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PUBPOL 373 (27)
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Lecture 22

PUBPOL 373 Lecture 1: September 8th Reading Notes

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Public Policy Studies

September 8 Reading Notes Boisson v. Banian, Ltd.  Breakdown: Boisson alleged that Banian illegally copied two quilt designs for which plaintiffs had obtained copyright registrations. Following a bench trial, the trial court, in denying the claims of copyright infringement ruled that defendants’ quilts were not substantially similar to what it deemed were the protectable elements of plaintiffs’ works o Failed not only to account for the protectable elements, but also to consider the overall look and feel brought about by the creator’s arrangement of unprotectible elements  Copyright infringement is established by proving “ownership of a valid copyright” and “copying of constituent elements of the work that are original.”  Plaintiffs must first show that defendants “actually copied” their quilts o Indirect evidence may include proof of “access to the copyrighted work, similarities that are probative of copying between the works, and expert testimony.”  Access may be established directly or inferred from the fact that a work was widely disseminated or that a party had a reasonable possibility of viewing the prior work  Court found that actual copying had occurred, defendants did not dispute that finding  Not all copying results in copyright infringement, even if the plaintiff has a valid copyright. o Plaintiffs must also demonstrate “substantial similarity” between defendants’ quilts and the protectable elements of their own quilts.  Copyright protection extends only to a particular expression of an idea, and not the idea itself.  Originality does not mean that the work for which copyright protection is sought must be either novel or unique, it simply means a work independently created by its author, one not copied from pre-existing works, and a work that comes from the exercise of the creative powers of the author’s mind o If a work is not original, then it is unprotectible. Likewise an element within a work may be unprotectible even if other elements, or the work as a whole, warrant protection. o Some material is unprotectible because it is in the public domain.  Scholars disagree as to whether a defendant may also rely upon circumstantial evidence to show that a plaintiff copied from the public domain  Color by itself is not subject to copyright protection o An original combination or arrangement of colors should be regarded as an artistic creation capable of copyright protection  An allegedly infringing work is considered substantially similar to a copyrighted work if the “ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same. o A more refined analysis is required where a plaintiff’s work is not wholly original but rather incorporates elements from the public domain o What must be shown is substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed compilation o In contrast, where the plaintiff’s work contains no material imported from the public domain, the “more discerning” test is unnecessary o In applying this test, court is not to dissect the works at issue into separate components and compare only the copyrightable elements  Would result in almost nothing being copyrightable because original works broken down into their composite parts would usually be little more than basic unprotectible elements like letters, colors, and symbols  A scattershot approach cannot support a finding of substantial similarity because it fails to address the underlying issue: whether a lay observer would consider the works as a whole substantially similar to one another o Dissimilarity between some aspects of the works will not automatically relieve the infringer of liability  A copyright infringer shall be liable for either actual damages and profits or statutory damages o A plaintiff who seeks statutory damages is currently entitled to collect in the range of $750 to $30,000 for each work that is infringed upon o If a plaintiff proves willful infringement the court has discretion to increase the statutory award up to $100,000  A defendant’s conduct can be considered willful if the defendant had knowledge that his conduct represented infringement or perhaps recklessly disregards the possibility  If it is shown that the infringer was not aware and had no reason to be aware of the infringement, he can be declared an innocent infringer o An innocent infringer is not absolved of all liability o The finding of innocence allows the court to exercise its discretion to fashion the proper equitable remedy  The court considers the plaintiff’s lost revenues, defendant’s profits, the value of the copyright, and the deterrent effect of the award when exercising its discretion to determine the proper award, within the statutory range. o No evidence has been presented to demonstrated a reduction in the value of the Plaintiff’s copyright o Defendant promptly withdrew the infringing quilts from the market upon initiation of the lawsuit o There is no evidence whatsoever as to the monetary value of the saved expense o There is no reason to believe that Defendant would have worked on a similar schedule as the Plaintiff o A defendant’s lack of cooperation in providing records is a factor which the court can consider in assessing statutory damages  Defendant cooperated fully  Permanent injunctions are appropriate only where infringement has been found and there is substantial likelihood of future infringements  The court in a copyright action has the discretion to award full costs to the prevailing party. As part of these costs, the court may award a reasonable attorney’s fee. o A party need not be successful on all claims to be deemed the “prevailing party” under the Copyright Act. Instead, a party may be deemed prevailing if it succeeds on a significant issue in litigation that achieves some benefits that the party sought in bringing suit  Prevailing party status does not require an award of fees o The court considers the conduct of the non-prevailing party including frivolousness, motivation, objective unreasonableness, and the need to advance considerations of compensation and deterrence o Losing plaintiff’s claim was not objectively unreasonable, even though it was unsuccessful, because plaintiff survived summary judgement and some claims were settled in plaintiff’s favor prior to a jury verdict  Court found defendant neither willful or innocent, so it rejected the invitation to increase or decrease the statutory damage award and turns to consider the appropriate award within the statutory range  There are a number of cases which courts have awarded statutory damages which far
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