Table of Contents

THE CONCEPT OF COPYRIGHT...................................................................... 5

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) [29]..........................5
Bleistein v. Donaldson Lithographic Co., 188 U.S. 239 (1903) [33].........................5
Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99 (2d Cir. 1951) [52]..................5
Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993) [71].......................................... 5
COPYRIGHTABLE SUBJECT MATTER...........................................................6

General Principles.................................................................................................... 6
Magic Marketing v. Mailing Services of Pittsburgh, 634 F.Supp. 769 (W.D.Pa
1986) [76]................................................................................................................................ 6
Sebastian International, Inc. v. Consumer Contact (PTY) Ltd., 664 F.Supp. 909
(D.N.J. 1987), rev’d on other grounds, 847 F.2d 1093 (3d Cir. 1988) [79]..............6
The Idea/Expression Dichotomy.......................................................................... 6
Baker v. Selden, 101 U.S. 99 (1879) [97]..........................................................................6
Morrissey v. Proctor & Gamble Co., 379 F.2d 675 (1st Cir. 1967) [103]................7
Continental Casualty Co. v. Beardsley, 253 F.2d 702 (2d Cir. 1958), cert. denied,
358 U.S. 816 (1958) [105]....................................................................................................7
Bibbero Systems, Inc. v. Colwell Systems, Inc., 893 F.2d 1104 [106].......................7
ABR Benefits Services Inc. v. NCO Group, 52 U.S.P.Q.2D 1119 (E.D.Pa 1999)
[110]..........................................................................................................................................7
Facts and Compilations............................................................................................7
Feist Publications, Inc. v. Rural Telephone Service, 499 U.S. 340 [112].................7
Rockford Map Publishers, Inc. v. Directory Service Co., 768 F.2d 145 (7th Cir.
1985) [123]..............................................................................................................................8
Nash v. CBS, 899 F.2d 1537 (7th Cir. 1990) [124].........................................................8
Wainwright Securities v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir.
1977) [128]..............................................................................................................................8
Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970) [131]....8
Sem-Torq, Inc. v. K Mart Corp., 936 F.2d 851 (6th Cir. 1991) [132].......................8
Atari Games Corp. v. Oman, 979 F.2d 242 (D.C. Cir. 1992) [133]............................9
Matthew Bender & Co. v. West Publishing Co., 158 F.3d 674 (2d Cir. 1998)
[135]..........................................................................................................................................9
Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693 (2d Cir. 1998)
[137]..........................................................................................................................................9
CCC Information Services v. Maclean Hunter Market Reports, Inc., 44 F.3d 61
(2d Cir. 1994) [140]...............................................................................................................9
Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004) (en banc) [147].10

1
BellSouth Advertising & Publishing Corp. v. Donnelley Information Publishing,
Inc., 999 F.2d 1436 (11th Cir. 1993) (en banc) [149]..................................................10
Assessment Technologies of Wisconsin, LLC v. WIREdata, Inc., 350 F.3d 640
(7th Cir. 2003) [152]...........................................................................................................10
Sparaco v. Lawler, Matusky & Skelly Engineers LLP, 303 F.3d 460 (2d Cir. 2002)
[156]........................................................................................................................................10
Derivative Works.................................................................................................... 10
L. Batlin & Son v. Snyder, 536 F.2d 486 (2d Cir. 1976) (en banc) [164]................10
Schiffer Publications v. Chronicle Books, 73 U.S.P.Q.2d 1090 (E.D.Pa. 2004)
[177]........................................................................................................................................11
Maljack Productions, Inc. v. UAV Corp., 964 F.Supp. 1416 (C.D.Cal. 1997) [180]
................................................................................................................................................... 11
Computer Programs............................................................................................... 11
Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983)
[185]........................................................................................................................................11
Data General Corp. v. Grumman Systems, 825 F.Supp. 340 (D.Mass. 1993) [194]
................................................................................................................................................... 12
Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st Cir.
1995) [195]............................................................................................................................12
Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997) [203]................................12
American Dental Association v. Delta Dental Plans Association, 126 F.3d 977
(7th Cir. 1997) [205]...........................................................................................................13
Pictorial, Graphic, and Sculptural Works......................................................... 13
Mannion v. Coors Brewing Co., 377 F.Supp.2d 444 (S.D.N.Y. 2005) [206]..........13
Masquerade Novelty Inc. v. Unique Industries, 912 F.2d 663 (3d Cir. 1990) [228]
................................................................................................................................................... 13
Pivot Point International, Inc. v. Charlene Products, Inc., 372 F.3d 913 (7th Cir.
2004) [231]............................................................................................................................13
Architectural Works.............................................................................................. 14
Demetriades v. Kaufmann, 680 F.Supp. 658 (S.D.N.Y. 1988) [253]........................14
Characters................................................................................................................ 14
Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930) [259]..................14
Warner Brothers Pictures v. CBS, 216 F.2d 945 (9th Cir. 1954) [260].................14
Anderson v. Stallone, 11 U.S.P.Q.2d 1161 (C.D.Cal. 1989) [261]............................15
Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004) [265].......................................15
Newton v. Diamond, 349 F.3d 591 (9th Cir. 2003) [270].......................................... 15
Government Works and Other Public Policy Issues........................................15
County of Suffolk, New York v. First American Real Estate Solutions, 261 F.3d

2
179 (2d Cir. 2001) [276].....................................................................................................15
Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791 (5th
Cir. 2002) (en banc) [280]..................................................................................................15
Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir.
1979) [295]............................................................................................................................16
OWNERSHIP.......................................................................................................... 16

Initial Ownership.................................................................................................... 16
Lindsay v. R.M.S. Titanic, Inc., 52 U.S.P.Q.2d 1609 (S.D.N.Y. 1999) [301]..........16
Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) [305].........16
Aymes v. Bonelli, 980 F.2d 857 (2d Cir. 1992) [317].................................................. 17
Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995) [317]..............................17
Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of
Contemporary Dance, Inc., 380 F.3d 624 (2d Cir. 2004) [318]................................17
Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998) [329].............................................18
Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000) [339]..................................... 18
Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004) [340].......................................18
Transfer of Copyright Ownership...................................................................... 18
Effects Associates v. Cohen, 908 F.2d 555 (9th Cir. 1990) [347].............................18
Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir. 1988) [356]..............19
Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co. [360].....................19
Random House, inc. v. Rosetta Books, LLC [368]...................................................... 19
Bassett [373] (come back later)........................................................................................20
Foad Consulting [374] (come back later)......................................................................20
New York Times Co., Inc. v. Tasini [375].....................................................................20
In re Marriage of Susan M. & Frederick L. Worth [385] come back later.........20
Fantasy, Inc. v. Fogerty [386] come back later............................................................ 20
Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211 (11th Cir.
1999) [471]............................................................................................................................20
Academy of Motion Picture Arts & Sciences v. Creative House Promotions, Inc.,
944 F.2d 1446 (9th Cir. 1991) [477]................................................................................21
BMG v. Gonzalez [482].....................................................................................................21
Corbis Corp. v. Amazon.com [489]................................................................................. 22
Kahle v. Ashcroft [495] (come back later).....................................................................22
EXCLUSIVE RIGHTS UNDER COPYRIGHT................................................22

The Right to Reproduce the Work in Copies & Phonorecords.....................22

Arnstein v. Porter [509].....................................................................................................22
Dawson v. Hinshaw Music, Inc. [514]............................................................................22
Bright Tunes Music Corp. v. Harrisongs Music, Ltd. [516]....................................22
Gasté v. Kaiserman [520].................................................................................................. 23

3
Ty, Inc. v. GMA Accessories, Inc. [521] (come back later)....................................... 23
Laureyssens v. Idea Group, Inc. [524]............................................................................23
Ringgold v. Black Entertainment Television, Inc. [526]...........................................23
Peter Pan Fabrics, Inc. v. Martin Weiner Corp. [528]...............................................23
Herbert Rosenthal Jewelry Corp. v. Kalpakian [529].................................................24
Educational Testing Services v. Katzman [534]..........................................................24
Nichols v. Universal Pictures Corp. [537].................................................................... 24
Sheldon v. Metro-Goldwyn Pictures Corp. [542]....................................................... 25
Boisson v. Banian, Ltd. [555]............................................................................................25
Computer Associates International, Inc. v. Altai, Inc. [559].................................... 25
Steinberg v. Columbia Pictures Industries [572]........................................................ 25
ABKCO Music, Inc. v. Stellar Records, Inc. [591]...................................................... 26
Bridgeport Music v. Dimension Films [598]............................................................... 26
The Right to Prepare Derivative Works Under § 106(2)................................26
Horgan v. Macmillan, Inc. [605]......................................................................................26
Lee v. A.R.T. Co. [610]....................................................................................................... 27
Micro Star v. FormGen, Inc. [614]................................................................................. 27
Krause v. Titleserv, Inc. [620].......................................................................................... 27
Gilliam v. American Broadcasting Co., Inc. [621].......................................................27
Flack v. Friends of Queen Catherine, Inc. [630].........................................................28
Pollara v. Seymour [630]................................................................................................... 28
Pavia v. 1120 Avenue of the Americas Associates [640]...........................................28
Wojnarowicz v. American Family Association [643]................................................. 28
The Right to Distribute Under § 106(3)............................................................ 29
Fawcett Publications v. Elliot Publishing Co. [651]...................................................29
Rights of Public Performance and Display Under §§ 106(4)–(6)..................29
Columbia Pictures Industries, Inc. v. Aveco, Inc. [669]............................................. 29

4
 THE CONCEPT OF COPYRIGHT

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) [29]

Photographs qualified for copyright protection under the 1870 Copyright Act.
Sarony sued Burrow-Giles for duplicating a photograph of Oscar Wilde without
his permission. Although photographs were not explicitly mentioned in the
1870 Act, the court found that the omission most likely resulted from the fact
that the Act had been written before photography had become a widely known
technology. The court compared photographs to other graphical works, finding
that “[u]nless [ ] photographs can be distinguished . . . from maps, charts . . .
and other prints, it is difficult to see why Congress cannot make them the subject
of copyright.” The court further rejected Burrow-Giles’s argument that the
photograph was a “mere mechanical reproduction” of a scene and therefore in-
eligible for copyright. The court found that the composition of the photograph
evidenced enough originality to place the photograph under copyright protec-
tion.

Bleistein v. Donaldson Lithographic Co., 188 U.S. 239 (1903) [33]

Originality, as opposed to artistic merit, is the standard of eligibility for copy-
right protection. Donaldson had reproduced Bleistein’s circus advertisements
without first obtaining Bleistein’s permissions. Finding infringement, the court
noted that “[o]thers are free to copy the original [subject matter depicted].
They are not free to copy the copy.” The court rejected Donaldson’s contention
that copyright protection applied only to the “fine arts,” noting that “[i]t would
be a dangerous undertaking for persons trained only in the law to constitute
themselves final judges of the worth of pictorial illustrations.”

Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99 (2d Cir. 1951) [52]
A work is original (and therefore eligible for copyright) as long as it exhibits
more than a “merely trivial” variation from preexisting works. Bell asserted
copyright protection for handmade reproductions of public-domain paintings.
The reproductions had been made through a labor-intensive process known as
the “mezzotint method.” The court found that the mezzotint method allowed
the reproducer to exercise enough discretion to make the result an original
work.

Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993) [71]

Ownership of the copyright to a work is distinct from ownership of a particular
copy of that work. Forward owned “demo tapes” recorded by Thorogood’s
band. A dispute arose when Forward sought to release commercially the de-
mo-tape recordings against the band’s wishes. The court found that Forward’s
physical possession of the tapes did not give him implicit ownership of the copy-

5
right to the recordings.

COPYRIGHTABLE SUBJECT MATTER

General Principles

Magic Marketing v. Mailing Services of Pittsburgh, 634 F.Supp. 769

(W.D.Pa 1986) [76]
Short, standardized phrases do not exhibit enough originality to qualify for
copyright protection. Magic Marketing produced preprinted envelopes bearing
phrases such as “telegram,” “gift check,” and “priority message.” When Magic
Marketing asserted copyright protection for the phrases, the court found the
phrases to lack the minimal degree of originality necessary to qualify for copy-
right. The court found that copyright protection did not extend to “fragmentary
words and phrases,” “forms of expression dictated solely by functional consider-
ations,” or “clichéd language and expressions communciating an idea which may
only be conveyed in a more or less stereotyped manner.”

Sebastian International, Inc. v. Consumer Contact (PTY) Ltd., 664 F.Supp.

909 (D.N.J. 1987), rev’d on other grounds, 847 F.2d 1093 (3d Cir. 1988) [79]
Product labels are copyrightable as long as they exhibit the necessary “modicum
of creativity.” The court found that the instructions for using a hair-care
product were entitled to copyright protection because the language was “more
than simply a list of ingredients, directions, or a catchy phrase.”

The Idea/Expression Dichotomy

Baker v. Selden, 101 U.S. 99 (1879) [97]

The owner of a copyright to a written work may not use that copyright as a
basis for asserting the exclusive right to use any procedure set forth in that
work. Selden held the copyright to a book detailing a new method for perform-
ing double-entry bookkeeping. When Baker published a book detailing a sub-
stantially similar bookkeeping system, Selden sued Baker on the theory that
Selden’s copyright entitled him to the exclusive use of the bookkeeping system.
Ruling for Baker, the Court noted that “there is a clear distinction between the
book, as such, and the art which it is intended to illustrate.” The Court further
observed that “[t]o give to the author of the book an exclusive property in the
art described therein . . . is the province of [patents], not of coyright.”

Morrissey v. Proctor & Gamble Co., 379 F.2d 675 (1st Cir. 1967) [103]
Copyright protection does not extend to subject matter which is so narrow that
the topic “necessarily requires” one or a few forms of expression. At issue were

6
sweepstakes instructions which directed entrants to submit social security num-
bers and to comply with certain other rules. Finding the instructions to be so
specific as to be expressible in only a few ways, the court held that the instruc-
tions were uncopyrightable.

Continental Casualty Co. v. Beardsley, 253 F.2d 702 (2d Cir. 1958), cert.
denied, 358 U.S. 816 (1958) [105]
A particular printed form may be copyrightable even if the ideas underlying that
form are not copyrightable. The court found an insurance form to be copyright-
able because it contained “explanatory” information concerning the policy
offered by the authoring company.

Bibbero Systems, Inc. v. Colwell Systems, Inc., 893 F.2d 1104 [106]
Blank forms are generally uncopyrightable, even if they feature highly particu-
larized fields. Bibbero produced “superbills,” detailed forms which doctors used
to obtain reimbursement from insurance companies. Colwell produced virtually
identical superbills, which differed from Bibbero’s only in shading and other
trivial aspects. Despite Colwell’s near-copying of the forms, the court found that
blank forms are never copyrightable. The court declined to state that forms
“convey information” because they list “some categories of information but not
others” and cautioned that such a principle would be “potentially limitless.”

ABR Benefits Services Inc. v. NCO Group, 52 U.S.P.Q.2D 1119 (E.D.Pa

1999) [110]
“Blank forms may be copyrighted if they are sufficiently innovative that their ar-
rangement of information is itself informative.”

Facts and Compilations

Feist Publications, Inc. v. Rural Telephone Service, 499 U.S. 340 [112]
A compilation of facts may be copyrighted only if the selection of facts shows
“some minimal degree of creativity.” The court found that Rural’s telephone
directory was not copyrightable because the selection of telephone numbers was
“entirely typical.”

Rockford Map Publishers, Inc. v. Directory Service Co., 768 F.2d 145 (7th
Cir. 1985) [123]
Copyright protection does not depend on the amount of effort expended in cre-
ating the work.

Nash v. CBS, 899 F.2d 1537 (7th Cir. 1990) [124]

A particular interpretation of historical records may count as a “fact” for copy-

7
right purposes. Nash had written several books on the bank robber John
Dillinger. These books claimed that Dillinger—contrary to conventional ac-
counts—had escaped a supposedly fatal ambush by the FBI and was living incog-
nito. Nash sued CBS copyright infringement after CBS produced a television
program based on Nash’s theory. Ruling for CBS, the court noted that “Nash
does not portray [his account] . . . as fiction,” so that “Nash’s rights lie in his ex-
pression . . . but not in the naked ‘truth.’ ”

Wainwright Securities v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir.
1977) [128]
Paraphrasing written reports of facts may amount to copyright infringement.
Wainwright produced “in-depth analytical reports on industrial, financial, utility,
and railroad corporations.” Wall Street published a weekly newspaper contain-
ing “abstracts of institutional research reports,” include those produced by
Wainwright. Rejecting Wall Street’s theory that the abstracts were nothing but
facts, the court found that “[Wall Street] did not bother to distinguish between
the events contained in the reports and the manner of expression used by the
Wainwright analysts.”

Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970)
[131]
A work must be analyzed as a whole to determine whether it qualifies for copy-
right protection. The court upheld Roth’s copyright to greeting cards even
though the text within the card was “prosaic.” The court found that “proprer
analysis of the problem requires that all elements of each card, including ar-
rangement of text, art work, and association between art work and text, be con-
sidered as a whole.”

Sem-Torq, Inc. v. K Mart Corp., 936 F.2d 851 (6th Cir. 1991) [132]
The mere bundling of individual works may not be sufficient to create a copy-
rightable compilation. Sem-Torq produced double-sided signs, which read “For
Rent” on one side and “For Sale” on the other. Sem-Torq bundled these signs
into sets of five. The court found that the bundled sets were not compilations
because “[t]he whole of a compilation is greater than the sum of its parts.” For
the court, each bundled set was nothing more than five individual signs.

Atari Games Corp. v. Oman, 979 F.2d 242 (D.C. Cir. 1992) [133]
A work may be copyrightable even if the individual elements comprising the
work are not. The court found that the video game Breakout was copyrightable
even though the on-screen images consisted of basic geometrical shapes. The
court found that “the requisite level of creativity [can be] met by either the indi-
vidual screens or the relationship of each screen to the other and/or the accom-

8
panying sound effects.”

Matthew Bender & Co. v. West Publishing Co., 158 F.3d 674 (2d Cir. 1998)
[135]
Minimal enhancements to existing works may not qualify for copyright protec-
tion. West argued for copyright to certain elements of its editions of court
opinions. These elements included (1) the arrangement of information specify-
ing the parties, (2) the selection and arrangement of attorney information, (3)
the arrangement of information relating to subsequent procedural develop-
ments, and (4) the selection and arrangement of “parallel and alternative cita-
tions” to other reporters. The court found that no element West to exercise
enough discretion to give rise to the originality required for copyright protec-
tion.

Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693 (2d Cir. 1998)
[137]
“Star pagination” markings within West’s editions of court opinions are not
copyrightable because West exercised no discretion in the placement of those
markings.

CCC Information Services v. Maclean Hunter Market Reports, Inc., 44 F.3d

61 (2d Cir. 1994) [140]
Factual compilations are copyrightable if the facts they contain reflect the sub-
jective judgment of the author. Maclean published the Red Book, a manual con-
taining appraisals of used vehicles. The estimated values took into account
factors such as geographical region and vehicle condition.

Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004) (en banc)
[147]
Part numbers generated formulaically are not copyrightable because they are the
results of a mechanical process. The formula itself is not copyrightable because
it is an idea.1

BellSouth Advertising & Publishing Corp. v. Donnelley Information

Publishing, Inc., 999 F.2d 1436 (11th Cir. 1993) (en banc) [149]
One does not commit copyright infringement by using a computer program to
generate a database containing information printed in a telephone directory.
Donnelley and BellSouth competed for clients willing to place advertisements in
their respective directories. To target BellSouth’s existing customers, Donnelley
created a computer program to extract information from BellSouth’s directory
1 See also ATC Distribution Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402
F.3d 700 (6th Cir. 2005) [148].

9
so as to concentrate information about purchasers of BellSouth’s advertising
space. The extracted information was then used to construct a database, which
assigned to each advertiser a numerical code that mirrored that advertiser’s clas-
sification in BellSouth’s directory. The court found no infringement on the part
of Donnelley. The court found that the classifications (“Banks,” “Attorneys,”
etc.) were so generic as to lack originality. Further, the court observed that there
were few alternatives to organizing a business directory in the manner used by
BellSouth.
The dissent argued that BellSouth had exercised enough discretion in the selec-
tion of category headings to make the directory original.

Assessment Technologies of Wisconsin, LLC v. WIREdata, Inc., 350 F.3d

640 (7th Cir. 2003) [152]
(see old case briefs for now)

Sparaco v. Lawler, Matusky & Skelly Engineers LLP, 303 F.3d 460 (2d Cir.
2002) [156]
Architectural plans are copyrightable. (see old case briefs for now)

Derivative Works

L. Batlin & Son v. Snyder, 536 F.2d 486 (2d Cir. 1976) (en banc) [164]
“Trivial variations” of existing works do not give rise to copyright protection.
Batlin and Snyder were competing manufacturers of “Uncle Sam” coin banks.
The basic design of the “Uncle Sam” banks did not originate from either busi-
ness. Rather, the design had been created and popularized many years earlier.
Snyder based its particular version on a cast-iron exemplar but made several
design adjustments to facilitate manufacturing the bank from plastic. Upon a
challenge by Batlin, the court invalidated Snyder’s copyright to its version of the
bank. The court found that copyright required the work to show “substantial
variation [from the original], not merely a trivial variation such as might occur
in the translation to a different medium.”
The dissent argued that Snyder’s modifications of the cast-iron exemplar
showed enough originality to make Snyder’s bank copyrightable.

Schiffer Publications v. Chronicle Books, 73 U.S.P.Q.2d 1090 (E.D.Pa. 2004)

[177]
Photographs of fabric designs exhibit enough originality to be copyrightable.
The court found that the photographers of the fabric had exercised significant
creative discretion by choosing the type of camera to be used, the type of film to
be used, and so forth. The court found that the photographers intended to create

10
“visually interesting” images rather than precise reproductions of the fabrics
themselves.

Maljack Productions, Inc. v. UAV Corp., 964 F.Supp. 1416 (C.D.Cal. 1997)
[180]
A slightly modified re-release of a public-domain film is copyrightable. Maljack
modified the film McClintock! by cropping the picture to fit conventional televi-
sion screens, deleting some scenes, and improving the sound quality of the ori -
ginal soundtrack. The court found that the modifications showed enough origin-
ality to make the re-release copyrightable.

Computer Programs

Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir.
1983) [185]
Computer programs are copyrightable. Franklin manufactured “Apple clones,”
computers that were designed to be completely compatible with software written
for Apple’s own machines. In order to achieve the requisite level of compatibil-
ity, Franklin copied Apple’s operating system as well as several ancillary pro-
grams. The court found that Apple was entitled to an injunction enjoining
Franklin from making and distributing copies of Apple’s software. The court
found that computer programs were “literary works” under § 101 because they
constituted “expression not only in words but also numbers [or] other numeric-
al symbols or indicia.” The court further rejected Franklin’s contention that
Apple’s software was merely a method of operating Apple’s computers. Finally,
the court rejected Franklin’s contention that Apple’s programs were not unpro-
tectable ideas.

Data General Corp. v. Grumman Systems, 825 F.Supp. 340 (D.Mass. 1993)
[194]
Copyright law makes no distinction between “source code” and “object code” rep-
resentations of computer programs. Grumman copied the object code of Data
General’s software and subsequently claimed that the copying was not infringe-
ment because Data General had registered only the program’s source code.
Finding infringement, the court emphasized that source code and object code
were equivalent representations of the same program.

Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st

Cir. 1995) [195]
Menu hierarchies within computer programs are uncopyrightable “methods of
operation.” Lotus and Borland were competing developers of spreadsheet soft-
ware. Lotus developed and marketed Lotus 1-2-3, which had gained significant

11
popularity. Borland, a relative newcomer to the market, sought to enhance the
appeal of its software by copying the menu hierarchy used in Lotus 1-2-3. Be-
cause many users had already grown accustomed to using Lotus’s menu com-
mands, Borland calculated that duplicating the menu hierarchy would ease the
transition from Lotus 1-2-3 to its own product. Comparing the menu options to
VCR buttons, the court rejected Lotus’s claim that Borland had committed copy-
right infringement. According to the court, “[h]ighlighting the ‘Print’ com-
mand . . . or typing the letter ‘P,’ is analogous to pressing a VCR button labeled
‘Play.’ ” Emphasizing the functional aspect of the menu options, the court fur-
ther stated that “the Lotus command terms are not equivalent to the labels on
the VCR’s buttons, but are instead equivalent to the buttons themselves.”
The concurrence noted the possibility that a dominant player in a software mar-
ket might “holder users hostage” to a widespread user interface.

Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997) [203]
The court found that “although an element of a work may be characterized as a
method of operation, that element may nevertheless contain expression that is
eligible for copyright protection.”

American Dental Association v. Delta Dental Plans Association, 126 F.3d

977 (7th Cir. 1997) [205]
A system of identification codes for dental procedures is copyrightable. Americ-
an Dental developed a system that assigned a numerical code to each dental pro-
cedure. Under the system, each procedure was assigned a numerical code, a
“short description,” and a “long description.” The court found that Delta Dental
had infringed American Dental’s copyright to the system by copying the codes
and the descriptions. According to the court, American Dental’s system exhib-
ited originality because “[d]ental procedures could be classified by complexity,
or by the tools necessary to perform them, . . . or in any of a dozen different
ways.”

Pictorial, Graphic, and Sculptural Works

Mannion v. Coors Brewing Co., 377 F.Supp.2d 444 (S.D.N.Y. 2005) [206]
The composition of a photograph can be copyrightable. Mannion took a photo-
graph of basketball player Kevin Garnett. 2 Coors subsequently developed a bill-
board advertisement featuring a photograph with similar composition. Recog-
nizing that photography complicated the analysis under the idea/expression di-
chotomy, the court found that (1) rendition, (2) timing, and (3) creation of the
subject can influence the copyrightability of a photograph. Ultimately, the court
stated that “there would be infringement . . . if the subject and rendition were
2 See pages 208–09 of the casebook for the photographs in question.

12
sufficiently like those in the copyrighted work.”3

Masquerade Novelty Inc. v. Unique Industries, 912 F.2d 663 (3d Cir. 1990)
[228]
Costume masks are copyrightable and are not “useful articles.” The court found
that “the only utilitarian function of the nose masks is in their portrayal of an-
imal noses . . . . [N]ose masks have no utility that does not derive from their ap-
pearance.”

Pivot Point International, Inc. v. Charlene Products, Inc., 372 F.3d 913 (7th
Cir. 2004) [231]
Mannequin heads are copyrightable even though they are also “useful articles.”
Pivot Point manufactured the “Mara” mannequin head, which was designed to
“imitate the ‘hungry look’ of high-fashion, runway models.” Charlene Products
subsequently began marketing its own “Liza” mannequin head, which bore a
striking similarity to the “Mara” head. After reviewing the doctrine of separab-
ility, the court found that Charlene had infringed Pivot’s copyright to the “Mara”
head. The court held that copyrightability should “depend on the extent to
which the work reflects artistic expression uninhibited by functional considera-
tions” and that “[c]onceptual separability exists [ ] when the artistic aspects of
an article can be conceptualized as existing independently of their utilitarian
function.” Applying this standard to the “Mara” head, the court observed that
“one is not only able to conceive of a different face than that portrayed on the
Mara mannequin, but one easily can conceive of another visage that portrays the
‘hungry look’ on a high-fashion runway model.”
The dissent challenged the court’s conclusion that the face of a mannequin is
conceptually separable its function.

Architectural Works

Demetriades v. Kaufmann, 680 F.Supp. 658 (S.D.N.Y. 1988) [253]

This case took place before the enactment of § 120, which protects architectural
works. Demetriades had hired an architect to draw up the plans for a cus-
tom-designed home. Kaufmann gained unauthorized access to the plans and
traced the plans in order to build a duplicate of Demetriades’s house. Although
the Copyright Act did not explicitly protect the plans, the court enjoined
Kaufmann from making use of the plans in building any house.

3 See also Diodato v. Spade, 388 F.Supp.2d 382 (S.D.N.Y. 2005) [218]; Kisch v. Ammirati &
Puris Inc., 657 F.Supp. 380 (S.D.N.Y. 1987) [579].

13
 Characters

Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930) [259]
The plot of a dramatic work is copyrightable. The court, however, cautioned
that copyrights to plots implicate the idea/expression dichotomy.

Warner Brothers Pictures v. CBS, 216 F.2d 945 (9th Cir. 1954) [260]
The rights to use characters from a literary work may be granted separately
from the right to use the work itself. The author and publisher of the story
“The Maltese Falcon” granted to Warner Brothers the right to make a movie
version of the story. Subsequently, the author and publisher granted to CBS the
right to use characters from the story in radio programs as long as those pro-
grams did not duplicate the original plot. Warner Brothers challenged the ar-
rangement with CBS on the ground that CBS’s use of the characters infringed
its rights to use the original story. Ruling for CBS, the court found that the
rights to characters could be granted separately from the rights to any work in
which they originally appeared.

Anderson v. Stallone, 11 U.S.P.Q.2d 1161 (C.D.Cal. 1989) [261]

The Rocky character from the Rocky movies are copyrightable. After the first
three Rocky movies had been released, Anderson wrote a proposed plot for a
fourth Rocky movie and submitted it to MGM. When Stallone decided to use a
similar story for Rocky IV, Anderson claimed that Stallone had infringed his
copyright to the proposed plot. Ruling for Stallone, the court found that Ander-
son’s plot was uncopyrightable because it used the Rocky character without au-
thorization.

Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004) [265]

(come back later)

Newton v. Diamond, 349 F.3d 591 (9th Cir. 2003) [270]

(come back later)

Government Works and Other Public Policy Issues

County of Suffolk, New York v. First American Real Estate Solutions, 261
F.3d 179 (2d Cir. 2001) [276]
State governments may own copyrights to works produced to facilitate adminis-
trative functions. The government of Suffolk County produced “tax maps,”
which showed “the ownership, size, and location of real property parcels” for the
purpose of calculating taxes. First American distributed copies of the maps in
printed form and on CD-ROMs. Finding that First American had committed

14
copyright infringement, the court found that “[t]here is nothing inconsistent
between fulfilling [state laws’] goal of access and permitting a state agency to
place reasonable restrictions on the redistribution of its copyrighted works.”
The court drew a distinction between “permit[ting] a member of the public to
copy a public record” and “the right of a private entity to distribute commer-
cially what it would otherwise, under copyright law, be unable to distribute.”

Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791
(5th Cir. 2002) (en banc) [280]
Model codes produced by private organizations enter the public domain upon be-
coming part of the law.

Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th
Cir. 1979) [295]
Obscenity does not prevent a work from being copyrightable. Cinema Adult
Theater made and distributed unauthorized copies of a pornographic film pro-
duced by Mitchell Brothers. While Cinema Adult conceded copying, it argued
that the movie was uncopyrightable because of its obscenity. After reviewing
the legislative history of the Copyright Act, the court concluded that the Act did
not prohibit the copyrighting of obscene works. Further, the court noted that
deciding the question of obscenity would require courts to engage in difficult
line-drawing with regard to societal standards of decency.4

OWNERSHIP

Initial Ownership

Lindsay v. R.M.S. Titanic, Inc., 52 U.S.P.Q.2d 1609 (S.D.N.Y. 1999) [301]

A person may be the author of a work even if he or she did not physically parti-
cipate in the production of that work. Titanic had hired Lindsay to produce doc-
umentary footage detailing the salvaging of artifacts from the wreck of the Ti-
tanic. The filming was done by remote-controlled submarines. When a dispute
arose as to Lindsay’s compensation for directing the filming, Titanic argued that
Lindsay owned no copyright to the footage because he did not personally dive to
the wreck to create it. Finding that Lindsay did own the copyright to the work,
the court noted that the author of a work need not create that work in a literal,
physical sense. Rather, Lindsay was the author because he “exercised [ ] a high
degree of control [during the creative process] . . . such that the final product
duplicates his conceptions and visions of what the film should look like.”

4 See also Devils Films, Inc. v. Nectar Video, 29 F.Supp.2d 174 (S.D.N.Y. 1998) [299].

15
Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) [305]
In deciding whether a particular work was made for hire, the reviewing court
should first determine whether the creator of the work was an employee of the
hiring party under common-law principles of agency. Once this determination
has been made, the reviewing court should then analyze the work’s authorship
under the appropriate paragraph of § 101. The Community for Creative Non-
Violence (CCNV) conceived of a crèche-style structure depicting a homeless
family huddled on the street. CCNV hired Reid to create the sculpture, and the
parties engaged in preliminary discussions concerning the sculpture’s basic
design and the material from which it would be made. While Reid was creating
the sculpture, he employed assistants, who were paid by CCNV. A dispute then
arose as to whether the sculpture should be taken on a touring exhibit. The
parties disagreed as to who retained the final say over the disposition of the
sculpture. CCNV contended that the sculpture was a work for hire, and Reid
claimed the contrary. The court observed since “[s]culpture does not fit within
any of the nine categories of ‘specially ordered or commissioned works’ enumer-
ated in [§ 101]” and there was no written agreement between the parties as to
Reid’s status, “[t]he dispositive inquiry in this case [ ] is whether [the sculp-
ture] is ‘a work prepared by an employee within the scope of his or her employ -
ment.’ ” After reviewing the factors tending to establish an employer–employee
relationship,5 the court found that Reid was not an employee of CCNV. The
sculpture was therefore not a work for hire made for CCNV, though the court ob-
served that CCNV might qualify as a co-author.

Aymes v. Bonelli, 980 F.2d 857 (2d Cir. 1992) [317]

A computer program created for an employer is a work made for hire belonging
to that employer. The court found that some of the factors listed in CCNV
should be given more weight than others because “they will usually be highly
probative of the true nature of the employment relationship.6

Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995) [317]

A work may be a work for hire even if the creator exercised signification exer-
cised significant discretion in creating it. Carter created a sculpture that was
located in a building owned by Helmsley-Spear. A new owner subsequently pur-
chased the building and indicated its intention to modify or remove the sculp-
ture. Carter sued under the Visual Artists’ Rights Act to prevent any disturb-
ance of the sculpture. Noting that Carter had received a regular salary and re-
tirement benefits from Helmsley-Spear, the court held the sculpture to be a work
for hire created at Helmsley-Spear’s behest.

5 See page 314 of the casebook.

6 See page 317 of the casebook for a list of the relevant factors.

16
Martha Graham School & Dance Foundation, Inc. v. Martha Graham
Center of Contemporary Dance, Inc., 380 F.3d 624 (2d Cir. 2004) [318]
During her life, Martha Graham had been employed by the Center as a choreo-
grapher. After her death, the court applied an “instance and expense” standard
to determine whether Graham’s choreographic works were works for hire
owned by the Center.

Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998) [329]

Even substantial contributions to a work may not make the contributor a coau-
thor of the work in the absence of sufficiently clear intent to create a joint work.
Larson had composed the score for the musical Rent. While working on a pro-
duction of the show, Larson agreed to take on Thomson as a “dramaturg,” a sort
of advisor who could recommend substantive changes to the show. Despite
Thomson’s presence, Larson was “insistent on making [the production] his own
project” and was billed as the sole author. Dissatisfied with her compensation,
Thomson subsequently sued for royalties on the theory that she was a co-author
of the work. Applying the Childress test, the court found that Thomson was not
a coauthor. Under the Childress test, “a co-authorship claimant bears the burden
of establishing that each of the putative co-authors (1) made independently
copyrightable contributions to the work; and (2) fully intended to be co-authors.”
Forgoing discussion of the first element on procedural grounds, the court found
that Thomson failed the second element of the test. After analyzing the nature
of the cooperation between Thomson and Larson, the court found that Larson
retained final decision-making authority over the production.

Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000) [339]

Where many individuals contribute creative elements to a work, the author of
that work is the individual who “superintend[s]” the creation of the work. Lee
was the co-writer, co-producer, and director of a movie on the life of Malcolm
X. While producing the movie, Lee hired Aalmuhammed as a consultant on the
subject of Malcolm X. Aalmuhammed’s made “extensive script revision,” “direc-
ted . . . actors on the set,” “created some new scenes with new characters,” and
“edited parts of the film during post-production.” While acknowledging that
Aalmuhammed’s contributions were “extremely helpful,” the court found that
Aalmuhammed was not a coauthor of the movie because Lee retained “artistic
control.”

Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004) [340]

(come back later)

17
 Transfer of Copyright Ownership

Effects Associates v. Cohen, 908 F.2d 555 (9th Cir. 1990) [347]
A transfer of copyright ownership must be set forth in writing, as required by §
204(a). Effects Associates had created special-effects footage for certain scenes in
a movie that Cohen produced. Although Cohen agreed to pay Effects Associates
a fee for the footage, the parties did not discuss the ownership of the copyright
to the special-effects footage. When Cohen subsequently refused to pay the fee
in full, the ensuing lawsuit centered on whether Effects Associates had trans-
ferred ownership of the footage to Cohen. Citing § 204, the court found that the
lack of a written agreement to transfer any copyright meant that Effects Associ-
ates had only granted Cohen an implied license to use the footage in his movie.
The court concluded that Cohen therefore had committed no copyright infringe-
ment but might nonetheless face liability for a breach of contract.

Cohen v. Paramount Pictures Corp., 845 F.2d 851 (9th Cir. 1988) [356]
A license to show television broadcasts of a movie does not confer the right to
distribute videotape copies of that movie. Cohen owned the copyright to a mu-
sical composition that was included in the soundtrack of a movie distributed by
Paramount. Negotiations between Cohen and Paramount had produced a license
granting Paramount the right to “exhibit [the] motion picture by means of tele-
vision.” When Paramount subsequently sold copies of the movie on videotape,
Cohen sued Paramount on the theory that the license did not grant Paramount
the right to distribute the movie on tape. Ruling for Cohen, the court found that
the terms of the license explicitly excluded any form of distribution other than
television broadcasts. The court further observed that Paramount should not be
allowed to reap a “windfall” from the development of technology that could not
have been foreseen at the time the license was made.

Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co. [360]
The scope of a license may be a factual issue when the language of the license is
ambiguous with respect to the distribution of the licensed content through later-
developed media. Boosey & Hawkes owned the copyright to Igor Stravinsky’s
“The Rites of Spring,” which was featured in the movie Fantasia. Although
Stravinsky’s work had already entered the public domain in the United States,
Disney decided to obtain a license in order to distribute the movie in countries
where Stravinsky’s works were still protected by copyright. When Disney sub-
sequently distributed video recordings of Fantasia, Boosey & Hawkes sued on
the ground that the distribution violated the terms of the license. Finding that
the language of the license could be plausibly interpreted in either party’s favor,
the court remanded the case for a trial. Disney eventually settled the case by
paying $3M to Boosey & Hawkes.

18
Random House, inc. v. Rosetta Books, LLC [368]
The right to publish paper copies of a book is distinct from the right to distrib-
ute e-book copies of that book. Several authors had executed with Random
House contracts that granted Random House the right to publish their works “in
book form.” When those authors subsequently granted Rosetta the right to
publish e-book versions of the same works, Random House sued on the theory
that the paper-book contracts implicitly covered the right to distribute e-books.
Ruling for Rosetta, the court found that the phrase “in book form” could not be
read so broadly as to include the works in any format whatsoever. The court ob-
served that the rights for Braille editions and other alternative formats were
routinely negotiated separately, so that e-books should be treated in the same
manner.

Bassett [373] (come back later)

Foad Consulting [374] (come back later)

New York Times Co., Inc. v. Tasini [375]

The owner of the copyright to a collective work does not have the right to
republish independently copyrightable portions of that collection in an unrelated
context. Tasini and several other respondents were freelance writers whose
articles had appeared in the New York Times and several other newspapers.
Unbeknownst to the writers, each newspaper had a standing agreement with the
owners of the LexisNexis database whereby their respective news articles were
made individually accessible to LexisNexis subscribers. When the writers
discovered the availability of their articles on LexisNexis, they sued the
newspapers for copyright infringement. Ruling for the writers, the Court found
that LexisNexis “present[ed] articles to users clear of the context provided
either by the original periodical editions ro by any revision of those editions.”
The dissent (Justice Stevens and Justice Breyer) argued that database services
should be considered “revisions” of the original collective work within the
meaning of § 201(c).
In re Marriage of Susan M. & Frederick L. Worth [385] come back later

Fantasy, Inc. v. Fogerty [386] come back later

Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211 (11th Cir.
1999) [471]
The public delivery of a speech does not amount to a “general publication” of
that speech under the Copyright Act of 1909, even if the audience for that
speech was very large. The estate of Martin Luther King, Jr., sued CBS for in-
fringing the copyright to King’s “I Have a Dream” speech. CBS had featured

19
portions of the speech in a documentary without first obtaining the consent of
King’s estate. The court found that general publication occurred under only two
circumstances: (1) when “tangible copies of the work are distributed to the gen-
eral public in such a manner as allows the public to exercise dominion and con-
trol over the work” and (2) when the work is “exhibited or displayed in such a
manner as to permit unrestricted copying by the general public.” The court spe-
cifically rejected CBS’s contention that the presence of a large audience for the
speech converted the delivery of the speech into a general publication. Accord-
ing to the court, “general publication depends, not on the number of people in-
volved, but rather on the fact that the work is made available to the public
without regard to who they are or what they propose to do with it.”
Judge Cook (concurring) stated that he would have based the outcome solely on
the rule that general publication requires the distribution of tangible copies.
Judge Roney (dissenting) stated that the factual circumstances supported a find-
ing of general publication.

Academy of Motion Picture Arts & Sciences v. Creative House Promotions,

Inc., 944 F.2d 1446 (9th Cir. 1991) [477]
The distribution of Oscar statuettes to recipients of the Academy Awards does
not amount to a “general publication” of the statuettes under the Copyright Act
of 1909. The Academy sued Creative for infringing the Academy’s copyright to
the Oscar statuettes. Creative had sold lookalike statuettes without obtaining
the Academy’s permission. The court found that any distribution of the Oscar
statuettes was a limited publication because the statuettes (1) were distributed to
a “select group of persons”; (2) were distributed for a limited purpose; and (3)
were distributed with the implied condition that recipients had “no right of sale
or other further distribution.” The court further noted that the widespread ex-
istence two-dimensional depictions of the statuettes did not amount to a general
publication because “two-dimensional pictures [do] not constitute a divesting
publication of three-dimensional objects.”

BMG v. Gonzalez [482]

The owner of the copyright to a work may obtain statutory damages for the in-
fringement of that copyright as long as it provides a notice of copyright on all
legally distributed copies of the work. Having illegally downloaded numerous
songs owned by BMG, Gonzalez argued for a reduction in damages on the
ground that the source files from which she made her unauthorized copies did
not bear notices of copyright. Ruling for BMG, the court found that Gonzalez
had reason to suspect that the downloaded songs were indeed copyrighted.

20
Corbis Corp. v. Amazon.com [489]
A work is not “registered” within the meaning of § 411(a) until the Register of
Copyrights actually issues the registration for that work. Merely filing for the
registration of a work does not grant the putative copyright owner from suing
for the infringement of that work.

Kahle v. Ashcroft [495] (come back later)

EXCLUSIVE RIGHTS UNDER COPYRIGHT

The Right to Reproduce the Work in Copies & Phonorecords

Arnstein v. Porter [509]

In order to prevail on a claim of copyright infringement, the plaintiff must show
that the defendant (1) actually copied from the plaintiff ’s work and (2) took so
much of the work that the copying amounted to “improper appropriation.” Arn-
stein sued Porter on the ground that Porter had committed copyright infringe-
ment by appropriating certain parts of Arnstein’s songs. After acknowledging
“similarities” between recordings of the parties’ respective songs and noting that
printed scores of Arnstein’s compositions had circulated widely, the court found
that a trial on the issue of infringement was appropriate. The court further held
that “[t]he question . . . is whether the defendant took from plaintiff ’s works so
much of what is pleasing to the ears of lay listeners . . . that defendant wrong-
fully appropriated something which belongs to the plaintiff.”
The dissent (Judge Clark) disagreed with the court’s finding of “similarities”
between the allegedly infringing compositions and the originals. The dissent
criticized Arnstein for attempting to “dissect” Porter’s work so as to identify
snippets that bore some resemblance to his own compositions.

Dawson v. Hinshaw Music, Inc. [514]

Whether one work infringes another should be evaluated from the standpoint of
the intended audience for those works.7

Bright Tunes Music Corp. v. Harrisongs Music, Ltd. [516]

Plain similarities between two works can give rise to a finding of infringement.
Harrisongs distributed recordings of “My Sweet Lord,” a song composed by
George Harrison. Bright Tunes sued Harrisongs on the ground that “My Sweet
Lord” had borrowed impermissibly from one of its own songs, “He’s So Fine.”
Comparing the two songs, the court found that “it is perfectly obvious to the
listener that in musical terms, the two songs are virtually identical except for
7 See also Lyons Partnership v. Morris Costumes, Inc., 243 F.3d 789 (4th Cir. 2001) [515]
(potential infringement of Barney the Dinosaur determined from the standpoint of children).

21
one phrase.”

Gasté v. Kaiserman [520]

“Striking similarity” between two musical compositions can give rise to a finding
of infringement even in the absence of independent proof of infringement.8

Ty, Inc. v. GMA Accessories, Inc. [521] (come back later)

Laureyssens v. Idea Group, Inc. [524]

“Probative similarity” may establish infringement. Laureyssens manufactured a
puzzle known as the “Happy Cube,” which had the distinct feature of being “as-
sembleable in either a flat form . . . or into a three-dimensional hollow cube.”
When Idea Group marketed a similar puzzle, Laureyssens sued Idea Group for
copyright infringement. The court found that probative similarity might be es-
tablished through “dissection and expert testimony.” The court, however, ulti-
mately found no infringement.

Ringgold v. Black Entertainment Television, Inc. [526]

Actionable copyright infringement includes a quantitative component in addition
to a qualitative component. Ringgold owned the copyright to a poster that ap-
peared briefly in the background of a BET television program. When Ringgold
sued BET for copyright infringement, BET argued that the appearance of the
poster was a de minimis use, which would not give rise to liability. The court
held that BET had committed “qualititative” copying by displaying the poster.
As for “quantitative” copying, the court said that “in cases involving visual
works . . . the quantitative component . . . concerns the observability of the
copied work—the length of time the copied work is observable . . . and such
factors as focus, lighting, camera angles, and prominence.” 9 Ultimately, the court
ruled in favor of Ringgold.

Peter Pan Fabrics, Inc. v. Martin Weiner Corp. [528]

Potential infringement of a fabric design should be evaluated from the perspect-
ive of an “ordinary observer.”

Herbert Rosenthal Jewelry Corp. v. Kalpakian [529]

Independent creation is a defense to copyright infringement. Rosenthal owned
the copyright to “a pin in the shape of a bee formed of gold encrusted with jew-
els.” Upon finding that Kalpakian also sold bee-shaped pins, Rosenthal sued
Kalpakian for copyright infringement. Finding no infringement, the court criti-
8 See also Repp v. Webber, 132 F.3d 882 (2d Cir. 1997) [520].
9 See pages 527–28 of the casebook for the court’s extensive discussion of the copying in
question.

22
cized Rosenthal for failing to articulate a tenable basis for his infringement claim.
The court observed that “although plaintiff ’s counsel asserted that the original-
ity of plaintiff ’s bee pin lay in a particular arrangement of jewels on the top of
the pin, the elements of this arrangement were never identified.” The court fur-
ther noted that “[p]laintiff ’s counsel . . . was unable to suggest how jewels might
be placed on the back of a pin in the shape of a bee without infringing plaintiff ’s
copyright.” Ultimately, the court characterized the lawsuit as an attempt by
Rosenthal to obtain improperly a monopoly on bee-shaped jewelry.

Educational Testing Services v. Katzman [534]

The use of identical wording or “substantially similar” wording in a written
work may support a finding of infringement. The presence of “structural” sim-
ilarities alone, however, is unlikely to result in a finding of infringement. As the
operator of the Princeton Review, Katzman produced practice versions of the
SAT. The questions on Katzman’s tests closely paralleled those on the official
SATs. The court ultimately affirmed in part and vacated in part the district
court’s injunction against Katzman.

Nichols v. Universal Pictures Corp. [537]

Taken alone, the existence of common plot elements in two dramatic works does
not give rise to a finding of infringement. Nichols wrote a play entitled “Abie’s
Irish Rose.” The play centered on the relationship between a young Irish man
and his Jewish lover. Because of cultural friction between their families, the
couple is forced to lie about their backgrounds to their respective families. After
their Jewish–Irish marriage is discovered, the couple finds themselves shunned
by their families. Only after they bear children are the families reconciled. Some
time later, Universal produced a movie entitled “The Cohens and the Kellys.” In
the movie, a young Irish man secretly loves and marries a young Jewish woman.
When their relationship is discovered, their families quarrel with each other.
The birth of grandchildren, however, ultimately reconciles the families. Finding
that the movie did not infringe the play, the court held that “[a] comedy based
upon conflicts between Irish and Jews, into which the marriage of their children
enters, is not more susceptible of copyright than the outline of Romeo and Ju-
liet.”

Sheldon v. Metro-Goldwyn Pictures Corp. [542]

One dramatic work may infringe another where the first work copies with par-
ticularity elements that can be identified as original inventions of the second
work’s author. Sheldon wrote a play based on the life of Madeleine Cary, a Scot-
tish woman who was strongly suspected of having poisoned a former lover des-
pite being acquitted at trial. In the play, the woman lures her estranged lover to
a meeting by feigning affection. During the meeting, she slips poison into her

23
lover’s drink and berates him as he dies. When Metro-Goldwyn later produced a
movie with similar plot points, Sheldon sued for copyright infringement. In find-
ing the movie to infringe the play, the court observed that Metro-Goldwyn had
borrowed the aforementioned plot elements from the play.10

Boisson v. Banian, Ltd. [555]

“Concept and feel” may be protected by copyright if the reviewing court imposes
a “more discerning scrutiny” on potential elements that might fall within the
public domain.

Computer Associates International, Inc. v. Altai, Inc. [559]

The “clean room” method of software development is a way to avoid copyright
infringement. Computer Associates produced the computer program “CA-
Scheduler,” which handled low-level scheduling tasks on mainframe computers.
To make CA-Scheduler compatible with multiple types of mainframes, Computer
Associates incorporated the sub-program “Adapter” into CA-Scheduler. The
purpose of Adapter was to act as an interface between CA-Scheduler’s primary
functionality and the underlying operating system. Altai developed software
with a similar need for cross-mainframe compatibility. By hiring a former em-
ployee of Computer Associates, Altai gained access to the source code of Ad-
apter. Altai then copied substantial portions of the Adapter code in making
Oscar, its own cross-mainframe software. When Altai recognized that the bor-
rowed portions of code might result in liability for copyright infringement, Altai
ordered the software to be rewritten by engineers who knew nothing of the ex-
isting version of Oscar or Adapter’s source code. The court found that the re-
written version of Oscar did not infringe Computer Associates’s copyright.

Steinberg v. Columbia Pictures Industries [572]

Distinctive stylistic elements of a visual work may be copyrightable expression.
Steinberg owned the copyright to an illustration for the cover of The New York-
er. Poking fun at the worldview of the stereotypically “provincial” New Yorker,
the illustration showed New York City in great detail while reducing the rest of
the world into a few generic shapes. 11 When Columbia released a movie poster
for Moscow on the Hudson featuring an uncannily similar depiction of New York
City, Steinberg sued for copyright infringement. Ruling for Steinberg, the court
found that elements of Steinberg’s style were protectable expression.

10 See pages 549–50 of the casebook for the court’s detailed discussion of the similarities
between the plots.
11 See pages 574–75 of the casebook for Steinberg’s illustration and the movie poster. See also
page 581 of the casebook for illustrations depicting other cities in the same style.

24
ABKCO Music, Inc. v. Stellar Records, Inc. [591]
Karaoke recordings that feature on-screen lyrics do not fall within the scope of
the compulsory license granted in § 115. Stellar Records produced a karaoke
rendition of a song recording owned by ABKCO. The court found that “com-
pulsory licenses do not give [the maker of a recording] the right to publish the
compositions’ lyrics on a screen.”

Bridgeport Music v. Dimension Films [598]

If one wants to “sample” portions of an existing recording, one must obtain a li-
cense from the owner of the copyright to that recording. The court found the
language of § 114(b) to create a bright-line prohibition against the unauthorized
reproduction of any portion of a recording.

The Right to Prepare Derivative Works Under § 106(2)

Horgan v. Macmillan, Inc. [605]

A photograph of the performance of a dramatic work may be a derivative of the
dramatic work. Horgan owned the copyright to George Balanchine’s choreo-
graphic version of The Nutcracker. Macmillan published a book containing pho-
tographs from a performance of the ballet, with each photograph accompanied
by a description of the corresponding scene. When Horgan sued Macmillan on
the theory that the book was an infringing derivative work, Macmillan argued
that the book did not infringe because it depicted only isolated moments in the
performance. Finding infringement, the court noted that “[e]ven a small
amount of the original, if it is qualitatively significant, may be sufficient to be an
infringement. The court found that “the district judge took a far too limited
view of the extent to which choreographic material may be conveyed in the me-
dium of still photography.”

Lee v. A.R.T. Co. [610]

The routine mounting of a visual work does not create an infringing derivative
work. Lee created “notecards and small lithographs.” After buying these works,
A.R.T. mounted the works on ceramic tiles. The court found that A.R.T. had not
sufficiently “transformed” Lee’s works to turn them into derivative works. The
court also noted that the mounting process did not create any additional value
that could be “captured” by Lee.

Micro Star v. FormGen, Inc. [614]

Independently authored computer-game levels are derivative works based on the
game. FormGen distributed Duke Nukem 3D, a “first-person shooter” game that
allowed players to load custom-made levels in addition to those included with
the game. Having amassed a collection of player-made levels, Micro Star sold

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those levels on CD-ROM. The court found that Micro Star infringed the Duke
Nukem storyline by selling the add-on levels. Rejecting Micro Star’s argument
that the levels were only transient modifications of the original game, the court
compared the level files to sheet music, pointing out that both encoded a user ex-
perience in abstract form.

Krause v. Titleserv, Inc. [620]

Under § 117(a), the modification of a computer program for maintenance pur-
poses does not necessarily create an infringing derivative work. While working
for Titleserv, Krause had written several purpose-built programs designed to
help Titleserv handle customers, records, and other aspects of its business.
Krause left the company before they negotiate a transfer of the copyright to the
software. Although Krause did not object to Titleserv’s continued use of the
programs in their existing forms, Krause sued to prevent Titleserv from modify-
ing the programs to ensure their technical integrity. 12 The court allowed
Titlserv to make the desired modifications.

Gilliam v. American Broadcasting Co., Inc. [621]

Unauthorized editing of a dramatic work may create an infringing derivative
work. Monty Python had written comedic programs for the BBC. Under the ar-
rangement, BBC was allowed to make only “minimal” changes to Monty Py-
thon’s scripts and no changes to the finalized recordings of the programs. ABC
eventually obtained a license to broadcast the programs in the United States, but
its version of the license did not contain the restrictions on modification. When
ABC edited 24 minutes of a 90-minute show, Monty Python sued on the ground
that ABC had infringed its copyright. Ruling for Monty Python, the court em -
phasized that the underlying copyright to the programs had never changed
hands. Furthermore, the court held that moral rights provided an alternative
ground for enjoining further modification of the programs.

Flack v. Friends of Queen Catherine, Inc. [630]

Models produced as intermediate steps in the creation of a sculpture may qualify
as works of art for the purposes of VARA.

Pollara v. Seymour [630]

Works created “for the primary purpose of promoting or advertising” do not fall
within VARA’s scope of protection. Pollara created a mural for the Gideon Co-
alition, a group that “advocate[d] legal representation for the poor.” Shortly
after the mural had been hung on a wall, it was removed for failure to obtain per-
mission to display the mural in that location. During the removal process, the
12 See pages 620 of the casebook for a detailed list of modifications that Titleserv intended to
make.

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mural was damaged. Emphasizing that the work had been created for a promo -
tional purpose, the court found that Pollara could not recover under VARA. The
concurrence (Judge Gleeson) stated that the work lacked the “recognized stature”
needed for recovery under VARA.

Pavia v. 1120 Avenue of the Americas Associates [640]

VARA prohibits only the act of making unauthorized modifications to a work.
It does not prohibit the continued display of such modified works.

Wojnarowicz v. American Family Association [643]

Unauthorized photographic reproductions of a visual work may infringe the
moral rights to that work. Wojnarowicz had produced a number of prominent
sculptures addressing the AIDS epidemic of the 1980s. Some of his works “de-
picted sexual acts and a few portrayed Christ with a hypodermic needle in his
arm.” Finding the works offensive, the American Family Association distributed
pamphlets condemning the works. The pamphlets “contained unauthorized re-
productions of 14 fragments of [Wojnarowicz’s] exhibited works.” Finding the
Association to have violated Wojnarowicz’s moral rights, the court observed that
“deliberate alterations” such as “selective cropping” could result in unauthorized
modifications of the original work. The court further criticized the Association
for “reduc[ing] plaintiff ’s multi-imaged works of art to solely sexual images.”

The Right to Distribute Under § 106(3)

Fawcett Publications v. Elliot Publishing Co. [651]

The first sale doctrine allows the unrestricted resale of physical copies of a
copyrighted work. Eliot obtained secondhand copies of comic books published
by Fawcett. Eliot then bound Fawcett’s comics with other comic books and sold
the resulting volumes as “double comics.” Ruling for Eliot, the court observed
that “the purpose and effect of the copyright statute is to secure to the owner
thereof the exclusive right to multiply copies.”

Rights of Public Performance and Display Under §§ 106(4)–(6)

Columbia Pictures Industries, Inc. v. Aveco, Inc. [669]

A performance may be “public” within the meaning of § 106(4) even if it takes
place in a venue that does not hold many people. Aveco operated a chain of
video-rental stores. In addition to renting videotapes for home viewing, each
store had a number of viewing rooms, in which customers could watch rented
tapes. Aveco’s policy was to allow only customers and “members of their famil-
ies and social acquaintances” to join each other for any particular viewing. Find-
ing that Aveco had infringed Columbia’s exclusive right to authorize the public

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performance of the videos, the court emphasized that “[t]he Copyright Act
speaks of performances at a place open to the public. It does not require that the
public place be actually crowded with people.” Furthermore, the court stated
that the term “authorize” in § 106(4) was plainly meant to authorize secondary
liability against Aveco for providing the tapes used in the unauthorized public
performances.

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