UNITED STATES DISTRICT COURT
DISTRICT OF MAINE ISAAC Slade, JOE King, DAVE Welsh, and BEN Wysocki, individuals d/b/a The Fray, and Epic RECORDS, Plaintiffs, v.CHARLES Washburne, Defendant. | )))))))))))) | Civil No. 13-037 P-H | PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF ITS RULE 56 MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW ISAAC Slade, JOE King, DAVE Welsh, and BEN Wysocki, individuals d/b/a The Fray, and Epic RECORDS, Plaintiffs, and move for summary judgment against Defendant Charles Washburne, and in support thereof show the following:
INTRODUCTION

1. Plaintiffs are ISAAC Slade, JOE King, DAVE Welsh, and BEN Wysocki, individuals d/b/a The Fray, and Epic RECORDS; defendant is CHARLES WASHBURNE. 2. Plaintiffs sued defendant for copyright infringement. 3. Defendant answered asserting a general denial and the affirmative defense of fair use. 4. Discovery in this suit ends April 30, 2014; trial is scheduled for July 1, 2014. 5. Plaintiffs respectfully request that the court grant their motion for summary judgment and deny the Defendant’s motion. summary judgment standard 6. Motions for summary judgment are governed by Fed. R. Civ. P. 56 which provides that a summary judgment shall be rendered if the evidence properly before the court indicates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law."
STATEMENT OF THE CASE

Plaintiffs, Issac Slade (“Slade”), Joe King (“King”), Dave Welsh (“Welsh”), and Ben Wysocki (“Wysocki”) collectively known as The Fray, are all apart of an alternative rock music group signed to Epic Records. Compl. ¶ 6. They bring a copyright infringement action against Defendant Washburn. ¶ 1. In 2004, Slade and King artistically created an original musical composition entitled How to Save a Life. Id ¶ 9. Their original work portrayed their sense of skill, judgment, and labor. Id. On July 1, 2004, Plaintiffs Slade and King registered How to Save a Life with the United States Copyright Office. Id. On or about November 10, 2004, the Plaintiffs fixed the musical composition in a tangible medium in the form of a digital compact disc (“CD”), which was properly registered with the United States Copyright Office about November 12, 2004. Id. ¶ 10. The Copyright Office accepted their submission and issued The Fray and Epic a certificate of copyright registration. Id. The Plaintiffs have ownership to the entire right, title and interest to the song. Id. On July 4, 2006 a digital recording of the song How to Save a Life was publicly released. Id. ¶ 12. Approximately September 15, 2010, Defendant used the original music for How to Save a Life to compose his version entitled of How to Write a Brief. Id. ¶ 13. The lyrics to the song How to Write a Brief, as recorded by the Defendant, identically followed the format used in the song How to Save a Life. Id. ¶ 13. Since the recording of How to Write a Brief, the Defendant has played the song in his legal writing class at University of Maine, School of Law at least six times. Id. ¶ 14. The defendant admits to playing the song at least six times, but denies that the University compensated him. Answer ¶ 2.
On May 31, 2012, the Defendant played the song How to Write a Brief at the Legal Writing Institute Biennial Conference held in Palm Desert, California. Compl. ¶ 15. Those in attendance were primarily legal writing professors from law schools throughout the country. Id. They all paid a registration fee to attend the conference. Id. During the conference, the Defendant made copies of the song How to Write a Brief in the form of CDs, which were made available for purchase to the conference attendees for $12. Id. The Defendant admits that he played the song How to Write a Brief at the conference on May 31, 2012 and sold CDs containing the song How to Write a Brief for the attendees, but denies that he profited from the sales. Answer & Affirm. Def. ¶ 3.
How to Write a Brief contains the same music and substantially similar lyrics from the song How to Save a Life. Id. ¶ 16. The Defendant reproduced, published, sold and distributed the song How to Write a Brief without first obtaining a license or the consent of the Plaintiffs. Id. ¶ 17. On several occasions the Plaintiffs have notified the Defendant by both oral and written communications that they disagreed with his actions. Id. Although the Defendant admits to the Plaintiffs’ allegations, he asserts an affirmative defense; he alleges that any such copying constituted fair use because Defendant’s use of How to Write a Brief was limited to non-profit educational purposes. Answer & Affirm. Def. ¶ 1.
The plaintiffs, The Fray, Slade and King as joint composers, and Epic now ask the trial court to grant their motion for summary judgment, with award in one million dollars for monetary damages, and an order of a permanent injunction to forbid the defendant from reproducing, manufacturing, and selling CD’s containing The Fray’s music and most of their lyrics to their song How to Save a Life. Compl. ¶ 20.

STATUTES INVOLVED Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phone records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 17 U.S.C.A. § 107 (2012). ISSUES PRESENTED

I. Under the Federal Copyright law for “fair use,” does defendant Washburne fail to satisfy the purpose and character factor when he used the original music of The Fray’s How to Save a Life, recorded his own rendition entitled How to Write a Brief, played his version of the song to his classes, manufactured copies of the song, and sold them as compact discs at the Legal Writing Conference.

II. Under the Federal Copyright law for “fair use,” does defendant Washburne fail to satisfy the factor of the amount and substantiality of the portion used when he reproduced the exact same music, melody, and took a significant amount of the same lyrics that were in the original song without obtaining a license or consent.

ARGUMENT

Washburne purposefully and knowingly infringed on plaintiff’s copyrights when he made copies of his rendition The Fray’s song How to Save a Life and sold them for profit. Fair use defense consists of four factors: (1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. When analyzing a copyright infringement claim under “fair use,” Congress “eschewed a rigid, bright-line approach to fair use” and stated that the commercial or nonprofit educational character of a work is not conclusive, but rather, is a factor to be weighted along with other factors as part of a balancing test. All parties agree as to factors two and four, in that (1) the nature of the copyrighted work is artistic, and (2) the use does not affect the market value. Therefore, this brief will only address factors one and three.

I. CHARLES WASHBURNE PURPOSEFULLY USED THE ORIGINAL MUSIC OF THE FRAY’S SONG HOW TO SAVE A LIFE, CREATED HIS OWN VERSION- REPRODUCED, PUBLISHED, AND SOLD FOR COMMERCIAL PURPOSES, WHICH VIOLATES THE PURPOSE AND CHARACTER OF FAIR USE DOCTRINE.

A. A defendant, who both uses a copyright material for commercial purposes, which is not transformative, is presumed to have be unfair exploitation of the monopoly privilege that belongs to the owner of copyright.

Defendant Washburne fails to meet the purpose and character factor of “fair use” because his version of The Fray’s song How to Save a Life is commercial and not transformative. Courts consider three factors when examining the purpose and character factor of “fair use:” (1) whether the use was transformative (new material); (2) whether use was for commercial purposes; and (3) whether alleged infringer's conduct was proper (good-faith). Marcus v. Rowley, 695 F.2d 1171, 1175 (9th Cir. 1983). [Every] Commercial use of copyright material is presumptively unfair exploitation of the monopoly privilege that belongs to the owner of copyright. Sony Corp., v. Universal City Studios, Inc., 464 U.S. 417, 451 (1983). The goal of copyright is to promote science and the arts, and primarily what the courts focus on is the transformative use verses the commercial use. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). If the use is transformative and not verbatim, it is likely to weigh less against a finding of fair use. Id.
If the alleged infringer copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used, then it is a strong indicia of unfair use. Marcus, 695 F.2d at 1175. A challenge to a noncommercial use of a copyrighted work requires proof, that either the particular use is harmful, or that if it should become widespread, it would adversely affect[s] the potential market for the copyrighted work. Sony, 464 U.S. 417 at 451. The inquiry under the first factor of the fair use analysis generally is whether the allegedly infringing work “merely supersedes” the original work or instead adds something new… i.e. is transformative. Campbell, 510 U.S. at 579.
The cases sum up what constitutes the purpose and character factor of fair use through different situations. In Marcus, the court held that it was not fair use for a teacher to copy, without attribution, from a cake-decorating book in order to make her own cake-decorating book for her class. Marcus, 695 F.2d at 1179. The court primarily focused on the scope of “fair use” and how it [was] constricted when the original and [a] copy served the same function. Id. at 1175. Plaintiff was a home economics teacher and author of the book, “Cake Decorating Made Easy,” in which she taught, used, and sold in her classes. Id at 1173. Marcus brought suit when she learned that defendant, Shirley Rowley, was teaching a food service career class using the same methods and techniques Marcus used in her own classes. Id. Rowley’s cake-decorating booklet copied eleven pages of Marcus’ book verbatim, which included the supply lists and instructions. Id. Rowley made 15 copies of the book available for use by students. She presented the book as her own and did not credit Marcus. Id. at 1174. The court concluded that the purpose and character of use factor weighed against a finding of “fair use” because Rowley’s work was used for the same purpose as plaintiff’s booklet and Rowley did not attempt to seek plaintiff’s consent or give credit to plaintiff for Rowley’s use of plaintiff’s work. Id. at 1175-1176.
Unlike Marcus, in Sony, the court held that recording a program at home for the purpose of watching it later –“time-shifting” is fair use, because it does not interfere with commercial use, nor does it take away from other competitors, but the court of appeals reversed and held manufactures liable for contributory infringement. Sony, 464 U.S. at 499. The Court explained the distinction between nonprofit and commercial use. Plaintiffs, who were television program producers, sued Sony, the manufacturers of a home videotape recording equipment for contributory copyright infringement. Id at 450. They sued because consumers used the Sony equipment to make copies of plaintiff’s broadcast television programs. Id at 450. The Court placed heavy emphasis under the first factor because even copying for noncommercial purposes impairs the copyrights ability to obtain rewards…and it is to create incentives for creative efforts. Id at 450. The Court reasoned that if the Betamax were used to make copies for a commercial or profitmaking purpose, it would be presumptively unfair. Id at 449.
In Campbell, the Court held that the commercial nature of a use does not necessarily preclude a successful fair use defense; rather the transformative nature of the use must be taken into consideration. Campbell, 510 U.S. at 579. This case stresses the importance of the transformative theory. The rap group 2 Live Crew recorded a song entitled "Pretty Woman," which incorporated the famous opening guitar passage from Roy Orbison’s “Oh Pretty Woman.” The song was under the rights of Acuff-Rose Music, owners of the Orbison song. Acuff-Rose argued that, in releasing the song commercially, 2 Live Crew had violated the boundaries of fair use. Id. at 574. The court reasoned and put emphasis on the fact that the language of the statue, makes clear that the commercial or nonprofit educational purpose factor of a work is only one element…and a use for educational or nonprofit does not insulate it from a finding of fair use. Id at 584. B. Defendant Washburne should be held responsible for copying The Fray’s song because his rendition was wrongfully reproduced, manufactured, distributed and sold for commercial purposes, thus being in violation of the purpose and character of use doctrine.

Defendant Washburne played his rendition of The Fray’s song How to Write a Brief at the Legal Writing Conference. Those in attendance were primarily legal writing professors from law schools throughout the country. They all paid a registration fee to attend the conference. During the conference, the Defendant made copies of the song available in the form of CDs, which were made available for purchase to attendees for $12 without the consent of plaintiffs’.
Our client’s facts are more similar to cases that found the purpose and character of use factor to weigh against fair use. For example, Marcus is analogous to the facts in our case. Although Defendant Wasburne used the same methods and techniques by sharing his version of The Fray’s song to his classes, like Marcus, defendant Washburne made 71 copies and sold his song at a legal writing conference, whereas Rowley made 15 copies. Though different in a sense that The Fray reached a global market, it is similar because like Marcus, defendant Washburne presented and sold to his students and professors without crediting The Fray. The Fray would urge the court to take into consideration that Washburne’s “work” is not transformative because his song How to Write a Brief artistically mirrors The Frays’s song How to Save a Life in musicality and lyrically and it was used for commercial purposes.
The Sony case is distinguishable to our client’s case, yet it is persuasive because it explains the distinction between non-profit and commercial use. Although our initial case has nothing to do with the recording of television shows, it does have to do with copying a person’s protected work. Sony explains that factor one of fair use is important because copying a persons work that is protected by copyright laws for noncommercial purposes, impairs the rightful owner’s ability to obtain rewards or credit. Defendant Washburne knowingly infringed on plaintiffs’ copyrights by publishing and placing on the market the recording of his version of How to Save a Life. The fact that it was sold for commercial purposes is the main issue.
Campbell is distinguishable to our case because it deals with a parody, but it explains that every commercial use of copyrighted material is presumptively unfair, that we must take into account the transformative aspect. Based our facts, it is clear that Washburne’s rendition of The Fray’s How to Save a Life is not transformative. His song contained that same music composition and same style of lyrics, and as a law professor defendant Washburne should have known that he was infringing on our clients creative work since his song was not original in nature. Nor did defendant Washburne attempt to obtain plaintiffs consent or credit plaintiffs’ for his use of How to Save a Life.
It is irrelevant that the commercial purpose only served 71 individuals from educational institutions, and the defendant made $27 as opposed to millions. The law states that educational purpose of use is not an automatic qualification for a fair use claim. The fact that he obtained profit is a violation of the purpose and character factor of fair use.
Therefore, Plaintiffs’ argues that the scales will weigh against defendant’s contention of fair use regarding the first factor. Defendant Washburne fails to meet the purpose and character of fair use because his song served a commercial purpose and it was not transformative, meaning that it did not add something new altering the initial work with new expression or message. II. THE DEFENDANT COPIED VERBATIM A SUBSTANTIAL AMOUNT OF THE FRAY’S COPYRIGHTED SONG.

A. To constitute an invasion of copyright it is not necessary that the whole or a large portion of the work should be copied, but if it diminishes or takes away from the original authors work that is sufficient to constitute an infringement

Defendant Washburne fails to satisfy the amount and substantiality factor of fair use because his version of The Fray’s song How to Save a Life contains a large amount of their lyrics, which is essentially the heart of their work. Under the third factor of fair use it considers two things: (1) the amount of the total work that is copied to prove infringement, and (2) the qualitative value of the portion that is copied (purpose and fair use). Campbell v. Acuff-Rose Music, 510 U.S. 587. (1994). The merger doctrine denies copyright protection when creativity merges with reality; when there is only one way to express a particular idea; it prevents copyright protection to work. Soc'y of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 53 (1st Cir. 2012). The scope amount and substantiality of fair use is generally broader when the source of borrowed expression is a factual or historical work. Harper & Row v. Nation Enters., 471 U.S. 594 (1985). To constitute an invasion of copyright it is not necessary that the whole or a large portion of the work should be copied, but if it diminishes or takes away from the original authors work that is sufficient to constitute an infringement. Wihtol v. Crow, 309 F.2d 780.
The third factor asks whether the amount and substantiality of the portion used, such as the quantity and value of the materials used, are reasonable in relation to the purpose of the copying. Campbell, 510 U.S. at 586. The art of translation involves choices among many possible means of expressing ideas Soc'y of Holy Transfiguration Monastery, Inc., 689 F.3d at 53. “Substantial quotations might qualify as a fair use in a review of a published work or a news account of a speech that had been delivered to the public…and it’s appropriate.” Haper & Row, 471 U.S. at 601. “The inquiry must focus upon whether the extent of…copying is consistent with or more than necessary to further the purpose and character of use.” Nunez., 235 F.3d at 24. “The test of infringement is whether it is recognizable by an ordinary observer as having been taken from the copyrighted source.” Wihtol, 309 F.2d at 780.
The cases articulate what courts find to be the important components of fair use and what violates the amount and substantiality of use. In Campbell, the Court held that it is not just the copying of an individual’s work that should be taken into consideration, but rather understand the purpose and character of the used work, was it used for the same intrinsic purpose as the original work. Campbell, 510 U.S. at 586-88. The court reasoned that third factor of amount and substantiality of fair use coincides with factor one. When assessing whether a substantial part or "heart" of plaintiff’s work was taken, consider the justification for the copying, and whether use transformed the work that was taken. Id at 579-580. In comparison to Campbell, the Society case held that the defense of fair use fails the balancing test because the Archbishop copied and offered identical or near-identical versions of the creative works on his website for the purpose for which the Monastery had created the Works in the first place. Soc’y of Holy Transfiguration Monastery, Inc., 689 F.3d at 63. The Monastery a non-profit organization worked on translating religious texts from their original Greek into English. Id at 36. One of the members of the Monastery moved to Colorado, formed Dormition Skete and a Skete member created a website devoted to the Orthodox faith. Id at 37. The Monastery sued the Archbishop for copyright infringement of fair use. Id at 37. The Archbishop claimed the defense that the work from the Monastery falls under the merger doctrine because there was a limited amount of ways to translate English. Id at 53. The court reasoned that the merger doctrine is inapposite because translations involve many choices of possible means to express ideas. Id. The Court also reasoned that verbatim copy of religious text for the same purpose as the original owner weighed against finding of fair use as to third factor. Id at 63. In Harper & Row, the Court held that the third factor disfavors a finding of fair use because The Nation had taken “the heart of the book.” Harper & Row, 471 U.S. at 599-600. However, the vast majority of what the District Court considered the “heart,” consisted of ideas and information that The Nation was free to use. Id. Former President Ford had written a memoir and had licensed his publication rights to Harper & Row, who contracted for excerpts of the memoir to be printed in Time. Id at 542. Instead, The Nation magazine published approximately 300 words of verbatim quotes from the book without permission of Ford, Harper & Row, or Time magazine. Id at 545. Because of the articles actions, Time withdrew and Harper & Row filed a lawsuit against The Nation for copyright infringement. Id at 542. The Nation asserted as a defense that Ford was a public figure that appropriation in such circumstances should qualify as a fair use, and the Court of Appeals reversed the ruling, finding that The Nation's actions in quoting the memoirs were protected by fair use privilege. Id at 569. The Court reasoned that publishes for profit is presumptively unfair commercial use, but the statute, Section 107, lists news reporting as a prime example of fair use. Id at 593. Copying news broadcast may have a stronger claim to fair use than copying a motion picture. Id at 594. Therefore, there is a difference with the scope of the amount and substantiality of the fair use doctrine when it comes to unpublished work and public work. Id at 597-598.
In Wihtol, the court held that the defendant, choir director, had violated the third factor of the fair use doctrine when minor changes were made to a hymn. Defendant, Mr. Crow, was a choir director who made a special arrangement of a choir song for his students. Id at 778. Crow without permission made 48 photocopies of sheet music and distributed them to his two choirs for instruction. Id. He directed them in two public performances, one at school and the other at church one Sunday. Id at 779. Crow gave no attribution, naming himself as the author, Wihtol sued for copyright infringement. The court reasoned that under evidence of the Copyright Act, defendant Crow was an infringer. Id at 783. Although the defendant copied a substantial portion of the copyrighted work, he did not have the intent to profit off of it, but the means of expressing an idea and taking it as his own is subject to copyright protection. Id at 780. Defendant’s actions gave Plaintiff the right to plea for an injunction. Id. at 783. B. Defendant copied a substantial quantity of the Plaintiffs’ copyrighted work, and he also copied the quality of the work verbatim. Defendant’s work was a wholesale copy of the Plaintiffs’ copyrighted song, that constitutes an infringement.

Defendant Washburne fails to satisfy the third factor of the amount and substantiality portion used of fair use because he reproduced the exact same music and melody from The Fray. He took a significant amount of the same lyrics that were in the original song How to Save a Life without obtaining a license or consent. Defendant used the original music for How to Save a Life to compose his version of How to Write a Brief. The lyrics to the song recorded by the Defendant, identically followed the format used in the song How to Save a Life. Since the recording of How to Write a Brief, Defendant Washburne has played the song in his legal writing class at least six times.
The facts in our client’s case parallel more closely with the cases were the courts found there was a substantial portion of copyrighted work copied verbatim. The facts in Campbell are analogous to our facts; Defendant Wasburne purposefully took the “heart” of The Fray’s version of How to Save a Life and incorporated minimal changes to the lyrics and musicality. Both the defendant and the rap group 2 Live Crew recorded the songs, which incorporated The Fray and Roy Orbison’s creative work. They both used the songs for a commercial purpose and defendants Washburne’s song was not new or creative, thus violating the boundaries of fair use. Although defendant Washburne’s song did not hit mainstream, the purpose of his use was for the same intrinsic purpose that The Fray intended to do, make a profit. Campbell says, when assessing whether a substantial part or "heart" of plaintiff’s work was taken, you must consider the justification for the copying, and whether the use transformed the work that was taken. It is clear that Defendant Wahburne’s work did not transform the original because majority of his work contained The Fray’s arrangement and completed ideas.
In contrast, Society is distinguishable in a sense to our client’s facts because it deals with the translation of religious texts to English as oppose to a musical component. However, the case explains that if a substantial portion of a copyrighted work was copied for verbatim, it is clear evidence of the qualitative value of the copied material. Defendant Washburne took a substantial amount of The Fray’s creative work and came up with his own rendition of their song, which lacked creativity and skill. His song, How to Write a Brief served the same purpose as The Fray’s work, to entertain.
In comparison, the Wihtol case is analogous to our case because the choir director made copies and minor changes to a hymn, and took the credit without acknowledging the rightful owner. Like Wihtol, defendant Washburne made copies of the song he had creatively taken from The Fray and as oppose to distribute them, he sold them at a legal writing conference. Although the defendant in Wihtol made minor changes to the musical arrangement, he was still found to have violated the third factor of fair use even though it was for a non-profit organization. The statute and the Copyright Act were put in place to protect the artistry of creative minds.
It does not matter that Defendant Washburne lyrically used part of the song as a fun way to educate and teach his students and other professors the fundamental skills of legal writing, He should have known better since he is clearly a professor of law. To conclude, the scales of the amount and substantiality factor of fair use tip in favor of our client, The Fray because the purpose and character of use in this sense was for gain and the defendant took the heart of our client’s creative work.
CONCLUSION
Here, the scales weigh in our client’s favor. Defendant Washburne failed to meet the “purpose and character of the use factor” because his version of The Fray’s song was not transformative, it did not reflect creativity or originality. Factor two is uncontested, but it weighs in our favor because The Fray’s work is creative in nature and it was published on July 4th. As mentioned prior, factor three tips in our clients favor. Last, for factor four the market was not harmed. Each factor of fair use should be taken into account and weighed on a case-by-case basis. No one factor is determinative in given priority to a specific party, but each factor may favor one party stronger or weaker, and there is no possibility of quantifying the balance. The illegal actions that the Defendant caused are great in nature and can produce irreparable harm if not mitigated. Plaintiffs respectfully request that the court deny the Defendant’s motion, and grant our motion for summary judgment, with award in one million dollars for monetary damages and a order of a permanent injunction to forbid the defendant from reproducing, manufacturing, and selling CD’s containing The Fray’s music and most of their lyrics to their song How to Save a Life.

Respectfully Submitted,

Dewey, Cheatham & Howe 123 First Avenue Portland, Maine 04101 Attorney for Plaintiff The Fray

CERTIFICATE OF SERVICE:
I hereby certify that on the 20th day of April, 2014, service of a true and complete copy of the above and foregoing memorandum was made upon the plaintiff’s/defendant’s attorney of record by depositing the same in the United States mail in an envelope properly addressed to him/her with sufficient first-class postage affixed. Dewey, Cheatham & Howe 123 First Avenue Portland, Maine 04101

HONOR CODE:
I have neither received nor given unauthorized aid.