Copyright Law

Boston College Law School

March 25, 2003

Infringement - Direct - 1

Direct Infringement

• Elements of claim– Ownership of valid copyright– Infringement

• (1) Actual copying– (i) Access

– (ii) Similarity

• (2) Improper appropriation– Substantial similarity

Bright Tunes v. Harrisongs

Actual Copying

Access

SimilarityYes

No

Striking Similarity

No Similarity

Arnstein

Webber

BeeGees HarrisonTy

Ty v. GMA

Hypo• Facts

– Plaintiff is a ventriloquist, performs w/ dummy– Dummy uses phrase “You Got the Right One, Uh-Huh”– Has been performing since 1984– Elementary schools, job corp camps, 1984 World’s Fair– Mails info packets to corporate executives, including a Pepsi exec– In 1991, Pepsi launches massive ad campaign– Featuring Ray Charles, singing “You Got the Right one Baby, Uh-huh”

• Questions– Sufficient evidence of actual copying?– Sufficient to get before a jury?

Actual Copying

• Procedural issues– Issue of fact: for the jury– Expert testimony is often permitted– Reviewed on appeal for clear error

Improper Appropriation

• Improper Appropriation– Standard: “substantial similarity”– Perspective: intended audience

• Types of cases– Fragmented literal similarity

• Literal copying of portions of original

– Comprehensive nonliteral similarity• Non-literal copying of ideas, structure, plot, characters,

etc.

Nichols v. Universal

• Learned Hand:– “Upon any work, … a great number of patterns of increasing

generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ‘ideas,’ to which, apart from their expression, his property is never extended. Nobody has ever been able to fix that boundary, and nobody ever can.”

Abstractions Test

Idea

Plot Outline

Subplots, Characters

Specific Scenes

Text

Not Protected

Protected

Nichols v. Universal

Idea

Plot Outline

Subplots, Characters

Scenes

Text

Abie’s Irish Rose The Cohens and the Kellys

No copying

No copying ofprotectible material

Not protectible

Shakespeare v. Laurents

Idea

Plot Outline

Subplots, Characters

Scenes

Text

Romeo & Juliet West Side Story?

Improper Appropriation

• Different Approaches– Subtractive Approach– Totality Approach

• “Total concept and feel”

• Extrinsic and intrinsic tests

• Procedural Aspects– Issue of fact for jury– Expert testimony generally not allowed– Generally reviewed on appeal for clear error

Assignment for Next Class

• Start VII.A. - Infringement– Read through Steinberg