`NYSCEF DOC. NO. 36
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`INDEX NO. 162183/2015
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`RECEIVED NYSCEF: 04/27/2016
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`OPINIONS BELOW
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`The opinion of the Second Circuit affirming the district court’s ruling is reproduced
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`at Appendix A and is not published.
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`The district court did not issue any opinion with the final judgment but pre-trial
`opinions are reproduced in Appendix B,C, and D.
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`JURISDICTION
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`The Second Circuit issued its opinion on October 30, 2015. On January 19, 2016 this
`Court granted an extension of sixty days to submit this petition. The jurisdiction of
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`this Court is properly invoked pursuant to 28 U.S.C. § 1254(1).
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`CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
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`This case involves 17 U.S.C. §§ 102, 103, 106, 107, and 501. These provisions are
`reproduced in Appendix D.
`
`STATEMENT OF THE CASE
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`I. BACKGROUND- A TALE OF TWO LAWSUITS
`
`My name is Eve Hars and I am the defendant/appellant/petitioner in this
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`case. In 2006 in New York City, I began producing, Point Break LIVE!, a funny, low
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`budget stage presentation of the 1991 action movie, Point Break, about a gang of
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`bank-robbing surfers that starred Keanu Reeves and Patrick Swayze. I produced it
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`at the invitation of Jamie Hook, who was a partner in the original creation and
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`staging of the production in Seattle in 2003.
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` In 2007, with the permission of Hook I brought the show to Los Angeles on
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`my own. Soon after arriving in Los Angeles I faced the prospect of two lawsuits from
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`1
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`
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`two different parties claiming to own the copyright to Point Break LIVE! One threat
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`came from Chris Taylor whose company LEI Development Projects, owned the
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`copyright of the movie, Point Break, and the other from Jaime Keeling, who was
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`Hook’s partner in the initial creation and run of the stage production back in 2003
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`in Seattle.
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` First came Keeling. Knowing nothing about copyright law and feeling
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`threatened, I signed an agreement with Keeling for the rights to the show a few
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`weeks before the opening of the Los Angeles production in September of 2007. The
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`agreement presented by Keeling named her as “sole owner and creator” of Point
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`Break LIVE! However on opening night of the show, a man approached me by the
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`name of Chris Taylor. He told me that because Point Break LIVE! took so much
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`from the movie that he owned the copyright to, it was from him, not Keeling, I
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`needed to obtain license from in order to do the show.
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`The problem with Keeling’s claim to sole ownership of the Point Break LIVE!
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`script was the fact that it was an unauthorized derivative work in which the plot,
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`characters, and dialogue were copied entirely from the movie, Point Break. Keeling
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`had never obtained or even sought license or permission from Taylor for the use of
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`his copyright. I also learned that it was Hook, not Keeling who came up with the
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`most important and novel concept of the show- that of an audience member playing
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`the lead role of Johnny Utah.1 That is what makes the show successful. There is
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`nothing in Keeling’s script about any audience volunteers or audition process.
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`
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`1 The Second Circuit’s assertion that Keeling came up with the concept is false. Keeling never even
`disputed the fact that it was Hook that came up with that idea.
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`2
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`
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`Regardless of that, the only things added to the Point Break movie script by either
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`Hook or Keeling were concepts, ideas, actions, and use of props describe by stage
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`directions (i.e. elements listed as being not copyrightable under §102(b) of the
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`Copyright Act).
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`In light of Taylor’s copyright claim and Hook’s crucial contributions, I asked
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`Keeling to lower the percentage of gross2 she was taking from the show but she
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`refused and threatened to “unleash a lawsuit” against me. So what is a producer to
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`do? Pay the person who actually owns the rights to the material being used (Taylor)
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`or pay the person who copied that material without permission (Keeling)? What
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`would the members of this Court do? After considering copyright law as it then
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`stood, I chose not to renew the agreement with Keeling under the terms she
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`demanded. Several months later, seeing the show was successful, Taylor began
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`taking action to start a lawsuit against me, so I agreed to license the material from
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`him. I paid Taylor $5,000 up front and another $10,000 in royalties for the rights to
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`the Point Break movie script and I continued producing the show with license from
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`Taylor and permission of Hook, who I consider a co-creator of Point Break LIVE!
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`I did not hear from Keeling for several years. In all the years between 2003
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`when the production started until 2010, by which time I had made it a critically
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`acclaimed success, there was nothing preventing her from producing the show
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`herself but instead, in December of 2010 she initiated a lawsuit against me accusing
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`me of infringing on her alleged copyright of Point Break LIVE!
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`
`
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`2 Keeling was demanding 5% of gross which is the highest percentage usually given out to sole
`authors/rightsholders of scripts which would leave no room to accommodate other claims.
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`3
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`
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`II. DISTRICT COURT
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`In the two years preceding the trial Keeling’s legal team insisted in various
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`memorandums of law that although Keeling’s script was an unauthorized derivative
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`work it was entitled to a copyright. They based this on a new legal principle on a
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`passage from the Congressional Notes of the Copyright Act to conclude that if an
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`infringing work qualifies as fair use under 17 U.S.C. §107, it is not really infringing
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`and thus it is lawful and thus it is entitled to copyright protection under 17 U.S.C.
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`§103(b). So here, fair use was not invoked by a defendant as a defense against
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`infringement but rather by a plaintiff as a prosecutory instrument to accuse others
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`of infringement on her unauthorized derivative work. The approach was approved
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`and adopted by the district court judge who, in various orders denied our motion for
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`the case to be dismissed as well as a motion for summary judgment and a motion to
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`appeal those orders. The judge ordered a trial in which he, along with Keeling’s
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`counsel, told the jury that if they found that Keeling’s script was a fair use of Point
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`Break then she would have a valid copyright regardless of how much she
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`appropriated from the movie. The judge instructed the jury that the four factors of
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`fair use were “without content or meaning”3 and proceeded to describe only one
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`factor of §107 of the Copyright Act in a somewhat confusing way. Based on this
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`instruction the jury found that Keeling’s script constituted fair use and that Keeling
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`therefore had a valid copyright that I was guilty of infringing upon. December 7,
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`2012 the jury awarded Keeling a judgment of $250,000 even though no one
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`involved with the show including me made anywhere near that amount because it
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`3 Opinion at 8 quoting Judge Griesa.
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`4
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`
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`was always a small, underground production. The district court judge issued a
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`judgment on January 16, 2013 but did not accompany it with any opinion.
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`III. COURT OF APPEALS FOR THE SECOND CIRCUIT
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`I could not afford a lawyer but felt there had been a miscarriage of justice so I
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`appealed pro se. After a three year delay, in an opinion dated October 30, 2015 the
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`Second Circuit affirmed the lower court’s conclusion that fair use can engender
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`copyright protection for unauthorized derivative works and that Keeling’s script
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`therefore is entitled to copyright protection even though by the appellate court’s
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`own description, her script “relies almost exclusively on selected dialogue from the
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`screenplay”(Opinion at 3) of Point Break. Because Keeling’s script had no tangible
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`expression that was original to her, in order to rule in her favor the Second Circuit
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`sanctioned copyright protection for her “original contributions”: the stage directions
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`that describe concepts ideas, tone, and use of props etc.
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`I also asked and argued in my appellate brief for the court to reverse the
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`judgment because of ‘plain error’ in the jury instruction during the trial. However,
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`the appellate court excused the district judge’s failure to describe more than one of
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`the four factors of the fair use statute to a jury who were deciding the outcome of
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`the case based on an understanding of fair use. The Second Circuit held that this
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`didn’t constitute plain error.
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`IV. MISSING THE CHANCE FOR A REHEARING
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`The same week as the Second Circuit issued its ruling on my appeal I was
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`diagnosed with a serious, life threatening disease, so in the weeks following I was in
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`no condition physically, psychologically or emotionally to deal with the case at all
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`
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`5
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`
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`and therefore I missed the deadline for requesting a rehearing in the Court of
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`Appeals. But thereafter I realized, despite the incredible odds against my petition
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`being granted I had to at least try to bring the ruling to the attention of this Court.
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`In early January I asked for an extension of time to submit a writ of certiorari and
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`thankfully this Court granted that request.
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`IV. A CRUCIAL OMMISSION
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`The Second Circuit did not even mention the “Licensing Agreement4 between
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`Chris Taylor and I in the below opinion even though I emphasized it and discussed
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`it at length in my appellant brief and it was provided as an exhibit in the evidence.
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`Acknowledging the licensing agreement would have precluded the Second Circuit’s
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`affirmation of the lower court’s ruling because it would have been then incumbent
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`upon the Court to face and solve an insoluble conundrum: if Keeling can have a
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`copyright on a work which “relies almost exclusively on selected dialogue from the
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`screenplay” for which she “possessed no copyright or licenses,”5 where does that
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`leave the owner of the copyright to that screenplay?
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`According to this judgment I should have paid Keeling, the unauthorized user
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`of the Point Break movie copyright for using dialogue, plot, and characters that she
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`copied verbatim from the Point Break movie, instead of the owner of the copyright of
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`the dialogue, plot and characters. So the copyright owner of the pre-existing
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`material has lost not only his exclusive standing to sue for infringement of his
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`copyright, he has lost his exclusive right to license out his copyright for the stage
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`
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`4 Appendix F
`5 Opinion at 4
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`6
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`
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`production of his movie because those rights have been transferred to Keeling by
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`the Court.
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`As copyright law had always been interpreted before this case, I did the right
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`thing by paying Chris Taylor for the rights to use his script. According to the new
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`interpretation, I did the wrong thing and I am being severely punished for it by
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`having to pay a huge sum of money to Jaime Keeling, who is the only one, by law as
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`existed before this ruling, who could have actually been guilty of copyright
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`infringement.
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`
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`REASONS FOR GRANTING
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`I.
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`CIRCUIT SPLITS
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`The circuits are currently split over the interpretation of §103 of the
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`Copyright Act. The question that divides them is whether a derivative work in
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`which the use of the underlying copyright is not authorized, is entitled to copyright
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`protection without the permission of the owner of that underlying copyright? As it
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`stands presently such a work might have a valid copyright in New York but not
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`next door in New Jersey. It may have a copyright in Illinois but not in the
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`neighboring state of Minnesota nor in California.
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`After a history of rulings to the contrary the Second and Seventh Circuits, in
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`Keeling v. Hars and Shrock v. Learning Curve, have recently reversed their former
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`positions and now hold that derivative works are entitled to copyright protection
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`without the permission of the copyright holder of the underlying work no matter the
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`degree to which the derivative work relies on the underlying work. Meanwhile the
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`
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`7
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`
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`Ninth, Third and Eight circuits take the opposite view and have ruled that
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`unauthorized derivative works are not entitled to copyright protection at all because
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`they are themselves infringing works.
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`
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`Allowing copyrights for an unauthorized derivative work necessarily
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`affects the exclusive rights promised by the Copyright Act to copyright owners of
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`original works such as (17 U.S.C. §501(b)) pertaining to ‘standing to sue’. The
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`Second Circuit and Seventh Circuits separate from the other circuits (as well as
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`their own precedents) by assigning the right to bring action for infringement to
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`those with no exclusive rights in a copyright and furthermore put themselves at
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`odds with several of this Court’s rulings in regard to the issue of what is
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`copyrightable according to 17 U.S.C. §102(b) and the idea/expression dichotomy. By
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`granting copyright protection to non-protectable elements in derivative works
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`without permission of the copyright owners of the underlying works, the Second
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`Circuit aligns itself with the Seventh Circuit but against the Eighth, Ninth, and
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`Tenth Circuits and this Court. Finally, in rejecting the necessity of considering all
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`the factors of §107 in determining fair use in the ruling below, the Second Circuit
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`contradicts rulings by this Court.
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`II. CASE INVOLVES ISSUES OF NATIONAL IMPORTANCE
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`Silvers v. Sony Pictures Entertainment, Inc., 402 F. 3d 881 (9th
`Circuit 2005) (en banc):
`
`“In Eden Toys, Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d
`Cir. 1982), superseded by rule and statute on other grounds, the
`court held that one who owns no exclusive right in a copyright may
`not sue for infringement.”
`
`8
`
`
`
`
`
`
`
` “We think it important to parallel the Second Circuit for two
`reasons. First, and more importantly, our independent analysis
`leads us to the same conclusion. Second, the creation of a circuit
`split would be particularly troublesome in the realm of copyright.[2]
`The Supreme Court has noted "Congress' paramount goal in
`revising the 1976 Act of enhancing predictability and certainty of
`copyright ownership." As we have phrased it, "[c]ongressional
`intent to have national uniformity in copyright laws is clear." ).
`That admonition makes sense, given the nature of intellectual
`property. Inconsistent rules among the circuits would lead to
`different levels of protection in different areas of the country, even
`if the same alleged infringement is occurring nationwide.”6
`
`
`
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`Who better to present this Court with the necessity of maintaining national
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`uniformity in copyright law than the Ninth Circuit in an en banc decision. Not only
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`does the Ninth Circuit clearly present the issue as one of national importance, the
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`Court also warns of the problems inherent in a split between the circuits on such a
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`basic question of copyright law.
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`
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`If one had to quantify how important copyright law is nationally, some
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`startling economic data on the subject was recently made available:
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`The economic contributions of U.S. copyright industries
`reached new heights last year, for the first time contributing
`more than $1 trillion to the gross domestic product and
`accounting for 6.5% of the nation's economy, according to a
`new report.7
`
`
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`It is frightening to consider how many cases it would take to nullify all the
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`threats to copyright law the ruling below presents and how many lawsuits it could
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`generate which would be nearly impossible to adjudicate because the courts would
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`
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`6 Id at 889-890 (emphasis added)
`7 U.S. Bureau of Economic Analysis and National Endowment for the Arts Report on Impact of Arts
`and Culture on U.S. Economy, 2013.
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`9
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`
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`be forced into either one of two untenable courses of action: either 1) transferring
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`the copyright and all the exclusive rights prescribed therein from the copyright
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`holder of the original work to the person using that copyright in a derivative work
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`without license or 2) mandating the division of the copyright between the copyright
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`owner of the original and the new copyright owner of derivative work.
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`Furthermore, the Seventh and Second Circuit have granted copyright
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`protection for non-copyrightable and/or minor contributions and alterations made to
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`a pre-existing copyright without authorization by the owner of the original. This
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`will inevitably lead to copyright claims to a single copyright rising exponentially
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`every time an original copyright is licensed out for use- or in this case, used without
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`license.
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`Taken altogether the inevitable outcome of the ruling below, if allowed to
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`stand and foster similar decisions, is multiple claims on the same copyright. This
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`constitutes a huge threat to the authors and copyright holders of original work and
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`thus to all the copyright industries. All rely on the containment of copyright claims
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`that copyright law has traditionally provided. When the scope of that containment
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`expands, the value of copyrights decline. The decision below promotes, and even
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`worse, mandates such an expansion and thus poses a threat to a substantial
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`segment of this country’s economy.
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`III. DANGEROUS DEPARTURE FROM USUAL COURSE OF PROCEEDINGS
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`
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`The Second Circuit’s new legal principle that inculcates the fair use statute,
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`§107 of the Copyright Act with the power to vest copyright in an otherwise non-
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`copyrightable unauthorized derivative work and insistence that only one of the four
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`
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`10
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`
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`factors of §107 necessarily be considered in determining whether or not a work
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`constitutes fair use, leads to such a derangement of longstanding copyright law and
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`“has so far departed from the accepted and usual course of proceedings, or
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`sanctioned such a departure by a lower court, as to call for an exercise of [this]
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`Court’s supervisory power.”8
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`IV. THE ISSUES MAY SEEM COMPLICATED BUT THE SOLUTION MIGHT BE
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`CLEAN AND SIMPLE
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`Any ruling by a court on the subject of unauthorized copyrights for derivative
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`works could not be arrived at without addressing related questions like what
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`considerations make such works copyrightable and what within such works are
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`subject to copyright protection. Thus, this case is the perfect vehicle for this Court to
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`make a ruling on the subject because this case addresses those related questions.
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`Noted copyright scholar, William F. Patry has observed that “the
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`understanding of derivative works is fast approaching incomprehensibility.”9 The
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`fact that, as demonstrated herein, the circuits are now polarized on the subject
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`lends credence to that statement. However, a solution has been hinted at in a couple
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`of appellate opinions. They suggest that if the contributions made to the original
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`work in the derivative work are “clearly detachable”10 and “easily severable [from
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`and can] stand alone”11 as copyrightable expression independent of the original
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`work, then those contributions could be copyrighted without the permission of the
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`
`
`
`8 Rule 10(a) of Rules of the Supreme Court of the United States
`9 Patry, William F. “Patry On Copyright” § 3:46 (2013).
`10 Bucklew v. Hawkins, Ash, Baptie & Co., LLP. 10 329 F. 3d 923 (7th Circuit 2003) at 930
`11 Anderson v. Stallone,11 USPQ2D 1161 (C.D. Cal. 1989) at 31
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`11
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`
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`owner of the original. Such prerequisites would not be hard to determine and are
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`not subject to the kind of rampant inconsistency that is inherent in determining fair
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`use. Furthermore, the principle could apply to both variations of the question: 1)
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`granting copyrights for unauthorized derivative works and 2) granting copyrights
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`for “lawful” derivative works without the permission of the rightsholders of the
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`underlying works. In a controversy that seems complicated and hopelessly
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`entangled, that proposition seems like a simple, clear solution, a principle that
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`appellate courts could easily follow if set as precedent by this Court in a decision
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`based on this case. It would bring all courts in alignment and go far in resolving the
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`confusion that has so far plagued the lower courts and created disparity across the
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`nation on a basic issue of copyright law.
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`V. PUBLICITY AND PRECEDENT
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`The Second Circuit did not submit this opinion for publication in the Federal
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`Reporter even though it creates new copyright law that radically departs from
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`existing case law. Despite this oversight, the significance and potential impact of
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`the ruling below should not be underestimated. There are well over a thousand
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`articles about this case on the internet and in publications, legal and otherwise.12
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`These include the National Law Review, American Bar Association, Associated
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`Press, Courthouse News, Hollywood Reporter, Wall Street Journal, NY Daily News,
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`Stanford University Libraries, as well as hundreds of law firm newsletters, blogs
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`and websites devoted to copyright law most of which report this as a landmark
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`ruling because it allows copyright for unauthorized derivative works, invokes fair
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`
`
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`12 Appendix G
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`12
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`
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`use as a means of vesting such works with copyrights, and grants copyright to what
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`have always been considered non-protectable elements in such works. There can be
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`little doubt that this ruling will set new precedent because in the eyes of the public
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`and the legal establishment it already has.
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`All the articles, blogs and legal analysis seem to herald the ruling below as a
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`victory for authors of unauthorized derivative works but none contemplate the
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`threat it poses to authors and copyright holders of original works on which those
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`unauthorized derivative works are based. Hopefully, this Court will take a broader
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`and deeper view and will consider the blow that this ruling deals to copyright
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`protection for original works and the real and dangerous implications it has on
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`copyright law as a whole.
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`VI. COPYRIGHT FOR UNAUTHORIZED DERIVATIVE WORKS
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`
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`All the cases I present in this section involve the same essential fact pattern
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`as the present one: a plaintiff who is not authorized to use another person’s
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`copyright (or not authorized to certain rights endowed by that copyright) attempting
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`to sue a third party for infringement.*13 The difference is the outcome of the rulings
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`and the manner in which law was applied in rendering those outcomes.
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`Appellate courts were once united in rejecting copyrights for unauthorized
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`derivative works. But then in Eden v. Florelee14, the Second Circuit, for the first
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`time opened up the possibility by stating that if an unauthorized derivative work is
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`
`
`
`13
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`13 With the exception of Dam Things From Denmark v. Russ Berrie & Co. Inc., 290 F. 3d 548 – (3rd
`Circuit 2002)
`14 Eden Toys, Inc. v. Florelee Undergarment Co. 697 F.2d 27 (2d Cir.1982), Footnote 6
`
`
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`not pervaded by the original work it could obtain a copyright. Although stated in
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`dicta the pervade principle disseminated in subsequent Second Circuit cases such
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`as Dynamic Solutions, Inc. v. Planning & Control, Inc.,15 and in a more recent case:
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`JBJ Fabrics, Inc. v. Brylane, Inc.,
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`Moreover, even if plaintiff's use of the underlying design
`were unlawful, it would be entitled to protection for its
`original contributions absent some showing by defendant
`that the unlawful use pervaded the entire work.16
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`In the decision below the Second Circuit took off from there, admitting that
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`“unauthorized derivative works are typically afforded no copyright protection
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`because they unlawfully infringe the exclusive rights of the original author,”17 and
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`that;
`
`The Keeling‐authored PBL [Point Break LIVE!] parody
`parallels the characters and plot elements from Point Break
`and relies almost exclusively on selected dialogue from the
`screenplay.. ………. Keeling possesses no copyright or
`license with regard to the Point Break motion picture.
`(Opinion at 3-4)
`
` Yet the Second Circuit went on to conclude that although it is an unauthorized
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`derivative work, “[Point Break LIVE!] is entitled to copyright protection capable of
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`supporting Keeling’s claim of infringement by a third party.”18 The Court bases that
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`conclusion on 17 U.S.C. § 103(b), holding that under this statute unauthorized
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`“derivative works are entitled to “independent” copyright protection, separate from
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`
`
`
`15 Dynamic Solutions, Inc. v. Planning & Control, Inc., 646 F.Supp. 1329, 1340 (S.D.N.Y.1986)
`16 JBJ Fabrics, Inc. v. Brylane, Inc., 714 F. Supp. 107 – (S.D.N.Y.) 1989 at 110
`17 Opinion at 10
`18 Opinion at 9.
`
`14
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`
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`any copyright in the preexisting material.”19 The Court seems to find precedent (?)
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`in another Second Circuit case, Durham v. Tomy:
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`We have previously confirmed that, because “[d]erivative works are
`explicitly included in the subject matter of copyright as defined by
`the Copyright Act,” the mere fact that a litigant’s unauthorized
`“creations are derivative works is in itself, of course, no bar to
`copyrightability.” Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905,
`909 (2d Cir. 1980) (Opinion at 15)
`
`
`The Seventh Circuit had been firm in its rejection of granting unauthorized
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`derivative works with a copyright, stating in Pickett v. Prince20 that the pervade
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`principle introduced by the Second Circuit in Eden v. Florelee “would inject
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`enormous uncertainty into the law of copyright.”21 Yet nine years later the Seventh
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`Circuit came to a drastically different conclusion.
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`Schrock v. Learning Curve22
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`This case involved Learning Curve, a marketing company contracted by HIT
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`Entertainment, owner of the copyrights on the well-known “Thomas Train”
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`characters, to promote their products. Learning Curve hired Schrock, a
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`photographer, to set up and photograph Thomas Train toys for promotional
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`materials. Later Schrock sued Learning Curb for copyright infringement for
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`continuing to use his photos of the Thomas Trains in catalogues. The Court
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`addressed the question of whether Shrock’s photographs of copyrighted figures
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`
`
`19 Opinion at 13
`20 Pickett v. Prince, 207 F.3d 402 (7th Cir. 2000) at 404 “Pickett claims [erroneously] the right to
`copyright a work derivative from another person's copyright without that person's
`permission.”20
`21 Id. at 406
`22 Schrock v. Learning Curve Intern., Inc., 586 F. 3d 513 (7th Circuit 2009)
`
`15
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`
`
`
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`could be eligible for copyright protection themselves without the consent of the
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`owner of the copyright on those figures. The Seventh Circuit had previously held in
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`a similar case, Gracen v. Bradford,23 that even if a the creator of a derivative work
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`was “authorized to exhibit her derivative works, she may not have been authorized
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`to copyright the them.” In the Schrock case the Seventh Circuit disagreed with the
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`Gracen decision:
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`There is nothing in the Copyright Act requiring the author of a
`derivative work to obtain permission to copyright his work from
`the owner of the copyright in the underlying work.24
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`The case differs slightly from the Keeling case in that Shrock had initially been
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`given permission to use the underlying copyrights to create his derivative works but
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`was no longer authorized to continue using the underlying copyrights in those
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`derivative work. Keeling never had permission in the first place. The question
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`might be posed as to whether the status of “authorized derivative” work subsists
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`only in creation or if it also depends on the use beyond creation. For the purposes of
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`this writ, the moniker of “unauthorized derivative work” will be based on a situation
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`wherein a creator of a derivative work is not authorized to use the underlying
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`copyright in obtaining and retaining copyright for the derivative work. This makes
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`sense given that an unauthorized creation of derivative work might later become
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`authorized in its use if permission to use the underlying copyright was later
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`obtained.
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`23 Gracen v. Bradford Exchange, 698 F. 2d 300 – (7th Circuit 1983) at 406
`24 Shrock at 523
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`16
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`The Third, Eighth and Ninth circuits stand diametrically opposed to the
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`possibility of copyright for unauthorized derivative works.
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`Third Circuit
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`Dam Things from Denmark (a.k.a. The Troll Company), v. Russ Berrie
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`The Third Circuit held that Berrie’s variations on the original Troll figures
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`might be extensive enough to sustain a copyright with permission of the Troll
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`company or if he was a licensee under §104A(d)(3), but that would not hold true
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`without such permission or license:
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`"If the underlying work is itself protected by copyright, then [the
`author of the derivative work] will receive no protection at all; on
`the contrary, he is a copyright infringer, because in order to
`create his work he has copied the underlying work.”25
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`Eighth Circuit
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`Mulcahy v. Cheetah26
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`In this case, much like Keeling did with the movie, Point Break, the plaintiff
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`created an unauthorized derivative work, PMP Prep, based on a copyrighted book,
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`Project Management Body of Knowledge (PMBOK) in which “[l]arge portions of
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`[the] PMP Exam Prep appear to copy, condense, and adapt those portions of the
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`PMBOK.”27 But much unlike the Second Circuit and Seventh Circuits, the Eighth
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`Circuit held that “the creator of an original derivative work is only entitled to a
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`25 Dam Things at 563
`26 Mulcahy v. Cheetah Learning LLC, 386 F. 3d 849 (8th Cir. 2004)
`27. at 850
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`17
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`copyright if she had permission to use the underlying copyrighted work.”28 The
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`court explained:
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`[T]he creator of an original derivative work is only entitled to a
`copyright if she had permission to use the underlying copyrighted
`work…. Thus, if the PMP Exam Prep is an unauthorized derivative
`work of the PMBOK, Mulcahy's copyrights are invalid.
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`Ninth Circuit
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`ERG v. Genesis et al
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`The Court held that ERG’s costumes were too similar to the copyrighted characters
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`owned by various companies (i.e. Pillbury, Quaker Oats, General