United States Copyright Law

Franklin Pierce Law Center

Summer 1999

Directions

This is an open book examination. You may use your notes, the course material, commercially available study guides and the like. You may not consult with anyone during the examination. Each essay question is equally weighted. As most copyright questions are not fully resolvable, neither are the questions presented. Please assume that all events involve United States residents and that all formalities concerning registration and notice have been adequately addressed by the parties.

Please answer succinctly rather than comprehensively. Write clearly.

Question One

Dizzie Studios (DS) is located in Burbank, Colorado, and has been since its inception in 1967. DS was originally founded to create children's television and movies that portrayed children positive ways, enhancing their feelings of self-worth and simultaneously portraying parents as flawed moral actors. For its first seven years DS was committed to this vision and produced a number of children's televisions series including "Me Wees' Chickenhouse." Surprisingly this show, which featured a halfhatched egg/chick (Me Wee) as its main character, met with critical and commercial success.

During a typical show Me Wee would receive various adult characters into his abode, a large egg shaped house with shrubbery pruned to simulate a nest. Often these adult characters would display one or more all too human frailties that would server as the fulcrum for a dramatic exposition of how that fault hurts society and the individual having the fault itself For instance, Me Wee once received a travelling salesman by the name of Mr. Fib who set about finding fault with numerous aspects of Me Wees' chickenhouse, all the while explaining that each of these faults might lead to grave consequences. Of course, as all of the characters and all of the children know Me Wees' chickenhouse was, according to the continuing storyline perfect, so Mr. Fib's faultfinding was understood to be mendacious ( a lie or series of lies). Mr. Fib fails to sell anything to Me Wee, including egg-shell paint, which indeed Me Wee and his chickenhouse were in need of

Despite its original high-minded spirit the studio faced the latter part of the 1970s in a great deal of disarray, and in 1979 decided to try to profit from its extensive copyright portfolio. DS elected to forma joint venture of sorts with a famous fast-food chain that had unfortunately chosen an enormously boring marketing scheme based upon the notion that adults made dining choices, when indeed, the experience is that children drive such purchases. This chain, which we will call Kingfisher's Fast Chicken or King, had chosen an elderly white male as its brand or mascot choice. Seeing the error of its ways, King chose to get a new mascot and looked eagerly to DS for help in forming a new chain in the Rocky mountain region of the United States. Me Wee looked like the best bet, and the parties entered into a marketing and copyright licensing agreement where DS allowed Kings to license various characters and aspects of Me Wees' chickenhouse.

Kings established a chain of restaurants across the West, and in unique fashion through fashion to the wind and hired an architect to adopt the chickenhouse that appeared in the series as the exterior design of its restaurant. These large egg shaped buildings are very unique, and surprisingly cheap to build. Paul Pevalecki undertook this task and established a full design based upon various views of the chickenhouse in the cartoon series. His design, "The Big Egg" is enormously popular with children, and uniformly hated by zoning boards. Nevertheless, the design was used in 45 restaurants in Utah, Nevada, Colorado, Wyoming and Arizona.


Recently, the relationship between DS and Kings has soured. Kings has decided that the marketing scheme has gone on long enough and is not longer profitable, and has stopped paying royalties to DS. Kings has also sent most of its advertising work to other studios. While Kings no longer uses Me Wee as a character they still prominently use the chickenhouse design and are planning on using it further.

Can Kings continue to use the design of the restaurant? Could they sell their business and could the purchaser use the design?

Question Two

Diane Lyon was fated to dance. Her mother had danced with the London Ballet, and

lip when Diane was born she had been brought to dance lessons that her mother taught even

before she could walk. Toddling was followed by basic dancing, point shoes and studies
with the American Ballet Company. Diane had studied and performed as many young
dancers. Except whereas many aspired to popular recognition Diane was driven by
technical perfection and had undertaken almost every form of technical training available
to her. Amongst those who teach ballet she became known as a comprehensive technical
dancer and as she turned from performance, she set her skills to teaching.

Over the course of eight years of teaching she developed a great number of "exercises" or very specific dances to teach certain technical dancing skills. Perhaps it was because she taught at out of the way venues and did not have the most talented students, but these techniques were enormously effective. Her students, few of whom would have made the first selection at a European company, often won competitions and often received scholarships to dance schools upon graduation from Diane's classes.

Diane gave lessons at various dance schools throughout New England. In 1993 she was asked by Dora, the owner of one of the studio's she taught at, if she wouldn't mind being videotaped giving dance lessons. Over the course of five weeks numerous classes were taped at the expense of Dora. Diane learned that not one of the other instructors had been asked to tape classes by Dora, which Diane took as a compliment. After the tapings Diane had enough confidence to open her own dance studio. Diane has been quite successful with her studio and has gone from teaching classes herself to hiring additional dancers as teachers and training them to teach dancing using some of the techniques she has developed. These techniques are carefully choreographed to match a training technique to a specific piece of music. Students are expected to master a series of dances sequentially and as they do they develop specific dance skills in a sequence that has proven over time to minimize injury and optimize physical development.

There are, however, many techniques for training ballet dancers. However, the series of dance exercises and Diane has developed are recognized as unique.

Recently, Diane found out that Dora has been using an edited version of Diane's tapes since 1993, and indeed has sold copies of the tapes to students and other studios.

Do not consider trademark law or state unfair competition law. Does Diane have a basis to complain under the United States copyright law and what remedies would she have? Identify your concerns with her cause of action under the United States copyright law?

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