Question 2: Discuss the copyrightability and ownership of ...



EXAM NO. ________

GEORGETOWN UNIVERSITY LAW CENTER

EXAMINATION IN COPYRIGHT

Professor Rebecca Tushnet

THIS EXAMINATION MUST BE RETURNED WITH YOUR ANSWERS

INSTRUCTIONS:

1. TIME LIMIT: All exams must be handed in to the Registrar’s Office nine (9) hours after pickup.

2. Structure: There are three questions. The first is worth 20% of the overall grade. The other two are each worth 40%. You should allocate your effort accordingly.

3. 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 open-book. 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.

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: (Campbell) or (§107). You can use italics, bold, or whatever you’re most comfortable with to indicate case names.

6. Your answers must be typed and double-spaced. Use of computers is encouraged. Please make sure the course name and your exam number appear on the first page.

This exam consists of 6 pages, including this cover page. Please make sure your copy is complete.

ON MY HONOR AND AWARE OF THE STUDENT DISCIPLINARY CODE I SWEAR OR AFFIRM THAT I HAVE NEITHER GIVEN NOR RECEIVED ANY UNAUTHORIZED AID FROM ANY OTHER PERSON OR PERSONS.

__________________________________ ___________

[please sign with exam number only] Date

Time received: Time returned:

Question 1 (20%)

Leonard Tushnet’s hobby was writing science fiction stories. In 1960, he transferred the copyright, including the renewal term, in Story 1 to Science Fiction Magazine for $50; Story 1 was published in the June 1960 issue. In 1970, he transferred the copyright, including the renewal term, in Story 2 to the same magazine for $75; Story 2 was published in the June 1970 issue. He died in 1973. In 1980, his heirs transferred the copyright in one of his unpublished stories, Story 3, to the same magazine for $500. Story 3 was published in the June 1980 issue. The heirs timely filed a renewal certificate for Story 1.

In 2005, Science Fiction Magazine began selling access to an electronic archive of every edition of the magazine from 1940 to the present date. As with a Westlaw or Lexis library, one can search the entire archive by entering search terms and retrieve individual stories.

Assume that, where necessary, proper notice was given.

A. When will, or did, the copyrights in the three stories expire?

B. Who owns the copyrights in the three stories now, in 2007?

C. If there are stories to which the heirs do not currently own the copyright/s, what, if anything, can they do to reassert control over it/them? (If you concluded that the heirs currently own the copyright in a story, do not answer this question for that story.)

D. As to any stories for which the heirs own, or will be able to recover, the copyright/s, will Science Fiction Magazine be infringing if it reprints the issues of the magazine in which the stories appear? Will Science Fiction Magazine be infringing by including the stories in the database? (If you concluded that the heirs have no actual or potential rights in a story, do not answer this question for that story.)

Question 2 (40%):

is an anti-plagiarism site that contains a large database of texts, some acquired by searching the Internet using methods similar to Google’s, others acquired by license from publishers including Westlaw and Lexis. In addition, when student papers are submitted to the site, retains copies, expanding its database for future uses.

After hearing a sales pitch from , the public schoool Law High signs up for the site, paying $20,000 per year. Teachers who use the site require students to submit papers through ’s website. So, for example, teacher Smith would receive an email for each of his students with the student’s paper attached, as well as a report indicating whether more than 10% of the paper, or 250 words (whichever is smaller), matched anything already in the database. If the match was to a work for which has a license from a publisher, the email includes both the citation and a copy of the published work. If the match was to an Internet site, the email includes a link to that site. If the match was to a previously submitted student paper (suggesting that one student copied another, or that both students copied from the same unknown source), the email includes the name and school of the teacher for whose class the previous paper was submitted and a unique ID number for the previous paper. When that happens, if teacher Smith asks, will send a copy of the previous paper, with the student’s name removed, to Smith to confirm the match. That is the only time shares student papers with anyone other than a student’s own teacher.

Other websites exist that pay students for research papers. Payment varies by length, quality, and topic. Given the quality of Law High’s students and education, a Law High paper would probably receive $10-15. The sites then sell the papers to other students, with warnings to use them only as a starting point for further research. Most educators, however, are of the opinion that students routinely buy papers from such sites and submit them as their own independent work, in violation of anti-plagiarism and academic honesty requirements.

Two Law High students whose teacher requires use of Turnitin, upset at being branded potential plagiarists, register their English papers before submitting them. They sue after their submissions are evaluated and cleared by Turnitin’s system. Evaluate the students’ rights under copyright law and ’s possible defenses, and indicate who should win the resulting lawsuit. For purposes of answering the question, assume that Turnitin does not have an explicit or implied license from the students. (Because the students are minors and are required to submit work to the sites in order to pass their classes, any license they may have given is revocable.)

Question 3 (40%): Designs from Mars

Jennifer Mars takes comic books, cuts them up, laminates them, and sews them into handbags. Each bag contains two full pages from a comic book, two half pages, and a bottom panel of approximately one-third of a page. Her practice is to take five different pages from the same book.

DC Comics owns registered copyrights in numerous comic books, including the recent Lex Luthor: Man of Steel. Mars created a bag featuring Superman and Lex Luthor from one issue of Lex Luthor: Man of Steel, which was offered for sale on her website, with representative pictures:

[pic][pic]

Jason Venus stumbles across her website, and decides that she has a great idea. He begins producing similar bags, including one identical to her Lex Luthor bag, using the same panels, and another Lex Luthor bag using several different panels:

[pic][pic]

Venus sells his bags as an Seller. That means that posts the sales information and pictures he uploads at the Amazon site. receives a fixed percentage of every sale made by an Seller. (Assume that: has adopted and reasonably implemented, and informs Sellers of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers; accommodates and does not interfere with standard technical measures used by copyright owners to identify or protect copyrighted works, and has properly designated an agent to receive notifications of claimed infringement.)

For the Lex Luthor bags, Venus posts the two pictures above, along with a separate image of the cover of the original comic book he used:

[pic]

Mars, whose copyright registration for the bag has been refused by the Copyright Office, sues Venus and serves notice and a copy of the complaint on the Register of Copyrights. (This is sufficient to create subject matter jurisdiction under 17 U.S.C. § 411(a).) DC Comics sues both Mars and Venus. Evaluate the parties’ copyright claims and defenses, including DC Comics’s options with respect to , and indicate who should win the resulting lawsuits.

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