Q. 1. This is based on Roy Jenkins’ recent biography of F.D.R. As reflected in the question, Jenkins died in the midst of page 153, and the remaining few pages were finished by a Harvard professor.

Issue 1. Is the work a work for hire? There are two ways a work can become a work for hire as defined in §101. First, a work done by an employee for his employer is a work for hire. Although “employees” broadly include common law agents, Lord Chirpstill was not an employee of H & R. The second type of work for hire includes works falling within certain categories specified in §10, where there is a written agreement signed by the parties that the work is a work for hire. In this case there is a writing presumably signed by both parties, and executed prior to the work being created. The remaining question is whether the work falls within one of the categories specified in §101. The closest fit is “collective work.” Applying the definition of “collective work” in § 101, It seems most likely that a court would find that a series of individually authored books, each covering the life of a president, is not a “periodical issue, anthology or encyclopedia” or the like in which independent works “are assembled into a collective whole.”

Issue 2. If a work for hire, copyright expires 95 years after first publication; if not, it expires 70 years after the author’s death; if a joint work, 70 years after the death of the last author. §302.

Issue 3. Is it a joint work? A joint work requires mutual intent of the joint authors, each of whom contributes authorship, to create a joint work. Lord Chirpstill’s consultation with Newstart does not reflect intent. Moreover, Newstart’s assistance during Lord Chirpstill’s life is not the kind of activity that would create a joint work. Generally see Thomson v. Larson. Newstart’s work after Lord Chirpstill’s death adds complexity. Lady Chirpstill asked Newstart to finish the book, and he wrote about 10% of the total. Lady Chirpstill’s intent seems irrelevant for joint work purposes because she is not the author, and there was never any mutual intent of the authors to create a joint work. Nor did the finished book credit Newstart as a joint author, which is also relevant to intent. The final question is one raised, but not decided in Thomson. Where two authors contribute works of authorship, but a joint work is not created, are both authors entitled to copyrights for their contribution. If so, then is Newstart entitled to a copyright for his 17 pages (with a non-exclusive license implied to H & R)?

Issue 4. Is Harvard the author of Newstart’s contribution as a work for hire? Newstart is an employee of Harvard who is expected to write books, and he did the work using his employer’s facilities. It might be a close case if common law agency rules were applied. However, note that there is a “teacher exception”, discussed at pp. 278-80 of casebook. Therefore, Harvard would have no rights.

Issue 5. Who retains derivative work rights to make the movie? If it is work for hire, H&R; if not, H&R only has publishing rights. A court would almost certainly find that movies are not included in “publishing rights.” If it is a joint work, either Newstart or Lady Chirpstill could license derivative rights. If it is not a joint work, and Lord Chirpstill is the sole author, then only Lady Chirpstill can grant derivative rights. If both Newstart and Lord Chirpstill are separate authors, then Newstart can license his 17 pages, and Lady Chirpstill can license the remainder.

Q. 2. This is based on a recent Ninth Circuit case, Newton v. Diamond. In that case, the trial court granted summary judgment in favor of the defendants, ruling that the work was not copyrightable and any taking was de minimis. The Ninth Circuit affirmed on the second grounds in a 2-1 decision, and did not reach the copyrightablity issue.

Issue 1. Is “Wire” copyrightable? Probably it is. The copyright was registered and the work was original, although based on public domain materials and similar in relevant part to works created by other composers. Copyrightability has a very low threshold. However, it could be argued that the score in this case did not meet that standard for the same reasons that short phrases are not copyrighted. But, on the other hand, copyrightablity is determined by the work as a whole, and while the scored portion was only four notes, the work included an instruction to improvise the remainder. This appears to be a close case, but the registration should probably stand.

Issue 2 Was sampling de minimis? See discussion in case book at pp 435-37; Also see Clark’s dissent at pp 424-25 of the casebook. There are several different tests. The simplest is that that sampling of only a few notes is too few to constitute infringement, and at least one court has so held. The problem here is that the strict “count the notes” test does not reflect that the core of “Wire” was copied.

Issue 3. This is really another way of looking at the de minimis issue. One initial problem is the role of the experts. There are cases, such as Arnstein that suggest that the role of experts should be limited to whether copying has occurred, and not whether that copying was substantial. It is also important to keep in mind the difference between the sound recording (which was licensed), and the underlying musical composition. It is not relevant that the defendants could have obtained a mechanical license from Newtone, because they did not. Nor is their good faith relevant. In effect, the defendants are trying to filter out what they licensed from the unlicensed score. Is it possible to “filter” out the distinctive “sound recording” from the conventional score? What is the proper test to apply in this case? If the work is copyrighable, and the defendants took a substantial portion of it, it seems to be properly for the jury to decide if there is infringement.

Q. 3. This is based on the ClearPlay DVD player that the motion picture industry claims is infringing.

Issue 1. Majestic v. Acme – The first question is whether the program itself is an infringing copy? Is the program substantially similar to the movie? The use of the program to display an edited movie has to be distinguished from the program itself. The video game cases provide the closest analogy. When the program is run with the DVD, the output is an edited movie, and the content of that movie is fixed by the program. This is different from the Game Genie case, which only provided a mechanism by which the user could modify the work. While it is not certain, it is possible that a court could find the program is a direct infringement. Second, if the program is not a direct infringement, is a contributory infringement, because it is used to create an infringing work. There are two sub-issues. First, is fixation required for the infringing work? If so, then there is a question as to whether the edited DVD has been fixed. The DVD is unchanged. In one sense, it is no different than if a user with a remote control “skips” the scenes he or she does not like. Second, does the user have a fair use defense, and if the user has such a defense, can Acme stand in the user’s place? The user might well have such a defense. Applying the four factors, the use is not commercial, and it requires the use of a DVD, so it does not impact sales by Majestic. While the work is fiction, the editing does permit small children and others to see movies without being subjected to excessive violence, which is socially desirable. On the other hand, if Majestic wanted to produce a G version of “Bambi’s Revenge” it could do so, and the availability of that market has been impaired. However, can Acme stand in the user’s place? The course book printers made a similar argument that they should stand in the shoes of their customers, and were unsuccessful. Of course, the course book itself was a direct infringement. Here, if the program is not a direct infringement, only the end user infringes, and if the end user’s use is a fair use, there is no direct infringement. Again, this is a close case that could be decided either way. (Note that the Monty Python moral rights issue does not arise, because a movie is not a visual work of art.)

Issue 2. Majestic v. Fairwell – The issues here are somewhat different. First, does the G4U have substantial non-infringing uses? Using a straight Sony type analysis and assuming that Fairwell has obtained some licenses from copyright holders, it seems likely that selling the G4U is not a contributory infringement of “Bambi’s Revenge.” The G4U has other proper uses, and therefore mere sale of the machine is not contributory infringement. However, is Fairwell liable under a vicarious infringement theory based on its licensing of Acme? This depends on the actual facts, but assuming that Acme does infringe, Fairwell knew of those activities, appears to be financially benefiting from Acme’s activities and has at least some control over those activities, based on its grant of a license.