This blog has been in hibernation for almost three years, thanks to an addition of job responsibilities. Now that I’ve acclimatized to performing the duties of two jobs without cloning myself, the blog hiatus is close to an end. Copyright, contract, and more soon to come!
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In the previous two classes (Infringement Part I and II), we’ve been looking at the heart of the typical infringement analysis. Today, we’ll be looking at one special limitation to infringement of the reproduction right and at infringement of the other rights besides the exclusive right of reproduction.
Infringement of the reproduction right of copyright in sound recordings
In order to fully understand, the limitation of the reproduction right in the copyright of sound recordings, we need to understand how copyright applies to music. It’s easiest just to think of music as having two separate copyrights. There is one copyright in the musical composition, typically subsisting in the writer of the work, and another copyright in each particular sound recording, typically subsisting in the producer. The musical composition is what we think of as the musical work, the song itself. The sound recording is a particular recording.
So any particular song you hear on the radio is subject to two copyrights.
Copyrights in sound recordings are very limited. They are only infringed by ‘mechanical’ reproduction. Basically, you have to use a machine to copy it. Put another way, if you hired a group of musicians to imitate, exactly, a sound recording, it would not be an infringement of the copyright in the sound recording (although it would obviously infringe the copyright in the musical composition).
The most interesting recent issue relating to sound recordings is whether digital sampling infringes the original work. See Bridgeport Music v. Dimension Films.
Other rights provided by copyright
Thus far in our examination of infringement, we’ve been talking about the exclusive right to reproduce the copyrighted work, in other words, the right to prevent others from copying the work. That is the most commonly asserted right, and the right most people associate with copyright. Hey, it’s right in the name.
But it is not the only right an owner of copyright gets – Section 106 of the Copyright Act provides six different rights:
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Let’s look at each briefly.
Exclusive right to prepare derivative works
Section 101 defines “derivative work.”
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
The most important examples for fiction writers would be the conversion of a book into a movie, the translation of a book, the preparation of an audiobook version of the book, and in some cases the writing of a sequel (…and the preparation of an abridgment if we harken back to the golden days of Reader’s Digest).
Where you are most likely to see something that looks like this right is in the grant of rights clause in a book contract. However, that grant of rights actually includes both this right to prepare derivative works and the broader right to make reproductions of the work. Those provisions in the granting clause transfer the exclusive right, for example, to make a movie version of the book. In order to do so, that clause has to mean both the reproduction right and the derivative right.
The reason for this is the same reason why you rarely see the derivative right asserted by itself. The derivative right is most often asserted as an additional claim added on to a claim of infringement of the reproduction right. Thinking about the scope of the reproduction right is the key to understanding why. If you think back to our examination of the infringement analysis, it becomes immediately obvious that one can infringe the reproduction right without making an exact verbatim copy. A non-literal copy is still a violation of the reproduction right. One extension of that is that changing the medium of the work can still be a copy. Thus a photograph can be a copy of a sculpture and a movie can be a copy of a book. That means that most derivative works are also copies.
Factual circumstances that create potential infringements of the derivative right without infringing the reproduction rights are rare. One example is when an individual alters an authorized copy enough to create a derivative work. So if you bought a coffee table book, cut out the images, and then mounted them on tiles – you might have altered them enough to meet the statutory definition of a derivative work. See Mirage Editions v. Albuquerque A.R.T. Co. and Lee v. A.R.T. Co. A second example is when hardware or software is used to alter an existing program as it runs. See Lewis Galoob Toys v. Nintendo of America (anybody remember the Game Genie?) and Micro Star v. Formgen (involving Duke Nukem 3D levels)
Exclusive right to distribute the work
This right exists to close a “loophole” in the reproduction right. If one individual makes thousands of copies of DVD and then sells them to a second individual who then offers them for sale to the public, the second individual technically has not made any copies. The distribution right allows the copyright holder to go after the second individual directly. That individual may be the only one the owner can easily find.
The real story of this right is really its most important limitation.
Think about the scope of this right – distribution “by sale or other transfer of ownership, or by rental, lease, or lending”.
Have you ever given a book to someone as a gift?Have you ever leant someone a book? The first is a transfer of ownership and the second is a lending – in other words if we look no further than section 106, each of those activities appears to be an infringement of copyright!
But of course, it’s not. This is where the First Sale Doctrine, codified in Section 109, does its work:
Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
This exhaustion of the distribution right only occurs once the copyright holder has first parted with ownership of that particular copy. If ownership is not transferred by the owner, if instead the particular copy is only licensed to the recipient, the First Sale doctrine does not kick in. In the literary world, most publishers and retailers purport to license eBooks to readers rather than sell them. If that is the case, then the purchaser (?) cannot resale or even gift it. We’ve looked at this issue a few other places.
Exclusive right to display the work publicly
Section 101 provides:
To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.
To perform or display a work “publicly” means—
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
Like the distribution right, the public display right has a broad limitation. Section 109(c) provides that the owner of a particular copy can display that copy without infringing this right. So a museum that owns the a painting (the physical object) can display it without violating the display right. Where you sometimes see this right litigated is in works that are shown in the background of movies and TV shows.
Exclusive right to perform the work publicly
Section 101 defines “perform”:
To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.
Like the display right, this right is limited to certain types of works.
Exclusive right to perform the copyrighted work publicly by means of a digital audio transmission
This right is specifically limited copyright in sound recordings. Section 101 provides a robust definition: “A “digital transmission” is a transmission in whole or in part in a digital or other non-analog format.” This was initially enacted because of a fear of a ‘celestial jukebox’ streaming music to devices, but it also applies to many internet music streaming services.
I have another guest post up at The Fictorians today. As a part of their month long look at the business side of writing, I discuss book contract clauses that potentially give publishers rights in your future works. Go take a look at what you need to watch out for before signing that contract.
A federal court in Nevada published a ruling on Thursday in favor of the magician Teller over a YouTube video showing one of his signature magic tricks, Shadows.
Shadows essentially consists of a spotlight trained on a bud vase containing a rose. The light falls in a such a manner that the shadow of the real rose is projected onto a white screen positioned some distance behind it. Teller then enters the otherwise still scene with a large knife and proceeds to use the knife to dramatically sever the leaves and petals of the rose’s shadow on the screen slowly, one-by-one, whereupon the corresponding leaves of the real rose sitting in the vase fall to the ground, breaking from the stem at exactly the point where Teller cut the shadow projected on the screen behind it.
Penn and Teller both said that no one would figure out how it was accomplished. A Dutch magician Dogge posted a video to YouTube showing himself performing Shadows. He also offered to teach the trick to anyone for around $3,000.
Teller, famous for rarely speaking, was not laughing. He sued for copyright infringement.
But first he’d have to find the rival magician.
Teller went to lengths to punish Dogge for copyright infringement. Literally. Teller had to hire a private investigator to locate Dogge to serve papers to him, and for a while, Dogge evaded service in Belgium, Spain and other European countries. So Teller did a neat new trick. He emailed the court papers to Dogge and managed to convince the judge that his imitator had opened them. It was enough for the judge to allow the lawsuit to proceed. [Hollywood Reporter]
Once he was able to accomplish that trick, the court could give us a ruling on the merits – or at least as much as we can get at the current procedural hurdle.
The judge said that copyright did not protect how the magic trick worked. That would be a utility patent or trade secret if anything. However, the judge did say that pantomimes can be protected by copyright – like any fixed dramatic performance.
Dogge defended himself, among other ways, by claiming that his performance was not substantially similar to Teller’s trick in how the magic part of it worked. In other words, he said it was dissimilar, but only in ways no one watching the trick could see! The judge was less than generous in dealing with this argument:
By arguing that the secret to his illusion is different than Teller’s, Dogge implicitly argues about aspects of the performance that are not perceivable by the audience,” he writes. “In discerning substantial similarity, the court compares only the observable elements of the works in question. Therefore, whether Dogge uses Teller’s method, a technique known only by various holy men of the Himalayas, or even real magic is irrelevant, as the performances appear identical to an ordinary observer.
Teller is not the first magician to sue over the revelation of a trick, but it is not that common. The magic industry, like the comedy industry, relies on industry norms and punishments more frequently than courts or the law. Like comedians who steal material, magicians who reveal tricks are often blackballed from most paying establishments.
This week we look at the second half of the infringement analysis. Well, it’s half if you consider it as one of two elements. However, if we look at how much work or effort you have to put into this, it’s much more than half.
As a brief review, last week’s class set forth the two elements a plaintiff had to prove (beyond owning a valid copyright): 1) copying and 2) improper appropriation. Copying basically means that the defendant actually copied form the plaintiff’s protected work in stead of, say, coming up with the similar work completely independently or copying from a third work from which the plaintiff also copied.
Improper appropriation asks whether what the defendant copied was substantially similar to that part of the plaintiff’s work protected by copyright. Is the allegedly infringing work substantially similar to the copyright protected elements of the plaintiff’s work?
Improper Appropriation – It’s Confusing
Exactly how a court applies or even states this test can vary a great deal depending on what court it is, what medium the works are in, and what the parties argue before the court. It can get pretty murky if you sit down and try to figure out exactly what the test is. Additionally, the actual application of the test is far from a bright line. So when a lawyer equivocates on whether you “can do something” or not without running a foul of copyright, this is one of the main reasons. (Of course, the lack of any bright line rules in Fair Use is the other main reason.)
The famous Judge Learned Hand explained why the test is so hard to nail down in Peter Pan Fabrics v. Martin Weiner Corp, a case involving similar designs printed on fabric:
The test for infringement of a copyright is of necessity vague. In the case of verbal “works” it is well settled that although the “proprietor‘s monopoly extends beyond an exact reproduction of the words, there can be no copyright in the “ideas” disclosed but only in their “expression.” Obviously, no principle can be stated as to when an imitator has gone beyond copying the “idea,” and has borrowed its “expression.” Decisions must therefore inevitably be ad hoc. In the case of designs, which are addressed to the aesthetic sensibilities of an observer, the test is, if possible, even more intangible. No one disputes that the copyright extends beyond a photographic reproduction of the design, but one cannot say how far an imitator must depart from an undeviating reproduction to escape infringement.
Essentially, copyright infringement would be a lot clearer if we said only exact reproductions were infringing. That would make it much easier to predict the outcomes of cases. But we wouldn’t think it was particularly fair if someone could just make a few minor changes and get away with copying the rest? And that wouldn’t really effectuate the goal of providing economic incentives to creators. So, copyright says that a n infringing work does not have to be an exact copy – it only has to be substantially similar. That’s one source of murkiness in the test.
On the other side, we also say that copyright cannot protect ideas; instead, it only protects expressions. So someone can copy ideas without being infringing. But the line between what is an idea and what is expression is itself nearly impossible to nail down.
These two facets, Judge Hand was saying, create the vagueness and uncertainty that surround the infringement test. Take for example two cases that take two completely different approaches: Roth Greeting Cards v. United Card and Satava v. Lowry.
Roth involved two greeting card makers. Roth claimed that United had copied a number of its cards. The short statements on the front and inside of the cards were virtually the same, as was their general placement. The art work was different (generally a cartoonish character under the words on the front of the card). In addressing the improper appropriation element, the court did not try to make a detailed determination of what was protected as expression and what was idea. Note that the words themselves were just phrases or sentences that were too short by themselves to receive copyright protection. It was the selection and arrangement that yielded the originality sufficient for copyright protection.
It appears to us that in total concept and feel the cards of United are the same as the copyrighted cards of Roth. With the possible exception of one United card (exhibit 6), the characters depicted in the art work, the mood they portrayed, the combination of art work conveying a particular mood with a particular message, and the arrangement of the words on the greeting card are substantially the same as in Roth‘s cards. In several instances the lettering is also very similar.
It is true, as the trial court found, that each of United‘s cards employed art work somewhat different from that used in the corresponding Roth cards. However, “The test of infringement is whether the work is recognizable by an ordinary observer as having been taken from the copyrighted source.”
The remarkable similarity between the Roth and United cards in issue (with the possible exception of exhibits 5 and 6) is apparent to even a casual observer. For example, one Roth card (exhibit 9) has, on its front, a colored drawing of a cute moppet suppressing a smile and, on the in- side, the words “i wuv you.” With the exception of minor variations in color and style, defendant‘s card (exhibit 10) is identical. Likewise, Roth‘s card entitled “I miss you already,” depicts a forlorn boy sitting on a curb weeping, with an inside message reading “… and You Haven‘t even Left …” (exhibit 7), is closely paralleled by United‘s card with the same caption, showing a forlorn and weeping man, and with the identical inside message (exhibit 8).
In contrast to the overall impression approach taken by the court in Roth, the court in Satava v. Lowry took a very detailed-oriented approach to the evaluation under the improper appropriation element.
Satava involved two sculptors who made glass sculptures that resemble jellyfish – brightly colored glass inside a cylinder of clear glass. Here the court took great pains to determine what was merely an idea first and then excluded any similarities of ideas from the substantial similarity analysis.
The originality requirement mandates that objective “facts” and ideas are not copyrightable. Similarly, expressions that are standard, stock, or common to a particular subject matter or medium are not protectable under copyright law.
It follows from these principles that no copyright protection may be afforded to the idea of producing a glass-in-glass jellyfish sculpture or to elements of expression that naturally follow from the idea of such a sculpture. Satava may not prevent others from copying aspects of his sculptures resulting from either jellyfish physiology or from their depiction in the glass-in-glass medium.
Satava may not prevent others from depicting jellyfish with tendril-like tentacles or rounded bells, because many jellyfish possess those body parts. He may not prevent others from depicting jellyfish in bright colors, because many jellyfish are brightly colored. He may not prevent others from depicting jellyfish swimming vertically, because jellyfish swim vertically in nature and often are depicted swimming vertically.
Satava may not prevent others from depicting jellyfish within a clear outer layer of glass, because clear glass is the most appropriate setting for an aquatic animal. He may not prevent others from depicting jellyfish “almost filling the entire volume” of the outer glass shroud, because such proportion is standard in glass-in-glass sculpture. And he may not pre- vent others from tapering the shape of their shrouds, because that shape is standard in glass-in-glass sculpture.
Satava‘s glass-in-glass jellyfish sculptures, though beautiful, combine several unprotectable ideas and standard elements. These elements are part of the public domain. They are the common property of all, and Satava may not use copyright law to seize them for his exclusive use.
It is true, of course, that a combination of unprotectable elements may qualify for copyright protection. But it is not true that any combination of unprotectable elements automatically qualifies for copyright protection. Our case law suggests, and we hold today, that a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.
The combination of unprotectable elements in Satava‘s sculpture falls short of this standard. The selection of the clear glass, oblong shroud, bright colors, proportion, vertical orientation, and stereotyped jellyfish form, considered together, lacks the quantum of originality needed to merit copyright protection. These elements are so common- place in glass-in-glass sculpture and so typical of jellyfish physiology that to recognize copyright protection in their combination effectively would give Satava a monopoly on lifelike glass-in-glass sculptures of single jellyfish with vertical tentacles. Because the quantum of originality Satava added in combining these standard and stereotyped elements must be considered “trivial” under our case law, Satava cannot prevent other artists from combining them.
Note that the court did not say that Satava had no copyright in his sculptures; rather, the court said he did not have copyright protection in that which Lowry copied.
We do not mean to suggest that Satava has added nothing copyrightable to his jellyfish sculptures. He has made some copyrightable contributions: the distinctive curls of particular tendrils; the arrangement of certain hues; the unique shape of jellyfishes‘ bells. To the extent that these and other artistic choices were not governed by jellyfish physiology or the glass-in-glass medium, they are original elements that Satava theoretically may protect through copyright law. Satava‘s copyright on these original elements (or their combination) is “thin,” however, comprising no more than his original contribution to ideas already in the public domain. Stated another way, Satava may prevent others from copying the original features he contributed, but he may not prevent others from copying elements of expression that nature displays for all observers, or that the glass-in-glass medium suggests to all sculptors. Satava possesses a thin copyright that protects against only virtually identical copying.
What is of note is that both cases would have come out differently had they used the approach taken by the other. If the Roth court had taken a detail-oriented approach and eliminated all those aspects of the selection and arrangement that are common to most all greeting cards, what might be called functionality-driven ideas, then there would have been nothing left under copyright protection that was copied by United Cards. Conversely, if the Satava court had merely asked whether the two sculptors works shared the same total concept and feel, the court would have concluded that they did.
Improper Appropriation – The Analysis
It basically boils down to two determinations:
- What is protected expression and not unprotected idea?
- Is there substantially similarity between the allegedly infringing work and the expression of the copyrighted work?
We talked about the idea/expression dichotomy way back in class 3 when we talked about the Nichols case. We can look at it from two directions. If we take recognized expression, let’s say a novel. Then we start to create greater and greater levels of abstractions from that expression. At some point of abstraction, it will become idea not expression. Taken from the other direction, we can take an idea and start adding more and more details. At some point it will become expression. Of course, where that line is, no one knows.
The quoted portions of the Satava case above are an example of a court looking at the idea/expression dichotomy.
You’ll note that we ran into the term “substantial similarity” last week when we were talking about the copying element. One of the most common ways to prove copying was to do so by inference: showing the defendant had access to the copyright protected work and showing that the allegedly infringing work was substantially similar. From those circumstances, a judge or jury could conclude that copying had occurred.
We see the same words in the improper appropriation analysis, but the test is different. This is one of the frequent sources of confusion. In the copying analysis, we look to dissect the two works as experts would and then ask how similar they are, and we are not concerned about which parts of the copyright protected work are actually protected by copyright.
In contrast, under the improper appropriation analysis, we ask whether certain parts of the two works would be considered substantially similar to an ordinary observer. In Arnstein v. Porter, the court said that the ordinary observer was a lay person. Basically, your average person off the street. However, that was refined, or perhaps clarified, in Dawson v. Hinshaw.
Dawson v. Hinson involved to composers of spirituals, with Dawson accusing Hinshaw Music, among others, of having copied his arrangement of “Ezekial Saw De Wheel.” (The music is linked here.)
As a part of the improper appropriation test, the court said that the ordinary observer should be one who was the intended audience of the work. The court explained how this was what Arnstein case actually stood for, despite its use of the “lay person” language, and how this best served the incentive theory underlying copyright.
Arnstein v. Porter provides the source of modern theory regarding the ordinary observer test. Arnstein involved the alleged infringement of a popular musical composition. Writing for the panel, Judge Jerome Frank first explained that “the plaintiff‘s legally protected interest is not, as such, his reputation as a musician but his interest in the potential financial returns from his compositions which derive from the lay public‘s approbation.” This initial observation gave force to the recognized purpose of the copyright laws of providing creators with a financial incentive to create for the ultimate benefit of the public.
Consistent with its economic incentive view of copyright law, the Arnstein court concluded that “the question, therefore, is whether defendant took from plaintiff‘s works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed, that defendant wrongfully appropriated something which belongs to plaintiff.” Thus, under Arnstein, a court should look to the reaction of “lay listeners,” because they comprise the audience of the plaintiff‘s work. The lay listener‘s reaction is relevant because it gauges the effect of the defendant‘s work on the plaintiff‘s market.
Although Arnstein established a sound foundation for the appeal to audience reaction, its reference to “lay listeners” may have fostered the development of a rule that has come to be stated too broadly. Under the facts before it, with a popular composition at issue, the Arnstein court appropriately perceived “lay listeners” and the works‘ “audience” to be the same. However, under Arnstein‘s sound logic, the lay listeners are relevant only because they comprise the relevant audience. Although Arnstein does not address the question directly, we read the case‘s logic to require that where the intended audience is significantly more specialized than the pool of lay listeners, the reaction of the intended audience would be the relevant inquiry. In light of the copyright law‘s purpose of protecting a creator‘s market, we think it sensible to embrace Arnstein‘s command that the ultimate comparison of the works at issue be oriented towards the works‘ intended audience.
To further confuse the matter, how you determine whether it is substantially similar to the intended audience often comes down to the testimony of experts. So you have experts testifying about the technical similarities of the entire work in the first element (copying) while you have experts testifying about what a certain group of people would think about the similarity of certain elements of the works. No room for confusion there at all…
…and that does not even start to take into account when you enter areas like computer software. Read on if you dare – Computer Associates v. Altai.
Okay, let’s look at it this way. I was recently shopping a story to some E-publishers. Before submitting, I checked out the contract terms as stated on the webpage. Buried in the mumbo-jumbo about submission guidelines and other facts was this gem: “Length of grant of publishing rights: Life of copyright.” What the heck?
A copyright lasts your life and another 70 years (in the US and UK. There some other countries which the copyright only lasts 50 years after your death, but it’s still a darned long time.). If you signed a contract with this “reversion” clause your publisher OWNS YOUR STORY for your life, the life of your kids, and a good chunk of your grandchildren’s life. The publisher can do whatever it wants with your story until it has no commercial value (i.e. is in the public domain) and, most likely, not pay you a penny more.
Now do you see the problem?
You might shake your head and say that “well, that was an e-publisher, the traditional houses aren’t like that.” Oh yes, they can be. If you let them. Publishers of all kinds are trying to grab as many of your right as possible, keep them for as long as possible and return as few of them to you as possible. This doesn’t make the publishers “evil.” It just means they are better at looking out for their businesses interests than most writers are. After all, they make money off the stories other people write. Of course, the publisher wants to keep those words for as long as possible.
“But wait!” you say. “Isn’t there something about my getting the rights back if the work goes out of print?”
Yep. That’s the reversion clause. And Nancy goes on to tell you what you need to make sure is in there to avoid getting burned.
This week we move into a complicated topic – copyright infringement. This one will be a multi-class topic. The law on the second element of infringement, which we will take up next week, is one of the more confusing and confused parts of copyright law.
We have three cases this week, all involving music. First up is a classic case from the 1940’s, Arnstein v. Porter. That case sets up the two elements of proving infringement: copying and improper appropriation. Then we have two cases examining the first element, copying: Selle v. Gibb and Bright Tunes Music v. Harrisongs Music, Inc.
The Basic Infringement Analysis – Arnstein v. Porter
Ira Arnstein sued Cole Porter claiming that a number of songs recorded by Porter infringed the copyright in a number of Arnstein’s musical works. The Second Circuit, in reviewing the decision of the lower court, set out the two elements a plaintiff needs to prove to make a case for copyright infringement.
[I]t is important to avoid confusing two separate elements essential to a plaintiff’s case in such a suit: (a) that defendant copied from the plaintiff’s copyrighted work and (b) that the copying (assuming it to be proved) went so far as to constitute improper appropriation.
So, a copyright owner has to prove that the defendant copied from the plaintiff’s protected work and that what the defendant copied was protected by copyright.
The easiest way to understand the reason you have to separately show copying is to understand what is not copying and therefore not infringement. It is not copying if the defendant came up with the allegedly infringing work on their own without copying (consciously or unconsciously from the plaintiff’s work), even if the two works are identical. That is a maxim of copyright law, though we will see that a defendant whose work is strikingly similar to a plaintiff’s work may have difficulties even if he came up with the work on his own. A court won’t disregard the need to find the copying occurred, but if the two works are identical, the court may have a hard time believing that the defendant did not copy the plaintiff’s work.
Another way in which two works might be very similar and yet not have resulted from one copying the other is if both the plaintiff’s work and the defendant’s work were copied from the same third source. If the plaintiff copied from an older work and the defendant copied from the same old work, the two resulting works could be very similar and yet the defendant did not copy the plaintiff’s work.
Copying can be established either by showing direct or indirect evidence of copying. Direct evidence might be an admission by the defendant, testimony of third parties who witnessed the copying, or some other proof. We saw one other way in Feist v. Rural Telephone Co a few weeks ago. Rural Telephone had inserted a few fake names and numbers in their telephone book in order to detect copying.
Indirect evidence involves the court drawing an inference that copying occurred from circumstantial evidence. Basically, if the plaintiff can show that the defendant had access to the work and that there is substantial similarity between the plaintiff’s work and the defendant’s work, then the court can infer copying took place. The defendant can rebut such an inference by introducing evidence of how the work was created independently.
More controversially, the Arnstein court said that even in the absence of any evidence of access to the plaintiff’s protected work, the inference of copying can still be made if the two works are strikingly similar. Other courts frequently recite this possibility but some courts have said that there needs to be some evidence of access, with the strength of the access evidence varying conversely with the needed level of similarity. Selle v. Gibb takes up this issue.
The improper appropriation element asks a different question. Once the plaintiff has established that the defendant copied form the plaintiff’s work, the plaintiff still has to prove that what the defendant copied is something protected by copyright. For example, ideas are not protected by copyright. So a defendant could admit to stealing the ideas from the plaintiff’s work without having to worry about infringing the plaintiff’s rights under copyright. We’ll look at this element in more detail next week.
Copying – Selle v. Gibb and Bright Tunes Music v Harrisong Music
Selle maintained that the Bee Gee’s song “How Deep Is Your Love” infringed his song “Let It End” (listen for yourself). Selle brought in an expert, a professor of music, who testified about the similarity of the two songs.
According to Dr. Parsons’ testimony, the first eight bars of each song (Theme A) have twenty-four of thirty-four notes in plaintiff’s composition and twenty-four of forty notes in defendants’ composition which are identical in pitch and symmetrical position. Of thirty-five rhythmic impulses in plaintiff’s composition and forty in defendants’, thirty are identical. In the last four bars of both songs (Theme B), fourteen notes in each are identical in pitch, and eleven of the fourteen rhythmic impulses are identical. Both Theme A and Theme B appear in the same position in each song but with different intervening material.
Dr. Parsons testified that, in his opinion, “the two songs had such striking similarities that they could not have been written independent of one another.” He also testified that he did not know of two songs by different composers “that contain as many striking similarities” as do the two songs at issue here. However, on several occasions, he declined to say that the similarities could only have resulted from copying.
Despite what might have qualified as striking similarity, the trial judge overturned a jury verdict in the plaintiff’s favor because the judge said that the plaintiff had not met their burden of proof on the element of copying. More specifically, the judge said that they needed some proof that the defendants had access to the plaintiff’s song, something that extended beyond mere speculation or conjecture.
As a threshold matter, therefore, it would appear that there must be at least some other evidence which would establish a reasonable possibility that the complaining work was available to the alleged infringer. As noted, two works may be identical in every detail, but, if the alleged infringer created the accused work independently or both works were copied from a common source in the public domain, then there is no infringement. Therefore, if the plaintiff admits to having kept his or her creation under lock and key, it would seem logically impossible to infer access through striking similarity. Thus, although it has frequently been written that striking similarity alonecan establish access, the decided cases suggest that this circumstance would be most unusual. The plaintiff must always present sufficient evidence to support a reasonable possibility of access because the jury cannot draw an inference of access based upon speculation and conjecture alone.
In granting the defendants’ motion for judgment notwithstanding the verdict, Judge Leighton relied primarily on the plaintiff’s failure to adduce any evidence of access and stated that an inference of access may not be based on mere conjecture, speculation or a bare possibility of access. 567 F.Supp. at 1181. Thus, in Testa v. Janssen, 492 F.Supp. 198, 202-03 (W.D.Pa. 1980), the court stated that “[t]o support a finding of access, plaintiffs’ evidence must extend beyond mere speculation or conjecture. And, while circumstantial evidence is sufficient to establish access, a defendant’s opportunity to view the copyrighted work must exist by a reasonable possibility — not a bare possibility” (citation omitted).
It should also be noted that the Bee Gee’s introduced quite a bit of testimony about the process by which they created their song “How Deep Is Your Love.”
Here, unlike Selle’s “Let It End”, The Chiffon’s “He’s So Fine” enjoyed quite a bit of popular success. It was #1 in America for a time and was a top hit in England as well. So access was easily established. Substantial similarity was also shown fairly easily. The main import of this particular case is that the court accepted that George Harrison did not intentionally or consciously copy “He’s So Fine.” The court accepted Harrison’s proffered description of how he wrote and composed “My Sweet Lord.” However, the court said it did not matter that the copying was unconscious; it still satisfied that element of the copyright infringement analysis.
What happened? I conclude that the composer, in seeking musical materials to clothe his thoughts, was working with various possibilities. As he tried this possibility and that, there came to the surface of his mind a particular combination that pleased him as being one he felt would be appealing to a prospective listener; in other words, that this combination of sounds would work. Why? Because his subconscious knew it already had worked in a song his conscious mind did not remember. Having arrived at this pleasing combination of sounds, the recording was made, the lead sheet prepared for copyright and the song became an enormous success. Did Harrison deliberately use the music of He’s So Fine? I do not believe he did so deliberately. Nevertheless, it is clear that My Sweet Lord is the very same song as He’s So Fine with different words, and Harrison had access to He’s So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.
Next week – Improper Appropriation
So copying is the first element that must be shown. Well technically you have to show ownership of a valid copyright first, but once that is done, the court moves on to the two step infringement analysis. Once copying is established the next step in the analysis is to prove improper appropriation. Next week!