COPYRIGHT AND TRADEMARK
FINAL EXAMINATION -- Fall 1996

This exam consists of three parts, and has a total of five questions. You have three hours in which to outline and write your answers. The questions count for various percentages of your final grade for this exam, so I advise you to allocate your time accordingly.

I strongly suggest that before you begin writing an answer you 1) read the question carefully; 2) think about exactly which issues you need to address; and 3) outline your answer. Good organization and good analysis almost always go hand-in-hand.

Use as many exam booklets as you need. Start your answer to each part in a new booklet and number the booklets so that I can easily follow their intended sequence. Please write on one side only of each page, on every other line.

For your benefit and my eyesight, please write as legibly as possible. I cannot grade what I cannot read.

This is an open book exam. You may use your casebook, statutory supplement, any material that I handed out in class, and any notes that you or your study group prepared. You may not use other materials, such as nutshells or commercial outlines.

If you have any procedural questions, please direct them to Jennifer Patterson, in the registrar's office. She will know how to reach me.

I've got a very successful friend to whom people often say, "Gosh, you're lucky." She always replies, "The harder I work, the luckier I get." May you, too, achieve the success that your hard work merits.

The opening screen of "Organizer 3.0", a personal information management program sold by Clarity Corporation, reads:

Clarity Organizer™ [a "TM" symbol]

Clarity®

Assume that Clarity Corp. wants to obtain the broadest trademark rights possible, and that it has reasonably competent attorneys. Explain in very brief why its notice reads as quoted.

Your client, North Dakota Corporation (NDC), sells computers directly to consumers, via phone order only. It offers its customers technical support via both phone and email. Last month, NDC also set up a web page that lists its phone number, email address, and some information about NDC products.

Like many high tech companies, NDC tries to project a playful and quirky image. "Because people get so intimidated by technology," NDC's president once explained to you, "we like to balance out the geek factor with some warm fuzzies." NDC thus uses Holstein cows--dumb and docile beasts--to sell its computers. In 1990, it registered and began using two trademarks, one a logo and the other package design. The logo shows the firm name under the profile image of a black-and-white Holstein staring at a computer screen. This mark appears on all of NDC's publications and ads, including the top of its web page. The package is a box designed to look as if it were covered in a Holstein's white and black-spotted hide. NDC has always used this box to ship its computers. Now, it also uses the box's spotted design as the background on its web page.

NDC recently discovered another web page, the COWS page, that employs a cow theme. COWS stands for Collection, On Web, of Shareware. The COWS page offers a wide variety of shareware--computer software that anyone can download and sample free of charge. The page generates no revenue for its publisher, Big Technical University (BTU), which instead offers the page as a public service. The COWS page employs images of a variety of cattle breeds, many of which resemble Holsteins no more than a poodle resembles a beagle. An image of a Holstein in profile does appear on the COWS page, however; clicking on it takes you to a collection of shareware games. Moreover, like NDC's page, the COWS page uses a Holstein hide design as a background. The COWS page has proven very popular since it began operating in the spring of 1996. BTU has not registered any marks related to the page.

NDC guards its marks jealously, and has contacted your firm because it is concerned that BTU's COWS page will adversely affect NDC's ability to market its products. Write a memo advising NDC of its rights under state and federal unfair competition and trademark law, and of how it might best deal with the COWS page.

Parody copies elements of its target. A parody of "The X Files" would thus mimic that TV show's moody style and two main characters, presenting them in a fashion that mocks the original's paranormal paranoia.

Satire, in contrast, copies elements of another work solely as a vehicle for commenting on some other topic; satire does not mock the work that it copies. A satire might, for instance, borrow elements from the TV show "Friends" merely as a framework for commenting on affairs at the White House.

Very briefly, which of parody or satire will be more likely to satisfy the fourth prong of copyright's fair use defense, and why?

A traditional guitar tablature ("tab") tells a musician which notes to play and in what sequence to play them--it does not indicate how long each note should last. Musicians can thus play from a such a tab only after they have already heard the tune in question. A traditional tab might look like this:

e|-------------------|-----------|
B|-----------2-------|-----------|
G|-0-2-2-2-2---3-2-2-|-0-2-0-----|
D|-------------------|-------3-2-|
A|-------------------|-----------|
E|-------------------|-----------|

(The lines represent guitar strings, while the numbers tell the guitarist which frets to finger.)

Your client, Leo "Whammy" Fender (LWF), devised an improved means of writing tabs. His so-called "TAB+" uses a special notation system to convey not only which notes to play, and in what sequence to play them, but also how long each note should last. TAB+ does this by augmenting traditional tab notation with special symbols that indicate each note's duration. The same tab above might look like this in LWF's TAB+ notation:

e|-----------------------|----------------|
B|------------2'---------|----------------|
G|-0-2'2"2"2'----3'-2"2"-|-0'-2'-0'-------|
D|-----------------------|----------3'-2=-|
A|-----------------------|----------------|
E|-----------------------|----------------|

A musician who knows TAB+ could play this melody without having already heard the tune, making the notation considerably more effective than a traditional tab. LWF got the idea for his notation from conventional sheet music, substituting apostrophes in TAB+, for example, for the flags that appear on notes in sheet music.

How does a musician learn TAB+? By reading LWF's "TAB+ Dictionary", a portion of which reads like this:

1/16 note:      n"
1/8 note:       n'
3/16 note:      n'. or n'_n"

LWF created and published TAB+ in January, 1996, with the sole aim of fostering education in guitar music. He never intended to make money off of it and has not attempted to register a copyright. Instead, LWF handed out copies of his "TAB+ Dictionary" to musicians throughout his hometown, Los Angeles, admonishing them to learn it and use it to spread their music.

LWF has come to you because he has discovered, to his dismay, that in June, 1996, Six-String Magazine (SSM) published a so-called "Tab&Time" (T&T) notation system that incorporates many features of his TAB+ (including, for example, the three definitions quoted above). It has since included T&T in every monthly issue, allowing its readers to decode and play the new tabs that it routinely publishes. SSM's T&T tabs have proven so popular, moreover, that it has begun publishing booklets of popular music notated in T&T, which it sells in addition to its magazine. SSM has never credited LWF's influence and, when accused of theft by LWF, disavowed any knowledge of his work.

LWF wants you to make SSM credit his influence. He also wants you to make SSM stop publishing the T&T notation system and to stop using it to sell tabs in the magazine and booklets. Analyze whether and to what extent you can rely on copyright law to fulfill his request.

Representatives of member countries of the World Intellectual Property Organization (WIPO) have gathered in Berne, Switzerland to discuss proposed changes to the international intellectual property regime. The representative of Dataslovakia has proposed a new Database Protection Treaty (DBT) that would require signatory countries to protect databases and their contents from unauthorized copying for a term of at least 20 years. "Without such protection," the Dataslovkian representative claims, "copiers will unfairly benefit from the hard labor of those who compile, edit, publish, and update databases!"

If the U.S. signed the DBT, it would have to enact legislation that protects from unauthorized copying such things as phone number listings, baseball statistics, and weather records. Such protection would, per the DBT, cover both entire databases and their constituent elements. The term of protection would run for at least 20 years from the date of a database's creation or modification.

You serve on the team that represents the U.S. at WIPO. The head of your team has asked you to answer these questions:

1) Theoretically speaking, how well would the legislation required by the DBT conform to the justifications that underlie the U.S. approach to other types of intellectual property? That is, would such legislation aim at fundamentally the same goals as copyright law, or patent law, or trademark law? If not, why not?

2) Legally speaking, how well would the legislation required by the DBT conform to existing U.S. law? Could Congress, for example, merely tinker with existing statutes? Or would it have to create a whole new statutory regime--and does it have the authority to do so?

3) Practically speaking, who would favor and who would disfavor U.S. legislation to enact the DBT? In other words, who would benefit and who would suffer from such legislation?

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