BOSTON COLLEGE LAW SCHOOL
FINAL EXAMINATION: COPYRIGHT LAW
(COURSE NO. LL74601)
PROFESSOR JOSEPH P. LIU
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SPRING SEMESTER 2002
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2 QUESTIONS
TAKE HOME EXAMINATION
TOTAL TIME: 24 Hours
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PICKUP: ANY DAY FROM TUE., APR. 30 THROUGH THU., MAY 9
(EXCEPT FRI., MAY 3), BETWEEN 9:30-10:00 A.M. OR 4:00-4:30 P.M.
DUE: 24 HOURS AFTER TIME OF PICKUP
LOCATION: STUDENT RECORDS OFFICE
INSTRUCTIONS: READ CAREFULLY
PICK UP AND DROP OFF. This is a 24-hour take-home examination. You may pick up this examination at the Student Records Office on any of the days indicated above, during the time periods indicated above. Your answers must be turned in to the Student Records Office within 24 hours of the time you picked up the exam. If you miss the deadline, your answer may be treated as if it had not been turned in. So, please budget sufficient extra time (e.g. for transportation, last-minute technical delays, etc.) to make sure that you hand in your answers by the deadline.
DISCUSSION OF EXAM. Because this is a freely-schedulable take-home exam, it is absolutely critical that information concerning the exam not be disclosed to students who have not yet taken the exam. Accordingly, after you have taken the exam, you may not discuss the exam with anyone who has not yet taken the exam. Furthermore, since disclosure may be inadvertent, you must take care not to discuss the exam in any place where details of the exam may be overheard by other students who have not taken the exam. This is absolutely essential to ensure that the test is fair and that no students obtain an unfair advantage.
GENERAL INSTRUCTIONS. The exam has 2 questions. The questions are weighted according to the percentages set forth below, so please allocate your time and effort accordingly. Please read each question carefully before answering, paying particular attention to the type of answer that each question is asking for. Please also spend adequate time planning your responses prior to writing your answers. Clear organization and analysis will do wonders for your answer. To that end, please try to budget some time at the end for reviewing and editing your answers.
RESOURCES. This is a limited open book exam. This means that you may consult the casebook, any outlines or notes, any commercial or third-party outlines, any other books or articles that you have purchased or borrowed. You may not, however, share any copies of such resources with other students during the course of the exam. In addition, you may not consult any on-line resources such as Westlaw or Lexis or the World Wide Web during the exam. You may not consult or communicate with any other individual about either the form or substance of the exam during the period in which you are taking the exam. If there are any ambiguities in either the form or substance of the examination, do not discuss the exam with anyone else; instead, indicate any assumptions you are making and proceed to answer the question as best you can.
FORMAT, WORD LIMITS, RELATIVE WEIGHT. Answers should be typed, double spaced, 12-point font with reasonable margins. The maximum word limits below will be strictly enforced. At the end of each answer, include the total number of words in the answer (including words in the footnotes, if any) using your word processor’s word count tool.
LIMIT WEIGHT
QUESTION 1: 1500 WORDS 50%
QUESTION 2: 1500 WORDS 50%
These word limits are maximum limits. Of course, you may choose to use fewer than the maximum words. (But you cannot “save” words from one question to use for another.) It may be that you will be unable to say all you want to say within the existing word limits. If this is the case, then you will need to make judgments about the relative importance of the points you wish to make.
CASE CITATIONS. You needn’t refer to any cases by name in any of your answers, unless the question specifically asks for such. A perfectly excellent answer can be turned in without mentioning a single case by name. However, if you do wish to refer to any cases (whether for support, as an example, or as a short-hand for a particular legal rule), simply write the case name or a recognizable abbreviation. Do not cite any cases that are not in the case book – this exam does not require any additional research (and conducting such additional research will probably serve only to confuse you); rather, this exam tests how well you have mastered the legal materials that have been assigned to read during the course.
Good Luck!
QUESTION 1 (50%):
(1500 WORDS)
You are a junior associate at a mid-sized law firm. One evening, just as you are preparing to leave the office, your phone rings. A partner is on the other end of the line. She says that a client of hers will be coming into the office tomorrow morning. The client needs some advice concerning a number of potential legal issues. Unfortunately, the partner is going to be out of town tomorrow morning and will be unable to meet with the client. However, she would like you to meet with the client and find out the nature of the legal issues facing the client. She would also like you to draft a short memo for her, outlining any legal claims that the client could possibly have against other parties or that the other parties could possibly bring against the client, along with your preliminary assessment of the likelihood of success of any of these claims.
The next morning, you meet with the client and find out the following information:
The client, Susan Corcoran, is an accomplished sculptor, specializing in large scale, abstract metal sculpture. Her work has been displayed at museums and galleries throughout New England and has won critical acclaim and numerous awards. She has come to your firm because she is currently involved in a number of potential legal disputes.
In January of 2000, Corcoran received a commission from a company called Datacorp, to create a large-scale, metal sculpture to be displayed on the grounds of their new corporate headquarters in Natick, Massachusetts. The sculpture was to be located prominently in the plaza, just outside the main entrance to the main building on the corporate campus. The contract between Corcoran and Datacorp specified that the sculpture would measure approximately 25 feet in height and 25 feet in width, and that it would be delivered to Datacorp by August of 2000. The contract price was $100,000, with an advance of $20,000 at the signing (to cover initial costs for materials, etc.) and the balance due upon delivery. The contract contained no provisions regarding intellectual property rights in the sculpture.
Corcoran worked steadily on the sculpture in the months between January and August of 2000. Because the sculpture would be so prominently displayed at the Datacorp headquarters and would therefore play a large role in setting the corporate image for the company, a special ad hoc committee was set up within Datacorp to give input to Corcoran during her creative process. The committee members told Corcoran that they wanted the sculpture to reflect the high-tech, dynamic, and innovative nature of the company. At various points in time, Corcoran presented models of the work in progress to the committee members, who in turn made comments and suggestions, some of which Corcoran incorporated into the ultimate design. Corcoran presented a model of the final design to the committee members for final approval in June of 2000. Corcoran then proceeded to execute the design on a large scale.
The sculpture, entitled “Sphere,” was installed at the Datacorp corporate headquarters in August of 2000. The sculpture consisted of a large, shiny metallic sphere, measuring 25 feet in diameter and resting on a short, granite pedestal. The sphere had a highly polished and reflective surface. On the sphere, covering its entire surface, Corcoran had repeatedly etched a random series of “1”s and “0”s. Each numeral was approximately 6 inches high. The series of numbers started at the top and spiraled around the sphere, all the way to the bottom, covering its entire surface. In addition, the sculpture incorporated water as an element, in the following manner: a very thin stream of water emerged from the top of the sphere and flowed smoothly over the sphere, down the sides, and back down into the granite base.
The sculpture received a modest amount of coverage in the local and regional press. Although critics did not think that “Sphere” was one of Corcoran’s best or most important works, they nevertheless reviewed it based on her general prominence as a sculptor. The reviews were generally mixed, with some critics viewing it as an important contribution and others dismissing it as not up to Corcoran’s past standards.
Within Datacorp, however, the reaction was much more positive. In fact, because the sculpture was so well regarded within the company, the company’s marketing department decided to feature it prominently in their subsequent marketing materials. Accordingly, pictures of the sculpture were featured on the cover of Datacorp’s 2000 annual report and in a nationally-televised commercial. The cover of the annual report prominently depicted the sculpture standing alone, with nothing else in the background. The television commercial displayed an image of the sculpture for approximately the first 10 seconds of the 30-second commercial, and in the context of a wider shot of the main building as a whole.
Corcoran did not learn of Datacorp’s use of images of the sculpture until she happened to see the commercial on television. Soon thereafter, she also learned that Datacorp had used images of the sculpture on the annual report. Corcoran promptly called her contact at Datacorp and demanded that the company either stop using images of the sculpture or pay her a licensing fee for such uses. The company categorically refused. Furthermore, during the course of her conversations with the company, Corcoran learned that the company was planning to make modifications to the sculpture. Specifically, plans were afoot to paint the sculpture bright red, in order to make the sculpture more consistent with the company’s corporate colors. Corcoran was appalled at the news.
While Corcoran was engaged in discussions with Datacorp over the use of the sculpture, Corcoran learned that a local company was selling small bird baths to homeowners, and that these bird baths were based expressly on Corcoran’s sculpture. The company, Direct Garden Accessories, Inc., specialized in selling home and garden equipment. Capitalizing on the popularity of Corcoran’s sculpture, Direct Garden began offering in its stores a small bird bath, called the “Sphere Bird Bath.” The bird bath consisted of a shiny metal sphere approximately three feet in diameter, with water pouring from the top of the sphere and cascading down its sides. Unlike Corcoran’s sculpture, the Sphere Bird Bath contained no lettering etched on the side and was instead completely smooth. Aside from the lack of lettering, however, the Sphere Bird Bath was a near-perfect miniature replica of the Sphere. In Direct Garden’s catalog, it noted that the design of the Sphere Bird Bath was “inspired by the popular sculpture by Susan Corcoran.” Furthermore, Direct Garden claimed that the bird bath, in addition to being aesthetically pleasing, was 20% more effective than other bird baths at attracting birds, who appeared to be drawn to the shiny round shape and the water flowing down the sides.
In addition to the events above, Corcoran recently received a letter from Southwest Artists, Inc., a company that owns and licenses copyrights in artworks created by artists from the Southwest. An employee at Southwest Artists had seen the Datacorp commercial featuring images of Corcoran’s sculpture and noted its similarity to a series of sculptures created and published many years ago by a New Mexico-based sculptor named John Pascal. In 1942, Pascal created a series of five abstract metal sculptures, consisting of various geometric shapes, resting on short wooden pedestals. The name of the series was “Shapes”, and one of these sculptures, entitled “Round,” consisted of a highly-polished, reflective metal sphere approximately three feet in diameter. Etched on the sculpture, at various points on the sphere, were a random series of letters. Unlike “Sphere,” the etched letters on “Round” did not cover the entire surface of the sculpture; instead, they covered only approximately 50% of the surface. Pascal, who is still alive today, had assigned “all rights” in the copyrights in the sculptures to Southwest Artists in a writing dated 1942.
In the letter, Southwest Artists indicates that the two sculptures, “Round” and “Sphere,” are so similar that they are convinced that Corcoran copied Pascal’s sculpture. Accordingly, Southwest Artists is demanding that Corcoran pay them a portion of the amount she received from Datacorp for her sculpture. Corcoran insists that she did not copy Pascal’s sculpture and that any similarities are purely coincidental. Corcoran has done some research on Pascal, and has learned that Pascal was relatively well-known in the 1940s, but did not do much recognized work after the 1950s. His “Shapes” series of sculptures was relatively well-regarded in the 1940s, and pictures of the sculptures appeared in a few nationally-distributed art magazines and two books published at about the same time. Corcoran acknowledges that it is conceivable that she could have come across pictures of Pascal’s sculptures at some point in her studies, when she was in graduate school in the 1970s, but insists that she has no such recollection and certainly did not base her sculpture for Datacorp on Pascal’s work.