These are problems related to Prof. Eric E Johnson's in-development casebook on copyright law

Table of Contents

Problem Sets for Arc 2: Material Subject to Copyright

Set 210: Some Hypotheticals

This problem set concerns the readings and subject matter across Arc 2.

211 Liquor Store Robbery Gone Hilariously Wrong

A security camera in a liquor store captures video of an attempted nighttime robbery gone hilariously wrong. The single camera is installed as high as possible in the corner against the back wall furthest from the street and the side wall behind the cash register counter. It’s a wide angle lens that takes in the whole retail floor. This is the standard, recommended position and lens if there’s only one security camera installed.

Two masked men armed with what appear to be pump action shotguns enter the store. They gesture angrily and point their guns. The clerk, who is also the owner of the liquor store, can be seen reacting with initial fear, but he then nearly collapses into fits of hysterical laughter as he gestures to the guns. As it turns out, these are foam-dart shooting toys that have been hastily spray painted black. (The backstory is that the store owner is constantly annoyed by his own children trying to stage special operations assaults in the store after hours.) The store owner can be seen gesturing to the robbers’ guns and picking up a handful of foam darts from a bowl behind the counter.

At this point, the robbers can be seen starting to argue angrily with one another, and one – the apparent leader – grabs a candy bar from a nearby rack, peels off the wrapper, and begins chewing while he seems to be think over what to do next. Meanwhile, a racoon can be seen through a window slowly approaching the left-open front door. When the candy-chewing robber opens a second candy bar even before he’s done with the first, the racoon springs into motion. With lightning, animal speed, the raccoon executes a series of jumps up shelves and racks and then vaults onto the robber's ski-masked face to take the candy. That robber panics hilariously, drops the candy, and – as the comedy coup de grâce – the second robber begins firing foam darts at the retreating raccoon.

The robbers look at each other. Then, after a beat, they make a flailing panicked exit out the door and into the night.

Your client wants to use the footage in a video they’re making. Or maybe it’s a movie they want to take to a film festival.

Can your client copy and use this footage without getting anyone’s permission? If they need permission, whose do they need?

If there’s uncertainty regarding these questions, or if there’s a potential for a lawsuit that, while ultimately non-meritorious, could be brought without being sanctionable, then what would be the best arguments for and against copyright liability here?

212 Press Conference and Podcast

You are doing a true-crime podcast. You want to include audio of a district attorney giving a press conference on the courthouse steps. A video of the press conference reveals that a dozen different news outlets – including radio and television stations and some cable news networks – had microphones clamped to a bare-bones podium that had been set up for the D.A. to speak from. You can tell which station’s mic is which, because they all have colorful little signs displaying the station/network logo. (Those three-sided or four-sided things with the logos – those are called “flags” in the broadcasting business.)

All the microphones are clustered tightly together, all pointed straight up, toward where the D.A.’s mouth will presumably be.

One video posted online actually shows the 10 minutes before the D.A. comes out. You can see news people putting their mics on the podium. Every single person who places a mic seems to just try to find the closest position that remains open. The bouquet of microphones grows from the center out.

In the video, you can even see the particular set up used by one radio station, KWX. A woman in a KWX-embroidered-logo polo shirt attaches to the podium what looks like a KWX-flagged microphone that’s missing the top part. This person pulls out a brand-new digital voice recorder (a rectangle about 1 x 3 x 1/4 inches) from blister packaging, yanks out the battery tab, presses record, and then puts the recorder into a little holder on top of microphone thing. She then covers the digital voice recorder with a foam-sponge ball. Now it looks like a regular, old-style microphone. (You didn’t know they did that.)

Anyway, all those radio and TV stations and networks posted the audio to their websites, where you can download it. You called one TV network to ask for permission, and they quoted you $10,000 for a license that would only last for one year, renewable for $3,000 a year thereafter.

You’re just an amateur podcaster. So now you’re afraid to call anyone else to ask for permission.

You’ve listened to the audio from all the news outlets. It all sounds pretty much the same.

Can you use one of the audio recordings in your podcast? Why or why not?

If there’s uncertainty about the outcome, or if there’s a potential for a lawsuit, then what would be the best arguments for each side in the litigation?

Set 220: Some Realotheticals

This problem set regards materials from across Arc 2.

221 Whale Songs

Facts

Dr. Roger Payne, a biologist did his Ph.D. research on the sound emitted by owls and bats. One evening he visited a beach with a dead porpoise that had washed ashore. The carcass had been hacked up and vandalized by beachgoers. You could say the whales body had been desecrated. The moment was life-changing for Payne.

Payne's interest in whales and sound then led him to whale songs.

Payne found out about a research program of the U.S. military in which recordings were made of sounds under the surface of the ocean. The program obtained underwater sounds by using an underwater microphone, called a "hydrophone." The purpose of the research program was to listen for sounds of Soviet Navy submarines. Frank Watlington, working with the program and stationed in Bermuda, had the job of listening to and recording the output of an offshore hydrophone.

Watlington noticed that sometimes whales came by and made the same pattern of vocalizations over and over – a whale song.

Payne heard word of this somehow – the U.S. military, it seems, had decided to substantially declassify much of its underwater listening research. Payne contacted Watlington and asked for a copy of recordings Watlington had that featured whales. Watlington asked for and received permission from his superiors and then provided Payne with copies of recordings.

Captivated, Payne started venturing out to make his own recordings. He ended up producing an album, Songs of the Humpback Whale, which included some of Watlington's recordings and some of those Payne did himself.

The album was released on the Capitol Records label in 1970. It was a hit. It also tugged and conscience of thousands, maybe millions of people. Looking back, the record has been credited with helping to launch the whale conservation movement as well as helping cinch agreement on international agreements that paused and limited whale hunting.

Here's some detail about some of the tracks on the album:

Side 1, Track 1, “Solo Whale,” is part of a Frank Watlington recording of a humpback whale that came by the hydrophone placement and spent the afternoon singing a whale song over and over. The hydrophone was located at depth of 1,500-feet off the Bermuda.

The album notes include the following: “Two songs have been selected for this record; they have been slightly edited by cutting out parts of two long repetitive sections. Except for these deletions, the sounds have not been altered in anyway—there is no speeding up, slowing down, or other modification of the sounds made by the whale. Presumably this is the way the songs sound to other whales.”

Side 1, Track 2, “Slowed-Down Solo Whale,” is two portions of Track 1 that feature the whale's higher pitched sounds. As the album notes explain, for this Track 2, the playback has been slowed to 25% of the original speed. This has the effect of lowering the pitch by two octaves and lengthening the time four-fold. The album notes say: "The echoes are very noticeable in this slowed-down version, because the echoes of the earliest sounds overlap the later sounds in a very intricate and beautiful way." The notes disclose that the slowed playback was done "to demonstrate the fantastic complexity of the highest tones in the Humpback songs."

Side Two of the album is one long track called “Three Whale Trip.” This track is from Payne's own recordings. Payne and his wife took a sailboat out into Bermuda waters and used two hydrophones lowered into the water to a depth that was not very far below the surface. (Presumably, Payne was limited by a relatively modest amount of cabling.) The back-cover notes are upfront that near the surface is “where wave noise is loudest,” but the text suggests that after listening for a few moments, "you will learn to hear much as a whale probably does, ignoring the background noises and focusing on the whale songs.”

Regarding the Side Two track, the notes quote Payne: “We found one spot ... where the sounds of whales blended in a very lovely way." While Payne and his wife tried many locations, this one was, Payne says, a "favorite listening spot.”

Payne goes on to say that the Side Two track "is actually made up of four separate sections of our original recording spliced together. You will gains some idea from this side of the variety of whale sounds.” Payne also notes with regard to this track that “some repetitive sections” were deleted.

Question 221-A

Without obtaining anyone’s permission, could you copy and redistribute the album? (Here “album” means the sound recording on the record; not the cover art or text.)

And if there’s uncertainty about the outcome, or if there’s a potential for a lawsuit, then what would be the best arguments for plaintiffs and for defendants?

Question 221-B

Without obtaining anyone’s permission, could you copy and redistribute isolated portions of the sound recordings from the album?

Again: If there’s uncertainty about the outcome, or if there’s a potential for a lawsuit, then what would be the best arguments for each side?

222 Telescope and Galaxy

Scientists using the Gemini North 8.1 meter telescope on Mauna Kea in Hawaii took an image of galaxy NGC 3359. You can see the image below.

Is the image protected by copyright?

If there’s uncertainty about the outcome, or if there’s a potential for a lawsuit, then what would be the best arguments for either side?

Would you want to know more about the image and how it was captured before answering?

If so, look below the picture and read on.

(And if you are my student and I assigned this, I insist that you look below the picture and read on. 😉 )

I knew you wanted more information!

I've discussed this image in IP classes for many years, and students always want to know more. Lots more. That's great, of course, but they always seem to be skeptical of my knowledge of astronomy. Hmph. It doesn't matter how much I've learned over the years from watching NOVA on PBS, reading Wikipedia, chatting up scientists at university faculty functions, etc. Law students are often skeptical of my autodidacticism.

Fine. Have it your way.

All of the following information (except where noted) comes direct from the website of NOIRLab. The Gemini North telescope is part of the International Gemini Observatory, which is one of NOIRLab's operations. NOIRLab is an entity operated by the Association of Universities for Research in Astronomy, Inc. (AURA). AURA claimed copyright in the image at one point.

The image was taken with the Gemini Multi-Object Spectrograph (GMOS), which is described as a "scientific instrument" that is used in combination with the Gemini North telescope. The GMOS detects light in the 0.36–1.03 micrometer wavelength range, and when operating it, you can select from four modes. But three of the GMOS's modes are "spectroscopic." The GMOS only has one imaging mode.

Did you not know what "spectroscopic" means? Are you unclear on the function of the GMOS? Well, well. The technical information on the NOIRLab website is not really written for a general audience. Or law students. It's written for astronomers. So they aren't going to explain the role of the GMOS or what "spectroscopic" means. That's because scientists tend to have a strong aversion to stating anything they deem obvious.

So, if you can bear to hear a legal scholar explain it to you, here goes: The GMOS "spectroscopic" modes are useless if you want to take a picture of something because those are for when astronomers just want to analyze the light itself. If they collect a bunch of light, determining what the light intensity is a certain wavelengths, they can learn stuff from that. But it's not a picture, it's just data. Though you can turn it into a graph, if you like. So, for taking pictures, there's only the one mode on the GMOS.

Now what is the GMOS? The GMOS is essentially a camera without a lens – a "camera body." You've seen those big cameras wielded by professional photorgaphers – with the detachable, changeable lenses. You know – the things held to the face of one-eye-closed sports photojournalists a yard or so outside the endzone at football games – at a serious, imminent danger to their dental health. Well, the GMOS is like one of those cameras (sans lens, "camera body"), and the telescope itself functions as the giant lens screwed into the hole on the front of the camera body.

Now inside the camera body, up against the very back of the camera and centered behind the lens hole is a frame of film (if it's old school) or for electronic/digital cameras an "image sensor," which is a semiconductor chip with an array of tiny light-sensitive cells spread over its surface. So the GMOS is a big box clamped on to the bottom part of the telescope, the inside of which has an array of tiny light-sensitive cells for detecting visible light and turning detected light into electronic signals so as to capture a two-dimensional image of the two-dimensional area of the sky the telescope is aimed at.

The GMOS is pretty sophisticated: The website discloses that it's got a mechanical system designed to minimize effects of tilts, flexures, and warping caused by gravity. The object of all that, the website says, is to keep the focus as sharp as possible.

Now, if you are granted time on the Gemini North telescope – which does seem like a long shot for a law student – it's not impossible to convince the Gemini people to let you attach a different camera body to the telescope. But the NOIRLab website says the GMOS is the "workhorse instrument" for doing "observations at visible wavelengths."

According to the website, NGC 3359 is a galaxy that is about 49 million light-years away. It is fairly close as galaxies go, and can be seen with portable hobbyist telescopes.

This particular image – and all this is according to the website – is a color-composite made of four individual images, each of which was taken with one of four different filters: the g (475nm, blue), r (630nm, green), i (780nm, orange) and h-alpha (656nm, red) filters.

The technical write-up discloses that you cannot go filterless. You must use at least one filter with the GMOS. And if you are trying to take an image (i.e., picture to look at instead of just gathering data about light) then there are a total of 14 filters kept on-site that you can use.

Now, if you want a color image (as in multi-colored and not black-and-white or monotone), then the website has no instructions I could find about how to do this. So you'll just have to believe me when I say that it seems pretty clear that based on how the GMOS light sensor works, to get a color image you will need to take multiple images with different filters that bring out different parts of the color spectrum, and then you'll need to combine those to form a color-composite.

It's like how your retina (assuming you're not colorblind) has three different cone cells corresponding to three primary colors, and then your brain assembles the signals into a full-color perception of the visual field.

Now the particular combination of filters used with the above image (g, r, i, and h-alpha filters) appears to be quite common. I randomly pulled three other color images of galaxies taken with Gemini North and GMOS, and all of those images were made using this exact same combination of g, r, i, and h-alpha filters so as to create the color-composite image.

Set 230: Cantwell’s CLE on Copyright Law

This problem set regards materials from Arc 2 §§ A.1, A.2, & E.

Problem 231

You’re at the last session of a day-long CLE event. (“CLE” stands for “continuing legal education” – something lawyers have to accumulate hours of periodically for bar license renewal.) The speaker is Chesterfield W. Cantwell, a partner at the law firm of Cantwell Reid LLP.

Here’s a transcripted portion:

4:59 P.M. C.W. CANTWELL:

“If your client has come up with a newly invented word and they want to protect it – like something they might want to use in business, like a clever product name – you want to help them copyright that as soon as possible! What if some random stranger overheard your client say the word out loud? That stranger could run off and copyright the word first. And then your client would be out of luck.”

You’ve made friends with the lawyer sitting next to you, and they ask, “Is that right?”

What will you say to your new friend to explain what’s wrong with Cantwell’s statement?

Problem 232

(Continued ... )

The session was supposed to end at 5 o’clock, at which point a cocktail reception would begin. But Chesterfield W. Cantwell just keeps talking. And talking. The audience gets restless. One person raises their hand to ask a “question.” But it’s really a diplomatic attempt to get Chesterfield W. Cantwell to wrap it up. The question is a sort-of compliment about Cantwell's speaking ability wrapped around a statement that the session has now run well past its scheduled end time.

But Mr. Cantwell doesn't seem to get the message. Here’s part of the ensuing transcript:

5:11 P.M. C.W. CANTWELL:

“And again, thank you for the compliment. Speaking has always just come very naturally to me. For instance, today I’m have not been working from any kind of script. I didn’t really even have a rough plan of what I was going to say other than that the topic would be copyright law, so I knew I’d say some things about that. But the truth is, I’m just really good at extemporaneous speaking. And my words, as soon as I speak them, are valuable. Potentially even what business people term 'lucrative.' So this presentation is being recorded on video – at a rate of 30 frames per second. And it’s also being recorded to audio tape. The audio and video recordings are being done at my direction by a person I hired. The fact of the matter is, this presentation that I am currently weaving together with my words, it is my intellectual property. So if you copy what I say – I can sue you under the copyright laws.”

5:12 P.M. UNIDENTIFIED AUDIENCE MEMBER:

“Maybe you should stop giving away so much value right now! We can always buy more later.”

[muffled laughter from audience]

[unidentified audience member continuing:] “Here’s a haiku I wrote about your speech. [Reading from notes:] Man talks about the law. Crowd craves sweet relief of death. Man still talks and talks.”

5:13 P.M. C.W. CANTWELL:

“Well, thanks for that, whomever you are. Because now I own what you just said as my intellectual property! The copyright in the words you just said belongs to me.”

Your new friend in the next seat asks, “Wow. Is this Cantwell guy right about any of that?”

What will you say to your friend to explain what’s right and/or wrong with what Cantwell has said now?

Problem 233

(Continued ... )

It doesn't take long before audience-speaker relations get palpably frosty. Cantwell responds by getting combative:

5:20 P.M. C.W. CANTWELL:

“You people getting up and trying to sneak out the door, I’ll tell you what. If you attempt to claim CLE credit for the session without attending until the end, you’ll be violating rules of professional responsibility and – yeah, Susan? She's one of our summer associates. Susan, make a note of the people leaving and snap a picture with your phone, will you?

5:21 P.M. UNIDENTIFIED AUDIENCE MEMBER:

“I’m going to start a crowdfunding page to help cover the expenses of your summer associates who need to quit for mental health reasons.”

[cheers and scattered applause from audience]

5:21 P.M. C.W. CANTWELL:

“[singing:] You, you, you, you, you, are going to lose your license, license, license. If you try, try, try, try, try, to report you attended this CLE if you leave.”

“[speaking:] Now, just the video recording that’s being made right now – which is also recording sound – that single recording is ensuring that this presentation, as I am making it up off the top of my head, is protected by copyright as a literary work, protected by copyright as a sound recording, protected by copyright as a motion picture, and – for the portion that includes that little song I just made up off the top of my head and sang, also as a musical work.”

Your seatmate and now, possibly friend for life, after what you’re going through together, asks: “Okay! Is he right about any of that?”

How do you answer your friend?