LAW 633 – Copyright
Prof. Litman
Winter 2017
Copyright in Context
Art. I, §8, cl. 8: “The Congress shall have Power… To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Note the “limited times” language—mandating the ultimate passage of works into the public domain.
Theoretical Underpinnings of Copyright Law
Incentives for Authors and Publishers: often referred to as the “public goods problem” in intangibles by economists, copyright concerns the hazard of potential authors not investing the time and resources to create new works unless they are confident that their investments will be protected. By allowing authors to control the dissemination of their works, and to exclude the enjoyment of their works by unauthorized consumers, copyright law enables authors to recoup their investments in valuable works. To this end, copyright law endeavors to offer (1) entitlement-like protection, (2) contract-like protection; (3) state-of-the-art limitation, and special-purpose technical limitations (see p. 9 for Hardy article).
Author’s Rights: continental Europe, and particularly France, adopt a less utilitarian justification for copyright laws in recognizing the inherent moral rights of authors to control the dissemination, distortion, destruction, and misattribution of their own creations. Jane Ginsburg characterizes the perceived connection between authors and works in France as “an intimate and almost sacred bond”. This forms the theoretical foundation for moral rights in European copyright law.
In the U.S., moral rights and other “natural rights” of authors derive from Lockean philosophy, by which an author’s labor creates a property right in the resulting work. Likewise, it is immoral for one to appropriate the works of another without their permission, because that would equate to stealing their labor and property. (there are obvious discontinuities with this theory and modern copyright—purely fortuitous works like a home movie capturing the JFK assassination may be protected while painstaking recreations of works in the public domain are not—p. 14).
A Robust Public Domain: Litman argues that “a vigorous public domain is a crucial buttress to the copyright system; without the public domain, it might be impossible to tolerate copyright at all.” Often overlooked is the importance of the public domain for defining where copyright begins and ends, and even delineating protectable and unprotectable features within a single work. Whereas the lay understanding of the public domain is as a depository of complete works not entitled to copyright protection, an even more crucial aspect are the portions of protected works which are available to any member of the public to use. This conception of the public domain is fundamental to Art. I, §8, cl. 8.
An Uncensored Marketplace of Ideas: two-pronged purpose in Art. I, §8, cl. 8 to serve (1) a “production function” encouraging creative expression on a wide array of political, social, and aesthetic issues, and (2) a “structural function” encouraging the creation of copyright industries independent of government control. Whereas prior legal protection for intellectual property was dependent on royal/feudal/church patronage—a dependence which undermined the expressive autonomy of authors by limiting the market for their creative works—the constitutional protections anticipated an autonomous public sphere whose authors were fiscally independent of the government, and thus better able to guard the public liberty and promote unfettered and diffuse citizen deliberation and education. As Netanel speculates, the ascendance of digital mediums will only enhance the function of the copyright market, in decreasing barriers to creation and dissemination of works, allowing authors to bypass media conglomerates and creating a viable market for an ever-broader multiplicity of views.
A Theory of Users’ Rights: Litman observes that content consumers are an integral component of the creative goals of copyright law, and that “copyright law encourages authorship at least as much for the benefit of the people who will read, view, listen to, and experience the works that authors create, as for the advantage of those authors and their distributors.” (p. 19) As Cohen points out, the relationship between authors and users is multifaceted in that both feed off each other—not only are authors reliant on users for income and users reliant on authors for content, but current users are future authors and current authors are also users; thus, ease of creation and dissemination in the present can facilitate future authorship. Overzealous protection of current authors’ intellectual property can have the counterintuitive effect of stifling users’ exposure to the work and curtailing future content creation. As Lee notes, modern copyright in practice functions very differently from copyright in theory, with noncommercial uses of copyrighted works on sites such as YouTube catalyzing the creation and dissemination of new works, even as they appropriate the creative content of existing works.
Progress and Public Welfare: While the U.S. conception of welfare is tied to incentivizing authorship by protecting the value of creative labor, public welfare in countries like China take a more intrinsic approach to authorship—shunning commercial motives since Confucian times and instead emphasizing the desire of authors and “true scholars” to create works for personal edification and moral renewal rather than profit. Basically, the process of creation was intrinsically valuable, and authors should not try to prevent others from discovering their work and adapting it.
The History of U.S. Copyright Law
Pp. 31-32: 1976 Act was crafted in large part by special interest groups, due to the technical nature of copyright law and the substantial economic interests that particular industries had in increased copyright protection. One major downside of this influence, according to Litman, is that some groups were less organized at the time of drafting, and excluded from the process (painters, sculptors, choreographers, theater directors, computer programmers). Likewise, prominent technology industries, like VHS, the internet, online databases, etc., did not yet exist and could not influence the drafting process. Some flexibility has been provided by amendments, whereas the 1909 Act was 14 pages long and the original 1976 Act was 62 pages long, it has grown to nearly 300 pages via 27 intervening amendments. By 2012, a “core” group of industries have come to dominate the copyright realm: motion pictures, sound recordings, music publishing, print publishing, computer software, theater, advertising, radio, television, and cable broadcasting. These “core copyright industries” account for 6.7% of U.S. GDP, valued at over $1.1 trillion dollars, an ever-increasing portion of which can be attributed to rapidly expanding foreign sales.
The Role of International Treaties and Institutions
Some of the most significant changes in U.S. copyright law in the last two decades have been in response to international treaties and international copyright developments; trends indicate a remarkable historical evolution of the U.S. from an early copyright isolationist to a leader in contemporary global copyright policy. Copyright began to spread across Europe in the early 8th century. Foreign authors did not receive copyright protection in the U.S. until the 1891 Act, and the 1909 and 1976 Acts have retained protection for three categories of foreign authors: (1) foreign authors domiciled in the U.S. at the time of first publication of their works in the U.S.; (2) foreign authors whose countries afforded comparable protection to the works of U.S. authors; (3) foreign authors whose countries were parties to an international agreement ratified by the U.S.
Until the Berne Convention was created in 1886, most countries protected their author’s works via bilateral agreements. The U.S. did this throughout most of the 19th and 20th centuries, with limited exceptions (p. 37). By the 1980s, core copyright industries in the U.S. were prioritizing international protection, resulting in Congress adopting a “minimalist” ratification of Berne in 1988 and a more expansive agreement to TRIPS in 1994. See summary of issues addressed by the two agreements on pp. 39-40. See WTO and WIPO enforcement procedures on pp. 42-43. Pp. 43-46 demonstrate emerging fault lines between developed and developing markets over access to copyrighted works and other intellectual property, looming significance of international treaties like TPP and TTIP, and the ongoing conflict between core copyright industries, online intermediaries, and the public, over enforcement and lability for infringement—resulting in Congress tabling SOPA and POPA in 2011 after massive global protests by internet users and prominent tech companies.
17 USC §§ 101, 102
Requirements for Copyright Protection
17 USC §102 defines the general subject matter of copyright. Three requirements: (1) the work for which protection is sought must be “fixed” in a tangible medium of expression; (2) it must be an “original work of authorship”; (3) copyright protection does not extend to elements of a work that constitute ideas, procedures, processes, etc. (see §102(b)).
Fixation (p. 52):
§101 definition of “fixed”: a work is fixed in a tangible medium of expression “when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Under this definition, it is not clear that live transmissions of broadcasts are covered, and in response Congress added a second sentence: “A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.” (if a live broadcast is bring recorded prior to or simultaneously with transmission, it is basically considered a motion picture and receives protection under the statute… p. 53) However, (according to Nimmer) an unauthorized bootleg recording of a live performance does not violate the copyright rights of the performer if the performer cannot cause copyright to subsist in the live performance merely by recording it. See ch. 7 for exceptions to live performance of music or monologue– §1101(a) prohibits the fixation or transmission of a live musical performance without the consent of the performer and also prohibits reproduction or distribution of copies or phonorecords of an unauthorized fixation of a live musical performance.
Williams Electronics v. Artic International (3d Cir. 1982): Williams registered three copyrights for DEFENDER video game: (1) the computer program, itself; (2) audiovisual effects displayed during the game’s “attract mode”—the display prior to user inserting coin; (3) audiovisual effects displayed during the game’s “play mode”—display during gameplay, user controls spaceship movement. Defendant Artic’s DEFENSE COMMAND is virtually identical to William’s game. Defendant does not dispute copying but challenges the validity and scope of the audiovisual copyrights, arguing that the images displayed during the “play” and “attack” modes cannot meet the “fixation” requirement because they are inherently transitory. 3d Cir. Rejects this argument, citing 2d cir. In Stern Electronics for holding that video game displays satisfy the statutory definition of an original “audiovisual work” and the memory devices of the game satisfy the statutory requirement of a “copy” in which the work is “fixed”—in both cases, ROM (read only memory). Moreover, 3d cir. Does not find it significant that the user can alter the display during play mode; the “attract” mode is identical and not interactive with user commands, and the “play” mode contains substantial repetitive sights and sound throughout the display sequences that the user cannot be considered a “co-author” of the display. Held: it is enough that virtually identical code is contained on the ROM of each game, and the ability of a user to alter some portions of the display during gameplay does not render the work too transient to be “fixed” under §101.
Cartoon Network LP v. CSC Holdings (2d Cir. 2008): Analyzing district court reliance on MAI Systems, 2d cir acknowledges that fixation in RAM can result in copying for the purposes of fixation, but does not always result in copying. For instance, the user in MAI running diagnostics program of data stored in RAM for minutes at a time would qualify as fixed, while that same data would no longer be fixed the computer was
Mannion v. Coors Brewing Company (SDNY 2006): Mannion, freelance photographer, shot original photograph of Garnett which Coors adapted (via recreation) to advertisement for beer. Necessary to determine the protectable elements of the original Garnett photo by Mannion. Court identifies three categories of original elements of a photograph: (1) Rendition – specialties in angle of shot, light and shade, exposure, effects achieved by means of filters, developing techniques, etc.; (2) Timing – basically, “right place at the right time”, allows author to protect fortuitous elements of photograph, but does not prevent others from trying to recreate the contents of the shot later (for example, particular shot of a bear catching a salmon may be copyrightable, while later photographs of the same bear eating other salmon would not infringe); (3) Creation of the Subject – the extent to which the photographer made creative judgments in arranging the scene or subject to be photographed, affords protection to specific pattern of arrangement (kind of like Burrow-Giles Oscar Wilde expression). Held: “the nature and extent of protection conferred by the copyright in a photograph will vary depending on the nature of its originality.”
As applied to the Garnett photo at issue in Mannion, Mannion photo is clearly original work, unusual angle and lighting are distinct, posing Garnett against sky is unique and arranging for Ganett to wear simple t-shirt with lots of jewelry, all contribute “additional originality in the creation of the subject.” Thus, Mannion can prevent others from duplicating the unique scene in a photograph or other medium.
Meshworks v. Toyota Motor Sales U.S.A. (10th Cir. 2008): Meshworks subcontracted to create 2d and 3d models of Toyota vehicles; process of modeling took hundreds of hours of wire-modeling, computer editing, and other artistic methods to “sculpt” basic measurements into a nearly identical copy. Issue: do Meshwork’s models qualify as independent creations or mere copies of Toyota’s design? As with photographs, Meshwork’s modeling is entitled to copyright protection only for “incremental contributions.” Held: Meshwork’s models are not so much independent creations as (very good) copies of Toyota’s vehicles. In sum, because the Meshwork model does not add anything new to the Toyota design, instead depicting “nothing more than unadorned Toyota vehicles—the car as car[,]” likewise, it was Meshwork’s intent to copy the design exactly. “just as photographs can be, but are not per se, copyrightable, the same holds true for digital models.” (p. 87)
P. 86; court cited Nimmer for proposition that “the fact that a work in one medium has been copied from a work in another medium does not render it any less a ‘copy.’” This is true because the putative creator, in merely shifting the medium in which another’s creation is expressed, does not necessarily add anything beyond the expression contained in the original work.
Idea/Expression Distinction (p. 90): §102(b), TRIPS, and WIPO each specify that copyright does not extend to “ideas, procedures, and methods of operation or mathematical concepts as such.” §102(b) serves the dual function of distinguishing between elements of a work eligible for copyright and elements belonging to the public domain, as well as defining the line between copyrightable and patentable subject matter.
Baker v. Selden (U.S. 1879): classic case, congress intended §102(b) to codify holding. Selden copyrighted a book detailing a system of book-keeping and Baker made a substantially similar book, altering the arrangement of columns and headings. Issue: can Selden claim exclusive property in a system of book-keeping under the law of copyright by means of a book in which that system of explained? Held: There is a clear distinction between the book, itself, and the content which it is intended to illustrate; the book would be copyrightable regardless of the novelty of its content, but to give the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been made, “would be a surprise and a fraud upon the public.” That is the purpose of patents, not copyright. “The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself.”
Merger Doctrine and Thin Copyright: p. 96 – where only one or a limited number of ways exist to express an idea, the idea and expressions merge, and copyright cannot be used to prevent another from using the same or similar expression. In Morrissey, instructions for a sweepstakes were held to be uncopyrightable; in Kregos the court held that merger could apply as a defense to infringement where defendant claims protecting the plaintiff’s expression would invariably accord protection to an idea; in Johnson Controls the court held that “where an expression is, as a practical matter, indispensable, or at least standard, in the treatment of a given idea, the expression is protected only against verbatim, or virtually identical copying.”
