Copyright

3. METRO-GOLDWYN-MAYER V. AMERICAN HONDA MOTOR CO.
LAGROSAS
Facts: In 1992, Honda's advertising agency Rubin Postaer came up with a new concept to sell the Honda del Sol convertible with its detachable rooftop. For what was to become the commercial at issue, Rubin Postaer vicepresident Gary Yoshida claims that he was initially inspired by the climax scene in "Aliens," wherein the alien is ejected from a spaceship still clinging onto the spacecraft's door. From there, Yoshida and coworker Robert Coburn began working on the storyboards for the "Escape" commercial. As the concept evolved into the helicopter chase scene, it acquired various project names, one of which was "James Bob," which Yoshida understood to be a play on words for James Bond. Yoshida Depo. at 45. In addition, David Spyra, Honda's National Advertising Manager, testified the same way, gingerly agreeing that he understood "James Bob to be a pun on the name James Bond." While the commercial was initially approved by Honda in May 1992, it was put on hold because of financing difficulties. Actual production for the commercial did not begin until after July 8, 1994, when Honda reapproved the concept. Defendants claim that, after the initial May 1992 approval, they abandoned the "James Bob" concept, whiting out "James" from the title on the commercial's storyboards because of the implied reference to "James Bond." However, MGMs dispute this assertion, pointing to the fact that when casting began on the project in the summer of 1994, the casting director specifically sent requests to talent agencies for "James Bond"-type actors and actresses to star in what conceptually could be "the [*1292] next James Bond film." With the assistance of the same special effects team that worked on Arnold Schwarzenegger's "True Lies," Defendants proceeded to create a sixty- and thirty-second version of the Honda del Sol commercial at issue: a fast-paced helicopter chase scene featuring a suave hero and an attractive heroine, as well as a menacing and grotesque villain. THE ESCAPE COMMERCIALpremiered last October 1994; Escape commercial features a young, well-dressed couple in a Honda del Sol being chased by a high-tech helicopter; a grotesque villain with metal-encased arms1 jumps out of the helicopter onto the car's roof, threatening harm; with a flirtatious turn to his companion, the male driver deftly releases the Honda's
1
Defense counsel argued at the hearing that the villain's arms were normal and merely gloved. The Court's review of the commercial indicates that at the very least, the gloves contained some sort of metal in them as indicated by the scraping and clanging sounds made by the villain as he tries to get into, and hold onto, the Honda's roof.
Copyright Law and Other Related Rights 1st Sem 2011 21 July 2011 DigestsPage 1
detachable roof (which Defendants claim is the main feature allegedly highlighted by the commercial), sending the villain into space and effecting the couple's speedy get-away) The commercial was aired in 1994 but was still not cleared for major network. When MGM viewed the film, they demanded that Honda pull the commercial off the air but the latter refused. Thus, MGM filed this action. On January 15, 1995, in an effort to accommodate MGMs demands without purportedly conceding liability, Defendants changed their commercial by: (1) altering the protagonists' accents from British to American; and (2) by changing the music to make it less like the horn-driven James Bond theme. This version of the commercial was shown during the Superbowl, allegedly the most widely viewed TV event of the year. Issue/s: Whether American Honda Motor Co. and advertising agency Rubin Postaer & Assoc. violated MGMs copyrights to 16 James Bond films and the exclusive intellectual property rights to James Bond character and films through defendants recent commercial for its Honda del Sol automobile (infringement) Whether film scenes are copyrightable Whether James Bond is copyrightable Held: Yes Yes Yes Ratio: The required showing of likelihood of success on the merits is examined in the context of injuries to the parties and the public, and is not reducible to a mathematical formula. To satisfy the "merits" prong of the preliminary injunction standard, MGM must show a "reasonable probability," at one end of the spectrum, or "fair chance," on the other, of success on the merits. Of course, a lesser showing of probability of success requires a greater showing of harm, and vice-versa. A claim for copyright infringement requires that the MGM prove (1) its ownership of the copyright in a particular work, and (2) the defendant's copying of a substantial, legally protectable portion of such work. "An author can claim to 'own' only an original manner of expressing ideas or an original arrangement of facts." The MGM need only show that the defendant copied
the protectable portion of its work to establish a prima facie case of infringement. Infringement After identifying the scope of Plaintiffs' copyrightable work, the Court must focus on whether Defendants copied Plaintiffs' work. Since direct evidence of actual copying is typically unavailable, the plaintiff may demonstrate copying circumstantially by showing: (1) that the defendant had access to the plaintiff's work, and (2) that the defendant's work is substantially similar to the plaintiff's. There is Access To demonstrate access, the plaintiff must show that the defendant had "an opportunity to view or to copy plaintiff's work." Access may not be inferred through mere "speculation or conjecture." There must be a reasonable possibility to view plaintiff's work, not just a bare possibility. The Court notes that: (1) Yoshida's admission that he has at least viewed portions of the James Bond films on television; (2) the "Honda man's" having been referred to as "James Bob"; and (3) the casting director's desire to cast "James Bond"-type actors and actresses, are factors sufficient to establish Defendants' access to Plaintiffs' work. Moreover, the sheer worldwide popularity and distribution of the Bond films allows the Court to indulge a presumption of access. There is Substantial Similarity The Ninth Circuit has established a two-part process for determining "substantial similarity" by applying both the "extrinsic" and "intrinsic" tests. "THE [KROFFT] TEST permits a finding of infringement only if a plaintiff proves both substantial similarity of general ideas under the 'extrinsic test' and substantial similarity of the protectable expression of those ideas under the 'intrinsic test.'" This "idea-expression" dichotomy is particularly elusive to courts and the substantial similarity test necessarily involves decisions made on a case-by-case basis. The "extrinsic" test compares specific, objective criteria of two works on the basis of an analytic dissection of the following elements of each work -- plot, theme, dialogue, mood, setting, pace, characters, and sequence of events. Viewing Plaintiffs' and Defendants' videotapes and examining the experts' statements, Plaintiffs will likely prevail on this issue because there is
substantial similarity between the specific protected elements of the James Bond films and the Honda commercial: (1) the theme, plot, and sequence both involve the idea of a handsome hero who, along with a beautiful woman, lead a grotesque villain on a high-speed chase, the male appears calm and unruffled, there are hints of romance between the male and female, and the protagonists escape with the aid of intelligence and gadgetry; (2) the settings both involve the idea of a high-speed chase with the villain in hot pursuit; (3) the mood and pace of both works are fast-paced and involve hi-tech effects, with loud, exciting horn music in the background; (4) both the James Bond and Honda commercial dialogues are laced with dry wit and subtle humor; (5) the characters of Bond and the Honda man are very similar in the way they look and act -- both heroes are young, tuxedoclad, British-looking men with beautiful women in tow and grotesque villains close at hand; moreover, both men exude uncanny calm under pressure, exhibit a dry sense of humor and wit, and are attracted to, and are attractive to, their female companions. The "intrinsic" test asks whether the "total concept and feel" of the two works is also substantially similar. This is a subjective test that requires a determination of whether the ordinary reasonable audience could recognize the Defendants' commercial as a picturization of Plaintiffs' copyrighted work. Because this is a subjective determination, the comparison during the intrinsic test is left for the trier of fact. This would involve showing the Honda commercial to the members of the jury so that they may compare the same with the sixteen Bond films at issue. Viewing the evidence, it appears likely that the average viewer would immediately think of James Bond when viewing the Honda commercial, even with the subtle changes in accent and music. Independent Creation After the plaintiff has satisfied both the "access" and "substantial similarity" prongs of the test, the burden then shifts to the defendant to show that the defendant's work was not a copy but rather was independently created. Fair Use Doctrine Finally, as a separate defense to copyright infringement, Defendants claim that their use of Plaintiffs' work is protected under the fair use doctrine, which protects parodies, for example. Under the Supreme Court's
recent decision in Campbell v. Acuff-Rose Music, Inc, 114 S. Ct. 1164 (1994), a subsequent work may not infringe on an original upon examining the following four-prong statutory factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational [*1300] 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 on the potential for, or value of, the copyrighted work. The Court shall analyze each factor in turn below. MGM's Ownership Of The Copyrights [MGM satisfied the ownership prong of the test] MGM claim that the Honda commercial: (1) "infringes MGMs' copyrights in the James Bond films by intentionally copying numerous specific scenes from the films;" and (2) "independently infringes MGMs' copyright in the James Bond character as expressed and delineated in those films." Neither side disputes that MGMs own registered copyrights to each of the sixteen films which MGMs claim "define and delineate the James Bond character." However, Defendants argue that because MGMs have not shown that they own the copyright to the James Bond character in particular, MGMs cannot prevail. Specifically, Defendants claim that James Bond has appeared in two films in which MGMs hold no copyright -- "Casino Royale" and "Never Say Never Again" and therefore, MGMs cannot have exclusive rights to the James Bond character. It appears that Honda misconstrue MGM's claim. First, MGM do not allege that Honda have violated MGMs copyright in the James Bond character itself, but rather in the James Bond character as expressed and delineated in MGMs' sixteen films. To the extent that copyright law only protects original expression, not ideas, MGMs' argument is that the James Bond character as developed in the sixteen films is the copyrighted work at issue, not the James Bond character generally. Second, there is sufficient authority for the proposition that a MGM who holds copyrights in a film series acquires copyright protection as well for the expression of any significant characters portrayed therein. And third, the Sam Spade case, 216 F.2d at 949-50, on which Honda rely, is distinguishable on its facts because Sam Spade dealt specifically with the transfer of rights from author to film
producer rather than the copyrightability of a character as developed and expressed in a series of films. What Elements Of MGMs' Work Are Protectable Under Copyright Law Whether film scenes are copyrightable Based on MGMs' experts' greater familiarity with the James Bond films, as well as a review of MGMs' James Bond montage and defense expert Needham's video montage of the "action/spy" genre films, it is clear that James Bond films are unique in their expression of the spy thriller idea. A filmmaker could produce a helicopter chase scene in practically an indefinite number of ways, but only James Bond films bring the various elements Casper describes together in a unique and original way. Whether James Bond character is copyrightable Reviewing the evidence and arguments, the Court believes that James Bond is more like Rocky than Sam Spade -- in essence, that James Bond is a copyrightable character under either the Sam Spade "story being told test" or the Second Circuit's "character delineation" test. Like Rocky, Sherlock Holmes, Tarzan, and Superman, James Bond has certain character traits that have been developed over time through the sixteen films in which he appears. Contrary to Defendants' assertions, because many actors can play Bond is a testament to the fact that Bond is a unique character whose specific qualities remain constant despite the change in actors. Indeed, audiences do not watch Tarzan, Superman, Sherlock Holmes, or James Bond for the story, they watch these films to see their heroes at work. A James Bond film without James Bond is not a James Bond film. Moreover, as discussed more specifically below, the Honda Man's character, from his appearance to his grace under pressure, is substantially similar to Plaintiffs' Bond. Accordingly, the Court concludes that Plaintiffs will probably succeed on their claim that James Bond is a copyrightable character [*1297] under either the "story being told" or the "character delineation" test. Balance of Relative Harms It is well-settled in this circuit that once a copyrightholder has shown a likelihood of success on the merits based on access and substantial similarity, irreparable injury is presumed, warranting a preliminary injunction.
Irreparable injury is presumed because the copyright owner's right to exploit its work is unique. As discussed above, Plaintiffs have established a likelihood of success on the merits and therefore, the Court presumes irreparable injury. Moreover, the Court notes that Plaintiffs have shown they have been specifically harmed by the continued airing of Defendants' commercial in two ways: (1) prolonged lost licensing revenue (purportedly in the millions of dollars); and (2) dilution of the copyrights' long-term value. The latter is especially true given Plaintiffs' own deal with BMW for a special movie tie-in in conjunction with Plaintiffs' release of the first James Bond movie in six years, "Goldeneye" -- a fact undisputed by Defendants. Indeed, the Court can very well imagine that a majority of the public, upon viewing the Honda commercial and a future BMW ad, would come to the conclusion that James Bond was endorsing two automobile companies. Such a scenario would drastically decrease the long-term value of Plaintiffs' James Bond franchise.
5. Designer Guild Limited v. Russell Williams (Textiles) Limited (Trading As Washington Dc)
By Ramos Facts: DGL came up with an original design for a fabric, named Ixia. RWT then came up with a design called Marguerite. DGL then found out about the design by RWT and filed a complaint for infringement in the courts. RWT strongly contested that accusation at trial, seeking to show that it had not and could not have copied the Ixia design. The judge, however, rejected RWTs evidence. The judge concluded based on the similarities he personally noted between the designs and concluded in round terms that the one had been copied from the other. Hence, the judge ruled in favor of DGL. However, RWT appealed to the Court of Appeal and questioned the trial court judges findings of RWT substantially copying DGLs design. The Court of Appeal judges rendered a decision in favor of RWT and set aside the trial court judges decision based on his mistake in finding that there were substantial similarities between the Ixia and Marguerite designs.
Hence, this appeal by DGL to the House of Lords. Issue: Whether or not the trial court judges finding of substantial similarities between the two fabric designs were proper and hence, lead to a decision that DGLs copyright had indeed been infringed? Held: Yes. The judges findings regarding the similarities in the designs should be affirmed. Ratio: (From different Lords of Appeal) (All of the Lords of Appeal agreed with Lords Bingham and Hoffmans decisions to grant DGLs appeal) Lord Bingham of Cornhill For, realistically recognising that no real injury is done to the copyright owner if no more than an insignificant part of the copyright work is copied, section 16(3) of the Copyright Act 1988 provides that, to infringe, an act must be done "in relation to the work as a whole or any substantial part of it". So the judge had to consider whether RWT had copied DGL's work as a whole or any substantial part of it. Since the judge had based his finding of copying largely on the similarity between the two designs it would have been very surprising if he had found that RWT had not copied a substantial part of DGL's Ixia design, but it was necessary for the judge to consider that question, and he did. He found that there had been copying of a substantial part. First, by analysing individual features of the two designs and highlighting certain dissimilarities the Court failed to give effect to the judge's conclusion, not challenged before it, that the similarities between the two designs were so marked as to warrant a finding that the one had been copied from the other. While the finding of copying did not in theory conclude the issue of substantiality, on the facts here it was almost bound to do so. Secondly, the Court of Appeal approached the issue of substantiality more in the manner of a first instance court making original findings of fact than as an appellate court reviewing findings already made and in very important respects not challenged. It was not for the Court of Appeal to embark on the issue of substantiality afresh, unless the judge had misdirected himself, which in my opinion he had not.
Lord Hoffman (As to Distinguishing Ideas from Expressions)
Ideas and expression It is often said, as Morritt L.J. said in this case, that copyright subsists not in ideas but in the form in which the ideas are expressed. The distinction between expression and ideas finds a place in the Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS) (O.J. 1994 L. 336 p. 213), to which the United Kingdom is a party (see article 9.2: "Copyright
protection shall extend to expressions and not to ideas"). Nevertheless, it needs to be handled with care. What does it mean? As Lord Hailsham of St. Marylebone said in L.B. (Plastics) Ltd v. Swish Products Ltd. [1979] R.P.C. 551, 629, "it all depends on what you mean by 'ideas'." Plainly there can be no copyright in an idea which is merely in the head, which has not been expressed in copyrightable form, as a literary, dramatic, musical or artistic work. But the distinction between ideas and expression cannot mean anything so trivial as that. On the other hand, every element in the expression of an artistic work (unless it got there by accident or compulsion) is the expression of an idea on the part of the author. It represents her choice to paint stripes rather than polka dots, flowers rather than tadpoles, use one colour and brush technique rather than another, and so on. The expression of these ideas is protected, both as a cumulative whole and also to the extent to which they form a "substantial part" of the work. Although the term "substantial part" might suggest a quantitative test, or at least the ability to identify some discrete part which, on quantitative or qualitative grounds, can be regarded as substantial, it is clear upon the authorities that neither is the correct test. Ladbroke (Football) Ltd. v. William Hill (Football) Ltd.[1964] 1 W.L.R. 273 establishes that substantiality depends upon quality rather than quantity (Lord Reid at p. 276, Lord Evershed at p. 283, Lord Hodson at p. 288, Lord Pearce at p. 293). And there are numerous authorities which show that the "part" which is regarded as substantial can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part. That is what the judge found to have been copied in this case. Or to take another example, the original elements in the plot of a play or novel may be a substantial part, so that copyright may be infringed by a work which does not reproduce a single sentence of the original. If one asks what is being protected in such a case, it is difficult to give any answer except that it is an idea expressed in the copyright work. My Lords, if one examines the cases in which the distinction between ideas and the expression of ideas has been given effect, I think it will be found that they support two quite distinct propositions. The first is that a copyright work may express certain ideas which are not protected because they have no connection with the literary, dramatic, musical or artistic nature of the work. It is on this ground that, for example, a literary work which describes a system or invention does not entitle the author to claim protection for his system or invention as such. The same is true of an inventive concept expressed in an artistic work. However striking or original it may be, others are (in the absence of patent protection) free to express it in works of their own: see Kleeneze Ltd. v. D.R.G. (U.K.) Ltd. [1984] F.S.R. 399 . The other proposition is that certain ideas expressed by a copyright
work may not be protected because, although they are ideas of a literary, dramatic or artistic nature, they are not original, or so commonplace as not to form a substantial part of the work.Kenrick & Co. v. Lawrence & Co. (1890) 25 Q.B.D. 99 is a well-known example. It is on this ground that the mere notion of combining stripes and flowers would not have amounted to a substantial part of the plaintiff's work. At that level of abstraction, the idea, though expressed in the design, would not have represented sufficient of the author's skill and labour as to attract copyright protection. Generally speaking, in cases of artistic copyright, the more abstract and simple the copied idea, the less likely it is to constitute a substantial part. Originality, in the sense of the contribution of the author's skill and labour, tends to lie in the detail with which the basic idea is presented. Copyright law protects foxes better than hedgehogs. In this case, however, the elements which the judge found to have been copied went well beyond the banal and I think that the judge was amply justified in deciding that they formed a substantial part of the originality of the work.
7. FRASER and others v. THAMES and others

By Badiola Facts: In 1973, three female actresses namely, Gaye Brown, Diane Langton and Annabel Leventon, formed a rock group (Rock Bottom Group) with the assistance of Mr. Fraser, their manager and composer. They developed an idea for a television series to portray the formation of a three-girl rock group and their subsequent experiences, part fact and part fiction. The three actresses intended to appear in the series as the singers and their manager will compose music for the series. During an oral discussion between the actresses, the manager , the representative of the defendant Thames (a television company), the scriptwriter and the producer, ideas in confidence were disclosed to Thames. In consideration of the agreement, Thames was paid stating that Thames was to acquire an option on your services in connection with a possible new series, that actresses were to have first refusal should series proceed, and if they decline said offer, Thames was to have the right to do the series with other actresses. Issues/Held: 1. Who has the original idea? Fraser and Leventon Since the summer of 1973, since the formation of the rock group, Mr. Fraser with Leventon was developing the idea of a television series.
On the day of the meeting, had developed such idea with the ff. essentials: the series is part fact and part fiction; highlighting unusual feature of the girls; portray of formation of group and subsequent experiences, trials and tribunals. 2. Whether a confidential info consisting of idea communicated orally is protected? Yes. The permission to go ahead with the series if the girls decide not to take part was granted preceding the letter/contract. The letter did not fully or accurately set out the terms of the contract, which was essentially oral. Thus, the oral agreement presupposed that the idea was that of Mr. Fraser and could not be used by Thames with other actresses without Frasers consent. 3. Was the Plaintiffs ideas and characters in Rock Follies (Thames TV series) derived from the real life characters of the Plaintiffs? Yes. There were very substantial similarities, far more extensive and significant than mere trace elements. The Rock Follies series as a whole, especially the first two episodes were substantially based on the characters and actual experiences of the girls and Mr. Fraser. Thus, Rock Follies did use the plaintiffs idea.
8. Anderson v. Sylvester Stallone, 1989 WL 206431 (C.D. Cal.)

by Dagsa Facts: Sylvester Stallone, is a famous actor who starred in the movie Rocky I, II, & III. In May of 1982, while on a promotional tour for the movie Rocky III, Stallone informed members of the press of his ideas for Rocky IV. Although Stallone's description of his ideas would vary slightly in each of the press conferences, he would generally describe his ideas as follows: I'd do it [Rocky IV] if Rocky himself could step out a bit. Maybe tackle world problems. So what would happen, say, if Russia allowed her boxers to enter the professional ranks? Say Rocky is the United States' representative and the White House wants him to fight with the Russians before the Olympics. It's in Russia with everything against him. It's a giant stadium in Moscow and everything is Russian Red. It's a fight of astounding proportions with 50 monitors sent to 50 countries. It's the World Cup - a war between 2 countries.
In June of 1982, after viewing the movie Rocky III, Timothy Anderson wrote a thirty-one page treatment entitled "Rocky IV" that he hoped would be used by Stallone and MGM as a sequel to Rocky III. The treatment incorporated the characters created by Stallone in his prior movies and cited Stallone as a co-author. In October of 1982, Mr. Anderson met with Art Linkletter, who was a member of MGM's board of directors. Mr. Linkletter set up a meeting on October 11, 1982, between Mr. Anderson and Mr. Fields, who was president of MGM at the time. Mr. Linkletter was also present at this October 11, 1982 meeting. During the meeting, the parties discussed the possibility that plaintiff's treatment would be used by defendants as the script or Rocky IV. At the suggestion of Mr. Fields, the plaintiff, who is a lawyer and was accompanied by a lawyer at the meeting, signed a release that purported to relieve MGM from liability stemming from use of the treatment. Plaintiff alleges that Mr. Fields told him and his attorney that if MGM & Stallone use his stuff it will be big money, big bucks for Tim. On April 22, 1984, Anderson's attorney wrote MGM requesting compensation for the alleged use of his treatment in the forthcoming Rocky IV movie. On July 12, 1984, Stallone described his plans for the Rocky IV script on the Today Show before a national television audience. Stallone completed his Rocky IV script in October of 1984. Rocky IV was released in November of 1985. In January 1987, Anderson filed a case claiming breach of confidence and copyright infringement. Issue: Whether Stallones script and eventual movie a copyright infringement on the Andersons treatment that he had written before Stallone wrote the script? Ruling: NO The court concluded that the Stallones script and movie did not infringe any copyright protection of Andersons Rocky IV treatment. Thus, the court granted the s motion for summary judgment. A. Defendants Are Entitled To Summary Judgment Because Anderson's Treatment Is An Infringing Work That Is Not Entitled To Copyright Protection
The Courts finding is based upon determinations that: (a) The Rocky characters developed in Rocky I, II and III constitute expression protected by copyright independent from the story in which they are contained; (b) Anderson's treatment appropriated these characters and created a derivative work based upon these characters without Stallone's permission in violation of Section 106(2); (c) No part of Anderson's treatment is entitled to copyright protection as his work is pervaded by the characters of the first three Rocky movies that are afforded copyright protection. The Rocky Characters Are Entitled To Copyright Protection As A Matter Of Law The Rocky characters are one of the most highly delineated group of characters in modern American cinema. The physical and emotional characteristics of Rocky Balboa and the other characters were set forth in tremendous detail in the three Rocky movies before Anderson appropriated the characters for his treatment. The interrelationships and development of Rocky, Adrian, Apollo Creed, Clubber Lang, and Paulie are central to all three movies. Rocky Balboa is such a highly delineated character that his name is the title of all four of the Rocky movies and his character has become identified with specific character traits ranging from his speaking mannerisms to his physical characteristics. This Court has no difficulty ruling as a matter of law that the Rocky characters are delineated so extensively that they are protected from bodily appropriation when taken as a group and transposed into a sequel by another author. Plaintiff has not and cannot put before this Court any evidence to rebut the defendants' showing that Rocky characters are so highly delineated that they warrant copyright protection. This Court also finds that the Rocky characters were so highly developed and central to the three movies made before Anderson's treatment that they "constituted the story being told". All three Rocky movies focused on the development and relationships of the various characters. The movies did not revolve around intricate plots or story lines. Instead, the focus of these movies was the development of the Rocky characters. The same evidence which supports the finding of delineation above is so extensive that it also warrants a finding that the Rocky characters - Rocky, Adrian, Apollo Creed,
Clubber Lang, and Paulie- "constituted the story being told" in the first three Rocky movies. Anderson's Work is An Unauthorized Derivative Work The holder of a copyright has the exclusive right to prepare derivative works based upon his copyrighted work. In this circuit a work is derivative "only if it would be considered an infringing work if the material which it had derived from a prior work had been taken without the consent of the copyright proprietor of the prior work Anderson has bodily appropriated the Rocky characters in his treatment. This Court need not determine whether the characters in Anderson's treatment are substantially similar to Stallone's characters, as it is uncontroverted that the characters were lifted lock, stock, and barrel from the prior Rocky movies. Anderson retained the names, relationships and built on the experiences of these characters from the three prior Rocky movies. His characters are not merely substantially similar to Stallone's, they are Stallone's characters. Anderson's bodily appropriation of these characters infringes upon the protected expression in the Rocky characters and renders his work an unauthorized derivative work. By bodily appropriating the significant elements of protected expression in the Rocky characters, Anderson has copied protected expression and his treatment infringes on Stallone's copyrighted work. Since Anderson's Work Is An Unauthorized Derivative Work, No Part Of The Treatment Can Be Granted Copyright Protection Stallone owns the copyrights for the first three Rocky movies as such he has the exclusive right to prepare derivative works based on these copyrighted works. This Court has determined that Anderson's treatment is an unauthorized derivative work. Thus, Anderson has infringed upon Stallone's copyright. Plaintiff has written a treatment which is an unauthorized derivative work. This treatment infringes upon Stallone's copyrights and his exclusive right to prepare derivative works which are based upon these movies. Summary Judgment Is Appropriate On The Copyright Claims Because Rocky IV Is Not Substantially Similar To Anderson's Treatment
To prevail on his claim for copyright infringement, Mr. Anderson must prove that he owns a copyright and his work was copied by the defendant. Because there is rarely direct evidence that an alleged infringer physically copied a work, a plaintiff need only show that the defendant had access to his work and that the defendant's work is substantially similar to the plaintiff's copyrighted work. Two part test for determining whether an allegedly infringing work is substantially similar to the copyright holder's work: 1. Extrinsic test - analytic dissection and expert testimony are employed to determine whether there is substantial similarity of ideas between the two works in question. Application of the extrinsic test to analyze whether a movie is substantially similar to a script requires a court to compare the plot, theme, dialogue, mood, setting, pace, sequence of events, and characters of the two works. 2. Intrinsic test - the plaintiff must show that there is substantial similarity of expression between the two works in question. The intrinsic test is subjective and is based on the response of the audience to the look and feel of the two works. In this case, the intrinsic test requires a determination of whether the ordinary reasonable audience could recognize the movie Rocky IV as a dramatization or picturization of Mr. Anderson's work. The unusual circumstances of this case also distinguish it from other infringement cases and make a finding of non-infringement appropriate. The first three Rocky movies were made before Anderson wrote his treatment. Plaintiff concedes that he wrote his sequel after viewing the movies. Thus, Anderson is precluded from basing any inference of copying by Stallone in Rocky IV from similarities that flow naturally from the fact that both works are sequels to the first three movies. Second, it is uncontroverted that Stallone had already developed the idea that Rocky IV would center around a symbolic boxing confrontation between the United States and Russia before he knew that plaintiff's treatment existed. Thus, any similarity in the two works based on this symbolic confrontation cannot give rise to an inference that Stallone appropriated this idea from Anderson. Third, it is uncontroverted that it was the defendant, not the plaintiff, who developed the majority of characters in plaintiff's work. These include: Rocky, Adrian (Rocky's wife), Rocky, Jr. (Rocky's son), Paulie (Rocky's brother-in-law), Apollo Creed, Duke (Creed's manager), and Clubber Lang. Even if a court
were to find that these characters were not copyrightable, the fact that they originated with the defendant precludes any finding of similarity based on this common element of the two works. Application Of The Krofft Test A. Extrinsic Test The extrinsic test requires a comparison of plot, theme, dialogue, mood, setting, pace, sequence, and characters. i. Plot- Rocky IV In Rocky IV, Ivan Drago, a Russian fighter, arrives in the United States. Drago and his wife hold a press conference where she announces that Drago wants to fight professionally in the United States and would like to fight Rocky Balboa, the retired world boxing champion. Rocky is a wealthy ex-boxer and he declines to fight the dangerous Drago. However, Rocky's friend, Apollo Creed, wants to come out of retirement to fight Drago. Rocky, fearing for Apollo's health, unsuccessfully tries to talk Apollo out of fighting Drago. Apollo fights Drago in Las Vegas in a circus-like setting. Rocky is in Apollo's corner during the fight. Apollo refuses to stop fighting, even though Drago is injuring him during the early rounds of the fight. Drago strikes Apollo after the bell with a vicious blow and kills him. Rocky gives the eulogy at Apollo's funeral. A fight between Rocky and Drago is announced. The fight is a nonsanctioned fight and Rocky will be forced to give up his title to fight Drago. Rocky will not take any prize money for the fight. Drago will not fight in the United States as he fears for his safety after killing Apollo. The fight will be held in Russia on Christmas day. Soviet officials describe the fight as a test of the systems of the two countries. Rocky's wife disapproves of the fight and is extremely upset over the news of the fight. Rocky travels to Siberia to train in isolated surroundings. He is accompanied by Paulie, Duke, and two Soviet observers. Adrian also comes to Siberia where they reconcile their differences. Rocky trains by chopping wood, pulling sleds, running up mountains, shadow boxing, and performing other basic exercises. These scenes are juxtaposed with Drago's training. Drago trains in a technologically advanced environment with specialized machines. He trains surrounded by scientific advisors, and it is suggested that he is
taking performance enhancing drugs. Drago looks invincible as he appears much larger and stronger than Rocky. The fight takes place in Moscow. It is a brutal fifteen round fight. Rocky takes a severe beating but refuses to go down. In the fourteenth and fifteenth rounds, the Soviet crowd begins cheering Rocky's heroism. Rocky wins the fight in the fifteenth round and is hoisted up by the crowd. Rocky then gives an impassioned speech that emphasizes that the United States and the Soviet Union are capable of changing and getting along. The Court also notes that Rocky IV is replete with scenes in which Rocky has flashbacks to the first three Rocky movies. ii. Anderson's Treatment Several scenes at the beginning of the treatment chronicle the development from childhood of an East German boxer Adolph Heinemann. He begins boxing in international competition by the age of sixteen. He goes on to capture the gold medal at the 1984 Olympics. Heinemann then fights the heavyweight champion, Clubber Lang, at Madison Square Garden. Heinemann defeats Lang in the first round. Rocky and Apollo Creed watch the fight from ringside. They are partners in the fight promotion business. Heinemann makes several successful defenses of his title in Eastern Europe cities of Leningrad, Moscow, Leipzig, and East Berlin. Due to dominance of professional boxing by eastern block fighters, all major fights take place in eastern block countries. Rocky and Apollo continue their fight promotion business. Rocky and Apollo use their own money to finance three days of boxing at Madison Square Garden. They place their fortunes on the line to buy television coverage. The main event pits Clubber Lang against an Irish fighter. There is little interest in the event. Rocky and Apollo go broke. Rocky sells all of his possessions to pay his creditors. Rocky returns to the "row house apartment of Rocky I". (This setting is appropriated from Stallone's first movie by Anderson) He goes to work in a meat packing plant in Philadelphia. (This portion of the story also borrows heavily from Rocky I.) A Soviet leader gives a speech to the United Nations in New York. He states that the Communist world is prevailing over the West as exemplified by their boxing champion. He refers to Rocky as an old and weak ex-fighter. Upon hearing the speech, Rocky and Apollo become very distraught.
Both Rocky and Apollo, unbeknownst to the other, regroup and begin training in seclusion. Rocky is in Philadelphia and Apollo is in Los Angeles. Thereafter, Rocky and Apollo simultaneously take planes to visit the other and break the news of their respective comebacks. Coincidentally, both are on planes which are stopping over in Chicago. While in one of the terminals at the airport they bump into each other. They decide to begin training together. Rocky and Apollo return to the "old gym of original movie" (setting and training scenes based upon Rocky I) and devise a secret strategy for Rocky to beat Heinemann. An East German representative to the United Nations informs Rocky that Heinemann will not fight him because he is too old. Rocky and Apollo then go to New York to East Germany's United Nations ambassador. They barge in the office and intimidate the ambassador into calling Heinemann to ask him to fight Rocky. Rocky insults Heinemann and convinces him to agree to a fight. To raise money for his training, Rocky fights in exhibitions in Europe and South America. He fights in France, England, and Spain. He also trains in a Parisian bordello and a London nunnery. In London, Rocky is approached by CIA agents and followed by KGB officers. The CIA offers to pay Rocky's training expenses and he refuses. Rocky runs through a number of European capitals and ends up at St. Peters Square in Rome on the day the Pope is to appear. Rocky fights Heinemann at an outdoor stadium one hundred yards east of the Berlin wall. Heinemann originally dominates the fight. However, Rocky makes a heroic comeback and wins the fight when Heinemann refuses to answer the bell in the sixth round. The East German crowd cheers Rocky's victory. A comparison of the two plots shows that they are dissimilar apart from the East/West boxing confrontation that Stallone, himself, developed. Plaintiff argues that the list of similarities compiled by his expert Michael Roger precludes this Court from granting summary judgment, no matter how dissimilar the plots appear to this Court. However, this circuit has previously held that such lists of random similarities are inherently subjective and unreliable and do not in and of themselves create a material issue of fact. In his declaration, Mr. Rogers states that the plots are similar because in both works a Communist fighter defeats an American and subsequently Rocky defeats the Communist fighter and wins over a Communist crowd. However,
Rogers' declaration is deficient. As noted previously, Anderson cannot claim that Stallone copied the idea of an East/West boxing confrontation because there is uncontroverted evidence that Stallone developed the idea independently. In addition, the general similarities cited by Rogers between the plots and the themes of the two movies do not create any material fact issue for this Court, as general themes and basic plots are not protected by copyright. Setting The settings of the two movies are also quite different. In Anderson's treatment Rocky is a promoter in New York. After losing his savings he returns to where he lived in Philadelphia and Apollo returns to a gym in Los Angeles. (These settings in Philadelphia and Los Angeles are used in the first Rocky movies and are evidence that Anderson is copying Stallone's settings from the earlier Rocky movies, not that Stallone is copying the setting from Anderson's treatment.) In Anderson's treatment, Heinemann grows up in East Germany. Rocky trains in France, England, Spain, Germany, and Denmark. Rocky runs through major cities in each of these countries. The settings for his training include a bordello in Paris, a London nunnery, the Eiffel tower, and St. Peters Square. The final fight between Rocky and Heinemann takes place next to the Berlin wall in East Germany. In Rocky IV, Apollo fights Drago in Las Vegas. Rocky rains in Siberia. The final fight is set in Moscow. Dialogue Anderson's treatment contains very little dialogue as the treatment is a brief thirty-one page storyline. In his papers before this Court, Anderson did not claim that Rocky IV contained any dialogue similar to that in his treatment. However, in a "surreply", submitted without authorization by this Court, plaintiff's expert asserted that both works contained a short propaganda speech by a Soviet official which were very similar. This Court did not find a substantial similarity between these two speeches or any any portions of the dialogue of the two works. Themes A symbolic struggle between the United States and the eastern block is the overriding theme of both movies. Once again, the Court notes that there is
uncontroverted evidence that Stallone developed this theme independently. However, unlike Anderson's treatment, Rocky IV ends with a speech in which he emphasizes the theme that the United States and the Soviet Union should attempt to change their adversarial relationship. No such theme of potential resolution of the East/West conflict appears in Anderson's script. Rocky IV also contains a number of other underlying themes that are not found in Anderson's treatment. In Rocky IV, Rocky fights Drago to exact revenge for Drago's killing of his friend. Also, Stallone emphasizes that Rocky's old fashioned training can succeed against highly sophisticated Soviet athletic training. Both movies also share a nationalistic theme. However, this nationalistic theme is also emphasized in Rocky I, II, and III and this would be a necessary component of any sequel to the prior Rocky movies. Sequence The only similarity in the sequencing of the two works is that both end with Rocky fighting a Communist fighter. However, Stallone had originally emphasized that the climax of his movie would be a fight between Rocky and a Russian fighter. Tone and Mood Anderson did not claim that the tone and mood of the two movies were similar until this deficiency was pointed out by the defendants and he filed an unauthorized surreply. This Court finds it difficult to determine the tone and mood of Anderson's work due to its brevity and the lack of dialogue. This Court finds the tone and mood of Rocks IV to be very similar to that of the prior Rocky movies developed by Stallone. All of the Rocky movies are nationalistic, upbeat movies laced with occasional bits of humor, and involving Rocky Balboa in some new challenge. Whether these qualities could be extrapolated from Anderson's treatment is of little consequence, as the sequel Rocky IV shares the same tone and mood as the prior Rocky movies that were created by Stallone. Characters Rocky IV features the following characters: Rocky, Adrian (Rocky's wife), Rocky, Jr. (Rocky's son), Paulie (Rocky's brother-in-law), Apollo Creed, Duke
(Creed's manager), Clubber Lang, Ivan Drago (Soviet boxer), Ludmilla (Drago's wife/spokeswoman),and Nicolai Koloff (Drago's manager). Anderson's treatment features the following characters: Rocky, Adrian, Rocky, Jr., Paulie, Apollo Creed, Duke, Clubber Lang, Adolph Heinemann (East German boxer), and an unnamed Soviet propaganda expert. As can be seen from above, the majority of characters used in Anderson's treatment were created by Stallone. As noted throughout this opinion, these characters cannot be the basis for any finding of substantial similarity between Anderson and Stallone's work for purposes of establishing infringement. However, Anderson created two characters in his treatment that serve the same function as two of the characters from Rocky IV. Anderson's Adolph Heinemann and Stallone's Ivan Drago play similar roles as do Anderson's unnamed Soviet propaganda expert and Nicolai Koloff. Both Heinemann and Drago are large powerful boxers from the eastern bloc being used as propaganda tools in the boxing arena. Both are bigger than Rocky and favored to win their fights with him. However, this similarity is not a basis for inferring that Stallone copied Anderson's treatment, because in all of Rocky's previous fights he was the underdog to a physically superior opponent. In addition, Stallone's original plot ideas necessitated that he create a Soviet boxer. Heinemann is not described in great detail in Anderson's script although he is referred to as an "aryan German". In Rocky IV, Drago is blond and has blue eyes. Likewise, Anderson's unnamed propaganda official is not well developed. In fact, he appears in only two scenes in the treatment. Apparently, this official is the mastermind of the plan to create a Communist world boxing champion. On the other hand, Stallone's Nicolai Koloff is Drago's manager who appears at all the press conferences and is partially responsible for Drago's training. Koloff plays a different and more prominent role that the unnamed propaganda official. In addition, neither Heinemann nor the propaganda officials are delineated with great specificity in Anderson's treatment. As delineated above, Anderson cannot base a finding of substantial similarity on the characters and themes that Stallone had developed previously. Nor can a finding of substantial similarity be based on the fact that the two works both culminate in a symbolic boxing confrontation between the United States and the Soviet Union. This symbolic confrontation was developed
independently by Stallone. When the two works are compared without considering Stallone's own characters and themes, it is abundantly clear that the plot, setting and sequence of events are very dissimilar. Most of the characters in Anderson's work were appropriated from Stallone. The two characters that Anderson created independently, Heinemann and the Soviet propaganda expert, are not highly delineated. Nor are they substantially similar to Drago or Koloff, the two parallel characters in Stallone's treatment. These character similarities cannot be the basis for a finding of substantial similarity. Based upon an analysis of the objective criteria above, the Court holds that under the extrinsic test the two works are dissimilar. This Court need not reach the question of whether there is substantial similarity between the two works under the intrinsic test because it has ruled as a matter of law that the two works are dissimilar under the extrinsic prong of this circuit's test for substantial similarity. B. Intrinsic Test In any event, the Court finds that no reasonable audience would recognize the movie Rocky IV as a dramatization or picturization of Anderson's work. Under the intrinsic test as well as under the extrinsic test, a finding of substantial similarity cannot be based on unprotectable scenes-a-faire or characters, themes, and plots which Stallone originally created himself. Taking away these portions of Anderson's work, no reasonable jury could find that Rocky IV is a picturization of Anderson's treatment. This necessitates a holding that the two works are dissimilar as a matter of law under the intrinsic test.
9. MICRO STAR v FORMGEN INC

by Pulido Facts: IFormGen Inc., GT Interactive Software Corp. and ApogeeSoftware, Ltd. (collectively FormGen) made, distributed and own the rights to Duke Nukem 3D , an immensely popular (and very cool) computer game. Duke Nukem 3D is played from the first-person perspective. Players explore a futuristic city infested with evil aliens and other hazards. The goal is to zap them before they zap you, while searching for the hidden passage to the next level. The basic game comes with 29 levels, each with a different combination of scenery, aliens, and other challenges. The game also includes a "Build Editor," a utility that enables players to create their own levels. With Form-Gen's encouragement, players frequently post levels they have created on the Internet where others can download them.
Micro Star, a computer software distributor, did just that: It downloaded 300 user-created levels and stamped them onto a CD, which it then sold commercially as Nuke It and packaged it in a box decorated with numerous "screen shots,"pictures of what the new levels look like when played. Micro Star filed suit in district court, seeking a declaratory judgment that Nuke It did not infringe on any of FormGen's copy-rights. FormGen counterclaimed, seeking a preliminary injunction barring further production and distribution of Nuke It . District court held that Nuke It was not a derivative work and therefore did not infringe FormGen's copyright. The district court did, however, grant a preliminary injunction as to the screen shots, finding that N/I's packaging violated FormGen's copyright by reproducing pictures of D/N-3D characters without a license. The court rejected Micro Star's fair use claims. Both sides appeal their losses. ISSUE: Whether or not FormGen's copyright is infringed by MicroStar's unauthorized commercial exploitation of user-created game levels. HELD: Yes, the Court considered each user-created level as a sequel of the Duke Nukem story and only FormGen, as copyright holder, can produce the sequels of the story. Micro Star argues that Nuke It is not a derivative work because the audiovisual displays generated when Duke Nukem 3D is run with Nuke It's MAP files are not incorporated in any concrete or permanent form, and the MAP files do not copy any of Duke Nukem 3D's protected expression. Microstar is wrong on both counts. PERMANENT FORM The audiovisual display that appears on the computer monitor when a Nuke It level is played is described--in exact detail--by a Nuke IT I MAP file. The exact last detail, description of an audiovisual display counts as a permanent or concrete form. It is what sheet music do to copyrighted melody sounds, i.e., describe in precise detail the way a musical composition sounds. PROTECTED EXPRESSION "To prove infringement, [FormGen] must show that Duke Nukem -3D'sand Nuke It's audiovisual displays are substantially similar in both ideas and expression. Similarity of ideas may be shown by comparing the objective details of the works: plot, theme, dialogue, mood, setting, characters. Similarity of expression focuses on the response of the ordinary reasonable
person, and considers the total concept and feel of the works. This is true here because the audio-visual displays generated when the player chooses the Nuke It levels come entirely out of Duke Nukem's source art library. Microstar argues that the MAP files do not contain any protected expression as there are no art work there. The work that MicroStar infringes is the Duke Nukem 3D story itself--a beefy commando type named Duke who wanders around post-Apocalypse LosAngeles, shooting Pig Cops with a gun, lobbing hand grenades, searching for medkits and steroids, using a jetpack toleap over obstacles, blowing up gas tanks, avoiding radioac-tive slime. A copyright owner holds the right to create sequels and the stories told in the Nuke it MAP files are surely sequels, telling new (though somewhat repetitive) tales of Duke's fabulous adventures. Notes on DUKE NUKEM 3D GAME The game consists of three separate components: the game engine, the source art library and the MAP files. The game engine is the heart of the computer program; in some sense, it is the pro-gram. It tells the computer when to read data, save and load games, play sounds and project images onto the screen. In order to create the audiovisual display for a particular level,the game engine invokes the MAP file that corresponds to that level. Each MAP file contains a series of instructions that tell the game engine (and, through it, the computer) what to put where. For instance, the MAP file might say scuba gear goes at the bottom of the screen. The game engine then goes to the source art library, finds the image of the scuba gear, and puts it in just the right place on the screen. The MAP file describes the level in painstaking detail, but it does not actually contain any of the copyrighted art itself; everything that appears on the screen actually comes from the art library. Think of the game's audiovisual display as a paint-by-numbers kit. The MAP file might tell you to put blue paint in section number 565, but it doesn't contain any blue paint itself; the blue paint comes from your palette, which is the low-tech analog of the art library, while you play the role of the game engine. When the player selects one of the Nuke It levels, the game engine references the Nuke It MAP files, but still uses the DUKE Nukem -3D art library to generate the images that makeup that level. FormGen points out that a copyright holder enjoys the exclusive right to prepare derivative works based on D/N-3D. According to FormGen, the audiovisual displays generated when Duke Nukem -3D is run in conjunction with the Nuke It CD MAP files are derivative works that infringe this exclusivity.
11. Wendt v. Host International

by Saludares Copyright Law and Other Related Rights 1st Sem 2011 21 July 2011 DigestsPage 24
Wendt and Ratzenberger sued Host for alleged violation of their trademark and publicity right by creating animatronic robotic figures (robots) based on their physical likenesses without their permission and placing these robots in airport bars modeled upon the set from the television show cheers. Wendt and Ratzenberger were principal players on cheers, a popular television show. They are clearly well-known among the target customers of Hosts Cheers bars. So that, their mark (celebritys persona) was strong.
What is Right of Publicity? A. As a statutory right (in civil law system) Right of publicity is a protection against anyone who knowingly uses anothers name, voice, signature, photograph, or likeness in any manner for purposes of advertising or selling without prior consent. B. In common law. Right of Publicity is a protection against anyone who appropriates for his/her advantage somebodys name or likeness. Host gave the robots names Bob and Hank. Immaterial. The physical likeness to Wendt and Ratzenberger that gave commercial value to Host, not the fictional character that is portrayed. Right of Publicity is violated if there is a false endorsement that by using an imitation of Wendt and Ratzenbergers physical characteristics, Host misrepresented their association with and endorsement of the Cheers bar concept. The 8 well settled factor test in celebrity endorsement cases. 1. The strength of the plaintiffs mark (mark means the celebritys persona, strength of mark i level of recognition) - Wendt (W) and Ratzenberger (R) are main players of Cheers and they popular among the target customers of Host. Relatedness of the goods - The source of fame of W & R and Host bar are identical the Cheers television series. Similarity of the marks - View the similarity as they appear in the marketplace.
2. 3.
4.
5. 6. 7.
8.
Evidence of actual confusion - Actual confusion. W & R were approached by members of the public who commented on their similarity with the robots of Cheers airport bars. Marketing channels used - The target audience of Cheers bars are customers who are fans of W & R. Likely degree of purchaser care - People do not care who owns the robots which are not for sale Defendants intent in selecting the mark Host refused to recast the robots despite being advised that W & R will not agree to the use of their likeness. Instead Host simply gave the robots means Hank and Bob. Likelihood of expansion of the product lines R would like to appear in advertisement for beer of a large brewery. And the robots of Cheers would likely indicate that R is endorsing beers sold at Cheers bars.
The Court ruled in favor of W & R.
12. Vanna WHITE, Plaintiff-Appellant,.v. SAMSUNG ELECTRONICS AMERICA, INC.; David Deutsch Associates, Defendants-Appellees., No. 90-55840.March 18, 1993.
Facts: This is case is decided by the Court of Appeals after a petition for rehearing was denied by panel majority and the petition for rehearing en banc was rejected. Defendant Appellee Samsung Electronics America, Inc. (SAMSUNG) ran an ad campaign promoting consumer electronics. Each advertisement depicted a Samsung product and a humorous prediction about what Samsung products would be like 20 years from now. For example: A raw steak with the caption Revealed to be health food 2008 A.D.; Morton Downey, jr, in front of an American flag with the caption Presidential Candidate 2008 A.D. Plaintiff Vanna White filed a case against Samsung because of its advertisement that showed A robot dressed in a wig, gown and jewelry reminiscent of Vanna Whites hair and dress. The robot was posed next to a Wheel of Fortune like gameboard with the caption Longest running game-
show. It implied that Samsung would still be around even if Vanna White was replaced by a robot. She sued alleging that Samsung infringed her right of publicity by appropriating her identity. Under California law, White had an exclusive right to use her name, likeness, signature and voice for commercial purposes. The district judge held that because her name , likeness, voice and signature was not used, it did not violate her right of publicity. However, the panel majority held that the right of publicity must not be limited to name and likeness. It held that the right of publicity must prevent an evisceration of Whites right, and should include any appropriation of her likeness, identity and personality. It applies to advertisements that unintentionally remind people of someone. California law states that the common-law right of publicity may be violated even by unintentional appropriations. ISSUE: Was there infringement of Whites publicity rights? HELD: None. The right of publicity does not mean that a famous person has an exclusive right to anything that reminds the viewer of her or evoke her identity. Intellectual property rights aren't like some constitutional rights, absolute guarantees protected against all kinds of interference, subtle as well as blatant.xxx The very point of intellectual property laws is that they protect only against certain specific kinds of appropriation. Creators can draw from the works of others, referring to it, building on it, poking fun at it and it is creativity and not piracy. Even if some may think that she is endorsing the product, the right of publicity is not aimed at false endorsements. Parody is an exception to the right of publicity. Copyright law also gives the the right to make "fair use" parodies, parodies that don't borrow too much of the original. The robots wig and clothes would not make people conclude it is White unless posed near the "Wheel of Fortune" game board. Without the game board from the ad, and no one would think of Vanna White. Intellectual property law balances what belongs to the owner and what is for the public domain that at some point the public can use something created by someone else. There should be a right of fair use and right to parody. Otherwise, advertisers will now have to cope with or be wary of vague claims of "appropriation of identity," by famous people.
The public's right to make a fair use parody and the copyright owner's right to license a derivative work are useless if the parodist is held accountable by every actor whose "identity" he might need to "appropriate." Finally, even if Samsung used the image as commercial speech (not noncommercial speech) it is still protected under the First Amendment. By not allowing any means of reminding people of someone, that would be a restriction of the freedom of a speech. (First Amendment law.) The First Amendment is not just about religion or politics--it's also about protecting the free development of our national culture. Parody, humor, irreverence are all vital components of the marketplace of ideas. The rights of copyright holders and the public at large must not be restricted just to avoid the "evisceration" of a celebrity's rights in her image.
13. BELLSOUTH ADVERTISING & PUBLISHING CORPORATION, v. DONNELLEY INFORMATION PUBLISHING, INC.
by Ramos Facts: Bellsouth advertising & Publishing Corporation (BAPCO) is a subsidiary wholly owned by Bellsouth Corp. which is engaged in preparing, publishing, and distributing telephone directories. It publishes a classified ad yellow page directory for the Greater Miami Area. The said yellow pages is arranged alphabetically and based on business classifications. After BAPCO published it yellow pages in 1984, Donnelly Information Publishing began promoting and selling classified advertisements to be placed in a competitive classified directory for the Greater Miami Area. To generate a list of business telephone subscribers to be solicited for placement in its directory, Donnelley gave copies of BAPCO's directory to Appalachian Computer Services, Inc. ("ACS"), a data entry company. Donnelley first marked each listing in the BAPCO directory with one alphanumeric code indicating the size and type of advertisement purchased by the subscriber and a similar code indicating the type of business represented by the BAPCO heading under which the listing appeared. For each listing appearing in the BAPCO directory: ACS created a computer data base containing, the name, address, and telephone number of the subscriber, as well as the codes corresponding to business type and unit of advertising. From this data base, Donnelley printed sales lead sheets, listing this information for each subscriber, to be used to contact business telephone subscribers to sell advertisements and listings in the Donnelley directory. Relying on this information copied from the BAPCO directory,
Donnelley ultimately prepared its own competitive directory for the Greater Miami area. Issue: Whether Donnelleys acts of preparing its own competitive directory by substantially relying on the information copied from the BAPCO directory constitutes copyright infringement? Held: No. To establish its claim of copyright infringement, BAPCO must prove "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. The validity of BAPCO's copyright in its directory, considered as a whole, was conceded by Donnelley. To demonstrate the second element of infringement, BAPCO must prove that Donnelley, by taking the material it copied from the BAPCO directory, appropriated BAPCO's original selection, coordination or arrangement. The district court found that BAPCO engaged in a number of acts of selection in compiling its listings. For example, BAPCO determined the geographic scope of its directory and the closing date after which no changes in listings would be included. BellSouth, 719 F. Supp. at 1551-58. The district court erred, however, in implicitly determining that these selective acts were sufficiently original to merit copyright protection. Rural obviously established a geographic scope and a closing date for its white pages, which were held uncopyrightable as a matter of law in Feist. The district court's analysis would protect such factual elements of every compilation; any collection of facts "fixed in any tangible medium of expression" will by necessity have a closing date and, where applicable, a geographic limit selected by the compiler. The district court found that BAPCO "selected" its listings by requiring its yellow pages subscribers to use a business telephone service. The district court also focused on a number of marketing techniques employed by BAPCO to generate its listings, such as the determination of the number of free listings offered to each subscriber, the selection of which customers to contact by an on premise visit from sales personnel, the selection of the date of commencement of its advertisement sales campaign, and the procedure used to recommend the purchase of listings under multiple headings. The district court again failed to consider whether these "acts of selection" met the level of originality required to extend the protection of copyright to BAPCO's selection. More fundamental, these acts are not acts of authorship, but techniques for the discovery of facts. In Feist, the Court emphasized the distinction "between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence." By
employing its sales strategies, BAPCO discovered that certain subscribers describe their businesses in a particular fashion and were willing to pay for a certain number of listings under certain available business descriptions. To be sure, BAPCO employed a set of strategies or techniques for discovering this data. Any useful collection of facts, however, will be structured by a number of decisions regarding the optimal manner in which to collect the pertinent data in the most efficient and accurate manner. If this were sufficient, then the protection of copyright would extend to census data, cited in Feist as a paradigmatic example of a work that lacks the requisite originality. BAPCO's claim of copyright in the arrangement of its directory also does not survive application of the "merger" doctrine. Under the merger doctrine, "expression is not protected in those instances where there is only one or so few ways of expressing an idea that protection of the expression would effectively accord protection to the idea itself." Kregos v. Associated Press, 937 F.2d 700, 705 (2d Cir.1991). see also Baker v. Selden, 101 U.S. (11 Otto) 99, 25 L. Ed. 841 (1879). Because this is the one way to construct a useful business directory, the arrangement has "merged" with the idea of a business directory, and thus is uncopyrightable. Additionally, BAPCO failed to present evidence that, even if copied, its heading structure constitutes original expression warranting copyright protection. By copying the name, address, telephone number, business type, and unit of advertisement purchased for each listing in the BAPCO directory, Donnelley copied no original element of selection, coordination or arrangement; Donnelley thus was entitled to summary judgment on BAPCO's claim of copyright infringement. We REVERSE the judgment of the district court granting summary judgment to BAPCO on its claim of copyright infringement and enter judgment in favor of Donnelley on this claim.

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3. METRO-GOLDWYN-MAYER V. AMERICAN HONDA MOTOR CO.

7. FRASER and others v. THAMES and others

8. Anderson v. Sylvester Stallone, 1989 WL 206431 (C.D. Cal.)

9. MICRO STAR v FORMGEN INC

11. Wendt v. Host International

The Court ruled in favor of W & R.

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