WILLIAM MITCHELL COLLEGE OF LAW

FINAL EXAMINATION

Professor Niels Schaumann

Saturday, May 13, 1995 - 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 Egeness) 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.

*****************************************************************

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.

*****************************************************************

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 old Boardroom. You must return the exam to this room at the conclusion of the exam period.

GENERAL INSTRUCTIONS

MATERIALS PERMITTED FOR THIS TEST: Gorman & Ginsburg, Copyright for the Nineties (4th ed. 1993), with 1994 statute 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. Below the heading for each Part there appears, in parenthesis, the percentage of the total test score attributable to that Part. No matter how long you spend on a question, you can earn no more than the specified percentage of the total test score for your answer. It is therefore wise to budget your time carefully.

2. Answer all questions only according to the materials we studied in this class this semester. And remember to budget your time.

3. BUDGET YOUR TIME.

ANSWER ALL QUESTIONS USING A PEN

DO NOT ANSWER ANY QUESTION IN PENCIL

Part I--Essays

(50%)

Instructions for Essay Questions

1. Write on only one side of the page.

2. Write on every other line.

3. Leave the left margin of the page empty.

4. Try to write legibly. I want to give you as much credit as possible, and I cannot give credit for an answer I cannot read.

5. Citations to specific cases are not necessary. You should, however, cite relevant statutes and rules.

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

Essay 1

(40%)

In 1964 Evelyn wrote a mystery story, which was published (with proper copyright notice affixed) in Thriller magazine in 1965. In connection with the story's publication, Evelyn assigned all her copyright interest in the story to the magazine, pursuant to a clause that read in pertinent part:

"[Evelyn] hereby assigns all her right, title and interest in and to the original and renewal terms of copyright in [the story] to [Thriller magazine]."

Evelyn died in 1992 without filing a renewal application. She was survived by two children, Peter and Alexis. Peter died on June 3, 1993, without having filed an application for renewal of Evelyn's copyright. He was survived by one child, Bess.

In November of 1993, the Copyright Office received registration applications for the renewal term from the following persons, on the dates indicated:

a. from Alexis, on November 11;

b. from Bess, on November 17; and

c. from Thriller magazine, on November 1.

Who is entitled to the renewal term? Explain.

Essay 2

(10%)

You are the new Associate General Counsel for East Publishing Co., a textbook publisher located in Bayonne, New Jersey. On your first day at work, the Chief Executive Officer ("CEO") takes you out to lunch.

Over lunch, she remarks, "I don't understand why we bother litigating work-for-hire cases. After all, we always include language transferring an author's copyright interest to us, as the publisher. In fact, almost anyone who can plausibly claim ownership of copyright by work-for-hire can also simply take the copyright by transfer! I'm beginning to think that this is just a method you lawyers use to increase your fees."

Is the CEO right? If an agreement contains enforceable provisions both transferring copyright to the publisher and establishing a work for hire, is there any reason for the publisher to prefer one to the other? Explain briefly.

[CONTINUE WITH PART II, BEGINNING ON THE NEXT PAGE]

Part II--Multiple Choice

(50%)

Instructions for Multiple-Choice Questions

1. 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.

2. Each question in this Part is worth the same number of points (1.56 points).

3. Although an incorrect answer will not earn any points, no points will be deducted for an incorrect answer. This means that if you are unsure of the correct answer, it is to your advantage to guess. An answer left blank counts as an incorrect answer.

4. Although I have 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.

Definitions. Unless expressly stated otherwise: (1) References to the "Act" or to the "1976 Act" are to the U.S. Copyright Act of 1976, as amended through May 1995; and (2) all section references are to sections of the Act.

____ 1. In 1960, Sally wrote several dozen poems, but she never showed them to anyone. Upon Sally's death in 1992, her executor discovered the poems and arranged for their publication. If the poems are published, copyright in them will expire on:

A. December 31, 2002.

B. December 31, 2020.

C. December 31, 2027.

D. December 31, 2042.

E. None of the above.

___ 2. A work first published in the United States in 1918:

A. Entered the public domain on January 1, 1974, if a renewal application was timely filed.

B. Entered the public domain on January 1, 1984, if a renewal application was timely filed.

C. Entered the public domain on January 1, 1994, if a renewal application was timely filed.

D. Entered the public domain on January 1, 1994, whether or not a renewal application was timely filed.

E. None of the above.

____ 3. The 1976 Act:

A. Was adopted primarily to appease powerful media interests, which were exerting a great deal of pressure on Congress to better protect their rights.

B. Was adopted primarily to appease powerful authors' rights groups, which were exerting a great deal of pressure on Congress to define more clearly the term "work of authorship."

C. Was delayed for over a decade by the advent of new technologies that Congress wanted to address in the new statute.

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

E. None of the above.

____ 4. In the 1976 Act:

A. Copyright was refined, to achieve the greatest possible financial benefit to the author.

B. The significance of the Constitution was substantially diminished, compared to the 1909 Act.

C. The notion of "creativity" is largely irrelevant, because no creativity is required by the Constitution.

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

E. None of the above.

____ 5. Under the 1976 Act, as in effect on January 1, 1978:

A. The duration of copyright in a work was, in some cases, measured by the time elapsed since the creation of the work.

B. Copyright was not conditioned on compliance with formalities.

C. Copyright was conditioned on compliance with formalities, but a failure to comply with formalities was curable in many cases.

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

E. None of the above.

_____ 6. In general, a claim of copyright infringement:

A. Prevails over a Constitutional defense based on the first amendment's free speech guarantee.

B. Fails if confronted by a Constitutional defense based on the first amendment's free speech guarantee.

C. Can be tried in a state or federal court of original jurisdiction.

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

E. None of the above.

____ 7. Under the 1976 Act:

A. The requirement of "originality" includes both a minimum amount of creativity and the author's origination of the work.

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

C. Creativity is required only of certain categories of works, such as pictorial works.

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

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

____ 8. Under the 1976 Act:

A. In most cases, registration is required before a copyright can be enforced.

B. Notice of copyright must appear on the work before copyright can subsist in the work.

C. Fixation is required before copyright can subsist in a work.

D. All of the above.

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

____ 9. Under the 1976 Act, statutory limitations on the exclusive rights of authors include:

A. The right of a user of the work, under certain circumstances, to perform the work publicly without the author's consent.

B. The right of a user of the work, under certain circumstances, to display the work publicly without the author's consent.

C. The right of a user of the work, under certain circumstances, to copy portions of the work without the author's consent.

D. All of the above.

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

____ 10. Joe, Susan and Beth each contributed one article to an anthology of literary criticism. The anthology was first published in the United States in October 1994, and each article was written in the past year. Under the 1976 Act, the anthology is:

A. A collective work.

B. A derivative work.

C. A compilation.

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

E. None of the above.

____ 11. Joe, Susan and Beth each contributed one article to an anthology of literary criticism. The anthology was first published in the United States in October 1994, and each article was written in the past year. Joe's article, however, was the only contribution to the anthology that bore an independent notice of copyright (in addition to the notice that appeared opposite the title page of the anthology, covering the anthology as a whole). Under the 1976 Act:

A. Joe is the only contributor to the anthology with an enforceable copyright in his article.

B. Joe is the only contributor to the anthology who can collect statutory damages and attorneys' fees in an infringement action based on infringement of his article.

C. Joe is the only contributor to the anthology who is required by the Act to deposit copies of his article in the Copyright Office.

D. All of the above.

E. None of the above.

____ 12. Sally Hardcore and Rent Treznor are co-leaders of Ninety-Nine Inch Nails (a musical group, hereafter "NNIN"). Sally plays the bass guitar for NNIN, and Rent writes all the words and music for the group and, in addition, is the lead singer. (Sally and Rent hire additional musicians for NNIN's performances as the need arises, on a per-performance basis.) Sally has learned that a group called "Nameless," is performing several NNIN songs in its live concerts. Under the 1976 Act:

A. Sally can bring a lawsuit against Nameless for copyright infringement based on Nameless' unauthorized performances of NNIN songs.

B. Rent can bring a lawsuit against Nameless for copyright infringement based on Nameless' unauthorized performances of NNIN songs.

C. Sally can bring a lawsuit against Nameless for copyright infringement based on Nameless' unauthorized creation of derivative works based on NNIN songs, but only if Nameless has made recordings or other fixations of the songs.

D. All of the above.

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

____ 13. Elfin John, a popular composer (hereafter "John"), appears in an instructional video describing the use of "formulas" for writing hit songs. John wrote the script for the video, and originated all of the techniques the video describes. Allison Chains, also a popular composer, has seen John's video, and her last three hit songs were written using the techniques described in the video. In writing her songs, however, Allison did not copy any Elfin John songs. Under the 1976 Act, Allison's songs most likely:

A. Constitute non-literal copying of Elfin John's video.

B. Constitute literal copying of Elfin John's video.

C. Constitute non-verbatim copying of Elfin John's songs.

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

E. None of the above.

____ 14. As defined in the 1976 Act:

A. A map is a "useful article."

B. A map is a "pictorial work."

C. A map is a "collective work."

D. All of the above.

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

____ 15. In 1994, Anne wrote a screenplay based on a novel first published in 1822. For copyright purposes, the screenplay:

A. Probably is a derivative work of the underlying novel, but only if the novel was sufficiently original to be protected by copyright.

B. Probably is a derivative work of the underlying novel, whether or not the novel was sufficiently original to be protected by copyright.

C. Is not a derivative work of the underlying novel, because at the time Anne wrote the screenplay, the novel was not protected by copyright and therefore was not a "work" under the 1976 Act.

D. Is not a derivative work of the underlying novel, but the screenplay is a joint work of Anne and the author of the novel (or the author's heirs).

E. None of the above.

____ 16. In order to be copyrightable, the design of a useful article must:

A. Not be obscene.

B. Incorporate pictorial, graphic or sculptural elements that can be identified separately from the useful features of the article.

C. Incorporate pictorial, graphic or sculptural elements that can exist independently of the useful features of the article.

D. All of the above.

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

____ 17. The Copyright Clause of the U.S. Constitution:

A. Prohibits copyright in typefaces.

B. Requires originality as a condition of copyright protection.

C. Was amended several times in order to accommodate advances in technology.

D. All of the above.

E. None of the above.

____ 18. Which of the following are potentially copyrightable under the 1976 Act?

A. The design of a building.

B. The design of a streetlamp.

C. The cartoon character "Bart Simpson."

D. All of the above.

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

____ 19. Under the 1976 Act, which of the following is an "author"?

A. A law professor, with respect to her article, published in the law school's Law Review.

B. A musician, with respect to a brilliant solo she improvises during a performance.

C. A salaried "extra" on a Hollywood movie set, with respect to some dialog she ad-libbed during the filming of a scene.

D. All of the above.

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

____ 20. Under the 1976 Act, the "author" of a work:

A. Must carry out the task of fixing the work in a tangible medium of expression.

B. May be the employer of the person whose original expression is embodied in the work.

C. Must be the person whose ideas are expressed in the work.

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

E. None of the above.

____ 21. Betty wrote a poem in 1993. In early 1995, Sara read the poem in a literary magazine. Sara was a composer, and she wrote a musical setting for the poem, turning it into a song. When Betty heard a tape of the song, she was delighted and immediately consented to Sara's use of the poem. For copyright purposes, the song:

A. Is a joint work, authored by Betty and Sara.

B. Is a collective work, to which Betty and Sara have contributed equally.

C. Is a compilation, of which Sara is the author because Sara selected, arranged and coordinated the pre-existing materials.

D. Is a posthumous work, if Betty dies before the song is published.

E. None of the above.

____ 22. Under the 1976 Act, an oral transfer of a § 106 right:

A. Is void, because the Act requires such transfers to be in writing.

B. Is voidable at the discretion of the transferor, because the Act requires such transfers to be in writing.

C. Is enforceable against the transferor, but not against a third party.

D. Is enforceable against the transferor and against third parties, but only if the transferee exercises reasonable diligence to cause evidence of the transfer to be filed with the Copyright Office.

E. None of the above.

____ 23. Current Copyright Office policy:

A. Permits copyright registration of a Halloween mask, if it is "lifelike" within the meaning of the Copyright Office regulations.

B. Does not permit copyright registration of a Halloween mask if it is "lifelike" within the meaning of the Copyright Office regulations.

C. Permits copyright registration of a Halloween mask, if it is original.

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

E. None of the above.

____ 24. Deb agreed to make a loan to Dawn, but only if Dawn would put up the copyrights in her (Dawn's) songs as collateral. In order to take a perfected security interest in Dawn's copyrights:

A. The Act provides that Deb must file a notice of her interest in each county in which a copyright is located.

B. The Act provides that Deb must file a notice of her interest in the Copyright Office.

C. The Act does not directly address this question, but by analogy suggests that Deb should file a notice of her interest in each county in which a copyright is located.

D. The Act does not directly address this question, but by analogy suggests that Deb should file a notice of her interest in the Copyright Office.

E. None of the above.

____ 25. Allie, a songwriter, transferred the copyright in one of her songs, "The Giant Six-Toed Sloth," to Pink Potato Publishing Co. ("PPPC"). In exchange for the transfer, PPPC agreed to pay Allie royalties, in the manner customary between publisher and songwriter. Five years after this transaction, Allie discovered that Bert was performing "The Giant Six-Toed Sloth" in his live performances. PPPC is not interested in pursuing any claims against Bert, because PPPC hopes to entice Bert into a publishing contract just like the one Allie signed. Allie most probably:

A. Lacks standing to sue Bert, because she no longer is a copyright owner and therefore cannot invoke the court's jurisdiction to make Bert stop performing "The Giant Six-Toed Sloth."

B. Lacks standing to sue Bert, even though Allie is a copyright owner, because a transfer of copyright is deemed to include a transfer of the right to sue for infringement unless the latter right is expressly reserved.

C. Has standing to sue Bert, because she is the "author" of the song, and the author of a work always has standing to sue for copyright infringement.

D. Has standing to sue Bert, because although she is no longer the legal owner of the copyright, she still has a protectible interest in the copyright.

E. None of the above.

____ 26. Roger, a film producer, in 1993 read a novel, by an anonymous author, which Roger thought would make an excellent movie. The novel was written in 1910, and was first published in 1913. Roger is very careful, and does not want to do anything that might infringe any copyright interest in the novel. Under the Act:

A. Roger can use the novel as the basis for his movie, because the novel is in the public domain.

B. Roger can use the novel as the basis for his movie, because the novel is subject to a compulsory license for film adaptation.

C. Roger risks infringement if he uses the novel as the basis for his movie, unless he can prove that the author died at least 75 years ago.

D. Roger risks infringement if he uses the novel as the basis for his movie, unless he can prove that the original copyright in the book was registered at least 75 years ago.

E. None of the above.

____ 27. Pat wrote and published a hit song in 1966, and registered the copyright in the song that same year. Unfortunately, he never filed a renewal application. Under the Act:

A. Pat has forfeited the renewal term of copyright in the song, which is now in the public domain.

B. Pat may have forfeited the copyright renewal term of copyright in the song, but he may be able to reclaim it if he takes reasonable measures to ensure that no one is misled by his failure to apply for a renewal registration.

C. Pat has not forfeited the renewal term of copyright in the song, because the duration of copyright is governed by the 1976 Act and therefore is a unitary term, lasting until 50 years after Pat's death.

D. Pat has not forfeited the renewal term of copyright in the song, because Congress repeatedly extended the term of copyrights in the early 1960's, and therefore the renewal registration has not yet come due.

E. None of the above.

____ 28. In 1950, Donna wrote a biography of Pierre Cochon, which was first published on June 1, 1952. If she timely filed a renewal application, the copyright in the book will expire on:

A. June 1, 2008.

B. December 31, 2008.

C. June 1, 2027.

D. December 31, 2027.

E. None of the above.

____ 29. Under the Act, performance rights exist for:

A. Musical works.

B. Literary works.

C. Sound recordings.

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

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

____ 30. Under the Act, as interpreted in the Second Circuit, an umbrella stand is copyrightable if its author proves that:

A. Its design is sufficiently aesthetically appealing to justify copyright protection.

B. Its primary use is ornamental, and it is seldom, if ever, used to hold umbrellas.

C. It would have market value--that is, it would be saleable--even if it had no utilitarian use.

D. Any of the above propositions results in copyrightability; i.e. the umbrella stand is copyrightable if the author can prove any of A., B. or C.

E. None of the above.

____ 31. A collection of pre-existing data, all of which are in the public domain:

A. May be copyrightable, if the author can demonstrate that the collection is sufficiently original.

B. May be copyrightable, if the author can demonstrate that sufficient effort was expended in collecting the data.

C. Is not copyrightable, because all the data were pre-existing and therefore the would-be author has not "originated" the contents of the collection.

D. Is not copyrightable, because all the data were in the public domain.

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

____ 32. John made an exact copy of an original work of sculpture. The original was called "Waterfall"; John called his copy "Falling Water." "Waterfall" (i.e. the original) is in the public domain. "Falling Water" (i.e. the copy):

A. Is not copyrightable, because it is not original.

B. Is not copyrightable, because a work based on a pre-existing work can never resuscitate the copyright in the pre-existing work.

C. Is copyrightable, but only if "Waterfall" (i.e. the original) evidences a "creative spark."

D. Is copyrightable, but only if the author of "Waterfall" (i.e. the original), or the author's heirs, consented to John's copy.

E. None of the above.

HAVE A GREAT SUMMER!!!

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

1. D

2. C

3. C

4. E

5. D

6. A

7. E

8. E

9. D

10. D

11. E

12. B

13. E

14. B

15. A

16. E

17. B

18. D

19. A

20. B

21. E

22. C

23. C

24. D

25. D

26. A

27. E

28. D

29. D

30. B

31. A

32. A