<p>Legal Communication – Nicola Sarjeant</p><p>Final Writing Assignment (35 marks)</p><p>Due: 12:00 NOON, Friday, December 17 (put it in my mailbox on the 5th floor, Baekyanggwan) – no late assignments accepted. Feel free to email me if you have any questions.</p><p>I am interested in your opinions and ideas. Use the notes and handouts from the class and information on this assignment to help you – do not do outside research. ONLY consider the legal issues that we have discussed in class (even if there are other potential issues). Please DO NOT plagiarize!!</p><p>When you hand it in, make sure your student # only (not your name) is on the first page.</p><p>1. Intellectual Property (10 marks) Watch the following two songs (links on my site): “Empire State of Mind” by Jay-Z featuring Alicia Keys and “Newport State of Mind” directed by MJ Delaney</p><p>Background information: “Empire State of Mind” is a song by American rapper and hip hop artist Jay-Z, featuring vocals from R&B and soul singer Alicia Keys. It was released as the third single from Jay-Z's 11th studio album The Blueprint 3 (2009), from his Roc Nation label in October 2009. The song is an ode to both artists' native New York. </p><p>“Newport State Of Mind” celebrates life in the Welsh [Wales] city of Newport. The song includes references to famous Welsh people such as Craig Bellamy [footballer (soccer player)], Gavin Henson [rugby player], Shirley Bassey [singer], Tom Jones [singer], Catherine Zeta-Jones [actress] and Josie D’Arby [actress & TV presenter] and Welsh food such as Welsh rarebit [melted cheese sauce on toast] and leeks [부추], as well as the rugby team, Newport Gwent Dragons, and the A4042 road. It was directed by the London-based filmmaker MJ Delaney, and features London-based actors Alex Warren and Terema Wainwright, rapping and singing respectively. It was published on the web on July 20, 2010, and by early August 2010, nearly 2.5 million people had watched it on YouTube. YouTube removed the video due to a copyright claim by music publishers EMI Music Publishing. [**The fact that YouTube withdrew the video is not evidence of copyright infringement – they are just very cautious about any potential lawsuit.]</p><p>The US Copyright Act Section 107 reads as follows: § 107. Limitations on exclusive rights: Fair use …the fair use of a copyrighted work … 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; (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. </p><p>A court when evaluating a fair-use defense takes into consideration each of the four factors, as no single factor by itself is sufficient to prove or disprove fair use. </p><p>The leading case on parody as fair use is Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).</p><p>Background: The members of the rap group 2 Live Crew composed a song called "Pretty Woman," which copied part of the music and lyrics of Roy Orbison's rock ballad, "Oh, Pretty Woman." The group's manager asked Acuff-Rose Music if they could license the song. Acuff-Rose Music refused to grant the band a license but 2 Live Crew nonetheless produced and released the song. Acuff-Rose sued for copyright infringement. 2 Live Crew argued the song was a parody and should be protected as fair use.</p><p>Result: The Supreme Court held that 2 Live Crew's commercial parody is a fair use within the meaning of § 107. The Supreme Court found the § 107 factors (above) must be applied to each situation on a case by case basis. "The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioner's suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair."</p><p>(1) Purpose and character: The more transformative the new work [how much it changes the original and creates a new work – not just copying], the less will be the significance of the other three factors. A work's commercial nature is only one element of the first factor enquiry into its purpose and character. </p><p>(2) Nature of the copyrighted work: Not very relevant in parody cases, since the artistic value of parodies is often found in their ability to invariably copy popular works of the past. [You don’t need to consider this factor.] Legal Communication – Nicola Sarjeant</p><p>(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole: Even if the parody goes “to the ‘heart’ of the original, the heart is also what most readily conjures up the song for parody, and it is the heart at which parody takes aim. Copying does not become excessive in relation to parodic purpose merely because the portion taken was the original's heart.” [the original work must be recognizable, otherwise the parody won’t be recognized as a parody, so it’s OK to go to the ‘heart’ of the original]. Is the “amount and substantiality” of the portion of the song reasonable in relation to the band's purpose in creating a parody?  Was no more taken than was necessary? What else did the parodist do to make the song different?</p><p>(4) The effect of the use upon the potential market for or value of the copyrighted work: Is the market for the original artist’s song harmed by this parody? Does it cause the copyright owner to lose income? ~~~~~~~~~~~~ Evaluate the second song (“Newport State Of Mind”), and determine whether it may be copyright infringement. Think about: 1. Is “Newport State of Mind” substantially similar to the original? Why/why not? 2. If so, could the defendant use the “fair use” defence? Why/why not? Consider factors 1, 3 and 4 above. Remember, parodies are considered on a “case by case basis”.</p><p>2. Criminal Law case (10 marks) Situation: On Friday evening, Debbie, a senior at Jefferson City High School, held a party at her house. Two friends, Brendan (18), and Chuck (18), and Brendan’s younger brother, Adam (15), decided to try to get into the party, although they were not invited. Debbie refused to let them into her house, so they stood around on her lawn, passing around and drinking a bottle of whiskey. Debbie’s younger sister, Elaine, a student in the same grade as Adam, came out to chat with them. About 30 minutes later, Fred, a student from a different school, arrived at the party. Elaine decided to go back inside with Fred. Adam told Brendan and Chuck that he was going to “start something with that guy [Fred]”. He went into the house and got into an argument with Fred (the two did not know each other). Debbie told them both to leave. </p><p>When they came outside, Adam hit Fred in the side of the head. Adam, Brendan and Chuck then chased Fred down the street and hit him and knocked him down onto the road. Adam then kicked and stomped on him while he was lying on the ground. The three then ran off, leaving Fred lying on the road. Two cars accidentally ran over him before police arrived. An autopsy found that Brown died of multiple injuries, but it is unclear whether he was killed by the beating or from being run over. </p><p> What crime(s) should Adam be charged with and convicted of? Why? (Use the Missouri Statutes below to help you.) (Brendan and Chuck are being charged and tried separately – don’t deal with them.)</p><p> What kind of punishment do you think he should get? Why? </p><p>Opinion Paragraphs – choose three only (15) Criminal law (due process) (5 marks) In your opinion, what are some advantages and disadvantages of the need to have “probable cause” and obtain a search warrant (except in exigent circumstances) in order to search someone’s home? </p><p>Fraud / White Collar Crime (5 marks) What kind of punishment do you think “white collar criminals” such as Bernie Madoff should get? Why?</p><p>International Law (5 marks) The Geneva Conventions are now 61 years old. Do you think they are still relevant in 2010? (Think specifically about the Third Convention.) </p><p>Law & Popular Culture (5 marks) Choose one: i. Do you think watching television shows about lawyers and the justice system can help prepare law students to become lawyers? ii. How do you think lawyers and/or legal issues are portrayed in Boston Legal?</p>