EXAM#________________
Copyright Law of the United States
Final Examination
Professor
Justin Beck
Spring 2008
You have three (3) hours to complete this exam.
This is an open book exam. You may use any notes, books or other written materials to assist you in responding to the questions.
There are three (3) essay questions on this exam. Answer each question as fully as you can, citing any appropriate cases, public policies, and statutes that are relevant. Remember to allocate your time among the three questions.
Question 1 = 40 points
Question 2 = 35 points
Question 3 = 25 points
Only write on the front side of the page in your blue books. Write legibly or print if your handwriting is difficult to read. If I cannot read your response to a question, your grade will be adversely affected.
Write your exam number on your exam envelope, all used blue books, exam materials and at the top of this exam question packet. Do not use your name, student ID number, or Social Security Number.
At the conclusion of the exam, return all test materials, including blue books, scratch paper, and this exam question packet to the envelope and submit it to the proctor. Students who do not return all exam materials at the end of the exam may not be graded.
QUESTION NO. 1 (40 Points)
While watching a movie in a theater, Paula Premier (“P”), a film student, was disturbed by a cell phone ringing in the audience. She realized that the theaters could avoid that problem by politely reminding the audience to turn off cell phones, and that a movie trailer, like a preview, could be used to do that. She wrote a screenplay, “Submarine,” in which the crew of a WWII submarine is in silent running to avoid detection from surface vessels. Suddenly, a cell phone rings, and as the crew desperately searches for the source, a crewmember looks up and says “It’s from the audience” moments before the first depth charge explodes. After a fade out, the message – “Please turn off your cell phones” appears on the screen.
P and her friends produce the film, and she timely registers her copyright. She then sends copies of the one-minute film to the major film companies and theater chains. Devious Productions (“D”) expressed interest in P’s idea. They enter into a license agreement under which D will produce a professional version of “Submarine” and handle distribution to theaters. D agrees to split revenues on the distribution of Submarine 50/50 with P. P tells D that she has a several ideas for other “cell phone” trailers, but D has no interest.
D hires Bob Bravo (“B”) to produces “Submarine,” and registers it as a derivative work. B is also instructed to use “Submarine” as the basis for other cell phone trailers. B produces three additional cell phone trailers which D distributes. These films, each of which also runs about a minute, include the following:
The Hunt: A band of starving Native American hunters silently approaches a buffalo herd. As the hunters come within range, a cell phone rings, and as the buffalo run off, one hunter says looks up and says, “It’s the audience.” The film fades out, and the words “Be Courteous – Remember to Turn Your Cell Phone Off” appears.
The Operation: A doctor is performing delicate brain surgery. At a crucial moment, a cell phone rings, causing his scalpel to slip. He looks up horrified, as the nurse says, “It’s the Audience.” The “Be Courteous” message then appears.
The Duel: Two swordsmen are fighting a duel. Suddenly, a cell phone rings, and one of duelists glances toward the screen. The other, not distracted, makes a final thrust, as one of the seconds says, “It’s the Audience.” The “Be Courteous” message then appears.
Each of the films, P’s “Submarine” and D’s three films are very successful. P files suit, claiming that D’s three films are unauthorized derivative works and that they are also violate California Business & Professions Code § 17200 which prohibits unfair business practices. D moves for summary judgment of non-infringement, and moves to dismiss the unfair competition claim as preempted by the Copyright Act. In response to the summary judgment motion P offers the declaration of Edgar Eager, a famous movie critic, who opines that the average member of a movie audience would consider each of the three accused trailers to be substantially similar to P’s “Submarine.” D contends that the expert testimony is not admissible.
Discuss the arguments raised by both parties on summary judgment regarding infringement, and the preemption claim, citing relevant cases and statutes.
END OF QUESTION 1
QUESTION NO. 2 (35 Points)
(a) On Thanksgiving 2004, Plaintiff Peter Poulters (“P”) came up with the idea of a plastic turkey wishbone to be used for in place of a real turkey wishbone (or “furcula”) for making wishes. It is a Thanksgiving custom that two people, each holding one end of the wishbone, make a wish and pull the wishbone apart. When the bone snaps, the person holding the longer piece is supposed to have his or her wish granted.
Poulters’ plastic wishbone (“Lucky Wish”) could be mass produced, so that more people could engage in the custom, and no turkey would be necessary. Of course, the plastic wishbone would have a concealed part line so that the participants would not know in advance who was holding the longer piece.
The process of making the plastic wishbone began with a real turkey wishbone. The real wishbone was carefully measured, and the data supplied to a 3-D computer design program, which generated a computer model of the wishbone. This computer model was used to make a graphite model. P spent several days trimming the graphite model to make it better looking and to create the part line. This graphite model was then used to create several copies of a preproduction model. To reduce production costs, it proved necessary to make several changes in the preproduction model to create the final production model. The copyright was duly registered in the production model as a sculptural work on October 1, 2005.
In the meantime, in June 2005, P sent some of the preproduction model to supermarkets to assess their interest, each with a cover letter explaining that it was evaluation purposes only. Superlucky Stores, Inc. (“S”) asked P for a license to make copies of Lucky Wish for use in an advertising program. However, the parties could not reach agreement. At that point, in July, S sent one of the preproduction wishbones to a Chinese toy company, “C” and asked C to make its own version of the wishbone. C used the prototype as the basis for its own 3-D computer modeling program, and produced a smaller version of the wishbone. P’s wishbone is made of a hard plastic, is light colored, and about 2 ½ inches long. C’s wishbone is soft plastic, is blue, about 2 inches long, and has the words “Superlucky” on the side. It also does not have a concealed part line. C made 20,000 of the Superlucky wishbones in China in August, and delivered them to S in Hong Kong. S then distributed them to customers as a promotional item in October 2005.
P discovered the distribution, and filed suit against S for infringement and C for contributory infringement, alleging that the Superlucky wishbones were an infringing copy of P’s Lucky Wish wishbones. S contends
(a) that the Lucky Wish wishbone is not copyrightable, and
(b) that the Superlucky wishbone is not substantially similar to Lucky Wish because of differences in size, color and material, the presence of wording, and the absence of a part line and
(c) the preproduction model was used as the basis for Superlucky wishbone, not the copyrighted production model.
C denies that it has committed any act of infringement.
Finally, S and C contend that P is not entitled to statutory damages, and that S has no profits attributable to the infringement.
P contends that it is entitled at its option to statutory damages, or to the profits S made by reason of the promotion. P’s expert will testify that because S’s sales increased by $10,000,000 in October during the promotion, P is entitled to $10,000,000 in damages.
Discuss the claims and defenses raised by the parties, citing relevant cases and statutes.
END OF QUESTION 2
QUESTION NO. 3 (25 Points)
In 1970, Perry Panoramic (“P”), a freelance photographer, took a photograph (the “Photo”) of Annie Able (“A”) as she was being arrested by police on suspicion of being a member of the notorious terrorist band, the Weatherpeople. The Photo showed A in handcuffs, but raising her hands defiantly. Although charged with numerous terrorist acts, A was subsequently acquitted on a technicality. She then graduated from law school, became a distinguished expert in copyright law, and a tenured professor at Golden State Law School. However, she never repented of her earlier background and membership in the Weatherpeople.
P duly registered his copyright in the Photo and complied with all required formalities. From time to time, the Photo has been published by various news organizations. P received $5,800 for the 17 authorized uses, and sued or threatened to sue six additional times, receiving settlements totaling $58,600.
One of A’s students at Golden State was Clinton Barack (“B”), who recently received the Democratic nomination for President. B was very impressed with A’s knowledge of copyright law and since law school, B has continued to consult with A about copyright issues.
Donald Desperado (“D”), a politically active millionaire, became aware of the connection between A and B, and decided to produce a political attack ad based on the association between A and B. D approached P for a license to use the photograph, but P, a Democrat and Barack supporter, refused permission.
D nevertheless produced a television spot on the connection between A and B, and included the Photo, modified to remove the policemen in the original photo, in a split screen shot with a photograph of B raising his hands in victory at the Democratic convention. The voiceover identified A as a well known unrepentant terrorist and Weatherperson, and as a consultant to B. The ad ended with the question, “Will you be safe with a terrorist sleeping in the Lincoln Bedroom? Stop Barack and his terrorist friends”.
P promptly files suit for infringement of his copyright in the Photo and moves for a preliminary injunction. D asserts fair use and the First Amendment as defenses.
Discuss whether the Court should issue an injunction, citing relevant cases and statutes.