UNIVERSITY OF CALIFORNIA
HASTINGS COLLEGE OF THE LAW
FINAL EXAMINATION: INTELLECTUAL PROPERTY
(COURSE NO. _________)
PROFESSOR JOSEPH P. LIU
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FALL SEMESTER 2000
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3 QUESTIONS
TAKE HOME EXAMINATION
TOTAL TIME: 24 Hours
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PICKUP: ANY TIME DURING EXAM PERIOD, EXCEPT FRIDAYS
AND THE LAST DAY OF THE EXAM PERIOD
DUE: 24 HOURS AFTER TIME OF PICKUP
LOCATION: 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 Records Office, at any time during the exam period between the hours of ___ a.m. and ___ p.m., except Fridays and the last day of the exam period. Your answers must be turned in to the 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., 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 three 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 that you have purchased or borrowed. You may not, however, share any copies of such resources with any 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. You may not, under any circumstances, 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, PAGE LIMIT, RELATIVE WEIGHT. Answers should be typed, double spaced, 12-point font with reasonable margins. Place only your identification number on your answers; do not include your name anywhere on the answer. 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) and the method used to calculate that number (e.g. using the word count tool in your word processor, counting a sample page and multiplying, etc.).
LIMIT WEIGHT
QUESTION 1: 1400 Words 33%
QUESTION 2: 1400 Words 33%
QUESTION 3: 1400 Words 33%
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 (33%):
(1400 WORDS)
You are a junior associate at a mid-sized law firm that caters to high-tech clients. 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 relating to the company’s web site. 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 him, 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, Jack Casey, is the President and C.E.O. of HorrorFilmCentral.com, Inc. (“HFC”). A former U.S.C. film student turned internet entrepreneur, Casey formed HFC one year ago, secured an initial round of venture financing, and has grown the company to approximately 10 full time employees. HFC publishes an internet web site that is devoted to celebrating horror films. Visitors to the site can conduct searches through the database of films and find extensive information about any given horror film, including the casts, plot summaries, reviews, statistics (such as body counts), and in some cases, pictures from the films. The site also contains a discussion board where visitors can post comments about the various films.
When Casey first started the company six months ago, he faced the problem of assembling all the data for the various horror films. Rather than compiling this data by hand from print sources (a very time-consuming task), Casey purchased a CD-ROM published by a company called FilmCenter, a well-known aggregator of data for the film industry. Casey purchased the CD-ROM from a friend, and the CD-ROM came without any licensing terms attached to it. The CD-ROM contained a database of comprehensive statistics on nearly all films produced in the U.S. over the past 50 years, along with software that permitted users to search the data. The CD-ROM also contained reviews of the films, written by the FilmCenter staff, ratings for each of the films (from one to five stars), as well as a “Top1000” list compiled by the FilmCenter staff “after an exhaustive and careful review of tens of thousands of films” (according to the marketing literature).
Casey copied the entire contents of the CD-ROM onto his computer. He then extracted data for only those films that fit within the horror film genre. He also stripped the reviews from each horror film record, though he kept the ratings. Thus, at the end of the day, he was left with a database of facts, statistics, and ratings about each of the horror films. Casey then uploaded the database onto his web site and made the database available to HFC users, free of charge. Casey also extracted the horror films from the FilmCenter Top1000 list and posted them on the site as the “HorrorFilmCentral.com Top100 Horror Films of All Time.” Since there were only 78 horror films in the FilmCenter Top1000, Casey added another 23 horror films of his choosing to the list, to make up the 100 films.
A few weeks ago, Casey received a letter from FilmCenter’s attorneys. Apparently, FilmCenter included in its CD-ROM certain bits of erroneous data, to help it detect acts of copying, and Casey had copied some of this erroneous data onto his web site. FilmCenter demands that Casey remove all of the copied data immediately, or else face an imminent lawsuit. FilmCenter also objected to Casey’s use of the “HorrorFilmCentral.com” domain name, arguing that it infringed upon FilmCenter’s registered trademark in FilmCenter. Although FilmCenter does not yet have a website, it has registered the domain FilmCenter.com and intends to launch a website within the next several months.
One popular area of the HFC site contains pages that are devoted, not to actual horror films, but to spoofs or parodies of current horror films. These spoof pages were created by HFC staff members, and were originally dreamed up as a way of training HFC web page developers. These spoof pages became so popular with users, however, that they became a regular feature of the site and routinely receive some of the most visits (which, in turn, drives up the revenue for banner ads appearing on these pages). The pages typically include some version of the original movie’s title (e.g. “I Still, Still, .... Yes Still Know What You Did Last Summer”), some altered version of the logos for the films and the film studios (e.g. an MGM Aardvark rather than the MGM Lion), images of the film posters that have been digitally altered in humorous and satirical ways, short 20-second sound clips of the theme songs from the movies, and, in some cases, very short (30 second) film clips from the actual movies, with humorous dialogue dubbed on top (i.e. replacing the original dialogue). These pages also contain mock profiles of a number of the actors in the movies (e.g. “Jennifer Her Loveliness Hewitt”, etc.), along with digitally-altered images of these actors (e.g. accentuating certain facial features, etc.). These pages have been so successful, in fact, that HFC has begun to sell t-shirts and posters featuring the parodied versions of the movie posters and celebrity caricatures from the horror films.
HFC has since received letters from attorneys representing a number of the major studios (including MGM) and a number of actors (including Jennifer Love Hewitt), demanding that this area of the site be shut down and that HFC immediately stop selling the movie posters and t-shirts.
HFC also contains an area where users can post screenplays for horror movies that they have written. Other users can then view and download these screenplays. Casey launched this area three months ago and promoted it extensively by sending out emails to site members. The area has been a big hit, and has received thousands of original user screenplays. In fact, the area has been so successful that Casey has had to classify the screenplays according to type. One category, called “Unauthorized Sequels,” consists entirely of sequels for popular existing horror films. These screenplays often utilize a few of the same characters from the earlier films (usually the villain who “died” and the lone surviving teenager), as well as a number of the same, stock plot devices (e.g. a group of teenagers out on a camping trip, etc.). They also often employ some version of the title of the original film (e.g. “Scream XIV”). However, these screenplays also frequently include many entirely new characters and, in most cases, the dialog is entirely original, although there are occasionally references to events from the original films. HFC regularly awards prizes for the best screenplays in each category.
One of the major film studios, Paramount, has sent HFC a letter from its attorneys, demanding that this area of the site be shut down or, at the very least, that a number of screenplays corresponding to its films be removed immediately.
Draft the memo for your partner, analyzing any potential claims that Casey may be able to bring or that others may be able to bring against Casey, along with your preliminary assessment of the strengths and weaknesses of such claims and any potential defenses. If there is any additional specific information that you will need in order to make your assessment, identify that information in your analysis and indicate how it would affect this analysis. (You can assume that the partner will already be familiar with the above facts, after reading your detailed notes of the interview, so there is no need to include a separate section summarizing the above facts.)
QUESTION 2 (33%):
(1400 WORDS)
A client of your firm, Mike Poulsby, is both a chemical engineer and an avid fisherman. After spending years and years buying all sorts of equipment that would purportedly increase his chances of catching fish (but somehow never did), Poulsby finally invented something that really appears to do the trick. The invention is an improvement on existing flexible plastic fishing lures. Such fishing lures are commonly sold by many different companies and typically come in an assortment of sizes, shapes (e.g. worms, frogs, small fish) and colors designed to appeal to fish. The improvement that Poulsby made was to impregnate the plastic lure with salt. The basic idea was that existing plastic lures were imperfect because, although they visually appealed to fish, once a fish bit a lure, it would spit it out because of the plastic taste. A fish biting down on a salty lure, however, would not spit it out immediately (or if it did, would come back for a second taste), thereby giving the fisherman extra time to set the hook.