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1. Evidence of the depth of understanding of the topic2. Logic of structure, organization and analysis3. Accuracy of the application of law to the facts in any given hypothetical scenario4. Quality of presentation, referencing and writingLegislative references must be given where appropriate, but full case citations are unnecessary (case names will suffice). All answers should be completed under a combined total of 3750 words (including headings and sub-headings) – i.e. on average 750 words for each of the 5 matters.
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You are working in the intellectual property department of the Melbourne offices of the
international law firm Zimmer Orin Rich Oka known by its acronym ZORO. Your ZORO
principal (who is a trade mark law expert but not a copyright expert) asks you to prepare
five brief memos addressed to her which answer copyright-only questions on five
separate file matters.
1 Matter One Fortress of Solitude [10 marks]
Earlier this year, the independent Australian singer-songwriter Stephanie Chu (a client of
ZORO) performed at a music venue in inner Melbourne called The Crystal Palace. It has
prominent signs up as patrons enter which state: NO RECORDING OF PERFORMANCES IS
PERMITTED. That night she gave her first public performance of ‘Fortress of Solitude’ a
song for which she had just composed both its lyrics and music. Her performance was
solo, playing an acoustic guitar while she sung. Martin Oppy, a music industry journalist,
was attending the venue as a member of the audience. When Stephanie introduced
‘Fortress of Solitude’ by telling the audience that it was to be the first time she would
perform it in public, Martin switched on his high-fidelity digital sound recorder and
made a sound recording of her 4-minute performance. The following week on his music
industry news blog site he uploaded an audio file comprising 30 seconds of that
recording to illustrate his 2,000-word review of both of ‘Fortress of Solitude’ and
Stephanie’s performance of it.
Stephanie has come to ZORO for advice. Martin has no permission from her in relation
to the audio file. What rights of hers under the Copyright Act 1968 has he arguably
exercised or infringed? What is the strength of her rights (taking account of any
defences open to Martin) to require that Martin removes the audio file from his blog
site?
2 Matter Two Scraps [10 marks]
In 2017 the New Zealand cartoonist Lilly Kee (a client of ZORO) created Scraps, an
intrepid cartoon dog character who quickly became a global sensation in a suite of
‘Scraps Apps’ for smart phones. One of Lilly’s first drawing of Scraps that she published
online in 2017 is reproduced below
:
Last year Lilly authorised the mass-production in New Zealand (for worldwide export) of
50,000 Scraps stuffed toys, the shape and look of which were modelled entirely upon
the drawing above. 5,000 of those stuffed toys were imported into Australia and sold in
Australia around Christmas 2018. Lilly has taken no steps to secure any registered
intellectual property rights in Australia in relation to Scraps or the toy.
Lilly comes to ZORO for advice. She is concerned that several retail outlets around
Australia are selling unauthorised copies of the Scraps toy and unauthorised poster
prints of the above Scraps image. Leaving aside rights that she may have in any other
law (such as under Australian Consumer Law or passing off) provide advice on what
economic rights (if any) Lilly may exercise under the Copyright Act 1968, having regard
to all relevant defences. Lilly also wants advice on any risks she may face in writing to
the retailers to insist that they cease selling the unauthorised Scraps merchandise.
3 Matter Three Burning Bush [10 Marks]
Gordon and Nancy Burning are an elderly married couple (and clients of ZORO) who run
their own successful business in partnership called ‘Burning Bush’. Located in outer
suburban Melbourne it retails gardening supplies and plants. Gordon and Nancy have
produced and star in several zany online video advertising. The beginning and end 8
seconds of their advertisements consists of them wearing pot plant style hats and wildly
dancing while an audio snippet from the Herman’s Hermits 1964 UK sound recording of
I’m Into Something Good https://www.youtube.com/watch?v=oGEZXLT9B2o features on
the video soundtrack. The snippet is the chorus section in which the following is sung:
‘Somethin’ tells me I’m into something good (Somethin’ tells me I’m into somethin’)’.
The song itself was composed, also in 1964, by the famous US song writing duo of Gerry
Goffin (lyrics) and Carole King (music). Gordon and Nancy have not cleared any rights in
relation to their use of the snippet.
Gordon and Nancy were alarmed when a customer who was studying law warned
them that the use of the snippet in their online video advertising could infringe a
variety of intellectual property rights. They have come to ZORO for advice. Explain
what rights Gordon and Nancy might be infringing under the Copyright Act 1968, and if
they might have any legal arguments or defences available to them in copyright law.
4Matter Four Brotherly Love [10 Marks]
In 1991 freelance news photographer Wendy Toohey, an Australian citizen, took an
iconic and unique photograph at an AFL football match in suburban Melbourne. Two
indigenous brothers were playing in opposing teams on a wet day. The photograph
captured the younger brother spontaneously helping his older brother up from the
muddy ground after the older brother had been knocked down. It vividly captured in
their faces at that moment the affectionate bond
between the two. The photograph, which was taken on her own account and licensed to
various news organisations by her, was titled ‘Brotherly Love’ won her several news
media and photography awards. Toohey died in 1994 and her daughter Petra Toohey (a
client of ZORO) is her sole executor and beneficiary.
Petra is aware from news reports that a young local sculptor Tom Lucas has recently
been commissioned by Radani Ltd, a multinational coal mining company, to produce a
life-sized bronze sculpture of two brothers as depicted in ‘Brotherly Love’. The sculpture
is to be installed in the ground entry foyer of Radani’s new office building in central
Melbourne.
Petra seeks advice from ZORO. Petra is, like her mother was, an environmentalist and
is appalled by the Radani commission and proposed installation. She wants to know
the strength of her rights (economic or moral) under the Copyright Act 1968 to seek to
prevent the making of the sculpture or at least prevent its proposed installation in the
Radani foyer?
5 Matter Five Techno Troopers [10 Marks]
Maverick PLC is a UK company that owns all copyright relating to the Techno Troopers
online video game in which online gamers engage in one-on-many automatic gun
skirmishes. Gamers must subscribe (i.e. pay) to play, and gamers must adopt a unique
alias to play under. Techno Troopers has become a global sensation. Part of the Techno
Troopers computer program automatically collects and tabulates score data about each
individual gamer under his or her alias such as that gamer’s average kill count per
skirmish, average survival time per skirmish, reflex speed, shooting accuracy, evasive
ability and a key overall score worked out by a program algorithm which measures his or
her ‘ruthless cunning’. Millions of gamers around the world compete against their
friends to have high scores for all of those criteria – but the thing everyone wants to
have the highest score for is ‘ruthless cunning’. Maverick makes available listings in
vertical 1st-to-50th columns the top 50 gamers (by aliases) worldwide in each score
category, and similarly presents the top 50 gamers (by aliases) in each category by
country of origin – including an Australian list. These lists are updated in real time and
are automatically made and formatted by the program. The online game, score database
and top 50 listings are accessible only to subscribers.
CrossEyed Pty Ltd is an Australian-incorporated company (and a ZORO client) which has
begun to make available online, via its Australian gamer-enthusiast website, the list of
the top 50 Australian Techno Troopers aliases for ‘ruthless cunning’. CrossEyed does this
by uploading to its site a daily ‘screenshot’ of the list from within the Techno Troopers
online game.
CrossEyed has received a letter of demand from Maverick insisting that by virtue
of ‘Maverick’s rights under the Copyright Act 1968 that CrossEyed must cease
and desist from making available online the Techno Troopers top 50 gamers
ruthless cunning list for Australia’. CrossEyed seeks advice on its legal position
in relation to the letter.

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