Dvorak writes soundtracks for films
Dvorak writes soundtracks for films. Qwerty writes screenplays. They sometimes combine their products to create soundtrack-plus-screenplay packages. They pitch these packages to film producers, who sometimes buy the packages and sometimes buy the soundtracks or the screenplays separately.
One evening last month, working alone in her studio on a new project, Dvorak struggled to find a melody that would fit the melancholy and dignity of Qwerty’s latest heroine. Right then, through an open window, she heard a mourning dove sing. Inspired, Dvorak quickly re-worked the dove’s song into a fitting melody. Before she had even gone to the trouble of writing her composition down, she excitedly called Qwerty. Getting Qwerty’s answering machine, Dvorak turned on her speaker phone, gave a short introduction, and played the new melody. Satisfied with her day’s work, Qwerty left her studio immediately after hanging up the phone.
It turns out that Qwerty did not answer the phone because his wife, Sue, was hosting a party. Sue was celebrating having gotten Disney to pay a huge settlement to her clients, representatives of the estate of the original Mr. Potato Head. A good many of the guests — those with the big heads, short legs, and variegated features — came from the Potato Head family. Others represented the usual crop of well-connected Hollywood executives.
Qwerty did not know many of the guests, nor did he care to. He considered himself, as an auteur, above such schmoozing. Two drinks into the evening, Qwerty started arguing with the executives about how the film industry steals artists’ labors. Four drinks in, he started offering tater tots to horrified members of the Potato Head clan. At six drinks, Dvorak’s call came in.
Qwerty knew better than to try to work in his condition, so he just listened in as the machine began recording Dvorak’s call. “Now this,” he shouted in a slurred voice to his wife’s guests, “represents the sort of genius that makes losers and tubers like you rich!” As Dvorak finished her short introduction, Qwerty turned up the answering machine’s speaker and let Dvorak’s live performance wash over the hushed crowd.
Despite his poor manners, Qwerty had made his point. The guests filtered out whistling Dvorak’s tune and marveling at art’s power to save a party from utter disaster. But though Sue forgave Qwerty, Dvorak got very angry when she learned that he had played her call without her permission. “At the same time that I thought I was leaving a private message for you,” she explained, “you were broadcasting my performance to a bunch of strangers!”
Furthermore, not long after Dvorak unknowingly performed for Sue’s guests, a competing composer of film scores, Shift, sold a studio a tune that sounded rather similar to Dvorak’s. Shift was not at the party and disavows any exposure to Dvorak’s melody.
Dvorak has asked your firm to advise her about her possible copyright claims against Qwerty and Shift. Write a memo doing so, citing the following: the Copyright Act of 1976, define music licensing and fair use, and a minimum of four cases. Does Dvorak have a case and why or why not?
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