Copyright Law 09: On the Third Memo

A couple of student questions regarding the final memo assignment prompt the following reminder:

In choosing a topic for your final Copyright Law memo, choose wisely — which means: choose narrowly. Identify *specifically* the statute (or statutory section, or subsection) or judicial opinion that you wish to correct, and identify *specifically* how you would correct it, and why.

Be sure to point to the specifics of current law as the source of current problems (or failure to achieve future benefits). Be sure to explain exactly how those specifics should be changed.

“Why” is very important, and in the space of four pages, you will need to make a focused argument in order to make a persuasive argument. “XYZ should be done because doing XYZ is consistent with the Progress clause of the Constitution” is an argument that is proper as to form, but without additional support (precedent? empirical evidence? consistency with the statute or with international law?) it is likely to be weak. Re-read the Eldred opinion to remind yourself of exactly why such a Constitutional argument is weak.

Copyright Law 09: Second Memo Minor Q&A

A couple of minor student questions and my answers in connection with the second memo assignment:

Q: As you intentionally misspelled “Barack” in the last memo, should I assume “Five Flags” is really “Six Flags”? Please let me know. Thanks.

A: Five Flags is the fictional Five Flags, a figment of my imagination, not Six Flags, a real chain of amusement parks.

Q: Reviewing this paper, and looking at section 106, I’ve come across a question we haven’t covered, so I don’t want to put too much research into if there’s an easy answer:

do subsections (4) and (5) require EXACT copying? What I mean is, as it appears, we need to distinguish between reproduction and derivation… But, given these two clauses (4 and 5), can we argue that the rollercoaster either: (1) constitutes a public performance of a substantial portion of the copyright (either in the character or the movie itself); or (2) specific portions may be displays of various images of our motion picture?

Or, conversely, would transfer into a cartoon-like style necessitate a use of the reproduction or derivation rights?

A: The “substantial similarity” proposition applies to all of Section 106. For reasons that we will discuss in more depth when we get there, the public performance right is not implicated here at all, and there is no difference worth worrying about between the reproduction right/derivative works right, on the one hand, and any possible application of the display right, on the other hand.

Copyright Law 09: Citation Format for the Memos

Student question posed by email:
I am wondering whether it would be alright to cite a case such as Castle Rock Entertainment v Carol Publishing Group, Inc —as merely Castle Rock, 150 F.3d 132 (2d Cir. 1998). Please let me know if this short form would be appropriate.

Answer:
Full case names should be used. Write as if you are a practicing lawyer, not as if you are a law student.

With the following additional comment:
Abbreviate case names according to your best estimate of Blue Book form. Cite the Copyright Act according to the Blue Book (the correct form, for the fair use statute, is 17 U.S.C. ยง 107 (2006)). The Blue Book itself isn’t all that important, but clarity, consistency, and professionalism in your presentation is. Do not cite to page numbers (including pinpoint page numbers) in the casebook; do cite to pinpoint pages in the case report itself. Do not cite to anything said in class (that is, I am not citable authority!).