Chapter 10 Answer guidance to end of chapter questions

Digital creatives and copyright law
  1. You are a legal intern for a new start-up company based in London Extra Time. Extra Time is a sports-based news and social media platform. A key part of the Extra Time offering is ‘The Fanzone’. The Fanzone allows users to post content including videos, text, audio files, and photographs to Extra Time servers based in London to be shared among other fans of sporting clubs, films and TV shows, and music acts. The Fanzone has been a massive hit and has led to a flurry of activity among Extra Time users. In the last week however Extra Time has received two letters from furious copyright holders suggesting their work has been infringed by posts made to the Fanzone and demanding that Extra Time take action immediately to remove the infringing posts before court action is begun.
    • The first is a remixed version of a famous scene from the film Downfall and mocks   England’s performance at the 2016 European Championships (It may be viewed at
    • The second is a Harry Potter/James Bond crossover Harry Potter and the Casino   Royale (available at:  Casino-Royale)

    Extra Time seeks your advice as to whether these posts are likely to infringe copyright law in England and Wales and if so what they should do about them.

    Extra Time has also employed an artificial intelligence known as ‘ExtraBot’ to write original content for the Fanzone. The ExtraBot has become a cult hit, not only with Extra Time users but also across the internet. The ExtraBot code was written in-house and Extra Time own all the rights to the ExtraBot code. Yesterday a major publisher, Indiscriminate House, issued a press release saying that they were publishing a book called The Wit and Wisdom of ExtraBot in time for Christmas. They expect it to be a bestseller. Extra Time has not given permission to Indiscriminate House to do this and want to prevent the publication of the book as they have their own book planned with rival publisher CarperHollins.

    Advise Extra Time on all these issues.

This is a relatively straightforward problem question.

  1. Firstly regarding the Downfall video. It should be recognised that a remixed version of a film normally falls within the restricted copyright acts most likely as “an adaptation of the work or do any of the above in relation to an adaptation” under ss.16(1)(e) and 21. There may also be a straightforward infringement of s.16(1)(a) in that a substantial part of the original work is replicated.
  2. A discussion of whether a substantial part is replicated may be carried out with reference to Nova v Mazooma, Hawkes & Son Ltd v Paramount Film Service and Baigent &Anor v The Random House Group Ltd.
  3. However in this case a defence may be laid: the parody defence under s.30A. This applies if the work was produced “for the purposes of caricature, parody or pastiche”. This appears to be the case here and although there is no UK case law the student may refer to Suntrust Bank v Houghton Mifflin, Salinger v Colting and Deckmyn v Vandersteen to establish whether or not the defence is likely to be made out.
  4. With regard to the Harry Potter/James Bond Fanfic the key question is whether a “substantial part” of the originals have been copied. This means looking at the question of whether characters and settings are a substantial part of the original. Relevant cases here include Hodgson v Isaac, Baigent & Anor v The Random House Group Ltd, and Detective Comics v Bruns (US). A good answer will discuss the arguments brought forward by Kaelyn Christian and Christina Ranon.
  5. The final question of whether or not Extra Time can prevent the publication of “The Wit and Wisdom of ExtraBot” is a pretty straightforward application of ss.9(3) and 178 of the Copyright Designs and Patents Act 1988 and the decisions in the Express Newspapers v Liverpool Daily Post & Echo and Nova v Mazooma cases.
  1. Grimmelmann argues that ‘For all present practical purposes, new copyright doctrines for computer-generated works are a terrible idea’. Is he right? Why, or why not?

To answer this question I would expect the student to discuss in order:

  1. The use of Grimmelmann is merely to start discussion. Students do not need to be fully familiar with Grimmelmann’s work in full. They are being asked to address the question of whether “new copyright doctrines for computer-generated works are a terrible idea”. They might however note that Grimmelmann believes computers and AI do not have “attributes of personality that make us willing to regard them as copyright owners.”
  2. The question therefore invites a discussion of whether this is the case. Examples of AI creativity such as The Last Rembrandt or the Portrait of Edmond Belamy may be introduced into discussion. Students should note through that under s.9(3) of the Copyright, Designs & Patents Act 1988 “in the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”
  3. Discussion of the application of s.9(3) [and s.178] should be carried out through the lens of the Express Newspapers v Liverpool Daily Post & Echo and Nova v Mazooma cases.
  4. Discussion of the Author-in-Fact vs Author-in-Law argument rehearsed by Annemarie Bridy should be carried out including an evaluation of relevant “non-human author” cases such as Cummings v Bond and Penguin Books USA v New Christian Church of Full Endeavor.
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