Get “Into the Groove”

Let’s face it. The past couple of months might have been difficult to get into a routine or a groove. There was Thanksgiving. Then Christmas and the holiday season. Then the New Year celebrations. In between those events, there were football games to watch, shows to binge, and family to see. Some of y’all had to finish up law school, move from one place to another, and other big milestone activities. Personally, I know I struggled to follow a good schedule.

With the start of January, though, hopefully the bulk of the past distractions are done (or, at least, minimized), and the next seven weeks of bar preparation can be the most productive seven weeks you’ve ever had as you get “Into the Groove.”

(Speaking of “Into the Groove,” Madonna recently called out rapper and singer Tory Lanez for sampling her 1985 song without permission.)

Substantive Law—Copyright

Madonna calling out Tory Lanez for “illegal usage” of “Into the Groove” brings to light potential issues related to copyright. While copyright is not tested on the bar exam (although it was the substantive law basis of the MPT, In re Marian Bonner), here are some things about copyright you might come across in your bar preparation:

Civil Procedure (Borrowing State Standard): When borrowing a legal rule from state-law authority, a federal court may select a rule that is used by a majority of state courts. Or, if there is little need for federal uniformity, and if the parties might expect that state law would apply, then the borrowed rule may be the one that would be applied under the law of the state forum. Example: In De Sylva v. Ballentine, 351 U.S. 570 (1956), the Court held that the meaning of the term “children” in the federal copyright statute should be defined in accordance with ordinary usage under state law, and that it would be up to the federal courts to determine which state’s definition would be applicable. (Page 37 of Civil Procedure Chapter in BARBRI Multistate Outline)

Civil Procedure (Exclusive Jurisdiction): Federal courts have exclusive jurisdiction in patent and copyright cases [28 U.S.C. §1338]. (Page 43 of Civil Procedure Chapter in BARBRI Multistate Outline)

Civil Procedure (Joinder of Claims): When jurisdiction is based on the diversity of citizenship between the plaintiff and defendant, the plaintiff may aggregate all claims she has against the defendant to satisfy the jurisdictional amount. When jurisdiction is based on a “federal question” claim, and diversity jurisdiction is not available, a nonfederal claim can be joined only if the court has supplemental (pendent) jurisdiction over it. The court will have supplemental (pendent) jurisdiction over the claim if it is regarded as part of the same case or controversy as the federal claim. Example: Plaintiffs claimed that the defendant appropriated plaintiffs’ literary work in such a way as to (1) infringe federal law copyright, and (2) constitute state law unfair competition. There was federal pendent jurisdiction over the state claim. [Hurn v. Oursler, 289 U.S. 238 (1933)]. (Page 69 of Civil Procedure Chapter in BARBRI Multistate Outline)

Civil Procedure (Standards of Review on Mixed Questions of Law and Fact): Mixed questions of law or fact are reviewed de novo. It is often difficult to determine whether the question is purely factual, purely legal, or mixed. Generally speaking, whether a set of facts meets a legal definition (for example, whether the use of copyrighted material is “fair use” under copyright law) is considered to be a mixed question of law and fact. (Page 104 of Civil Procedure Chapter in BARBRI Multistate Outline)

Constitutional Law (Legislative Powers): Congress has the power to control the issuance of patents and copyrights under Article I, Section 8, Clause 8. (Page 28 of Constitutional Law Chapter in BARBRI Multistate Outline)

Constitutional Law (First Amendment): The First Amendment does not require an exception to copyright protection for material written by a former President or other public figures. Magazines have no right to publish such copyrighted material beyond the statutory fair use exception. [Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539 (1985)]. (Page 155 of Constitutional Law Chapter in BARBRI Multistate Outline)