COPYRIGHT LAW MEMO ASSIGNMENTS – SPRING 2014

Each memo assignment for Copyright Law – Spring 2014 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.

The rubric used to mark the memos is available here.

Assignment Three

To: Junior Lawyer
From: Senior Lawyer
Date: April 16, 2014
Re: Stayin’ Alive Issue

[Note that the problem below relies on some real facts about the world but combines them with some fictional facts. In the real world, Barry Gibb controls the copyright to the song Stayin’ Alive. You should analyze the problem according to the facts given, rather than according to the real world facts.]

Our firm has been approached with an unusual request by Barry Gibb, the last remaining member of the Bee Gees, the superstar musical group that had its greatest fame during the disco era of the 1970s.

Apparently, Bruce Springsteen recently released a new album, and as part of Springsteen’s tour he played several concerts in Australia, where the Bee Gees (the B and G stand for “Brothers Gibb” — Barry and his brothers Maurice and Robin) were raised. During at least one of Springsteen’s Australia tour stops, he performed a live cover of the song Stayin’ Alive, composed jointly by all three Bee Gees and released as part of the Saturday Night Fever soundtrack in late 1977 or early 1978. Springsteen’s people apparently secured permission for the performance through the firm that owns the publishing copyright in Stayin’ Alive rather from the Bee Gees themselves. Barry confirmed to me that in their pre-Saturday Night Fever, pre-superstar phase, as songwriters the brothers were willing to assign copyrights in their music to third-party music publishers. They assigned the copyright to Stayin’ Alive to the American arm of Pickwick, which is owned by a UK parent.

As a result, while the Bee Gees received handsome royalties from their publishing agreements, and continue to do so, they do not own the copyrights themselves and cannot and do not control uses of the works. Moreover, the copyright owner – Pickwick – is pretty promiscuous with licensing the publishing. Section 115 and Harry Fox licenses in the US permit any qualifying person to record and distribute a cover, but Pickwick will permit virtually anyone, such as Bruce Springsteen, to pay for the right to perform the songs. Stayin’ Alive is in the BMI (Broadcast Music Inc.) repertoire; Springsteen’s people (and anyone else, for that matter) can obtain public performance rights by navigating the BMI website.

Here’s the problem: Barry Gibb’s brothers Maurice and Robin are now deceased. Stayin’ Alive was the Bee Gees song most beloved by Maurice and Robin. Barry – who claims that he believes personally that Bruce Springsteen is a musical genius – claims that his late brothers hated the man that fans call “the Boss” and would be horrified to learn that Springsteen is performing Stayin’ Alive in public. Barry loved his brothers, and to honor their wishes he wants to stop Bruce – and stop anyone else – from playing that song in public.

Barry wants us to outline his options. He wants to put a stop to all public performances of Stayin’ Alive, anywhere, except those specifically authorized by him personally. Is that even possible? If so, how? If not, why not?

I need your memo, four pages maximum, by Wednesday, May 7, 2014, at 12 noon.

Rules and Guidelines for Assignment Three

[The following is substantially identical to the Rules and Guidelines for Assignments One and 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 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

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. 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 Wednesday, May 7, 2014, at 12 noon. Memos may be turned in either to the Registrar’s Window or to Ms. Caitlin O’Connell, in Room 514, 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 Lawyer
From: Senior Lawyer
Date: March 20, 2014
Re: E-Books Issue

As you know, our firm represents a number of publishers of electronic books.  As you probably also know, a large portion of their catalogs consist of e-book versions of previously published works.  For several years, we have advised those firms that their business models were relatively safe, as a matter of copyright law, in light of the well-known decision in Random House v. Rosetta Books.

A very recent District Court decision calls that advice in question.  I need you to take a look at the new opinion and put together a short memo that I can use in advising clients regarding its implications for their business.  Among the things I need to understand are these:  Is the law changing?  If so, how?  If not, why not?  When our clients identify authors and works to use in producing new e-books, in light of this case what are the legal and factual questions that they should ask in order to minimize their copyright risk?  What are the answers they should be looking for?

You can find a copy of the new case (HarperCollins Publishers v. Open Road Integrated Media) here.

I need your memo, four pages maximum, by Friday, April 4, 2014.

Rules and Guidelines for Assignment Two

[The following is substantially identical to the 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

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. 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 4, 2014, at 3:00 pm. Memos may be turned in either to the Registrar’s Window or to Ms. Caitlin O’Connell, in Room 514, 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: Junior Attorney
From: Senior Attorney
Date: February 5, 2014
Re: Luminous Fish Matter

Our firm represents GlowFish, a firm that creates and sells transgenic animals, specifically fish. Glowfish engineers use existing recombinant DNA technology to insert foreign genetic material into the genome of an existing animal. In their case, GlowFish inserts a green fluorescent protein (gfp) gene into the genome of the zebrafish. The foreign gene codes for luminescence – that is, color; it originally was extracted from jellyfish. These genetically-modified (GM) fish are now sold in pet stores and come in several fluorescent or luminous colors: bright red, green, orange-yellow, blue, and purple. Needless to say, zebrafish do not otherwise come in colors.

Our client has obtained relevant patents on the technology behind the GlowFish and trademark registrations on the product names. However, it badly wants to complete its intellectual property portfolio and obtain copyright registrations for each of the fish. As you know, registering a copyright is not required in order to prove that a work is protected by copyright. But Glowfish wants to get the registrations anyway, because (as you also know) a certificate of registration provides a strong presumption of copyright validity.

As a test case, our firm submitted an application to the Copyright Office to register the red Glowfish as a sculptural work. The theory is that the fish is a work of art, much like the “glowing” rabbit named Alba that was once created by the artist Eduardo Kac using similar recombinant DNA technology. But unlike Alba, which was a one-of-a-kind rabbit, the fish sold by GlowFish are products. Glowfish wants to copyright the Glowfish products to prevent the kind of anti-competitive conduct that copyright is usually meant to prevent or punish: piracy.

Anyway, the Copyright Office rejected the Glowfish registration on the ground that registration was barred by Section 102(a) of the Copyright Act. (That is all that the Office said – it provided no details.) We have the right to submit a response to the Office, contesting the denial. Can you write up a memo – not more than 4 pages total – that outlines how Glowfish should argue its case? Be sure to indicate where the case remains weak.  Even if we go ahead, I want to be sure that the client understands the odds of prevailing.

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

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. Including 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. 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 21, 2014, at 3:00 pm. Memos may be turned in either to the Registrar’s Window or to Ms. Caitlin O’Connell, in Room 514, 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.