COPYRIGHT LAW MEMO ASSIGNMENTS – SPRING 2013

Each memo assignment for Copyright Law – Spring 2013 will be posted here approximately two weeks before the memo is due. Time in class will be set aside to discuss questions relating to each assignment.

For students who want to know more about the writing assignments for this course, this is a link to the memo assignments from Spring 2010. That link includes links to the best memos written in response to the first assignment from that version of the course.

You may also review this “How to Memo” document, which summarizes my advice for writing a great memo in my Trademark Law and Copyright Law courses.

Assignment Three

To: Outside Copyright Counsel, Yubet, Urlyfe & Hope
From: General Counsel, Bongo Beans Coffee, Santa Monica, California
Date: April 17, 2013
Re: Demand Letter Recently Received

I need your help in crafting a response to a demand letter that Bongo Beans Coffee recently received from Random House and Penguin concerning a copyright matter. I contacted your colleague in the employment law department about this, because most of the BBC legal work that I deal with and refer to your firm consists of employment law matters; when it comes to copyright law, I am out of my depth. She referred me to you.

As I’m sure you know, RH and Penguin are two major book publishers and e-book distributors in the United States. Bongo Beans Coffee is a small company that operates 9 upscale coffee boutiques in the greater Los Angeles area. BBC prides itself on offering great coffee products (drinks and beans) and a comfortable environment where our customers can sit quietly and read, socialize, or work. We try to market our stores as havens for lovers of books and literature. (Our advertising features the slogan, “Curl Up With Us.”) We offer meeting spaces where book clubs meet, we sell books (printed books) in partnership with local bookstores, we hire English majors and people with graduate degrees in literature to make the coffee (and offer literary criticism to our customers), and our stores look a bit like 21st century libraries.

We’re not Luddites, however; we embrace literature in all of its forms, including e-books. Lots of our customers bring Kindles and iPads and Nooks to our stores and wile away the hours, drinking our coffee and reading on these devices. Because of our partnerships with local bookstores, we have experimented with sometimes offering Kobo eReaders for sale in our stores. Kobos, as you probably know, are e-book readers that are often favored by independent book stores and their customers. We have sold some Kobos, but under our deals with the bookstores we haven’t received any profits. The point is to make our stores welcoming to readers of all sorts. We also offer free wireless service in our stores, so I assume that our customers take advantage of that to download e-books while they are in our stores.

It’s the e-book part of the story that has us in apparent hot water with RH and Penguin. Their demand letter, which I’m sharing below, claims that BBC is liable for contributory and vicarious copyright infringement in connection with the public display of e-books in BBC stores by our customers. RH and Penguin are threatening to sue BBC if we don’t come to an acceptable licensing arrangement within 30 days. While I think that RH and Penguin are crazy – how can it be illegal for a coffee shop to permit people to read books while drinking their coffee? – I can’t afford a lawsuit.  At least I can’t afford to lose a lawsuit.  But I also can’t afford their demand – 1% of gross revenues.  Our ASCAP and BMI licenses already eat up more of our revenues that I can afford.)

Can you please put together a review of the legal issues here, assessing our strengths and weaknesses and giving me a sense of how I should respond? I don’t want the response to come from outside counsel; I’m guardedly optimistic that a response from me will keep tempers from flaring. But I need your guidance regarding what points to make. Thanks.

Here is the demand letter. [Update posted April 24, 2013:  The reference to Section 106(4) in the original demand letter has been changed to a reference to Section 106(5), per a suggestion by a sharp-eyed reader.  Was the original reference to Section 106(4) a typographical error, a bit of sloppy analysis by the author, or a genuine suggestion that Section 106(4) might have something to do with this matter?  It was clearly the first, although the other possibilities are worth some thought.  Prof. Madison]

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 memo. Write the names of any student “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

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.

Grading

Memoranda will be graded based on form, format, and writing quality as well as on content.  To be more precise, each  memo is evaluated along the following five dimensions:  writing; organization and clarity; legal analysis; sophistication with which factual questions are handled; and responsiveness to the question(s) asked.  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 hard copy of the work product prepared for this assignment must be turned in not later than Friday, May 8, 2013, at 12 NOON. Memos may be turned in either to the Registrar’s Window or to the secretary in Room 314, or handed personally to Professor Madison. 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.

Assignment Two

To: Junior Copyright Lawyer
From: Senior Copyright Partner
Date: March 22, 2013
Re: Re-Generator Research

Our client, Wunderbar Comics, is in the middle of a negotiation with Engulf and Devour Studios, a major Hollywood movie studio, regarding the rights to Re-Generator, one of the Wunderbar portfolio comic characters and action heroes. The negotiations have hit a snag, and we need you to do some research to see whether we can put the deal-making back on course.

As you may know, Re-Generator is a key part of the Wunderbar comics universe. Re-Generator has been the featured character in over 250 comic books over the last dozen years (the first was published in the US in 2000, and translations appeared in China, Japan, South Korea, Germany, and Spain beginning in 2005). The character has also made guest appearances in several other Wunderbar comic series during that time. Re-Generator is a being of indeterminate gender and does not wear any special costume. The character has an essential character trait, which is the ability to re-generate part or all of its body if it is wounded or even killed. Each full-body re-generation yields a human-like form (overall size and appearance, including face and hair) that differs from the character’s prior form; mere limbs, etc. are re-generated as they were before. Re-Generator was the product of two other Wunderbar characters mating at a point in time when both of them had been irradiated, but when neither was aware of that fact. Re-Generator’s DNA is, therefore, subject to a unique mutation. This makes the Re-Generator effectively indestructible, although the re-generation time lasts from an hour to a full day depending on the severity of the injury. Villians, accordingly, can do real harm and escape to fight another day.

Here’s the issue for research: Engulf and Devour, the studio, wants to acquire an exclusive license to all rights to the Re-Generator character and relatives and all Re-Generator stories published and yet to be published, worldwide and through the universe. Engulf and Devour intends to use the character in feature films, animated films, TV shows, webisodes, music videos, and video games and intends to produce a variety of ancillary merchandise – figurines and children’s toys, games and stuffed (plush) figures, clothing, and so on. Engulf and Devour is particularly interested in producing a series of Re-Generator theme park rides.

However, Wunderbar has already developed an existing and highly lucrative line of figurines and ancillary Re-Generator merchandise, including children’s toys, based on the Re-Generator comic books. Wunderbar has also licensed images of the Re-Generator character to the Six Flags theme parks, and to a line of energy drinks. Because Wunderbar makes a lot of money from these deals and insists on continuing to collect those revenues, Engulf and Devour is willing to permit Wunderbar continue to produce and distribute its existing Re-Generator merchandise, and to see these other deals through to their planned conclusions (the existing Wunderbar deals are due to expire in five years) so long as Wunderbar does not introduce any new items or re-new any of its current licensing deals. Wunderbar would continue to produce new Re-Generator comic books.

Both sides, however, are worried about the risk that imported counterfeit and pirate Re-Generator products may appear shortly after Engulf and Devour launch new Re-Generator films. They are worried that the fact that both Wunderbar and Engulf and Devour will have interests in Re-Generator will complicate Engulf and Devour’s ability to enforce their rights against the pirate products. Engulf and Devour doesn’t want to have its power to block counterfeit products complicated by Wunderbar’s presence in the marketplace. How substantial is that concern? Is there a way to design the deal between Wunderbar and Engulf and Devour so that the power to deal with counterfeit Re-Generator merchandise can be maximized and simplified? Can you either come up with a deal structure that solves this problem, and explain how that structure provides a workable solution, or explain why the problem is not worth worrying about. Wunderbar doesn’t want to lose this deal, but it also does not want to lose its existing revenue streams.

Rules and Guidelines for Assignment Two

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 student “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

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.

Grading

Memoranda will be graded based on form, format, and writing quality as well as on content.  To be more precise, each  memo is evaluated along the following five dimensions:  writing; organization and clarity; legal analysis; sophistication with which factual questions are handled; and responsiveness to the question(s) asked.  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 hard copy of the work product prepared for this assignment must be turned in not later than Friday, April 5, 2013, at 3:00 pm. Memos may be turned in either to the Registrar’s Window or to the secretary in Room 314, or handed personally to Professor Madison. 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.

Assignment One

To: Outside Copyright Counsel
From: General Counsel, Poster Child Fine Arts Institute
Date: February 8, 2013
Re: Fair Use Guidance

Thanks for sending over the recent District Court opinion in Morris v. Guetta (the “Mr. Brainwash case”). I agree, as you wrote in your cover note, that it’s a troubling opinion from the standpoint of visual artists who train as and style themselves as appropriation artists and street artists in the tradition of Jeff Koons, Shepard Fairey, and Banksy.

As an educational institution committed to training the next generation of artists, Poster Child Fine Arts Institute believes that it should educate its students not only in relevant artistic disciplines but also in ways to work effectively and constructively with relevant law – particularly copyright law. Often, as you know, it is simply impractical for our students and our alumni to secure permission from all of the rights’ holders with respect to work that becomes the subject of new work. Fair use is an essential tool in our students’ artistic repertoire, so to speak.

Taking account of what the court wrote recently in the Morris case, against the background of fair use cases that the court relies on, can you write up a set of guidelines that I can use with our students to maximize the likelihood that they can avoid copyright problems, and confidently rely on fair use justifications, in the future? What I need is a short summary of do’s and don’ts, justified and explained with reference to the cases.  I take it that you think that some or even all of the Morris case is badly reasoned, and if you think that other courts would not follow it, you should, of course, indicate where our students may, in your judgment, safely chart a different course.

Some relevant information – a link to the Morris opinion, for your easy reference, and a link to the website of “Mr. Brainwash” (Guetta, the defendant in the case) – appears below. I’ve also included links to copies of the Morris photograph of Sid Vicious and to one of the infringing works at issue in the case, and to a blog post that points to other instances in which Mr. Brainwash has been accused of improper appropriation.

Many thanks.

Top-scoring memos for Assignment One (these are not model memos, but instead the memos that received the highest scores in the class):

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 student “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

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.

Grading

Memoranda will be graded based on form, format, and writing quality as well as on content.  To be more precise, each  memo is evaluated along the following five dimensions:  writing; organization and clarity; legal analysis; sophistication with which factual questions are handled; and responsiveness to the question(s) asked.  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 hard copy of the work product prepared for this assignment must be turned in not later than Friday, February 22, 2013, at 3:00 pm. Memos may be turned in either to the Registrar’s Window or to the secretary in Room 314, or handed personally to Professor Madison. 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.