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.

a. Question 1 = 50 points
b. Question 2 = 30 points
c. Question 3 = 20 points
Total = 100 points

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 (50 Points)

Rod Denman (“D”), a star professional basketball player, is well known for his tattoos. Because of his interest in Italian art of the Early Renaissance period, he decided to have a large “Madonna and Basketball” prominently tattooed on his shoulder. He chose Polly Crome (“P”), a world famous tattoo artist to do the work. D explained his concept to P and she prepared a sketch based on a 14th century work (“Madonna and Child” by Lorenzo Monaco) for D’s approval. The sketch was modified based on D’s comments and finally approved by him. D paid P $5,000 for the tattoo.

P’s tattoo has been widely acknowledged in the tattoo industry as a masterpiece of its kind, and won the Tattoo of the Year award for 2003. P timely filed for and obtained a copyright registration for the work.

About a year later, Victory Shoes (“VS”) hired D to promote its new line of basketball shoes. Advertising Agency (“AA”) developed a promotional campaign using photographs of D in his basketball uniform. The “Madonna and Basketball” tattoo is plainly visible in the photos. The advertisements have been published in numerous magazines. VS has sold more than $20,000,000 of the new basketball shoes, earning a profit of about $5,000,000.

Last year, D’s team also won the national basketball championship. Sports Pictorial, a national sports magazine, reported on the event, naming D its Sportsperson of the Year, and used an action shot of D on its cover, the tattoo clearly visible.

What copyright claims can P assert against D, VS, AA, and Sports Pictorial? Discuss direct, vicarious and contributory infringement.

If there is infringement, what are P’s damage claims?

What defenses will D, VS, AA and Sports Pictorial raise? Discuss specifically copyrightability, copyright ownership, license, and fair use.

QUESTION NO. 2 (30 Points)

Over the last ten years, Transmissions 4 You (“T4”) has become the leading supplier of transmission parts to auto repair shops. It has developed a parts catalog that is distributed at no charge to parts wholesalers and auto repair shops around the country. Each annual edition of the catalog has been copyrighted.

T4’s success is based on its comprehensive parts numbering system. The catalog lists every part of every transmission type and gives every part a distinctive number. This numbering system is now used by most parts wholesalers and repair shops to identify and order parts. A T4 employee, Barnie Newfield, developed the numbering system. Newfield has now left T4 and has started a competing business, Allparts, Inc. Allparts has produced a catalog almost identical to T4’s catalog and is using the T4 parts numbering system.

The numbering system organizes all parts into a series of categories and subcategories. The three basic categories are manufacturer (e.g. Ford, GM, etc); transmission type; and part type. Within each category there are several subcategories. Each category and subcategory has a two or three digit number or letter. Each discrete transmission part has a number that is between five and nine digits and/or letters. All parts in a subcategory are numbered sequentially, but the ordering is random.

T4 contends that its number system is a taxonomy protected by copyright and represents creativity in deciding on the categories, fitting parts within categories, and in deciding on the numbers to be given categories and subcategories. As an example, T4 decided that sealing rings and O-rings should be in different part categories, even though O-rings are a type of sealing ring.

The catalog itself contains tables showing the transmission type and page number for each vehicle model. The user merely needs to identify the transmission and go to the correct page where all parts for that transmission are listed. Each part illustrated by a simple line drawing done by a T4 employee from photographs supplied by the part manufacturer. Allparts’ catalog is organized in the same general way and copies the T4 line drawings and part numbers. However, the Allparts catalog differs from the T4 catalog in the arrangement of the parts on the page, and uses different words to describe the parts.

T4 contends that the selection and organization of its catalog is protected by copyright and that the illustrations are also protected.

T4 contends that Allparts has infringed its copyrights by using the same numbering system, by organizing its catalog in the same way, and by copying the illustrations. T4 also contends that Allparts is unfairly competing under state law by using the same numbering system and that Allparts has misappropriated the catalog, the numbering system, and the illustrations to the extent that those things are not protected by copyright.

Allparts contends that the parts numbering system is not protected by copyright, that it only copied facts and other unprotected elements from the catalog, and that simple line drawings copied from photographs are not copyrightable. Allparts also contends that the state law claims are preempted.

Discuss the following issues, citing relevant statutes and other authorities:

a. Is the numbering system protected by copyright?
b. Is the catalog copyrightable and has Allparts copied protected elements?
c. Are the illustrations copyrightable?
d. Are the state law claims preempted?

QUESTION NO. 3 (20 Points)

Question 2

Anna Artist is a well-known folk artist and craft person. A couple of years ago, she created a set of hand forged measuring spoons. Each spoon is in the shape of a heart and has a handle in the shape of the shaft of an arrow. The spoons’ sizes are indicated on the handle using phrases such as “pinch” and “dash” rather than the conventional “tsp” and the like. A copper band is used to hold the spoons in the set together. Anna timely obtained a copyright registration for her work as a “pictorial, graphic or sculptural work.”

Anna’s Spoons

The spoons won many awards and are now being produced in copper and pewter versions. These are being sold for $35 a set in museum art shops and very high-end specialty stores.

Calvin Copier approached Anna for a license to make a stainless steel mass-market version. When Anna refused, Calvin had a Chinese tableware manufacturer produce a stainless steel version. Following Calvin’s directions to make them “look different,” in Calvin’s version, the arrow shaft has fewer “feathers” and the spoons are thinner. The spoons have conventional labels, such as “teaspoon,” and the sets are held together by a conventional keychain. Calvin is now marketing the first version, a coffee measuring spoon, shown below, which is not part of a set. These are being marketed in Target and Wal-Mart for $2.50 each.

Calvin’s Coffee Measuring Spoon

Advise Anna on her rights under the Copyright Act and possible defenses by Calvin, citing relevant statutes and authorities.

End of Exam