Law 633 Copyright Professor Litman Final Examination – Winter 2017

This is a 48-hour take-home examination

MATERIALS ALLOWED: • Casebook • Print-out of the 2016 Case Supplement • A copy of the Copyright Act • Handwritten or typed (not taped) class notes or course outline prepared by you • English language dictionary • This examination and appendices

During the examination, you may not refer to any hornbooks, treatises, F.A.Q.s, books, CDs, DVDs, audio recordings, films, videos, television programs, commercial study aids, case reports, Lexis, Westlaw, cTools, Wikipedia, any other source available over the Internet, another student’s class notes, or any other material not listed above. You may not discuss the examination with anyone. You should observe the word limits for your answers to each question. Detailed general instructions for taking the examination are on the following page. This examination consists of two files. This file contains the instructions and questions. The second file contains appendices that you might find useful to answer the questions, including the text of the sections of the 1909 Act assigned over the course of the semester. Check now to make sure that you have both files. Include your assigned Exam ID number for this course (not your name) as a running header in your exam answers file. Include the word counts for your answer to each question at the end of that answer.

Law 633 Copyright Final Examination Winter 2017 Jessica Litman

GENERAL INSTRUCTIONS

This is a limited open-book, 48-hour take-home examination. You may consult your casebook, and your copy of the copyright statute. You may also refer to a dictionary, your own class notes, and a course outline prepared by you. You may not consult any other material. (You may not, for example, consult any hornbook or secondary source, any notes or outlines created by another classmate or by a member of a prior year’s class, any newspaper, magazine, video, television program, audio recording, CD or DVD, podcast, or any printed out, photocopied, online or downloaded copy of any statute, case, or bill other than the current copyright statute. You may not consult any material whatsoever via the Internet.) You are forbidden to ask anyone for assistance, suggestions, ideas, or inspiration, or to collaborate with anyone on any part of the exam. If I discover that you have violated any of these rules, you will receive a failing grade.

Your answers are subject to word limits. I will not give credit for any portion of any answer that exceeds the word limit for that part of the answer to that question. Write the number of words in each of your answers immediately following that answer. Upload your completed examination answers no later than 48 hours after downloading the exam. The Registrar’s guidelines instruct you to keep a copy of your answers until you receive a grade in the course. During the rest of the exam period, please keep very close track of that file, to avoid exposing your classmates to unreasonable temptation. You are responsible for ensuring the security of your answers. If I discover that someone has copied part or all of an answer from another student’s exam, both students will receive a failing grade on that question.

There are two questions. I have included further instructions with each question. Please read them carefully. You should spend much more time thinking about the questions than you do writing your answers. In order to stay within the word limits, you will need to decide which of the issues raised in the questions require extensive discussion, which ones need only cursory mention, and which ones are not relevant to your answers and need not be discussed at all. I do not give any credit for unresponsive descriptions of general legal principles or for faithful transcriptions of my own remarks, so avoid the temptation to rewrite your course outline in your answers or to feed me back the opinions I have expressed in class. I will subtract credit for flatly incorrect legal statements.

The questions are drawn from real situations that have occurred in real locations. Nonetheless, I do not expect you to apply the law of a particular circuit to cases brought in its courts. For the purposes of the exam you should assume that all cases in your casebook are persuasive authority to all courts on all relevant issues, but that more recent cases may have modified the law articulated in older cases.

Law 633 Final Examination Page 2 of 9 Question 1 Word limit: 1200 words

Theodor Seuss Geisel (1904-1991) wrote and illustrated 44 children’s books under the pen name “Dr. Seuss,” including some of the most popular children’s books of all time: Green Eggs and Ham (1960), The Cat in the Hat (1957), One Fish, Two Fish, Red Fish, Blue Fish (1960), Hop on Pop (1963), Horton Hears a Who! (1954), and How the Grinch Stole Christmas (1957).

Geisel wrote and illustrated How the Grinch Stole Christmas in 1957. Random House published it in book form with an appropriate copyright notice in the name of “Dr Seuss” in September 1957. Redbook magazine published the same story in its December 1957 issue with a separate copyright notice in the name of “Dr Seuss.” Random House registered the copyright in the name of “Dr Seuss, pseudonym for Theodor Geisel” on September 23, 1957.

How the Grinch Stole Christmas tells the story of the misanthropic Grinch who decides to ruin the Christmas holiday for his neighbors, the Whos, by stealing their Christmas presents. On Christmas Eve, he sneaks into Whoville disguised as Santa Claus and takes all the Christmas gifts and decorations from every home. In one home, a toddler, Cindy Lou Who, catches him trying to stuff the family’s Christmas tree up the chimney. She asks him why he is stealing the family’s Christmas tree. The Grinch quickly thinks up a lie: he explains that the tree is broken and he is just taking it to his workshop to repair it. He then proceeds with his evil plan. The next morning, the Whos wake up to find all their Christmas presents gone. They happily celebrate Christmas anyway, singing loudly and joyfully. The Grinch hears their song, and realizes that Christmas must be about more than presents. He returns everything he stole and celebrates the holiday along with the people of Whoville.

In 1966, Geisel collaborated with his friend, animator Chuck Jones, to create a television cartoon based on the book for Metro Goldwyn Mayer (MGM), where Jones was then employed as the director of animation. MGM agreed to finance the project in return for a written assignment of all rights in the cartoon. Geisel and Jones formed a production company named Cat in the Hat Productions (CITHP) to make the cartoon. Geisel assigned exclusive motion picture and television rights in the book, How The Grinch Stole Christmas, to CITHP. Geisel worked for CITHP as one of the cartoon’s producers, wrote lyrics for four new songs to be included in the cartoon, and worked with Jones on the screenplay. Jones also worked for CITHP as a producer. In addition, he directed the cartoon, came up with the initial drawings for each of the characters and scenes, and supervised a staff of six animators who drew the actual frames of the cartoon.

The cartoon was a faithful adaptation, narrated by actor Boris Karloff. The dialog and narration followed the book closely. The animation was inspired by the original book illustrations. Because the cartoon would be in color, though, and the original drawings were black and white with red accents, Jones needed to decide

Law 633 Final Examination Page 3 of 9 what colors to make the characters, costumes, and objects shown in each of the scenes. Jones also needed to design drawings to represent the action between the scenes illustrated in the book. Chuck Jones decided to color the Grinch green.

Book page 2 Television cartoon

Book page 4 Television cartoon

The Cindy Lou Who character in the book wore a short pink nightgown and appeared to be hairless. Jones lengthened her nightgown and gave her blond hair.

Book page 30 Television cartoon

Law 633 Final Examination Page 4 of 9 CITHP titled the cartoon, Dr Seuss’ How The Grinch Stole Christmas. The company assigned “all of its rights, title, and interest” in the cartoon, “for both initial and renewal copyright terms,” to MGM.

MAGM licensed the right to broadcast the cartoon to the CBS Network. The cartoon aired on CBS as a Christmas special on December 18, 1966. The program had this copyright notice at the end of the closing credits:

© MCMLVI by Metro Goldwyn Mayer, Inc.

CBS broadcast the cartoon again in 1967, and then in every succeeding December until 1988. MGM registered the copyright in the cartoon as a work made for hire in 1971. Over the next nine years, CITHP made five additional television specials based on Dr Seuss’s books. The production company closed its doors in 1975.

On February 2, 1985, Geisel renewed the copyright in the book, How the Grinch Stole Christmas, in his own name.

Geisel died in 1991. His will bequeathed his copyrights to his widow, Audrey Geisel. Audrey founded the company Dr Seuss Enterprises L.P. [DSE], and conveyed all of Geisel’s copyrights to the company. Audrey embarked on an aggressive licensing campaign for all of the Dr Seuss books and characters, including the Grinch.

In 1993, DSE licensed the Children’s Theatre of Minneapolis to write a musical based on the book. The musical, titled Dr. Seuss' How the Grinch Stole Christmas! The Musical, premiered in 1994, with a book and lyrics by playwright Timothy Mason and music by New York City composer Mel Marvin. The musical was narrated by an elderly version of the Grinch’s dog, Max, and included a dozen songs. It has been produced by regional theatres, and received two short runs on Broadway in the Christmas seasons of 2006 and 2007. In addition, the musical had a brief national tour. The Old Globe Theatre in San Diego, where the Geisels made their home, has presented this musical every December for the past 19 years.

In 1997, DSE licensed Imagine Entertainment to use the book as the basis for a feature length, live-action motion picture directed by Ron Howard and starring actor Jim Carrey as the Grinch. The film, titled The Grinch, was released in 2000. Critics hated it, but the movie was a huge success at the box office, earning $345,000,000.

Random House continues to publish the book (under license from DSE) to this day. It has never been out of print. DSE has authorized the production of a variety of Grinch-themed toys, costumes, games, clothing and other merchandise.

Law 633 Final Examination Page 5 of 9 A new animated Grinch motion picture, starring actor Benedict Cumberbach as the voice of the Grinch, is currently in production and scheduled for a 2018 release. Audrey Geisel is now 95 years old; she continues to serve as DSE’s president.

MGM renewed the copyright in the television cartoon in 1994. In 2010, MGM assigned the copyrights in all of its animated films and television shows, including Dr Seuss’ How the Grinch Stole Christmas, to Time Warner, Inc.

Matthew Lombardo is a working American playwright. Lombardo spent four years as a writer for the long-running NBC daytime soap opera Another World, before deciding to become a full-time theatrical playwright. His plays have been produced on Broadway and he has enjoyed modest success in both New York and regional theatres. In 2015, Lombardo wrote Who’s Holiday!, a 75-minute script in rhyming couplets, depicting a middle-aged Cindy Lou Who. In the one-woman play, Cindy Lou has recently been released from prison and now lives in a trailer park. She is preparing to host a Christmas cocktail party. One by one, her invited guests (all characters, like Yertle the Turtle and Thidwick the Moose, from other Dr Seuss books) call her to explain they can’t make it.

An off-Broadway theatre company selected the play for a nine-week limited run during the 2016 Christmas season. The show was scheduled to run from November 2 through January 2 at the New World Stages Theatre. The company hired veteran theatre director Carl Andress to direct the production, and cast Tony- nominated actor Jennifer Simard in the role of Cindy Lou. Rehearsals began ina the end of September, and New World Stages released a poster and promotional material touting the production.

The promotional materials came to the attention of DSE, which sent New World Stages a cease and desist letter. In the crush of rehearsals, nobody noticed the letter. DSE sent a second, sterner letter on October 20, and a third even more threatening letter on October 27. New World Stages received and opened that letter on Saturday October 29. By then, the production had held two dress rehearsals for invited audiences of friends, family, and theatre professionals, and was scheduled to give its first preview performance to a paying audience the following Tuesday. Alarmed by the threatening letter, New World Stages canceled all performances and refunded ticket buyers’ money.

Lombardo filed suit against DSE, seeking a declaratory judgment that his script does not infringe DSE’s copyright in How the Grinch Stole Christmas. DSE responded by filing a counterclaim against Lombardo, New World Stages, and Jennifer Simard for copyright infringement. DSE seeks an injunction preventing any publication or further performance of the play, but is not seeking damages. Time Warner is not a party to the lawsuit.

You are a clerk to the federal district court judge assigned to the case. All parties have waived a jury trial. Last month, your judge held a bench trial, at which

Law 633 Final Examination Page 6 of 9 the evidence tended to show the facts recounted above. Appendices to the exam show the text and pictures from Geisel’s book, promotional material for the production of Who’s Holiday!, and the full text of Lombardo’s script. Draft an opinion, resolving all issues.

Law 633 Final Examination Page 7 of 9

Question2

This Question has two parts Total Word Limit: 1200 words

It is 2019. In the fall of 2018, a disillusioned electorate voted in unprecedented numbers against incumbent members of Congress from both political parties. You are a member of the congressional staff of a newly elected representative from your home state who shares your political views. Your boss has been appointed to the House Judiciary Committee, which has primary responsibility for copyright legislation.

The Audio Home Recording Act, enacted in 1992 as Chapter 10 of the Copyright Act and codified in 17 USC §§ 1001 – 1010, sought to define the rules for both direct and secondary liability for noncommercial consumer copying of recorded music. As your casebook explains at pages 417-19, because of the politically expedient exclusion of general purpose computers from the Act’s coverage, the Audio Home Recording Act has had only limited application. The revenues collected by the Copyright Office pursuant to the statutory provisions levying royalties on digital devices and media have been insufficient to pay for the proceedings necessary to distribute them, and in 2017 the Copyright Royalty Judges suspended statutory distribution proceedings indefinitely because of insufficient funds.

Very few provisions in the Copyright Act speak expressly to whether and when consumers’ noncommercial copying of works should be deemed to be copyright infringement. The Audio Home Recording Act is one of them. Section 117(a) gives owners (but not licensees) of copies of computer programs the right to make copies of the programs for particular purposes and under specific conditions. Section 120(a) permits individuals to reproduce pictorial representations of works of architecture that are visible from public places. The copyright law lacks a provision that addresses noncommercial consumer copying more generally.

Your boss would like to sponsor legislation that would fill that gap. She asks you to draft an appropriate bill. Because the current political landscape is uncertain, your boss asks you to concentrate on drafting well-written legislation that implements good policy rather than focusing on political feasibility. After a lengthy conversation, you confirm that your boss is at least tentatively on board with your preferred approach to the issue.

Part 1: 800 words

Draft a bill that completely repeals and replaces 17 USC §§ 1001 – 1010, and that addresses both direct and secondary liability for non-commercial consumer

Law 633 Final Examination Page 8 of 9 copying of all copyrighted works within the scope of copyrightable subject matter under section 102(a). Your bill must fit within the word limit and may not incorporate any other statutory language by reference. You should assume that any word or phrase that is defined in section 101 of the statute will be interpreted in accord with that definition. Any additional words, terms or phrases that require definition should be defined in the bill that you draft.

Part 2: 400 words

Write a memo to your boss explaining what your bill does, how it does it, and why enacting it would be a good idea.

Law 633 Final Examination Page 9 of 9