Assignment 4 Flashcards
What are the elements for a claim of copyright infringement? Cite a case for support.
The elements for a claim of copyright infringement are defined in Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000). To prove copyright infringement, a plaintiff must prove: (1) ownership of the copyright and (2) infringement of the copyright through (a) copying of (b) protected elements.
Without direct evidence of copying, how should a plaintiff prove copying?
Without direct evidence of copying, a plaintiff should prove copying by showing circumstantial evidence. Proof of circumstantial evidence will involve evidence of the defendant’s access to the plaintiff’s protected work and a substantial similarity between the original work and the allegedly copied work.
On which issues is expert opinion testimony appropriate in a copyright case? Cite a case.
Expert opinion testimony is discussed in Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946). Expert opinion testimony is appropriate on the issue of copying. For example, an expert can provide testimony as to how the works are similar or share a unique signature. It has been suggested that expert testimony may be appropriate to show unlawful appropriation if the expert can give testimony analyzing the lay audience’s reaction to a particular work. For the most part however, expert testimony is not appropriate to prove unlawful appropriation. Rather, unlawful appropriation will be decided by applying the lay observer test.
Please explain the significance of “striking similarity” in a copyright case. What is its purpose and impact.
Striking similarity in a copyright case is significant when access cannot be proven. When striking similarity is present, the court in Selle v. Gibb allowed the jury to infer access from striking similarities between works. The court added that such “inference must be reasonable in light of all the evidence.”
In a music case, what is the standard for determining “unlawful appropriation”? Is it an issue of law, fact, or mixed law and fact?
The standard for determining unlawful appropriation in a music case is the lay observer test. It is an issue of fact for the jury (or fact finder).
Please define the concept of “scenes a faire” and cite a case in support of your definition.
The concept of “scenes a faire” is that some depictions of certain subjects or topics can be expected to contain the same elements, such as “buildings, pedestrians, vehicles, lampposts, and water towers.” The concept is discussed in Sternberg v. Columbia Pictures Industries, Inc, 663 F.Supp. 706 (S.D.N.Y. 1987).
In Steinberg v. Columbia Pictures Indus., Inc., identify three facts supporting the court’s decision finding substantial similarity.
The court found substantial similarity because the two works shared a similar vantage point, similar “sketchy” style, and minimalist design.
What does the “total concept and feel” concept speak to? What does it mean?
The “total concept and feel” functions as another test for substantial similarity. Such substantial similarity is viewed from the perspective of an ordinary observer and reflects upon the question “whether the defendant has captured ‘the total concept and feel’ of the plaintiff’s works.” Essentially the “total concept and feel” concept includes both the defendant’s literal copying of the plaintiff’s work and also the defendant’s use (copying) of the plaintiff’s more subtle artistic and aesthetic elements.
Explain the extrinsic/intrinsic approach? Cite a case.
The extrinsic/intrinsic approach is discussed in Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp, 562 F.2d 1157 (9th Cir. 1977). The approach is applied in determining whether the works share substantial similarity. To analyze substantial similarity between ideas, an extrinsic test must be applied. This extrinsic test is and objective test, can involve expert testimony, and can involve an analysis of other outside factors. To analyze substantial similarity between expressions, an intrinsic test must be applied. The intrinsic test will examine unlawful appropriation through the application of the ordinary reasonable person test. Such test does not involve expert testimony.
