Rebecca Tushnet



Copyright, LAWS 45801 - 01Rebecca TushnetFall Quarter 2012INSTRUCTIONS:1.This is an 8-hour, OPEN book exam. You may consult any inanimate object; however, no credit will be given for citations to any materials that were not assigned for this course. You may not discuss the content of this exam with any other person, whether or not that person is enrolled in this class. Although the questions are based on real situations, I have changed the facts in ways subtle and not-so-subtle, so you could really do yourself more harm than good by looking for outside information on the fact patterns.2. Structure: There are 6 questions. Each is worth a stated percentage of the total exam grade. You should allocate your effort accordingly. 3.Please double-space your answers. Each exam answer page should include a header containing your exam number, the title of the class, and pagination specifying last page, e.g. “page 3 of 10.” Students graduating at the conclusion of the quarter should also include the word “GRADUATING” in the header. 4. There is no specific word limit. Thus, please think, organize, and prioritize carefully before you write. Cogent, well-structured answers that devote the most analysis to the most important issues will be graded more highly; poorly-organized, ungrammatical, or chronically misspelled answers will receive lower grades. Please do not waste space by restating the question or the facts of cited cases. If you need additional facts to answer a question, please state the specific facts needed and how they would affect your analysis. 4. This exam is final. There will be no clarifications or changes. If you believe there is an error, inconsistency, or omission in the exam, please state your assumptions about the issue within your discussion of that issue.5. Citation to relevant materials is required in order to receive full credit. Please indicate why the cited materials are relevant. You do not need to use Bluebook form. For example, simply state: (Texaco) or (§101). You can use italics, bold, or whatever you’re most comfortable with to indicate case names. 6. In answering these questions, consider only causes of action we have studied in this course. Assume that jurisdiction is proper and that there are no statute of limitations or other general procedural bars.This exam consists of 16 pages, including this cover page.Question 1 (5%)In 1976, Peter John composed “Don’t Go Breaking My Heart” and released his recording of it, complying with all necessary formalities. On March 5, 1982, Sony Films licensed the musical work for use in a film, Best Friends. Cher performed the song over a montage of two characters charmingly falling in love. In 2012, John sent Sony Films a termination notice for “Don’t Go Breaking My Heart,” specifying January 1, 2018 as the effective date of termination. Will the termination notice be effective?What, if anything, may Sony continue to do with the work, and for how long?Question 2 (5%)Emily Bennett, who died in 1909, wrote a book of 100 spells, which was kept in the family. The spells were more than lists of ingredients; they included narratives explaining how Emily came up with the spells, how she used them, and other commentary. In 1950, the local newspaper, the Mystic Falls Gazette, published one of the spells, including Emily’s commentary, with permission from the heirs and with proper notice in the newspaper’s name. The Mystic Falls Gazette timely filed for renewal.In 1970, Emily Bennett’s descendant Sheila Bennett self-published a selection of her 10 favorite spells from the book (including all of Emily’s commentary). This book, Spells from My Grandmother, was distributed only to family members. It did not bear any notice. Sheila Bennett died in 2009.In 1990, Sheila’s daughter, Abby Bennett Wilson, followed in her mother’s footsteps and self-published Spells from My Great-Grandmother, which was distributed to family members and also sold in the local Mystic Falls bookstore (which sold 50 copies). Spells from My Great-Grandmother contained 10 different spells from Emily Bennett’s original spellbook, with her commentary, and bore no copyright notice. Abby Wilson died in 2010.In 2010, Abby Wilson’s daughter, Bonnie Bennett, put online a PDF of Spells of the Bennett Family, her own selection of her 10 favorite spells, including Emily Bennett’s commentary. Spells of the Bennett Family included 2 spells that had been in Spells from My Grandmother and 2 that had been Spells from My Great-Grandmother. Bonnie Bennett is still alive (for now).When did or will the copyright in Emily Bennett’s spells expire? (Assume that each of the spells, with commentary, meet the originality standard.)When did or will the copyright in Sheila Bennett’s Spells from My Grandmother expire?When did or will the copyright in Abby Wilson’s Spells from My Great-Grandmother expire?When did or will the copyright in Bonnie Bennett’s Spells of the Bennett Family expire?Question 3 (25%)Your managing partner passes on this email to you and asks you to draft a memo in response:Client: I run CollegeFiles, a cloud storage service. Cloud storage means that users upload their files to private “lockers.” We offer a limited free service with 2 gigabytes of storage, and 100 gigabytes or more of storage to paying customers. Users can download their files from any internet-enabled device, and they can share links to specific files, for example if they’re working on a class project together and want to share relevant articles they’ve found or drafts of a joint project they’re all writing. If an account holder shares a link with another account holder, we automatically add that file to the second account holder’s files (as long as there’s still space in the second person’s account). Our marketing has been targeted towards college students, with the slogan, “Your music. Your files. Anywhere you want.” Our internal measures show that almost all files are only accessed from 2-3 locations, which we think represents individuals using a laptop, a mobile phone, and maybe a desktop or tablet. However, it’s not at all uncommon for files—especially music and video files--to be accessed from 10-25 locations, and sometimes those files will then be added to someone else’s account. Users can also create “public” links; anyone who has the link will be able to get the particular file associated with that link. That’s useful when one of our users wants to send a file to someone who doesn’t have an account without the hassle of big email attachments. We discourage public posting of links, and we also will cut off the ability for non-account holders to access a particular file if it’s seeing really heavy traffic—we don’t want people to use the service as a free distribution platform for their indie film or a place to share pirated copies of The Dark Knight; we want them to buy accounts! If they buy accounts, they can use their space any way they want.In order to save space, we employ “deduplication,” which is just what it sounds like: if two account holders have the same file, we store one master copy of that file, and each account will have a pointer to that file. Because of the way encoding works, if two different people each rip mp3s from the same CD, their mp3s won’t be identical and won’t be deduplicated. But if they each got their copies from the same source, whether it’s a ripped CD or a Bittorrent download, we will deduplicate that even if user 1 didn’t share her copy with user 2. And we deduplicate files like iTunes and Amazon music and video downloads. Using our app, users can stream any music files stored in their accounts to their mobile devices. (They can also download them, but some of our users don’t want to fill up their phone storage with music.)I’m getting calls and emails from the MPAA, something called the CCC, something else called ASCAP, music publishers, and record labels. They all say I need to pay them money to keep operating, and the MPAA wants me to subscribe to some sort of filtering service that costs $250,000 a year for a license and blocks files identified by the MPAA and other copyright owners who participate in it, which is sure to anger my users. I don’t want to do that unless I absolutely have to.More generally, I may be able to scrounge up some cash, but these guys are talking about millions of dollars in total! I’d go out of business if I paid them all. I did file a notice with the Copyright Office designating a DMCA agent, but we’ve never received any takedown notices. Can you explain what copyright-related legal claims these guys might make, what the risks to my business are, and whether there are things I should be doing to reduce my risks? Question 4 (20%)Skechers is a shoe company. Beginning in 2005, Skechers hired Richard Rahl, a photographer, to conduct several photo shoots in connection with Skechers's marketing efforts. Prior to each photo shoot, Skechers explained to Rahl the type of images Skechers hoped to capture. These explanations included storyboards and photographic examples, as well as drawings depicting particular poses for Skechers' selected models. During the shoots, Rahl posed models, arranged lighting and props, and otherwise directed the photography sessions. Rahl delivered raw photographs to Skechers at the conclusion of each photo shoot. Rahl stated that his goal was to do a “great job,” defined as “capturing great moments” that “Skechers could use in its advertising and marketing materials.” Upon receiving the photographs from Rahl, Skechers employees proceeded to modify the images for use in Skechers advertisements. The alterations varied with each image, and ranged from slight modifications in models' skin tone to the substitution of models' body parts and the addition of substantial graphic effects. These enhanced images were then used in Skechers ads. No raw, unaltered photograph was ever incorporated into a finished advertisement. Skechers paid Rahl $20,000 per day of photography, with an additional payment of $2000 for each photo that made it into the final ads.Skechers routinely sent Rahl copies of the final ads. Rahl never asked for changes to be made in an ad. When Rahl received samples of the finished ads, he stated, “These came out great! Love the art direction in the graphics!!”The parties never executed a written agreement. The relationship soured when Skechers sent a cease and desist letter telling Rahl not to use images of the final ads—with the Skechers trademark on them—on his personal webpage. Rahl (after securing registrations for his photos) sued for infringement based on Skechers’ continued use of the ads.The photos and ads on the following pages are representative of the photos and ads more generally.Photo:Ad:15564333525430020701015494000Photo and ad:Photo:-488315175831500Ad:-1022350233235500Photo:Ad:Photo:Ad:Skechers argues that it is a joint author of the photos. Evaluate this argument.Regardless of your answer to the first question, assume that the court decides that Skechers is not a joint author of the photos. Who is the author(s) of the ads, and what is the correct legal characterization of the ads in relation to the photos?Question 5 (20%)Jones Soda puts short sayings, collected from various sources, on the inside of its bottle caps. Jones Soda is sold in six-packs (though individual bottles are also sold at fast-food outlets and convenience stores). Each flavor has its own set of bottlecaps, so that each six-pack comes with the same six bottlecaps as every other six-pack of that flavor.These are the sayings on the Grape Soda bottlecaps:A distant romance will begin to look more promising.Fear creates danger and courage dispels it.Your job needs more concentration. Success will be achieved.Get excited over nothing.Listen.Forget your watch.Jones Soda has obtained registration for the six sayings above as a literary work.A competitor, Bones Soda, copies the same sayings on the label of its grape soda. Jones Soda sues for copyright infringement. Evaluate the parties’ claims and defenses and explain who should win. Do not consider fair use.Question 6 (25%)Farhad Manjoo, sad that his recent negative review of iTunes 11 had received such negative attention from Apple fans, posted an article on Slate (an online, ad-supported news site), “Stop Calling Me a Troll.” Wikipedia defines “troll” in the internet context as “someone who posts inflammatory, extraneous, or off-topic messages in an online community, such as a forum, chat room, or blog, with the primary intent of provoking readers into an emotional response or of otherwise disrupting normal on-topic discussion.”The article was illustrated with the following photo:The caption was “Author photo?”The copyright in the troll doll was restored under §104A. The copyright owner, Dam Things, sues Slate for infringement. Evaluate Slate’s fair use defense.The photo was published by Flickr user Cali4beach pursuant to a Creative Commons attribution-only license, known as CC-BY, which allows any reuse as long as attribution is given, and further stipulates, “Notice — For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link to this web page.” () The photo had no metadata other than the filename. The Slate article gives Cali4beach credit for the photo, but does not link to her Flickr page (which links to the CC license) or to the CC license. When Slate used the photo, in accordance with Slate’s photo use guidelines, an editor manually changed the filename of the photo from cali4beach-trolls-cc-by.jpg to 121205_TECH_trolls.jpg, so that the filename now reflected the date the Slate article was published, the section in which it was published, and the article to which it was linked. Anyone who downloads the photo from Slate, or even just looks at the file path, sees the Slate-given filename. Cali4beach sues Slate for violating 17 U.S.C. § 1202. Evaluate her claim. ................
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