IDEA VS. THE EXPRESSION OF AN IDEA
Denker v.Uhry, Warner Bros. et al. (S.D.N.Y. 1992)
Denker wrote the novel, and the play, "Horowitz and Mrs. Washington."--[play had 7 performances on Broadway].
Uhry wrote the play and screenplay for the movie, "Driving Miss Daisy." [4 oscars, including best film and best screenplay. . .]
Issue: Are they substantially similar?
Theme and Place
+elderly Jewish person with an African American helper
-short time period in New York; 25 years in Atlanta (civil rights movement)
-Horowitz is racist; Daisy is not
-Horowitz is a comedy ('feels like a sitcom'); Daisy is a sentimental work
+start with an "accident," need a helper, changing attitude of the elderly person toward the helper
But these are scenes-a-faire--stock themes which cannot be copyrighted
-Horowitz is a bigot; Daisy is not
They are not substantially similar.
Beal v. Paramount Pictures Corp. (11th Cir. 1994)
Beal has written a book, The Arab Heart, about Sharaf, prince of a fictitious Arabian nation who comes to Atlanta. She claims "Coming to America" [Akeem, an African prince, comes to NY] is a copyright infringment.
Theme and Place
SCENES-A-FAIRE--"incidents, characters, or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic." Copyright protection is NOT available for them.
Review: Hoehling v. Universal Studios
historical event (slave ships, sinking of the Titanic, etc.)Fort Apache: The Bronx
drugs, street crime, car chases, etc.
Bright Tunes Music Corp. v. Harrisongs Music, Ltd.
BT owns the copyright to "He's So Fine," on the US and UK charts in 1962 and 1963. Harrisongs owns the copyright to "My Sweet Lord," composed and recorded in 1970 by George Harrison.
2 motifs--A:sol-mi-re and B:sol-la-do-la-re-do
"He's So Fine": A/A/A/A/B/B*/B/B
"My Sweet Lord": A/A/A/A/B/B/B/new phrase
Did Harrison copy?
"subconscious copyright infringement" p. 334and p. 335
CASE: Warner Bros, Inc. v. American Broadcasting Companies, Inc. (2d Cir 1981)
Warner Bros. owns the copyright in the "Superman" character for comic books, TV series and "Superman, The Movie." They are trying to enjoin ABC from broadcasting a movie, "Hero," alleging that its main character, Ralph Hinkley, infringed their copyright on the superman character. See description, p. 371.
*pl.'s copyright in the character does not entitle them to "a monopoly of the mere character of a 'Superman' who is a blessing to mankind."
["Spiderman," "The Phantom," "The Shadow," and "The Incredibles"]
*similarities+feats of incredible strength, costume with cape, fly, . . .
-total concept and feel: "Hero" appears to be making fun of the entire genre (parody)
The request for an injunction was properly denied.
PARODY and FAIR USE
SECTION 107--FAIR USE
NOTWITHSTANDING THE PROVISION OF SECTION 106, THE FAIR USE OF THE COPYRIGHTED WORK, INCLUDING SUCH USE BY REPRODUCTION IN COPIES OR PHONORECORDS OR ANY OTHER MEANS SPECIFIED BY THAT SECTION, FOR PURPOSES SUCH AS CRITICISM, COMMENT, NEWS REPORTING, TEACHING (INCLUDING MULTIPLE COPIES FOR CLASSROOM USE), SCHOLARSHIP, OR RESEARCH, IS NOT AN INFRINGEMENT OF COPYRIGHT. IN DETERMINING WHETHER THE USE MADE OF A WORK IN ANY PARTICULAR CASE IS A FAIR USE THE FACTORS TO BE CONSIDERED SHALL INCLUDE--
1. THE PURPOSE AND CHARACTER OF THE USE, INCLUDING WHETHER SUCH USE IS OF A COMMERCIAL NATURE OR IS FOR NONPROFIT EDUCATIONAL PURPOSES;
2. THE NATURE OF THE COPYRIGHTED WORK [1992 AMENDMENT]: "THE FACT THAT A WORK IS UNPUBLISHED SHALL NOT ITSELF BAR A FINDING OF FAIR USE"];
3. THE AMOUNT AND SUBSTANTIALITY OF THE PORTION USED IN RELATION TO THE COPYRIGHTED WORK AS A WHOLE; AND
4. THE EFFECT OF THE USE UPON THE POTENTIAL MARKET FOR OR VALUE OF THE COPYRIGHTED WORK.
Campbell (aka Skyywalker) v. Acuff-Rose Music, Inc.
"Oh, Pretty Woman" and "Pretty Woman"
*purpose and character of the use-- pp. 387-389
*nature of the copyrighted work-- p. 390
*amount/substantiality used-- pp. 391-392
*effect on the potential market-- pp. 393-394