nscyes94

WILLIAM MITCHELL COLLEGE OF LAW

FINAL EXAMINATION

COPYRIGHT LAW

Professor Niels Schaumann

Saturday, May 7, 1994 - 1:00 p.m.

3 Hours

STUDENT TEST NO.

1. For anonymity, use your assigned test number which was mailed to you.

2. Put your test number on this page and on all bluebooks.

3. If you do not know your test number, you may obtain it at the Communication Center or in the Records Office (Cindy Boyum) during the first 30 minutes of the exam period.

4. If you do not use your test number, you will be deemed to have waived your privilege of anonymous grading.

5. TURN IN YOUR BLUEBOOKS AND THIS EXAM AT THE END OF THE PERIOD.

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STUDENT CONDUCT CODE

IT IS A VIOLATION OF THE CODE:

1. To use any sources which are forbidden by the instructor to complete an exam.

2. To submit as one's own work the work of another.

3. To engage in any conduct which tends to give an unfair advantage to any student in any academic matter.

Knowledge of any violation should be promptly reported.

VIOLATION OF THE STUDENT CONDUCT CODE MAY RESULT IN EXPULSION

OR SUSPENSION FROM THE COLLEGE OR DISMISSAL FROM THE CLASS.

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GRADUATING SENIORS: IF YOU ARE A GRADUATING SENIOR, NOTE THIS FACT ON ALL BLUEBOOKS AND THIS EXAM PAPER. DO SO CONSPICUOUSLY.

TYPING AREA: If you are going to type your examination, the typing area is located in the Boardroom. You must return the exam to this room at the conclusion of the exam period.

GENERAL INSTRUCTIONS

READ ALL THE INSTRUCTIONS!!!!

MATERIALS PERMITTED FOR THIS TEST: Gorman & Ginsburg, Copyright for the Nineties (4th ed. 1993), with 1992 statue supplement. In addition, you may use class notes, outlines and other materials prepared by you or by other students, and any material distributed by the instructor. NO OTHER MATERIAL IS PERMITTED.

1. This examination consists of two Parts, numbered I and II. Each Part is worth 50% of the total test score. No matter how long you spend on a Part, you can earn no more than half the total test score for your answer.

2. Answer all questions only according to the materials we studied in this class this semester.

3. BUDGET YOUR TIME.

Part I--Essays

(50% Total)

ESSAY INSTRUCTIONS

1. WRITE ON ONLY ONE SIDE OF THE PAGE. WRITE ON EVERY OTHER LINE.

2. Try to write legibly. I cannot give credit for an answer I cannot read.

3. Take some time to organize your answer. All other things being equal, a coherent response will earn more credit than one that rambles aimlessly.

4. The essays consist of one long answer and two short answer questions. They are NOT each worth the same number of points. The moral of the story is: BUDGET YOUR TIME.

Essay Question 1.

(Long Answer: 35%)

Frank is a notorious pornographer, convicted numerous times of federal obscenity-related offenses. Last month, Andrea, a local leader of the national political advocacy group Women Against Pornography ("WAP") purchased a videocassette copy of a pornographic film produced by Frank. Andrea intends to show the film at a meeting of the local chapter of WAP, to illustrate graphically WAP's contention that pornographic films are degrading to the "actors" and "actresses" appearing in them. The WAP meeting at which the film is to be shown is open to the public, and has been heavily advertised in the local media. After the film is shown, WAP plans to have an extensive discussion, moderated by experts, concerning the effects of pornography as well as issues of censorship and free speech. No admission will be charged.

Frank learned of the upcoming showing of the film, and wrote to Andrea, stating that: (1) WAP's showing of the film will amount to a public performance, (2) Section 106(4) of the Copyright Act of 1976 provides that the unlicensed public performance of a film violates the exclusive rights of the copyright owner, and (3) offering to sell a license to WAP for the performance "at our usual single-showing rate."

WAP unequivocally rejected Frank's offer of a license. Shortly after receiving WAP's rejection, Frank filed a lawsuit against WAP, alleging copyright infringement and seeking a preliminary injunction against the showing of the film.

WAP has retained you, a nationally-known copyright lawyer, to prepare its defense. What defenses will you raise? What are the strengths and weaknesses of each defense? Explain. You must assume that: (a) WAP indeed plans a public performance of the film within § 106(4), (b) the performance will not be licensed, and (c) a preliminary injunction would be an appropriate remedy if you do not successfully raise a defense on the merits (i.e. confine your argument to the merits, and do not address remedies).

Essay Question 2.

(Short Answer: 5%)

The United States Constitution provides, in relevant part: "The Congress shall have power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

In light of the foregoing language, should an author have to establish that a work promotes the "progress of science and useful arts" in order to obtain a copyright? Why or why not?

Essay Question 3.

(Short Answer: 10%)

Section 304(c) of the Act provides that a transfer of the renewal interest can be terminated under certain circumstances. In light of the fact that the renewal interest itself cuts off prior equities and constitutes a "new estate," vesting in the author or her statutory successors, why does the Act provide that a transfer of this interest can be terminated? Does this provision defeat the reasonable expectations of transferees? Explain.

[CONTINUE WITH PART II ON THE NEXT PAGE]

PART II--Multiple Choice

( 50%)

MULTIPLE CHOICE INSTRUCTIONS

A. For each question in Part II, choose the most accurate answer (whether or not you think it fits perfectly). Print (do not write in script) the letter for your answer on the examination paper in the space provided immediately to the left of the question.

B. Each multiple-choice question is worth the same number of points (1.35 points).

C. Unless otherwise specified:

1. All references to the "Act" are to the Copyright Act of 1976, as in effect at the time specified. If no time is specified, references to the "Act" mean the Copyright Act of 1976 as in effect today. All references to the "1909 Act" are to the Copyright Act of 1909 (what else?).

2. All references to "sections" are to sections of the Act.

3. All references to "statutory successors" are to the persons specified in §§ 304(a)(1)(C) and 203(a)(2), as the context requires.

4. Words defined in the Act have the meanings assigned to them under the Act.

5. All actions taken and works created are governed by the Act.

D. Although I have diligently tried to make the questions as clear as possible, objective questions are very difficult to write. Moreover, law students under exam pressure are extraordinarily adept at spotting lurking ambiguities.

For these reasons, below each question there are three lines. If you consider it necessary to qualify your answer, you may use those lines to write in any additional information that you believe I should have.

The foregoing should not be construed as encouragement to qualify your answer. No "extra credit" will be given for material written in these spaces. Similarly, no points will be deducted for incorrect statements made in a qualification. If, however, students identify a material flaw in a question, I may allow more than one answer or, if necessary, not score the question at all.

E. With all that out of the way, I wish each of you a good summer. To those who are graduating, my best wishes for a successful career!

____ 1. The 1909 Act remains significant, even after passage of the 1976 Act, because:

A. A work that entered the public domain under the 1909 Act cannot be copyrighted under the 1976 Act.

B. Duration of copyright is determined by the 1909 Act for works created before January 1, 1978.

C. Whether a work is "published" is determined by the definition contained in the 1909 Act for all works.

D. All of the above.

E. A. and B. above, but not C.

____ 2. The 1976 Act:

A. Has never been amended since its passage.

B. Was actually passed in 1977.

C. Did not become effective until 1978.

D. All of the above.

E. None of the above.

____ 3. Under the 1976 Act:

A. The primary purpose of copyright was reinterpreted as the securing of the maximum financial benefit to the author.

B. Copyright protection extends as far (and wide) as the Constitution permits.

C. Creativity cannot be dismissed as irrelevant, because at least a tiny amount of creativity is required by the Constitution.

D. All of the above.

E. Both B. and C. above, but not A.

____ 4. [Deleted]

_____ 5. John copied an article from the William Mitchell Law Review by writing out the text and footnotes in longhand. John's act is an example of:

A. non-literal copying

B. verbatim copying

C. reverse engineering

D. all of the above

E. A. and B. above, but not C.

____ 6. Under the 1976 Act:

A. The title of a work is per se uncopyrightable.

B. The title of a work may be copyrightable, but few titles can meet the test for originality.

C. The title of a work is per se copyrightable.

D. The title of a work may be copyrightable, but only if the work is illustrated, so that the title, taken together with the illustrations, can be said to constitute "trade dress."

E. The title of a work may be copyrightable, but only if it is first registered as a trademark with the Patent and Trademark Office.

____ 7. Allie wrote a poem in December 1989. In February 1992, her former college roommate, Beth, published a poem that was identical in every respect to Allie's poem. If Allie can prove that in 1989 she showed Beth a copy of the poem:

A. Allie might win a lawsuit for copyright infringement against Beth, but she (Allie) must also prove that she is the author of the poem.

B. Allie might win a lawsuit for copyright infringement against Beth, but she (Allie) must also prove that she published the poem first.

C. Allie might win a lawsuit for copyright infringement against Beth, but she (Allie) must also prove that Beth copied her poem from Allie.

D. All of the above.

E. A. and C. above, but not B.

____ 8. A copyright compulsory license:

A. Leaves intact the author's right to consent to the use of the work, but removes control over remuneration for such use.

B. Removes the author's right to consent to the use of the work, and reduces control over remuneration for such use.

C. Removes the author's right to consent to the use of the work, and removes control over remuneration for such use.

D. Leaves intact the author's right to consent to the use of the work, and enhances control over remuneration for such use.

E. Is required by the Constitution for certain classes of works.

____ 9. A work that consists of several articles, by different authors, on current public policy issues in the United States is:

A. A derivative work.

B. A compilation.

C. A collective work.

D. B. and C. above, but not A.

E. None of the above.

____ 10. A screenplay, written in collaboration by Smith and Jones, and based upon a best-selling novel by King, is:

A. A derivative work.

B. A collective work.

C. A joint work.

D. All of the above.

E. A. and C. above, but not B.

____ 11. Barry worked for 20 years in the toothbrush industry. Upon his retirement, he utilized his knowledge of the business and his industry contacts to write a directory of manufacturers of toothbrushes, comprising all the toothbrush manufacturers in the Western Hemisphere. The directory:

A. Is a compilation.

B. Is copyrightable, if at all, only to the extent that Barry contributed "authorship" in the form of selection, arrangement and coordination of the data.

C. Might be copyrightable, but even if it is, it would not be infringed by an unlicensed public performance.

D. All of the above.

E. A. and B. above, but not C.

____ 12. In 1993 A translated a volume of poetry, originally written by B in Japanese, and now in the public domain, into English. In early 1994, another translation into English of the same volume by B appeared, by a different translator. The 1994 translation:

A. Infringes the 1993 translation, unless it is a "fair use" of B's volume of poetry.

B. Infringes the 1993 translation, if it copies protected expression from B's volume of poetry.

C. Infringes the 1993 translation, if it copies protected expression from the 1993 translation.

D. B. and C. above, but not A.

E. None of the above.

____ 13. For copyright purposes, a map is:

A. A useful article.

B. A pictorial work.

C. A compilation.

D. All of the above.

E. B. and C. above, but not A.

____ 14. Anne, an expert in collectible china plates, publishes a catalog of plates. The catalog is divided into sections by manufacturer, style, color, and other characteristics. The catalog is highly respected among collectors of plates, primarily because of Anne's expertise in determining the published values of the plates. The mention of a plate in the catalog's "Sought-after" or "Highly Sought-after" categories is enough to cause the price of the plate to increase substantially. The catalog:

A. Is probably copyrightable, because Anne exercises enough judgment in selecting and arranging plates in the different categories to meet the copyright requirement of originality.

B. Is probably copyrightable, because it consists of text printed on pages and is therefore a literary work.

C. Is probably not copyrightable, because the contents are merely data concerning plates that have been assembled by Anne according to her opinions.

D. Is probably not copyrightable, because the idea of the catalog has merged with its expression.

E. Is probably not copyrightable, because after the Feist case catalogs are not copyrightable.

____ 15. A substantial obstacle to copyright protection of works of historical fiction (e.g., television "docudramas") is that:

A. Such works are usually not considered to be artistic enough to warrant copyright protection.

B. Permitting copyright in such works might inhibit the ability of other authors to create works based on the same historical facts.

C. Copyright in such works cannot be registered, because of a Copyright Office rule.

D. All of the above.

E. None of the above.

____ 16. Under the Act, which of the following are works of authorship?

A. An innovative new skyscraper being built at the corner of Broadway and 34th Street in New York City.

B. The book "Less Than Zero," by Bret Easton Ellis (a work of fiction).

C. The song "Crucify," by Tori Amos (a popular song).

D. All of the above.

E. B. and C. above, but not A.

____ 17. Anne, a poet, gave a poetry recital at Norwich University. For part of the performance, Anne extemporized poetry--that is, she made it up on the spot. Many students attended the recital, and John (a student with an exceptional memory) returned home afterwards and wrote down from memory one of Anne's extemporized poems, which he named "Placard." Under the Act:

A. Anne is the owner of copyright in the poem "Placard."

B. John is the owner of copyright in the poem "Placard."

C. Anne and John are co-owners of the copyright in the poem "Placard."

D. The poem "Placard" is not copyrighted.

E. None of the above.

____ 18. Kaitlyn, an artist, painted pictures that were copies of early American folk art paintings on display in a local museum. The original paintings in the museum are in the public domain. Kaitlyn's paintings:

A. May resemble the original paintings too closely to be considered derivative works of the originals.

B. Are not derivative works because while a derivative work must be based on a preexisting work, the original paintings in this case are in the public domain, and are therefore not "preexisting works" under the Act.

C. Are copyrightable as compilations, even though the original paintings are in the public domain, because a compilation need not be based on a copyrighted work.

D. All of the above.

E. None of the above.

____ 19. Without obtaining any license, Bill wrote a screenplay based upon his favorite Stephen King novel. Writing the screenplay:

A. Might have infringed the Stephen King novel, but only if the screenplay is sufficiently original to qualify as a derivative work.

B. Might have infringed the Stephen King novel, but if writing the screenplay did not infringe the right to make copies of the novel, then it did not infringe any other rights in the novel.

C. Did not infringe the Stephen King novel, because it is a joint work authored by Stephen King and Bill.

D. A. and B. above, but not C.

E. None of the above.

____ 20. Assuming copyrightability, which of the following are pictorial, graphic or sculptural works?

A. A map of Minneapolis.

B. A globe showing the world as it was politically divided in 1865.

C. A plush toy version of Barney (the television dinosaur).

D. All of the above.

E. A. and B. above, but not C.

____ 21. Without obtaining any license, Paul translated several poems by his favorite Spanish poet from Spanish into English. Pursuant to the Act:

A. Selling copies of the English translations in the United States will not infringe the copyright in the original versions of the poems, as long as Paul pays the statutory royalty to the United States owner of copyright in the original versions of the poems.

B. Selling copies of the English translations in the United States will not infringe the copyright in the original versions of the poems, as long as Paul does not claim a copyright in the English translations.

C. Selling copies of the English translations in the United States will not infringe the copyright in the original versions of the poems, as long as Paul acknowledges that his translations were not authorized by the poet.

D. Selling copies of the English translations in the United States will infringe the copyright in the original versions of the poems, but Paul may distribute copies of the translations to the public in the United States without infringing if he does not charge for the copies.

E. None of the above.

____ 22. Sara, a professional photographer, photographed a ceramic art object. The ceramic object is in the public domain. Later, a sculptor made copies of the ceramic object for sale to tourists. The sculptor did not copy Sara's photograph. The sculptor's copies of the object:

A. Are derivative works of the object, but only if they are sufficiently original to be copyrightable.

B. May infringe Sara's photograph of the object, but only if Sara can prove that the sculptor had access to the photograph, and that the copies are substantially similar to the photograph.

C. Are derivative works of Sara's photograph, but only if they are sufficiently original to be copyrightable.

D. All of the above.

E. A. and B. above, but not C.

____ 23. Copyright protection for the design of a useful article:

A. Is not available.

B. Is available only if the design is not the subject of a design patent.

C. Is available only if, inter alia, the design incorporates pictorial, graphic or sculptural features that are capable of existing independently of the utilitarian aspects of the article.

D. Is available only if the design demonstrates sufficient aesthetic merit to warrant copyright protection.

E. None of the above.

____ 24. Current Copyright Office policy:

A. Permits copyright registration of a Halloween mask, as long as it is sufficiently original to be copyrightable.

B. Does not permit copyright registration of any object that is a useful article.

C. Permits copyright registration of a useful article, but only upon a showing that the article contains separable pictorial, graphic or sculptural elements.

D. A. and C. above, but not B.

E. None of the above.

____ 25. Dawn copied all of the ideas, and none of the expression, from a preexisting work. If her work is copyrightable, Dawn:

A. Has created a derivative work of the preexisting work.

B. Has created an original, copyrightable work, of which Dawn is the sole author.

C. Has infringed the copyright in the preexisting work, but only if the preexisting work was protected by copyright at the time that Dawn copied from it.

D. A. and C. above, but not B.

E. None of the above.

____ 26. Anna photographed a still life, containing only three wooden carved objects: a sphere, a cube, and a cylinder. None of the objects is copyrightable, but Anna's photograph of the objects is copyrighted. Barb saw the photograph in a magazine and, copying from the photograph, carved three wooden objects identical to those in Anna's still life. If Barb did not obtain Anna's permission to carve the wooden objects, Barb:

A. Has infringed Anna's photograph, because the wooden objects she carved were copied from the photograph.

B. Has infringed Anna's photograph, because the wooden objects she carved are a derivative work of the photograph.

C. Did not infringe Anna's photograph.

D. A. and B. above, but not C.

E. None of the above.

____ 27. Roger was walking down the street when he saw an especially attractive new building at the corner of Summit and Victoria. Pausing for a moment, he snapped a photograph of the building. Roger has:

A. Infringed the copyright in the building, because he made a derivative work of the building.

B. Not infringed the copyright in the building, but only if he can establish that his photographing the building was a fair use of the building under the Act.

C. Not infringed the copyright in the building, but only if he does not attempt to exploit the photograph for purposes of commercial gain.

D. Not infringed the copyright in the building, but only if he does not publish the photograph.

E. None of the above.

____ 28. With respect to characters:

A. Comic-book characters (e.g. Mickey Mouse) are likely to be copyrightable.

B. Literary characters are never copyrightable.

C. Literary characters may be copyrightable, but only if they are sufficiently delineated.

D. A. and C. above, but not B.

E. None of the above.

____ 29. Bob wrote a poem in 1991. In early 1993, Fred read a copy of Bob's poem in a poetry magazine, and liked it so well that he set it to music. Fred made a cassette tape of the resulting song, and sent the tape to Bob. Bob liked the song, and eventually the song became a minor success on the pop charts. Under the Act:

A. Fred has the right to license the song to an advertising agency for use in a margarine commercial, but only if the license is non-exclusive.

B. When Fred made the cassette tape, he infringed Bob's copyright in the poem, even though Bob apparently does not wish to pursue that cause of action.

C. The song, with words by Bob and music by Fred, is a derivative work of Bob's poem.

D. B. and C. above, but not A.

E. None of the above.

____ 30. Donna, a composer, was hired by the St. Andrew Chamber Orchestra to compose a piece of music. Before she commenced work, she signed a written contract, which included the following clause:

"The parties agree that the copyrighted work (the "Work") resulting from [Donna's] efforts pursuant to this Agreement shall be deemed, for all purposes under the copyright laws of the United States, a work for hire. The parties further agree that [Donna] shall, and hereby does, transfer all her copyright interest in and to the Work to [the Orchestra]."

Donna composed the Work, and it was highly successful. Under the Act:

A. Donna has the right to become the sole owner of copyright in the Work approximately 35 years from the date she signed the contract, assuming that she does not transfer the copyright to anyone else.

B. The work is a work for hire, because Donna signed a written contract to that effect.

C. The work is a work for hire, regardless of the contract, because Donna was an employee of the orchestra for the purpose of creating the Work.

D. B. and C. above, but not A.

E. None of the above.

____ 31. In 1984 Evelyn wrote an article on United States foreign policy in the Balkans, which was published in Foreign Affairs magazine in 1985. The magazine included a copyright notice on the inside front cover, but no notice appeared reflecting any copyright interest Evelyn may have had in the article. Evelyn signed no transfer of copyright in connection with the publication of the article. Under the Act:

A. Evelyn has forfeited any copyright interest she had in the article, because it was published without notice of such a copyright interest.

B. Foreign Affairs magazine has the right to license the article to another publisher, for use in a book on United States foreign policy.

C. Foreign Affairs magazine has the right to republish Evelyn's article in a "Best of Foreign Affairs Magazine" special edition.

D. B. and C. above, but not A.

E. None of the above.

____ 32. In 1993, Betty, a songwriter, orally agreed with her publisher, Max, that he could "have all her copyright interest" in two of her songs (each of which was composed in 1991). Under the Act:

A. Betty no longer owns the copyright in the songs subject to the agreement, but she can reclaim the copyright in about 35 years, if she complies with the requirements of the Act.

B. If Max purports to license the songs to a Hollywood production company for use in a movie, Betty will have a cause of action for copyright infringement against both Max and the production company.

C. The agreement is ineffective to transfer any copyright interest to Max.

D. B. and C. above, but not A.

E. None of the above.

____ 33. Sally granted to Harry a non-exclusive license to distribute T-shirts bearing Sally's copyrighted artwork. Shortly after Harry began selling the T-shirts, he discovered that several stores at the local mall were selling inferior copies of Sally's shirts. Harry confirmed with Sally that she had not granted any license to the stores at the mall. Under the Act:

A. Harry has a cause of action against the stores at the mall for copyright infringement.

B. Sally has a cause of action against the stores at the mall for copyright infringement.

C. Harry and Sally have a cause of action against the stores at the mall for copyright infringement, but only if they join together as plaintiffs.

D. A. and B. above, but not C.

E. None of the above.

____ 34. On March 1, 1993, Dale granted an exclusive license to Molly to publish his book on fly-fishing. Molly recorded the transfer at the Copyright Office on March 15, 1993. Several months later, when Molly published the book, she received a letter from Bob, stating that Dale had granted an exclusive license to publish the fly-fishing book to Bob on December 1, 1992. Molly, who knew nothing about Bob's license until she received the letter, confirmed with that Dale that he had in fact granted Bob a license in 1992. As between Molly and Bob:

A. If Bob did not record his license by March 15, 1993, then Molly is the exclusive licensee and Bob has no publishing rights in Dale's book.

B. Molly has infringed Bob's license by publishing Dale's book, whether or not Bob records his license.

C. Molly did not infringe Bob's license by publishing Dale's book, because she didn't know of Bob's license, but she will infringe Bob's license if she continues to publish the book with knowledge of Bob's license.

D. If Bob did not record his license, Molly did not infringe Bob's license by publishing Dale's book, but Molly will infringe Bob's license if she continues to publish the book after Bob records the license.

E. None of the above.

____ 35. Jean published a book in the United States, on March 3, 1913. Renewal registration for the work was timely made. Under the Act, copyright in the book expired on:

A. March 3, 1988.

B. March 3, 1969.

C. December 31, 1969.

D. December 31, 1988.

E. None of the above.

____ 36. Kathy published a book in the United States, on April 17, 1952. No renewal application was filed. Under the Act:

A. The book is still protected by copyright, but any licensee of the right to prepare derivative works may continue to exploit the works.

B. The book is still protected by copyright, and any license to exploit derivative works has reverted to the owner of the renewal copyright.

C. The book is still protected by copyright, but the owner of the renewal copyright may lose the renewal interest if the statutory successors of the author exercise their termination rights.

D. The book is in the public domain.

E. None of the above.

____ 37. In 1956, Belle, a famous novelist, signed a contract with Hawkes, her publisher. Under the contract, Belle transferred to Hawkes the right to publish her next five novels. In 1957 Belle died, having completed only one novel. In 1958 Hawkes published that novel. Under the Act:

A. Hawkes is entitled to the renewal interest in the novel.

B. Belle's statutory successors are entitled to the renewal interest in the novel.

C. Ownership of the renewal interest is not governed by the Act, because copyright was established under the Copyright Act of 1909.

D. A. and C. above, but not B.

E. None of the above.

HAVE A GREAT SUMMER!!!

****Multiple Choice Exam Answers****

1. A

2. C

3. C

4. not scored

5. B

6. B

7. E

8. B

9. D

10. E

11. E

12. C

13. E

14. A

15. B

16. D

17. D

18. A

19. B

20. D

21. E

22. A

23. C

24. D

25. B

26. C

27. E

28. D

29. D

30. A

31. C

32. D

33. B

34. A

35. D

36. D

37. B