Reproduction

Question 1

Three steps to showing that a defendant improperly reproduced a work in violation of 106(1):

Answer 1

1. D was “copying”
2. D produced a “copy”
3. D improperly appropriated from P’s work

Question 2

What are the three ways in which a defendant can be said to have copied a work?

Answer 2

1. mechanical reproduction
2. replication in a different medium
3. had copyrighted work in mind when creating a substantially similar embodiment

Question 3

Can subconscious copying amount to infringement?

Answer 3

Yes

Question 4

There are four options for the plaintiff to prove that D was copying:

Answer 4

1. Direct Evidence
2. Access + Probative Similarity
3. Striking Similarity
4. Common Errors

Question 5

What is the relationship between access and probative similarity?

+case

Answer 5

Higher showing of access lowers the bar for probative similarity, and vice versa

(Three Boys)

Question 6

How can you satisfy the access element?

Answer 6

By showing that D had reasonable access (including work’s wide dissemination – Three Boys).

But an inference of access cannot be based on mere speculation.

Question 7

How might you describe the difference between probative similarity and striking similarity?

Answer 7

Probative similarity: more likely copied than not

Striking similarity: so similar that the only logical conclusion is that D copied P’s work

Question 8

Can a showing of striking similarity be overcome? How?

Hint: 2 ways

Answer 8

Yes, if D can show lack of access to P’s work, or if D can show that both works could have independently been copied from the public domain

Question 9

What are the three requirements that something be a “copy”?

Answer 9

1. tangible
2. fixed (eg, Cablevision)
3. intelligible

Question 10

What are the three types of improper appropriation?

Answer 10

1. comprehensive copying
2. fragmented literal copying
3. comprehensive nonliteral similarity

Question 11

The “substantial similarity” standard is relevant to evaluating which type of improper appropriation?

Answer 11

comprehensive nonliteral similarity

Question 12

What are the three requirements of fragmented literal copying?

Answer 12

1. the portion copied consists of protected expression
2. the portion copied is a “substantial” part of plaintiff’s work (qualitatively or quantitatively, eg kookaburra)
3. must be more than de minimis

Question 13

Does the de minimis standard apply to sound recordings in cases of fragmented literal copying?

Answer 13

No – copying any portion of a sound recording at all is (prima facie) infringement.

Question 14

Which is the most common type of copying?

Answer 14

Comprehensive nonliteral similarity

Question 15

When evaluating cases of comprehensive nonliteral similarity, does the proportion of defendant’s work that is non=infringing matter?

Answer 15

No

Learned Hand: “No plagiarist can excuse the wrong by showing how much of his work he did not pirate.” (Sheldon)

Question 16

What is the test for evaluating whether a case of comprehensive nonliteral similarity is infringing?

Answer 16

substantial similarity

Question 17

There are three approaches to a substantial similarity analysis. What are they?

Answer 17

1. compare the two works in their totality and decide if they’re substantially similar, sometimes from the perspective of the target audience (eg children for McDonald’s ad)
2. “more discerning observer” test: don’t filter out the unprotected material, but adopt a more skeptical stance than the hypothetical ordinary observer
3. filtration: filter out the unprotected material from the plaintiff’s work before assessing substantial similarity

Question 18

Of the approaches to the substantial similarity analysis, which is most plaintiff-friendly?

Answer 18

the totality one

Question 19

Of the approaches to the substantial similarity analysis, which is most defendant-friendly?

Answer 19

the filtration approach

Question 20

Because of this case, the filtration approach is the dominant one in software cases:

Answer 20

Altai (2d cir)

Question 21

There are four formulations of the substantial similarity standard – but they all purport to be measuring the same thing (that is, whether the two works are substantially similar). What are they?

Answer 21

1. same aesthetic appeal
2. apparenta appropriation (eg Steinberg)
3. total concept and feel (eg Boisson alphabet quilts)
4. extrinsic/intrinsic test (9th cir)

Question 22

What is the extrinsic/intrinsic test?

Answer 22

extrinsic: objective comparison of specific expressive elements, often with expert testimony
intrinsic: closer to total concept & feel

Question 23

There are three types of perspectives for evaluating whether works are substantially similar (other than expert opinion of the extrinsic/intrinsic test). What are they?

Answer 23

ordinary observer (default)

audience (rarer)

more discerning observer