Copyright Law Memo Assignments (Spring 2009)

Assignment Three

This assignment is directed to you in your role as a student.

Consider the various sections of the Copyright Act, and the various judicial opinions, that we have studied this semester. Identify a section or subsection of the Copyright Act, or a judicial opinion interpreting the Act, that you believe should be changed. Describe how the statute or the case represents poor copyright policy and/or a mistaken interpretation of the statute. State the language of your revised statute (if you choose a statute, or if you choose to overrule a case via statutory reform) or state, in concise terms, what you believe the holding should have been (if you choose a case and choose to distinguish or overrule it via further litigation). Explain exactly how and why your proposal is superior to the rule that it replaces in advancing copyright law and policy. As appropriate based on your proposal, either discuss the likelihood that your proposed revision could be enacted by Congress, and any obstacles to its enactment, or discuss the likelihood that in a future lawsuit, a court could be persuaded to follow your reasoning rather than the precedent that you wish to distinguish or overrule.

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.

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.) There are no “facts” for this problem, so you do not need to include a statement of facts, or a separate issue, or a brief answer.  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 problems are designed so as not to have any single correct or even best solution.

Due date One hard copy of the work product prepared for this assignment must be turned in not later than Tuesday, May 12, at 12 noon. Memos may be turned in either to the Registrar’s Window or to my secretary, Ms. Melissa Shimko, in Room 314. 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, 2009
Re: Rollercoaster License Issue

Our client is Top 5 Films, a Hollywood film company.  Top 5 produced “The Red Baron,” a live action film based on the comic book series of the same name and featuring the Red Baron, a human superhero who dresses in a modernized version of the flying dress worn by Baron von Richthofen, the celebrated ace of World War I.

Top 5 has brought us an interesting copyright question regarding its rights in The Red Baron character.

To produce The Red Baron, Top 5 signed a copyright license and motion picture development agreement with Championship Comics, which owns all of the copyrights in Red Baron comic books, including stories, graphics, and characters. That agreement granted Top 5 an exclusive license “to develop, produce, and distribute motion picture adaptations of the copyrighted content contained in the Red Baron comic books and to produce and distribute promotional materials and devices associated therewith.” Top 5 is authorized to register a copyright in the film and in its promotional materials and devices, but its rights do not include the right to prepare derivative works based on those things. Championship Comics reserves all rights to reproduce and adapt the Red Baron comic book series and its copyrighted content in all other media. No filmed versions of the Red Baron had been produced before.

The original Red Baron motion picture was released in 2007 and starred Paul Giamatti as the main character. In costume and in makeup, Giamatti bore an uncanny resemblance to the Red Baron who appears in the comic books. The motion picture grossed $225 million in worldwide release and was the #1 movie for 2007.

The agreement includes a royalty scale that grants Championship Comics a percentage of Top 5’s gross revenues associated with products produced and distributed under the agreement.

Here is the issue. Last week, one of Top 5’s senior vice presidents read a press release announcing the Spring 2009 opening of the “Red Baron” rollercoaster ride at Five Flags, an amusement park in Southern California. The release describes the roller coaster as “based on the comic book series that was recently made into a major motion picture.” The photos of the ride that are included in the release show that its colors and graphics, while animated rather than photographic, are strikingly similar to the Red Baron character as portrayed in the motion picture.  The release suggests that as riders progress through the ride, they see graphics that track the basic story line of the comic book series.  (How they can do that in a 100-second thrill ride is beyond me!)  The ride apparently also makes references to characters that are parts of the Red Baron comic book series, but that did not appear in the licensed motion picture.

Top 5 wants to take the position that the rollercoaster ride constitutes an adaptation of the copyrighted Red Baron content as part of a promotional device covered under the original exclusive license, meaning that it is entitled to gross revenues associated with the ride and only owes Championship Comics a scheduled royalty. I strongly suspect that Championship Comics will argue that the rollercoaster ride does not constitute a promotional device that adapts the Red Baron comic book characters. Instead, Championship Comics will argue that the rollercoaster ride uses reproductions of the Red Baron comic book characters, and that Top 5 has no rights in the ride.

This is the kind of issue that can be solved only be a really close examination of the language of the license and the distinction between a derivative work and a reproduction of a copyrighted work. Can you take a look at how the rollercoaster should be classified and let me know what I should advise the client? Do we have a leg to stand on here, and if so, what does that leg consist of?

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.

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. No footnotes are permitted. However, you may find that a summary of the relevant facts is helpful. 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 problems are designed so as not to have any single correct or even best solution. Each problem will 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 3, 2009, at 12 noon. Memos may be turned in either to the Registrar’s Window or to my secretary, Ms. Melissa Shimko, in Room 314. 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

You are lawyer at a small law firm that represents the Associated Press on copyright matters.

To: Junior lawyer
From: Senior lawyer
Re: Request for permission
Date: January 10, 2008 [note the date]

I need you to work up some advice for our client, the Associated Press. It seems that someone working with or for the campaign of someone named Barac Obama (I’m not sure who he is, and I’m not sure exactly who is making the request) has sent in a request to license a copyrighted image shot by one of our photographers. Apparently, they want to make a campaign poster out of the image. They’d like to clear the rights (and, of course, the AP would like to maintain its policy on using its copyrighted images, and would like to collect a royalty), but they’ve also made it clear that if the AP isn’t reasonable, then they are going ahead with plans to use the image anyway.

I’ve included the photograph below, and I’ve included the poster that this guy (Fairey is his name) has put together so far. To my knowledge, the poster hasn’t been released publicly.

The AP has a standard rate schedule for political campaigns that want to use its copyrighted photo. What I’d like you to look into is this. What is the likelihood that if the campaign doesn’t want to pay the standard fee, and they use the photograph anyway, then the campaign will have a decent shot at winning a fair use argument? (This sounds to me like a pretty standard clearance problem. Am I missing something here?) If it turns out that their fair use position is pretty good, then the AP may need to re-think its rate schedule.

Once you’ve walked me through the fair use claim, I’d like you to include a recommendation regarding how the AP should negotiate in response to the request (not just whether or not it should negotiate, but how strong or measured it should be in asserting its copyright interest).

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.

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. No footnotes are permitted. However, you may find that a summary of the relevant facts is helpful. 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 problems are designed so as not to have any single correct or even best solution. Each problem will 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 20, 2009, at 12 noon. Memos may be turned in either to the Registrar’s Window or to my secretary, Ms. Melissa Shimko, in Room 314. 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.