookbook because the Baron's contributions were minimal and DeLuise did not have the intent to be a co-author.

(c) the Baron-and DeLuise are co-authors of the cookbook because the Baron's contributions, although minimal, were copyrightable and the Baron had the requisite intent.

(d) only DeLuise is an author of the cookbook because the cookbook does not fall into one of the categories of works listed in 101 as a qualifying speciallycommissioned work for hire.

(e) only the Baron is an author of the cookbook because the cookbook is a compilation which is one of the categories of works listed in 10 1 as a qualifying specially-commissioned work for hire.

Fact situation for Questions 6 and 7

Harvey Lemo, an aspiring motion picture producer and director, created his first film in 1995, detailing the adventures of an office "Lothario" who engaged in a string of love affairs with his co-workers. That same year, Lemo obtained a U. S. federal copyright registration for the film. Unfortunately, Lemo had difficulty finding a distributor for the film because most distributors were not willing to take a chance on marketing the work of a relatively unknown producer/director. In 1997, in order to remain financially solvent while he searched for a distributor, Lemo granted a non-exclusive license of the right of adaptation to a corporation that wanted to revise the film for use as a training tool for its employees, on the perils of sexual harassment. The following year, Lemo located a distributor and, as part of the deal, he assigned all copyright rights in the film to the distributor.

6. (2 pts.) Assume that the non-exclusive license was in writing and signed by Lemo, but the license was never recorded in the Copyright Office. Assume further that the distributor recorded the written assignment as soon as Lemo signed it in 1998. In the conflict between the non-exclusive license and the assignment:

(a) the assignment prevails because it is a transfer as that term is defined in 10 1 and the non-exclusive license is not a transfer.

(b) the assignment prevails because it has been recorded and the non-exclusive license has not been recorded.

(c) the assignment prevails because all the exclusive rights were transferred in the assignment, not simply the right of adaptation.

(d) the non-exclusive license prevails because the assignment was not exchanged for valuable consideration.

(e) the non-exclusive license prevails because it is a written license signed by Lei-no and the license was taken before execution of the transfer.

7. (2 pts.) Assume for purposes of this question only that the corporation decided to record its non-exclusive license in 1997. In order to take advantage of the constructive notice provisions of the 1976 Act, the corporation would have had to:

(a) list all other licenses that the corporation holds in the document to be recorded.

(b) include a mandatory deposit of two copies of the best edition of the training film along with the document to be recorded.

(c) specifically identify the work to which the non-exclusive license pertains so that the document to be recorded will be revealed by a reasonable search.

(d) submit a declaration along with the document to be recorded, stating that the corporation has made a reasonable attempt-to affix proper copyright notice to all copies of the training film.

(e) submit a list all officers of the corporation along with the document to be recorded.

8. (2 pts.) Performing rights societies, such as ASCAP and BMI, are organizations that administer licensing of the non-dramatic performances of the type of works designated in which provision?

(a) 102(a)(1)

(b) 102(a)(2)

(c) 102(a)(4)

(d) 102(a)(6)

(e) 102(a)(7)

Fact situation for Questions 9 and 10

Loma Sweet is an accomplished lyricist and composer who wrote a song in 1998 that was destined to become immensely popular, entitled "Who's Afraid of the Millennium Bug?" First released at the beginning of the next year in the United States in an authorized recording by popular vocalist, Randy Newman, the song soon rose to the top of the charts and was played nonstop by radio stations throughout the world as the year 2000 approached.

9. (2 pts.) On December 1, 1999, the Seattle grunge group known as Gimmeabreak released a new recording of the song featuring an arrangement that conformed to their own style of performance although the arrangement did not change the fundamental melody or lyrics of the musical work. Gimmeabreak's recording is:

(a) not an infringement of Sweet's work if Gimmeabreak if the group follows the procedures set out in 115.

(b) not an infringement of Newman's work because Newman's work is subject to a mechanical license.

(c) not an infringement of Sweet's work because Gimmeabreak's new arrangement created a derivative work.

(d) an infringement of Sweet's work because no license was negotiated between the parties that would cover Gimmeabreak's recording.

(e) an infringement of Newman's work because Gimmeabreak's new arrangement created a derivative work.

10. (2 pts.) Assume that, in the year 2002, a U. S. record label releases a CD entitled "Best Hits of the Century," featuring twelve recordings popular throughout the 1900's, including Randy Newman's recording of "Who's Afraid of the Millennium Bug?". Assume further that the record label did not bother to obtain permission from Newman, the owner of the copyright in the sound recording, for use of his recording in the CD and that the quality of the "Best Hits" CID was extremely poor. If Newman opts to pursue monetary remedies for infringement, but not statutory damages or attorneys' fees or other costs, what is he likely to request from the court? Consider only what Newman will request as an initial matter, not what he may be granted after the record label submits evidence on the issue of remedies.

(a) One twelfth of the record label's profits, after deduction of all overhead and other costs.

(b) The record label's gross revenue on the CD in its entirety, arguing that his popularity is what caused the CD to sell, as well as damages to his reputation as a result of the poor quality of the CD.

(c) The record label's gross revenue on the CD in its entirety, arguing that his popularity is what caused the CD to sell, but no damages for han-n to his reputation as a result of the poor quality of the CD because that would constitute a double recovery.

(d) Actual damages to his reputation as a result of the poor quality of the CD but none of the record label's profits because that would constitute a double recovery.

(e) None of the above as the only available remedy in this case is a seizure and forfeiture order under 509(a).

11. (2 pts.) Judge Learned Hand is famous for a number of his judicial opinions, including the opinion in which he attempted to formulate a test for separating copyrightable expression from public domain ideas to determine substantial similarity in a copyright infringement case. That test is called:

(a) the ordinary observer or audience test

(b) the extrinsic/intrinsic test

(c) the filtration and subtraction test

(d) the circumstantial access test

(e) the abstractions test


12. (2 pts.) The children of an author of a U. S. copyrighted work, first published with notice and federally registered in 1962 and for which renewal was properly obtained, wish to terminate an assignment of the right of distribution that had been granted in 1970 by the author. The author and his wife died in an automobile accident in 1995. When may the author's surviving children exercise their rights of termination under 304?

(a) beginning at the end of 2018, and, whether or not they exercised their termination right during the first statutory termination period, beginning again at the end of 2037.

(b) beginning at the end of 2018, and, only if they exercised their termination right during the first statutory termination period, beginning again at the end of2037.

(c) beginning at the end of 1996, and, whether or not they exercised their termination right during the first statutory period, beginning again at the end of 2015,

(d) never, because the work is not a posthumous work.

(e) whenever they wish.

Section II

13. (6 pts.) Gerald Xiu is a famous sculptor who has been commissioned to create a bas relief to be installed in a new office building constructed for Intel Corporation two years ago in San Jose, California. When completed, the bas relief (a type of sculpture characterized by raised figures on a flat surface) will comprise the interior lobby wall facing the entrance to the building. As counsel for Intel Corp., identify two types of provisions, either one of which you could and should consider including in the agreement between your client as owner of the building and Xiu as author of the work, to address any future removal of the work from the building.

14. (4 pts.) Identify the statutory section that codifies the fundamental distinction in copyright law between ownership of the material object and ownership of the copyright.

Despite that distinction, an owner of a piece of fine art, who does not own any of the exclusive rights in the bundle of copyright rights, may publicly display the art object without liability for infringement. What statutory section and subsection authorizes such public display?

15. (6 pts.) List three reasons why federal registration of copyright, a formality not required in the United States since its accession to the Beme Convention, remains a good idea for the copyright owner of a U. S. work:

Fact situation for Questions 16 and 17

Adrienne Ryan is a well-known portraitist and has exhibited her work in some of the better-known art galleries in the United States and abroad. One of her most recent works, a painting of Nancy Reagan, completed in 1986, was commissioned by the Smithsonian Museum for inclusion in its collection entitled First Ladies of the United States. Ryan signed the Smithsonian's form agreement stating that the painting was a work for hire. The picture was exhibited publicly by the Smithsonian with the appropriate copyright notice, beginning in 1986. Assume that Ryan will die in the year 2005 and that the Smithsonian will never sell or offer to sell the painting.

16. (6 pts.) In what year will the copyright term for the painting expire? In order to answer this question, you must first decide if the painting is in fact a work for hire.

17. (2 pts.) In 1992, a political activist, Jonathan Gage, broke into the Smithsonian and painted a wizard's cap on Mrs. Reagan's head in the painting. The cap was meant to be a satirical comment on reports that Mrs. Reagan had been consulting an astrologist for guidance regarding the day-to-day activities of her husband, Ronald Reagan, during his tenure as President of the United States. Ryan immediately filed suit against Gage for violation of her 106A rights of attribution and integrity in the painting. What is the biggest obstacle to her ability to establish a prima facie case? Do not focus on any obstacle you perceive Ryan may have in winning the case, rather on the difficulty she will have in initially pleading her case.

18. (4 pts.) Assume that you represent a licensor of copyright rights in a license negotiation. What type of clause should you seek to have included in the license in order to ensure that your client does not unintentionally transfer rights that it wants to preserve for its own exploitation?

Assume now that you represent the licensee in the negotiation. What type of clause should you seek to have included in order to ensure that your client will be able to exploit the licensed rights in any new media that is developed after execution of the license?

19. (4 pts.) Generally, what conduct triggers the mandatory deposit requirement codified in 407?

Section III

20. (14 pts.) On November 5, 1999, the Eleventh Circuit reversed and remanded the district court's grant of summary judgment in Estate of Mat-lin Luther King v. CBS, Inc., to the district court for a trial on the merits. In its opinion, the Eleventh Circuit declined to address CBS's arguments that its production and airing of a video documentary that
used, without authorization, portions of Dr. King's famous "I Have a Dream" speech, was protected by fair use and the First Amendment. The appellate court did not address these defenses because the lower court had not addressed them in its decision on the summary judgment motion.

Assume that, upon remand, the lower court holds a bench trial on the merits and determines that the speech, as performed by Dr. King, is protected by federal copyright law, i.e., it was not in the public domain when used by CBS. Assume further that CBS literally copied those portions of the speech that it used in the documentary. How should the court hold with regard to CBS's defenses of fair use and the First Amendment and why? (Please specifically address whether or not the Son y presumption should apply.) You may wish to refer to the following recitations of undisputed facts from the
opinions of the appellate court, the district court, and the appellate court, respectively:

"The facts underlying this case form part of our national heritage and are well-known to many Americans. On the afternoon of August 28, 1963, the Southern Christian Leadership Conference ("SCLC") held the March on Washington ("March") to promote the growing civil rights movement. The events of the day were seen and heard by some 200,000 people gathered at the March, and were broadcast live via radio and television to a nationwide audience of millions of viewers. The highlight of the March was a rousing speech that Dr. Martin Luther King, Jr., the SCLC's founder and president, gave in front of the Lincoln Memorial ("Speech"). The Speech contained the famous utterance, 'I have a dream . . . ' which became symbolic of the civil rights movement."

"In 1994, CBS signed a contract with Arts & Entertainment Network ("A & E") to produce an historical documentary series entitled 'The 2 0th Century With Mike Wallace.' The documentary was broadcast and sold as a box set by A & E. One segment was dedicated to 'Martin Luther King, Jr. and The March on Washington.' Much of the episode contained material filmed by CBS during the March, including footage of the speech as it was delivered that day before some 200,000 people. Approximately 60% of Dr. King's speech was included verbatim in the episode. Dr. King's words are heard while a photo and video montage show scenes of the crowd, of Dr. King delivering his speech, and of various instances of discrimination leading up to the civil rights movement. The majority of the episode contains CBS's footage of other speeches and events during the civil rights movement, modem interviews discussing the historical impact of certain events, and narration by Mike Wallace."

"CBS, however, did not seek the Estate's permission to use the Speech in this manner and refused to pay royalties to the Estate."

* * * END OF EXAM * * *