Copyright Infringement II Intro to IP – Prof Merges 2.23.09.

Copyright Infringement II

Intro to IP – Prof Merges

2.23.09

Nichols V. Universal Pictures (2d Cir. 1930)

• Did the film “The Cohens and the Kellys” infringe the play “Abie’s Irish Rose”?

NY TimesAbie's Irish Rose: Review

Published: May 24, 1922

The play has its little sermon that earned one of the heartiest bits of applause last night. Priest and rabbi, it appeared, also had met "over there." "I gave the last rites to many Jewish boys," said the fighting chaplain. "And I to many of your Catholic lads," the Jewish chaplain replied. "We're all on the same road, I guess, even though we do travel by different trains."

Judge Hand Opinion

• “It is of course essential to any protection of literary property, whether at common law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations.”

• -- p. 484

Types of infringement

• “block in situ” (in whole), vs.

• “an abstract of the whole”

Nichols : Abstractions test

“Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out…there is a point in this series of abstractions where they are no longer protected.” [since they are idea]

Abstraction Test

• Abie’s Irish Rose– I. Jewish and Irish families

– One wealthy, one not

– Strangers to each other

– A. Son and daughter marry

– Twins born

• Cohens and Kellys– I. Jewish and Irish families

– Both poor (at start)

– Long-time enemies

– A. Son and daughter marry

– Single child born

Nichols Abstraction Test

I. A. 1. a. b. c. i. B. 1. 2. a. b. i. ii. II.

I. A. 1. B. 1. 2. II.

Nichols Abstraction Test

I. A. 1. a. b. c. i. B. 1. 2. a. b. i. ii. II.

I. II.

Story - Main Idea

Plot Outline

Subplots

General Characters and Scenes

Text

Specific Character Elements

Levels Of Abstraction

Why are “high level” abstractions of plot not copyrightable?

• Ideas, not expression

• Theory of relativity, or evolution: basic ideas, too general to be protected

• Similar to section 101 of Patent Act . . .

“Character test”

• Can a character, standing independent from plot, be copyrighted?

• If so, how? And how far would that copyright reach?

“Stock Characters”

• Low-comedy ethnic characters

• Example of “scenes-a-faire” – standard “setups” or scenes

• Drunken Irishman, nosy neighbor, irritating mother in law, comic sidekick, etc etc

Play it Again, Sam

Ideas cannot be protected

• “[Plaintiff’s] copyright did not cover everything that might be drawn from her play; its content went to some extent into the public domain . . .”

• P. 486

SHELDON V. MGM (1936)

• Does the motion picture “Letty Lynton”infringe the play “Dishonored Lady”?

• How would you distinguish this case from Nichols?

• Note the judge is the same: Learned Hand

20

Sheldon v. Metro-Goldwyn Pictures Corp.

Factual Story Play(P) Book Movie(D)

MadeleineL’AngelierG-Man+20

MorenoFarnborough

Brennan

McLeanEkebon

G-Man+20

RenaulDarrow

PublicDomain

Copyrightedwork

Owned by D AllegedInfringing

Work

Access

SubstantialSimilarityProng One

Access

Prongs Oneand Two

Owned by D

Prongs Oneand Two

Steinberg v. Columbia Pictures, Inc.

• New Yorker cover, movie poster

Elements

• Ownership

• Copying

– Access

– Improper Appropriation

Analysis

• Lay Observer

• Common sense’ side-by-side comparison

Similarities and Differences

• 4 block view

• Details of distant city?

What do you compare?

• The whole of the copied portions of the Plaintiff’s work, including individually uncopyrightable elements like ideas and scenes a faire?

• OR only the copied portions that are copyrightable?

Sampling

• Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

Bridgeport Music

George Clinton: The Funkadelics

NWA

The letters may have been taken more as a means of capitalizing on the interest in Salinger than in providing a critical study of the author. (Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987).