EXAM NUMBER _________________

PROFESSOR RONALD W. STAUDT

December 12, 2002

GENERAL INSTRUCTIONS

This is a three hour open notes, open book examination. With the following exceptions, you may bring any books or other materials into the examination and any materials personally prepared by you or prepared jointly with other students in the class. Downloaded law review articles are permitted. You may bring your laptop computer into the exam with you and consult materials that you have prepared and stored on its hard disk. Your laptop computer, if you choose to bring it into the exam, may not be connected to a network, phone line or to the Internet. You may not bring in treatises on copyright law, i.e. Nimmer on Copyright, or law reviews in bound volumes because of unequal access to those volumes.

If you take your examination on your own laptop and are instructed by the examination proctor to connect to the network to load the examination answer file for SofTest, you may NOT connect to LEXIS or WESTLAW or any other Internet information source. You may NOT view web pages on the World Wide Web nor any other data source or programs on the network. You may not use electronic mail nor communicate with any person or resource on the network, on the Internet or any other source not located on your laptop hard drive at the start of the examination.

You may not share materials during the exam. You may not communicate with other students during the exam. You may not tear pages out of the bluebooks. You are not to identify yourself in any manner, other than exam number, on your bluebooks, question sheets or anything else turned in that will be submitted to the professor.

Write your examination number on each page of this exam. When bluebooks are distributed, write your examination number on each page of your bluebooks.

Your answers will be weighed according to the following suggested time limits:

QUESTION 1 - 90 MINUTES

QUESTION 2 ‑ 90 MINUTES

Write legibly. Credit will be given for clarity, conciseness and coherent organization.

GOOD LUCK!!!

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QUESTION 1

ABC plans to launch a new reality television program called "I'm A Big Celebrity . . . Get Me Out Of Here!" CBS, your client, believes that "Celebrity" misappropriates the copyrighted expression of CBS's hit show "Survivor." CBS contends, "Celebrity was consciously designed to mimic Survivor and will unfairly trade on its success."

"Survivor" is one of the most successful programs in American television history, attracting an estimated 125 million viewers during the show's first season in 2002. Survivor’s multi-episode format puts non-actor participants in harsh conditions and deprives them of all but the most basic necessities while requiring them to work as a team to compete in physical and mental challenges for which benefits or prizes are awarded. At the conclusion of each episode, the tribe holds a secret vote to eliminate one member of the tribe each week from the show. The last remaining contestant, the “survivor,” wins the contest and a large cash prize.

ABC has filmed 8 episodes of Celebrity and plans to begin broadcasting the episodes on a weekly schedule in February 2003. For the first 8 episodes of "Celebrity" ABC airlifted eight minor "celebrities" into the Australian Outback and gave them small rations of rice, caviar and Perrier water. While in the wilderness, the contestants competed in talent contests as well as a variety of physical and mental challenges to obtain "creature comforts or treats." The participant who received the least “points” in these contests left the show at the conclusion of a gathering of all the contestants that CBS claims is patterned on Survivor's Tribal Council.

CBS states that each episode of Celebrity copies specific elements of Survivor such as aerial shots and close-ups of indigenous wildlife, overhead views of campfire and Tribal Council settings and panoramic shots of jungle landscapes. Celebrity, like Survivor also uses sequences mixing the main action with private interviews with individual contestants.

You are a lawyer in the CBS General Counsel’s office. Your supervising attorney explains that the President of CBS is furious about ABC’s Celebrity and has asked for an evaluation of the chances that a lawsuit might stop the show before it airs in February.

Write a memorandum evaluating any copyright claims that CBS can make against ABC and evaluate any defenses ABC might raise.

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QUESTION # 2

Wayne Wiring has created a new type of personal computer that can be built into clothes. He hires Doris Designer to develop a line of fleecy vests that will be the “containers” for his computer. Doris designs a unique vest that fits over one shoulder and buttons at the waist. The vest is beautiful and is perfectly suited for the computer components needed to make the computer communicate using wireless technology. Wayne is convinced, when he sees the prototype, that it will be a perfect cool weather product. He purchases the vest design, and all intellectual property rights in the vest and its design from Doris. He asks Doris to work on a design for a summer, warm climate product, perhaps computer shorts or a computer/phone baseball cap.

Wayne begins to work on a promotional web site to advertise and sell his new “computer vest.” One of his employees, Ed Engineer, is an amateur photographer. Ed takes the vest home and makes a photograph of the vest with his digital camera. The photograph is very simple but also effective. Somehow, in Ed’s photo, the vest seems to float by itself on a neutral background as if it were being worn by an invisible person. Wayne thanks Ed for the remarkable print and asks Ed how the photo was made. Ed refuses to disclose his photographic technique and asks for $10,000, in addition to his salary, to reveal the secret and hand over the digital file of the original photograph. Wayne fires Ed on the spot.

Wayne takes the photograph to his own computer lab. He scans the print to make a digital image file in his computer. He uses several different software programs to examine the scanned copy. He discovers, by examining the digital image of Ed’s print, that when Ed took the photograph the vest was suspended by wires of the same color as the background. Wayne buys some wires and background material and makes several new photographs of the vest that have the same effect as Ed’s original photo. Wayne destroys Ed’s print and all of the scanned images that he used to discover Ed’s secret. Using the new photographs from his own lab, Wayne launches his new vest product on a web site that features his own photos of the computer vest. He sells 10,000,000 computer vests directly from his web site in the first two months after his product launch.

Ed hires your law firm to explore any claims he has against Wayne. The partner in charge of the case asks you, an associate in the IP department, to

Write an analysis of any copyright claims ED may assert against WAYNE and any defenses that WAYNE may raise.

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