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

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

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. Students who do not return all exam materials at the end of the exam may not be graded.

QUESTION NO. 1 (40 Points)

Book publisher Hooper & Rove is publishing a “Presidents of the U.S.” series. Each book in the series covers a different U.S. President, and is written by a different famous author, such as Stephen King who authored the volume on Richard Nixon.

The famous English historian and political leader, Lord Chirpstill, was selected to do the biography of Franklin D. Roosevelt, President from 1933 to 1945. Hooper & Rove entered into a written contract with Lord Chirpstill which provided that the book was a “work for hire,” and that if it was for any reason not found to be a work for hire, Hooper & Rove was granted “exclusive publishing rights.”

Lord Chirpstill was diligent, but because of his unfamiliarity with American politics, he had to consult frequently with his good friend Professor Robert Newstart of Harvard University. Newstart researched several of the issues using the Harvard library and contributed a number of ideas that Lord Chirpstill incorporated into his draft.

Lord Chirpstill had finished 153 pages of the 170-page book when he unexpectedly died in 2002. His wife and sole heir, Lady Chirpstill, asked Newstart to finish the work, write the last 17 pages and supervise the final edits. Newstart orally agreed, and working in his Harvard office, finished the book in 2003.

Hooper & Rove published it in 2004, identifying Lord Chirpstill as the author, but noting in a preface that Professor Newstart contributed the last 17 pages. The book became a best seller.

(a) In whose name should the copyright be registered and when will the copyright expire?

(b) Majestic Movies wants to make a movie based on the book. Discuss the rights of Hooper & Rove, Lady Chirpstill, Professor Newstart and Harvard University with respect to movie rights?

QUESTION NO. 2 (40 Points)

Newtone is a famous jazz flutist. In 1978, he composed “Wire”, a piece for flute and voice, based on a blend of gospel and Japanese ceremonial court music. He registered the copyright in the musical score the same year. The score consists of only three notes sung over a background C note played on the flute, to be played and sung simultaneously. When performed, the score lasts about six seconds. The score indicates that the remainder of the work is to be improvised for approximately 90 to 180 seconds.

Newtone recorded a four-minute version of “Wire” in 1980, and licensed all rights in the sound recording to Label Records. In 1992, the rap group Boyish Beasts (the “Beasts”) obtained a “sampling” license from Label Records for $1,000 permitting use of portions of the sound recording of “Wire” in their song “Pass Out”. The Beasts did not obtain a license from Newtone to use the underlying composition.

The Beasts used the non-improvised opening six seconds of “Wire” as their sample, and looped it repeatedly throughout various versions of “Pass Out,” which became one of the Beasts’ major hits.

At trial, the Beasts’ expert testified that the distinctive sound that was sampled was due to Newtone’s performance technique, and not to the scored music. According to the Beasts’ expert, the notes sampled were “merely a common, trite, and generic three-note sequence, which lacks any distinct melodic, harmonic, rhythmic or structural elements, and which has been used repeatedly by other major composers in the 20th century.” According to the Beasts’ expert, any distinctive sound in the six-second sample was the result of Newtone’s skill in playing the flute while singing, and not due to the musical score.

The plaintiff’s expert testified that the sampled sequence “is clearly a realization of the musical score filed with the copyright office” and that the combination of playing the flute while singing the three notes simultaneously is “unique and distinctive.”

The jury found that “Pass Out” infringed.

The Beasts appeal, contending that (a) the “Wire” score was not copyrightable, (b) that their sampling of a six second, four note sequence was de minimis, and (c) that any distinctive element in the music was in the performance which they had licensed, rather than the score.

Discuss each of the issues raised by the Beasts on appeal.

QUESTION NO. 3 (20 Points)

Fairwell Electronics has developed a new DVD player, the “G4U.” The “G4U” differs from conventional DVD players because it contains additional circuitry that can be programmed to delete specified scenes and even language from movies. The G4U comes already loaded with programs for 500 movies that delete scenes containing “mature” content and language. The DVD itself is not modified. When the user plays a DVD, if the programming stored in the player is not activated, the movie appears in its normal form. If the programming mode is activated, the movie appears in an edited, “G-rated” format, which is suitable for family viewing. G4U owners can download additional programs for new movies as they are released in DVD format.

Fairwell licenses Acme Editions to develop and offer additional programs for the G4U. Acme has prepared a program for Majestic Studio’s Oscar winning “Bambi’s Revenge,” which has recently been released on DVD.

Majestic Studios files suit against Fairwell and Acme alleging copyright infringement of “Bambi’s Revenge.”

Discuss the claims and defenses of Majestic, Fairwell and Acme.

End of Exam