COPYRIGHT LAW WRITING ASSIGNMENTS – SPRING 2019


Basic requirements and mechanics
The graded work for this course consists of three short (3-4 pp.) writing assignments. These may consist of legal memoranda (to colleagues, clients, or others); explanatory email messages (again, to one or more audiences); or PowerPoint [or equivalent] slide decks (in which the lawyer communicates by the content of the slide deck, not by delivering a presentation orally). Each assignment will be posted here approximately two weeks before the assignment is due. Also before the assignment is due, time in class will be set aside to discuss questions relating to each assignment.

Format expectations
Prior versions of this course have required that writing assignments be produced in solely in the format of traditional legal memos. That expectation has changed, because lawyers today increasingly communicate in other formats and other media. This course may require different formats.

How to succeed
Although the formats may change, professional expectations regarding effective communication have not changed. Legal writing in every setting should be clear, consistent, polished, expert, ethical, responsive, and trustworthy. Those expectations apply to this course. For guidance regarding those expectations and how they apply to the graded work for this course, students are strongly encouraged to read and re-read this “Modern Legal Writing” document, which summarizes advice for producing a great work product in Professor Madison’s Trademark Law and Copyright Law courses.

Sample questions
For students who want to know more about the assignments for this course, here are links to some prior assignments:

Rubric
The rubric used to mark the assignments is available here.

Assignment Three

From:  Chief of Staff, Senator S. Meyer
To:  New Legislative Assistant to Senator Meyer
Re:  Copyright Proposal
Date:  April 19, 2019

Welcome to your new position working for Senator Meyer.  As you know, Senator Meyer is expecting to be named to the IP subcommittee of the Senate Judiciary Committee. 

Because Senator Meyer has a substantial entertainment industry and computer industry constituency, we’d like to take a crack at much-needed reform of copyright law.  Copyright has gotten bizarrely complex and is more of a barrier to American progress than an asset.  We’d like you to analyze a proposal that came to our attention from one of Senator Meyer’s law school classmates, who is now a law professor. It may need some tweaking, but we think that it may have traction, and we want to try to build some support for introducing it in the Senate.

This proposal would repeal the entirety of the current Copyright Act and replace the whole thing with two sections:

Section 1:  It shall constitute copyright infringement for any person to copy an original work of authorship without permission or authority.

Section 2:  Any party who prevails in a copyright infringement action may recover such remedies as the court in its discretion deems appropriate.

Section 3:  Copyright in a work created on or after [the effective date of this statute] subsists from its creation and endures for a term consisting of the life of the author and 70 years after the author’s death or, in the case of a work prepared by two or more authors, the life of the last surviving author and 70 years after the death thereof.

For legislative history, the words “copy,” “original,” and “work of authorship” would have the meanings that they have developed in courts.  We think that relevant constitutional provisions (Article I, Section 8; and the First, Fifth, and Fourteenth Amendments) mean that things like ideas, fair use, and access to government information would have the same effects that they do now.

The Senator and I are planning to meet shortly with industry representatives and public interest and consumer groups to share our vision and get their feedback.  I need you to research and prepare a set of talking points and related analysis that we can use in those presentations.

Rules and Guidelines for Assignment Three

To the extent that these rules may appear to conflict with general advice regarding memos that appears in course-related webpages, these rules take precedence.

This is an “open” problem, meaning that there are no limits on the resources that you may bring to bear on your work. Among other things, you may consult with your classmates and other human beings. If you discuss the merits of the assignment with anyone, however, you must disclose that person’s identity on or in your work product. Write the names of any of these “consultants” at the top of the first page of the work product.

Use your own name in the “From” field. The assignments are not anonymous.

Format

Your work product in response to this assignment should be formatted in one of two ways: (i) as an email rather than as a default or standard “legal research memo.” Your email should consist of not more than 1,200 words, excluding the header (To, From, Subject line, Date). In printed form, it should have 1″ minimum margins on all sides. OR (ii) as a set of PowerPoint slides, prepared for delivery as a printed work product, rather than as a guide or accompaniment to an oral presentation. Including a title slide, the total PowerPoint “slide deck” should consist of no more than 25 slides.

[For guidance and suggestions regarding how to prepare professional PowerPoint slides, review these examples.]

So that your work product can be uploaded to the TWEN system in Westlaw (see below) and graded electronically, you must use Microsoft WORD (in the case of option (i)) or Microsoft PowerPoint (in the case of option (ii)).

Grading

Work product will be graded based on form, format, and writing quality as well as on content. The assignments are designed so as not to have any single correct or even best solution. Each problem may present a range of issues that the work product should identify, analyze, and solve in a creative way.

Due date

One copy of the work product prepared for this assignment must be turned in not later than Tuesday, May 7, 2019, at 12 noon.

Your work product must be turned in via the course TWEN page (on Westlaw), by depositing an electronic copy in the TWEN “Drop Box” for Assignment Three for this course. Although the work product should be formatted as an email, electronic (e-mailed) copies are not acceptable. Work product slipped under anyone’s door are not acceptable.

There were be no extensions or exceptions to this deadline. Work product that does not conform to the format instructions above, or that is turned in late, is subject to grade reduction.

Assignment Two

To: Outside Counsel
From: Chief Financial Officer, Invest-a-Ton
Date: March 22, 2019
Re: Investment Opportunity – Copyright Question

As you know, Invest-a-Ton has made a lot of money over the last several years by investing in start-up digital publishing ventures. A new opportunity in this “space” has appeared, and before we move forward with an investment, we’d like your thoughts on what appears to be a tricky question of copyright law.

The opportunity in question is “Blue Egg.” Blue Egg’s business plan consists of buying and re-selling “digital access codes” that college and university students buy in order to access study aids, homework assignments, and other “supplemental” material that is delivered to them, online, as supplements to hard-copy textbooks. The textbooks are often relatively inexpensive. The “digital access codes,” which promise access to material that may be required by teachers, for all practical purposes, can be quite expensive. The publishers claim that the “digital access codes” are, for all practical purposes, equivalent to access to hard-copy textbooks, because once a student has paid for the code, the student has permanent access to “their” digital content. My nephew is a law student, and I know that the big publishers of legal casebooks are saying the same thing.  Students have always wanted to save money on books by selling them back to bookstores when their courses are completed. Now, though, the hard-copy textbooks are not worth much. Students are trying to keep up with the times and cut down on their expenses: they want to re-sell the codes.

The question here is whether the students have the right to re-sell the codes, under copyright law. If so, or even if it’s a close question, then maybe this investment is worth a bet by Invest-a-Ton. If not, or if the question is undecided but not close, then maybe we should back off. Maybe we need to do more research into these “digital access codes” and how they work. Basically, we need guidance. Proceed? Don’t proceed?  Look harder – and if so, look for what?

I know enough about copyright law to know that you should probably look at recent developments in the “first sale” area, including the recent ReDigi case in New York and a recent case in Los Angeles called Disney v. Redbox. I’ve posted a copy of the Disney case below. It’s not clear to me that either case answers my question. Maybe the recent Supreme Court opinion in Impression Products v. Lexmark might help. Here is a link to that case. Obviously, of course, don’t limit yourself just to “first sale,” if your analysis takes you in a different direction.

Rules and Guidelines for Assignment Two

To the extent that these rules may appear to conflict with general advice regarding work product that appears in course-related webpages, these rules take precedence.

This is an “open” problem, meaning that there are no limits on the resources that you may bring to bear on your work. Among other things, you may consult with your classmates and other human beings. If you discuss the merits of the assignment with anyone, however, you must disclose that person’s identity on or in your work product. Write the names of any of these “consultants” at the top of the first page of the document.

Use your own name in the “From” field. Your work product is not anonymous.

Format

Your work product in response to this assignment should be formatted as an email rather than as a default or standard “legal research memo.” It must be typed or printed using a computer. Your email should consist of not more than 1,200 words, excluding the header (To, From, Subject line, Date). In printed form, it should have 1″ minimum margins on all sides.

So that your email can be uploaded to the TWEN system in Westlaw (see below) and graded electronically, you must use Microsoft WORD.

Grading

Memoranda will be graded based on form, format, and writing quality as well as on content. The assignments are designed so as not to have any single correct or even best solution. Each problem may present a range of issues that the memorandum should identify, analyze, and solve in a creative way.

Due date

One copy of the work product prepared for this assignment must be turned in not later than Friday, April 5, 2019, at 3 p.m.

Although the work product should be formatted as an email, electronic (e-mailed) copies are not acceptable. Work product slipped under anyone’s door are not acceptable.

There will be no extensions or exceptions to this deadline. Work product that does not conform to the format instructions above, or that is turned in late, is subject to grade reduction.

Assignment One

To: Outside Counsel
From: Chief Financial Officer, GamesRUs, Inc.
Re: Fortnite lawsuits
Date: February 1, 2019

We’ve been following the news over the last few months regarding the lawsuits filed against Epic Games and Fortnite. Fortnite has emotes based on dance moves created by various minor celebrities. The Techdirt website usually does a pretty good job of explaining current digital copyright issues, so we read this piece, which sort of seems to say that dances can’t be copyrighted:

https://www.techdirt.com/articles/20181227/14361041301/creators-dance-moves-suing-creators-fortnite-over-copyright-infringement-that-cant-possibly-have-happened.shtml

And we heard that Microsoft removed some dance emotes from its game “Forza Horizon 4,” but it didn’t really explain why.

We have been developing emotes for our new game, “Gotta Fly Now,” which hasn’t launched yet. As you know, we’re a small company; this is only our second product, and we can’t afford much in the way of legal expense. But we can’t succeed unless we stand out in the marketplace. The emotes in our development pipeline are all based on scoring celebrations in pro sports, especially touchdown celebrations from 2018-2019 in NFL football and goal celebrations from international soccer.

Here are some examples of what I mean:

Soccer:

https://www.sportskeeda.com/football/the-best-and-worst-goal-celebrations-of-world-cup-2018-ss

We are particularly interested in the “group” celebrations, but we are also developing emotes in our game that are based on player celebrations that themselves are based on “Fortnite” emotes. (Does “Fortnite” have copyright in its emotes? That just occurred to me.)

American football:

https://www.mensjournal.com/sports/the-best-most-ridiculous-nfl-touchdown-celebrations-of-2018/

A lot of these celebrations appear to be based on other events in sports and in entertainment.

Bottom line:

We need some guidelines for what is fair and what is safe in our game development process. One, we’d really like to use a lot of this material, because it could be profitable for us and could really help us get a commercial foothold in the industry. It could also help us really stand out in a creative way. Two, we’d really like to avoid getting sued. Who likes to get sued? Three, if we do get sued, we’d like to have a pathway to clear wins.

What do I tell my development team, and what do I tell my boss?

Thanks.

Rules and Guidelines for Assignment One

To the extent that these rules may appear to conflict with general advice regarding memos that appears in course-related webpages, these rules take precedence.

This is an “open” problem, meaning that there are no limits on the resources that you may bring to bear on your work. Among other things, you may consult with your classmates and other human beings. If you discuss the merits of the assignment with anyone, however, you must disclose that person’s identity on or in your memo. Write the names of any of these “consultants” at the top of the first page of the memo.

Use your own name in the “From” field. The memos are not anonymous.

Format

You should use the default or standard “legal research memo” format for this assignment. Memos must be typed or printed using a computer. Each memo, including any attachments, must be not longer than four [4] typewritten or printed pages, double-spaced, with 1″ minimum margins on all sides. (“To,” “From,” “Re,” and “Date” headings may be single spaced.) You do not need to include a comprehensive statement of the facts; instead, you may refer to the factual background in my memo to you. A factual summary may be helpful, however, in framing and presenting the analysis of the memo. No footnotes are permitted. The following font must be used: Twelve [12] point Times New Roman.

So that the memos can be uploaded to the TWEN system in Westlaw (see below) and graded electronically, you must use Microsoft WORD for the final version of the memo.

Grading

Memoranda will be graded based on form, format, and writing quality as well as on content. The assignments are designed so as not to have any single correct or even best solution. Each problem may present a range of issues that the memorandum should identify, analyze, and solve in a creative way.

Due date

One copy of the work product prepared for this assignment must be turned in not later than Friday, February 15, 2019, at 3 p.m.

Memos must be turned in via the course TWEN page (on Westlaw), by depositing an electronic copy in the TWEN “Drop Box” for Assignment One for this course. Electronic (e-mailed) copies are not acceptable. Memos slipped under anyone’s door are not acceptable.

There were be no extensions or exceptions to this deadline. Memoranda that do not conform to the format instructions above, or that are turned in late, are subject to grade reductions.