Thursday, August 2, 2012

Example of an A exam in Copyright Law. (Law School Exam Tips for getting an A)

Sometimes I post my final exams to show people what a high-grade receiving law school exam looks like.  That being said, this is just my method of writing.  I try to include a lot of different information and attack the subject matter from all angles.  That being said, I have tried to focus more on key points, which is something that I have found lacking in some of my exams.  Here is an example of a Copyright exam that I got an A in last semester, one of the highest grades in the course. 


1A. In economics, a monopoly is something that is often seen as something that is bad for society. A monopoly exists where there are many buyers but a single seller. Monopolies are considered to not be Pareto Efficient, because the cost to society of the monopoly is greater and parties would be better off if there were many sellers. A monopoly both burdens competitors and the public. However, copyright creates a monopoly, and this is deemed better for society.

The law permits and encourages the monopoly of copyright because of its advantages. First, copyright law benefits the author. The creator of the work. The author creates something new for society in his mind. “Intellectual property is, after all, the only absolute possession in the world... The man who brings out of nothingness some child of his thought has rights therein which cannot belong to any other sort of property...” (Macaulay, Copyright).

Society has an interest in having a supply of good books, films, poetry, art, computer programs, and other such works. New mediums are created constantly and the public salivates for creative work. As society moves forward and people begin to have greater free time and can pursue more artistic endeavors, there is an even greater want for such works to be created. A monopoly gives the author and creator an incentive for creating something new. It gives an incentive to the author and creator to spend a great deal of time developing a fine work that generations can enjoy. Unlike a monopoly for a commodity, the monopoly for copyright benefits society more than it burdens it.

A monopoly can be thought of as a tax on readers for the purpose of giving a bounty to writers. The tax is considered negative in a sense, it taxes pleasure. However, the constitution considers the creators of fine works to be the greatest benefactors of the human race. Without the creation of great books, films, plays, architectural marvels, and paintings the man made world would lack much of its beauty.

The monopoly granted to authors must weigh the costs and benefits to both authors and society as a whole, however. For example, a copyright could not last forever. At the same time, it must last long enough to be worth something to the author and even those he leaves behind. Allowing copyright to extend a certain amount of years after the author dies gives an author late in life a 'financial' incentive to still create. His heirs will have something left behind.

The monopoly right given to authors creates encouragement for innovation and the furtherance of science and the useful arts. Further, unlike a commodity monopoly, the copyright monopoly protects something that will have a lasting impact on the world. Great books and art will last indefinitely. The rewards to society of their creation is huge. A copyright granted to a person living today will benefit people a thousand years from now.

The first copyright statute was the Statute of Anne. As a result of the invention of movable type and the printing press it was easy to copy large manuscripts. Manuscripts could be copied before, but it took much labor and time. Further, many people had little time to copy such works. However, the Statute of Anne was not created to give authors protection, but instead was created to control the press.
The first United States copyright statute gave protection


No. Copyright recognizes that some products are useful for society, even if they can possibly be used to the detriment of an author or creator. A VCR is similar to other technological innovations, including MP3 players, RS-DVRs, photocopiers, printers, cameras and tape recorders. There is a benefit to society in allowing these devices to be created. The law has to weigh the benefits to the public of a creation of something like a VCR against the burden to authors and creators of such a device.



No, the two words actually have different meanings, so Judge Frank was mistaken. The test for proving copyright infringement is (a) the defendant copied from plaintiff's copyrighted work and (b) the copying (if proved) went so far as to constitute improper appropriation. Copyright infringement is a violation of the rights of a copyright holder, when material restricted by copyright is used without consent. Infringement is a violation of a copyright holder's rights. It is a right in rem (against the world at large).

Plagiarism is more of a moral concept, however. Plagiarism is concerned with the unearned increment to the plagiarizing author's reputation that is achieved through false claims of authorship. Plagiarism is the "wrongful appropriation," "close imitation," or "purloining and publication" of another author's "language, thoughts, ideas, or expressions," and the representation of them as one's own original work. Plagiarism is not mentioned in statute and there is no test to prove plagiarism.


Without legislation prohibiting it, or a contract between the parties, the first sale doctrine allows an individual who receives a complimentary copy of a textbook to resell it. The first sale doctrine states:
Notwithstanding provisions of 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. In other words, a copyright owner's rights under 106(3) cease with respect to a particular copy or phonorecord once he/she has parted with ownership of it.

The rationale of the doctrine is to prevent the copyright owner from restraining the free alienability of goods. Without the doctrine, a possessor of a copy of a copyrighted work would have to negotiate with the copyright owner every time he wished to dispose of his copy. After the initial transfer of ownership of a legal copy of a copyrighted work, the first sale doctrine exhausts copyright holder’s right to control how ownership of that copy can be disposed of.

There is a limitation to the first sale doctrine, which involves rentals for records and software. However, those were implied by statute because the danger of copying and lost revenue was great and could not easily be recouped. A textbook producer can create a new edition every couple of years for far less than the cost of creating the first edition and can recoup some of the loss that has resulted from a book being sold or disposed of by the original owner.


Ann – Engineer, artist/designer, chef (18th birthday, May 1 1978)
1) space vehicle
2) sculptural marvel (Idea-expression, useful product test)
3) Museum (architectural) restaurant

Oct. 20, 1978 drawings (architectural date?)
-handed to boyfriend (manufacture) (work product) Feb. 14, 1980 (gift) St. Ann
-30 years of flying (pictures taken) (pictures)
Income: photos and postcards, miniature replicas in asia
-sold in every country except US (grey market goods)
-break up in 2011 (never married)

Bertrand: Ann hand over all income from photographs and replicas b/c he is sole owner (Rent – work product doctrine)
Daniel: 1. taking photographs of St Ann 2. importing replicas from Hong Kong.
Ann's Rights Against Bertrand

Ann designed the drawings of the shuttle and had Bertrand manufacture it. Bertrand now states that he is the sole owner of the shuttle because he created it and as the creator he wants Ann to hand over all income from the photographs and replicas.

First, it must be asked if the shuttlecraft is a copyrightable work under copyright law. To be copyrightable, there must be fixation, the work must be original, and there must be authorship. Looking at 102, Subject Matter of Copyright: in General, the shuttle would most likely fall within architectural works (8). However, it is also described as a sculptural marvel, and could fall into this category as well (5).

Authorship requires the creator to be a human being (Kelly v. Chicago Park). “Authors must be be human.” Ann will be able to show that she is the author, as she is a human being and she created the designs for the shuttle.

Original means only that the work was independently created by the author (as opposed to copied from other works). Originality is a Constitutional requirement. It must also pose some degree of creativity. The requisite level of creativity is extremely low; even a slight amount will suffice. Most works make the grade quite easily, as long as they possess some creative spark, no matter how crude, humble, or obvious it might be. We are told that the shuttle is also a museum and is artistically beautiful. It is said to be a sculptural marvel which draws tourists from all over the world to behold its beauty. This being said, the shuttle will be considered original as there is at least some creative spark and that spark can be crude or small.

A work is fixed in a tangible medium of expression when its embodiment in a copy (or phonorecord), by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of time more than transitory duration. The medium of expression may be one now known or later developed. The shuttle was created by the author and built under the authority of the author. It still exists in permanent form and can be perceived (many tourists come to see it), reproduced (sculptures and pictures are taken of it).

It can be argued that the space shuttle is an architectural work. An architectural work is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standardized features. The copyright in an architectural work does not prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

The reason for copyright law covering architectural works was to put it in compliance with the Berne Convention, which the US was a party to. In arguing that the building is architectural, the separability test applicable to pictorial, graphic or sculptural works embodied in useful articles would not apply. However, if the shuttle is argued to not be architectural, the tests in Pivot Point would apply.

An architectural work should be examined to determine whether there are original design elements present, including overall shape and interior architecture. If such design elements are present, a second step is reached to examine whether the design elements are fictionally required. If the design elements are not functionally required, the work is protectable without regard to physical or conceptual separability.

That being said, the new act took place in 1990 and the new provisions cover any architectural work that was created on or after December 1st 1990. An architectural work is not to be protected under the 1990 act if it was substantially constructed before December 1st, 1990. The design of the shuttle was created on October 20th, 1978 and the shuttle was manufactured and finished by February 14th, 1980. Therefore, the 1990 act that complies with the Berne Convention would not apply to Ann and the analysis would be under the 1976 act.

In the 1976 Copyright act, architecture could only be protected as a pictorial, graphic, or sculptural work. In section 101, this included technical drawings, diagrams and models. Most architectural works fall within the definition of useful article (an article having an intrinsic utilitarian function). This being the case, protection would only extend to features that can be identified separably from, and are capable of existing independently of the utilitarian aspects of the shuttle. Further, plans and drawings are not considered useful articles because their purpose was merely to portray the appearance of the shuttle.

The shuttle, then would have to be argued to be applied art. The parties would have to argue that the shuttle (a useful object) is married to an aesthetically pleasing design.

It may be asked “why was the shuttle not patented?” The requirements for getting a patent are far greater than getting a copyright. Patentable designs must be original (created independently without copying), novel (new in the sense of never having existed before), and non-obvious (product of a creative act going beyond mere talent or artistry). The scope of protection for patents is broad, leading to judicial hostility and the cost is great. If the shuttle was like other space shuttles that had already been designed, Ann would have had trouble getting a patent. However, if her shuttle was totally new and could truly travel great distances in space, she should have got a patent. However, as we have not been told if she has a patent, we will have to assume that the shuttle is copyrightable.

Section 101 defines pictorial, graphic and sculptural works as including two dimensional and three dimensional works of fine, graphic, or applied art... including technical drawings and architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separably from and are capable of existing independently of the utilitarian aspects of the article. The shuttle and the internal machinery would not be copyrightable, however, the shape, if unique, and the aesthetically pleasing parts of the shuttle would be protected by copyright.

In Pivot Point, a number of tests of separability were discussed. In this case, Pivot developed a statue for hair design known as “Mara” which was used for training hair stylists. The statute, with a unique “hungry look” gained great success and a very similar mannequin was created, known as “Liza”. The court held, after discussing various tests, that Mara was subject to copyright protection. This case is an important comparison to the issue at hand, as it must be determined if the shuttle is copyrightable before ownership can be claimed.

The first test asks: are the artistic features primary and the utilitarian features secondary. It could be argued that the shuttle was designed to explore space, just as the mannequin was created for training purposes. However, the shuttle was created to permanently become a museum of great beauty. While the space travel was the shuttle's first purpose, it was not the final lasting purpose of the shuttle. The shuttle “designed to be so artistically beautiful as to become, at the end of its space adventures, a sculptural marvel” hints that the lasting purpose, which is indefinite, was to be an artistic marvel.

The second test asks if the useful article would still be marketable to some significant segment of the population simply because of its aesthetic qualities. Since statutes have been created and since it is photographed after ceasing operations as a spacecraft, it is arguable that the second test would be met.

The third test, known as the temporal displacement test, asks if the article stimulates in the mind of the beholder a concept that is separate from the concept evoked by its utilitarian function. Long after the shuttle has returned and the sole purpose has become a museum, it would probably always be seen in the mind of the beholder as a museum or sculpture primarily and secondary as once being a space craft. It's utilitarian use would be divorced from the artistic purpose for which it serves.

The fourth test asks if the artistic design was not significantly influenced by functional considerations. It would probably be held that the artistic design was not significantly influenced by functional considerations, that being, flying through space. Ann designed the spacecraft to become a museum and wanted the world to behold its beauty. Shuttlecraft are generally created to be merely functional and cost effective. They are not ornate nor are they meant to last indefinitely. Shuttles eventually are either dismantled, recycled, and only sometimes displayed, however, that is not their primary purpose. Ann's shuttle was created to become a museum and an artistic spectacle.

The artistic features can stand on their own as a work of art traditionally conceived and the useful article in which it is embodied would be equally useful without it. After the shuttle has landed and has become a museum it is at least as useful as it once was, if not more useful. Ann could argue that the shuttle was merely a flying sculpture, being put on display in the sky before landing.

Last, the artistic features are not utilitarian. As discussed before, space shuttles are not designed to be beautiful, but to travel. Like in Pivot Point, where the court held that it is easy to conceptualize a human face independent of all of Mara's specific facial features, the sculptural features of the shuttle (if as beautiful as described) would be conceptualized separate from the utilitarian machinery of the craft. Like the Mara statue, the creative aspects of the shuttle were meant to be seen and admired.

Since the work is copyrightable, it would next be asked who owns the copyright. Ownership was discussed in the case Lindsay v. R.M.S. Titanic. In this case, Lindsay, the plaintiff sought damages based upon his share of the revenues generated by the salvage operations conducted at the wreck site of the Titanic. The Plaintiff here was a filmmaker and the defendant, who was held to be the copyright holder, was the person who planned the filming in detail. He did not, however, operate the cameras himself.

The court stated that the author of a work is the person who actually creates the work, that is, the person who translates an ideas into a fixed, tangible expression entitled to copyright protection. An individual claiming to be an author for copyright purposes must show the existence of those facts of originality, of intellectual production, of thought, and conception. In a case discussed in Titanic, printers had not intellectually modified or technically enhanced the concept articulated by the creator, nor did they change the substance of the creator's original expression.

Like in the Titanic case, Ann would argue that she created the drawings and the artwork. Bertrand merely had his firm manufacture the shuttle. Further, we are told that Bertrand's firm manufactured the shuttle to Ann's design specifications. He did not modify or enhance the shuttle in any way. Instead, he merely followed the directions that were given to him.

The shuttle would probably not have been considered a work made for hire, as there was no consideration, and Bertrand was not Ann's employee. Further, there was no written contract or other instrument signed by the parties stating that the work was made for hire. However, in the analysis, if the shuttle was a work made for hire, the employer or other person whom the work was prepared (here Ann), is considered the author for purposes of the copyright law and owns all of the rights comprised in the copyright.

In Community for Creative Non-Violence v. Reid a sculpture was created and there was no written agreement. Neither party mentioned copyright. The case is similar to the fact pattern here, however, the organization had hired the artist to create the sculpture. Further, sculpture did not fit within any of the nine categories of specially ordered or commissioned works enumerated in the subsection.

Ann would argue that even though she did not pay Bertrand, he was her agent and he was to design the shuttle to her specifications. Bertrand had no control of the manner and the means by which the product was accomplished, instead he merely went by the designs.

Bertrand may claim he is at least a joint author, claiming that he prepared the work with the intention that their contributions be merged into inseparable or independent parts of a unitary whole. However, since Bertrand gave Ann the shuttle as a gift, this would probably not be the case.

In Thomson v. Larson, the plaintiff argued that she was a joint author of Rent. Bertrand would argue that at the very least, the shuttle was a joint work between them. A joint work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable of interdependent parts of a unitary whole. Joint authorship entitles co-authors to equal undivided interests in the whole work. Each joint author has the right to use or to license the work as he or she wishes, subject only to the obligation to account to the other joint owner for any profits that are made. As such, Ann would have to account for the profits she made on postcards thus far if they were joint offers.

Collaboration alone is not sufficient to establish joint authorship. Rather, the contribution of each joint author must be independently copyrightable. In the fact pattern, Bertrand was not an author, he merely went by the plans that were created by Ann. He did not design the shuttle. The artwork was all conceived by Ann. Childress held that the parties must entertain in their minds the concept of joint authorship. In Ann's love letter she merely asked Bertrand to arrange manufacture of the shuttle through his firm. She did not entertain the notion of him being an author, nor did she entertain the idea of equal sharing of rights. There is no objective evidence that both parties intended each other to be joint offers.

In light of the discussion and analysis, Bertrand is not the sole owner of the shuttle, but instead, Ann is the author and creator of the shuttle and copyright vests completely with her.

Ann's Rights Against Daniel

Ann, as the copyright holder in the shuttle, has rights against the whole world. However, her rights do not come without limitations.

Ann created miniatures which were designed in Hong Kong and are sold in every country except the United States. One right that Ann has is the right to prohibit the unauthorized importation of copies.

Section 602 states that Importation into the United States, without the authority of the owner of the copyright under this title, of copies or phonorecords of a work that has been acquired outside the United States is an infringement of the exclusive right to to distribute copies or phonorecords under section 106.

Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 119, or who imports copies or phonorecords into the United States in violation of 602, is an infringer of the copyright.

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