Survey of Intellectual Property final examination fall 1987
Instructions
This is an open book exam; you may consult the book, any other material which was handed out for the course or your notes. Discussions with others are not permitted: Your examination must be your own work.
Do not put your name or any other identification on your examination, but be sure to put your examination number on every blue book which you turn in.
Try to avoid answering questions which have not been asked, and try to use the relative question weights in determining how much to write on each question.]
Also make sure that you answer all of the question and take time to organize your answers.
Part I
[35 points total]
Basic Facts
[Please take the time to read these facts carefully. Answers which are based on careless reading of the facts are not likely to be worth much.]
Albert Twinkletoes, the famous dancer and choreographer has had a great deal of success with his new off-Broadway (in fact a long way off, in Lima, Ohio) production called "Shot from Cannons." It uses a number of new movements and special set designs on which he worked long and hard: Not only did he spend hours in live rehearsals, but he also viewed vidoetapes until the wee hours of the morning.
To protect himself from imitation, he has required all members of his troupe (including set designers and other members of the production crew) to sign a contract promising not to discuss the dance with anyone or to dance in anyone else's productions in the U.S.A. for six months afer leaving his troupe. Several people quit rather than sign, and several prospective members refused to come to work for him under such circumstances. Nevertheless, and notwithstancing considerable grumbling, everyone who has been involved with the production has signed the such a contract.
Also to discourage imitators, Albert has all cameras and so forth collected at the door of the theatre when he is performing and tries his best to keep potential competitors out of the audience.
Question
1. [5 points] After about 3 months, one of his dancers quit and almost immediately went to work in another dance troupe in New York city. What, if anything, stands in the way of Albert's enforcing the contract against that dancer?
Supplemental Facts
About the same time, a dance critic managed to smuggle herself and a camera into the audience for one of his productions. As she was leaving, she tore off her false beard, waved the camera in the air, yelled something about paranoids, and escaped in a taxicab. Albert called his attorney.
When the attorney called the critic to demand that the tape be handed over, she refused and said that she was outraged by Albert's stupid paranoia. She told him that she had even given a copy to the director of another dance production. Albert's attorney thereafter filed an action [against the critic, the TV station which employs her, and the other dance director] in the local state court asking, among other things, that all copies of the tape be either given to Albert or destroyed.
Questions
2. [10 points] Is Albert's cause of action under federal or state law? If the answer is that "it depends," explain what it depends on. Does it depend at all on the kind of work which Albert has created?
3. [10 points] Assume that Albert's action is determined to be one arising under federal law. The critic and the TV station for which she works have answered claiming that she needs her copy of the tape in order to broadcast a one and a half minute critique of his show and that her use for such purposes is protected by the Constitution. Ignoring that issue, do they have another defense to having to turn over the tape? If so, would that mean that they could broadcast as much of it as they pleased? Be sure to include your reasons.]
4. [10 points] Assuming there is no defense to making a copy for the competitor or the competitor's continuing to have it, what sort of monetary relief might Albert get? Upon what would that depend?
Part II
[65 Points Total]
Basic Facts>
Sylvester Dweeb, a chemist and part-time tinkerer, has invented a product to go on the side of a Macintosh computer. It is essentially an old fashioned wood and metal spring mousetrap which is fastened to the computer with his specially designed and manufactured adhesive strip. Once fastened, the computer mouse can be clipped to the side of the Macintosh, e.g., when the computer is being carried somewhere. If, for some reason, the owner gets tired of it, the trap can be removed by a sharp pull, but otherwise the adhesive is very effective. He is marketing it through mail order using ads in nationally distributed magazines. He calls it "Dweeb's Macintrap."
Supplemental Facts. A
After a few months, Dweeb began to attract competitors, and he came to you to get advice about avoding what he regards as "unfair" competition.
Question
5. [50 points] What protection does he already have? What are his options for getting further protection? Discuss each of them in terms of how much protection he will get (with regard to what aspect of the product) and, in very basic terms, how difficult that protection will be to get and enforce. (On this question in particular, be sure to carefully organize your answer.)
[To use a totally bizarre example -- which you can otherwise ignore, yiou might consider whether any aspect of his product might be protected by a plant patent? If so, what? What steps would he have to take in such unlikely circumstances, if any, in order to have such protection? If he had such protection, what would his competitors be allowed to do in spite of it?]
Supplemental Facts. B
Assume that instead of coming to you in the beginning, Dweeb decided that he wasn't cut out for running a mail order business and sold all of his rights to "Cutsie-R-Us," a manufacturer and retailer of computer accessories. In the most relevant part of the contract, they agreed to pay him 8% of their selling price.
About 14 months later, the manufacturer found itself with only about 40% of the market for what everyone was now calling "the Macintosh mousetrap. " Unable to drop their price because of having to pay royalties to Dweeb, they consulted an intellectual property specialist, who said that there was then little to do about what competitors were doing. The manufacturer's general counsel thereafter called Dweeb and tried to explain why they felt justified in not pay any more royalties.
Dweeb has come to you and tells you that he is totally confused about their position other than that it has something to do with a hop picking machine and the Sears catalogue company.
Question
6. [10 points] You, of course, have no problem understanding what they are getting at. Is their position sound, why or why not?
7. [5 points] If "Cutsie-R-Us" had been the first to use the name "the Macintosh Mousetrap," did the so-called intellectual property specialist give good advice in telling them that there was little that they could do about others using the name?
