1. This is an open book, open materials exam. You may use any notes, books or other written materials to assist you in responding to the questions.

2. You have three (3) hours to complete this exam.

3. 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.

4. 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.

5. 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.

6. 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.

QUESTION NO. 1 (40 Points)

In 1946, General Jack D. Ripper Sr. wrote his memoirs of World War II entitled Victory in Europe. He assigned his copyrights to Acme Publishing, which published the book in 1947. It was a best seller, and in 1948 Acme granted to Eagle Broadcasting exclusive rights “to produce and vend a television series based on Victory in Europe, in any format known or hereafter developed.” Eagle promptly produced its television series Victory in Europe, which was first broadcast in 1949. The television series consisted of 8 half hour segments and closely followed the book’s outline, focusing on General Ripper’s activities in the war. The video consisted of US Army films of World War II. The narration was written by Eagle, but included substantial quotations from the book. About 8% of the book was quoted in the narrative.

Acme renewed its copyright in the book in 1975. Eagle timely registered its copyright in the television series in 1949. However, Eagle failed to renew its copyright in the television series. General Ripper died in 1978.

In 2003, Parasite Productions discovered a print of the series, and used that print to produce a DVD version of the television series, editing it down to three hours so as to fit in a single DVD. Anticipating that Acme might object to the quotations from the book, Parasite researchers discovered an unpublished second autobiographical manuscript by General Ripper in the Ripper papers in the West Point Library. Parasite modified the narration of the series by substituting many of the quotations from the original book with the corresponding passages from the unpublished manuscript. As a result, in the Parasite version of the television series, only 2% of the book is quoted in the narration.

Acme Publishing files suit, alleging that the Parasite Productions Victory in Europe DVD infringes the copyright in the Victory in Europe book. Parasite contends that it only copied materials in the public domain. What result? Discuss.

QUESTION NO. 2 (40 Points)

In 1990, Alvin Artist created a poster of an angel with the caption, “If your angel keeps you awake, you won’t sleep through life.” Approximately, 1,000 copies of the poster were sold nationwide over the next three years. Alvin properly registered the work. In 1998, Basic Automobile Company introduced its Zephyr sports car, and hired Calamity Advertising Agency to develop an ad for the car. Calamity produced a television ad of the Zephyr in a field of flowers, and as the camera panned in on the car, the narrator said, “Introducing the 1999 Zephyr, the car that keeps you awake, so you don’t sleep through life.” The car then raced onto a curving highway and disappeared into the distance.

The Zephyr was a great success. In its first year, sales were approximately $150,000,000. Basic also considered the ad very effective. It won several industry awards, and Basic paid the advertising agency a bonus of $50,000 in addition to the agency’s $500,000 fee.

Alvin filed suit for copyright infringement, alleging that the advertisement infringed his copyright in the poster. At trial, the jury found for Alvin, and awarded damages of $1.5 million against Basic, equal to 1% of Basic’s gross revenues from sales of the Zephyr during the first year when the advertisement ran, and awarded $100,000 in damages against Basic for lost licensing revenues, because Alvin testified that following the infringement, he was unable to license his work for use in other advertising.

Basic moves for judgment as a matter of law, claiming that no reasonable jury could have found that the advertisement was substantially similar to the poster, because the only similarity was in an uncopyrightable short phrase. Copyright Office regulations (37 CFR §202.1) expressly provide that short phrases are not copyrightable. In addition, Basic contends that there is no direct evidence of copying and no evidence that anyone from the advertising agency saw the poster. Basic also contends that the award of damages against it is speculative, that there is no connection between the infringement and Zephyr sales, and no evidence that Alvin would have licensed the poster to other advertisers.

What result?

Discuss both (a) whether Alvin has met his burden of proof on infringement, and (b) whether the jury award of compensatory damages was proper.

QUESTION NO. 3 (20 Points)

TruSonic has introduced a second generation Digitial Video Recorder called the DigiCord 8000. It includes in addition to the conventional video recording features three features not found elsewhere. These features are:

Your client has asked for your opinion regarding its potential liability under copyright laws for making and selling the DigiCord 8000. Discuss.

End of Exam