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Guest Post on Fictorians – What is IP?

Today, I have a guest post up on The Fictorians entitled Intellectual Property – What is it? First, it relates how lawyers conceptualize property, including property in objects of the mind – in other words, intellectual property. Then it gives a brief description of the major types of IP.

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Copyright Class 7 – Work For Hire

Last week we looked at one special type of authorship, joint authorship. This week, we will be examining the other special type of authorship, work for hire. This is one of areas of copyright that I see misused or misstated quite often.

What is a Work For Hire?

Section 101 of the Copyright Act provides two ways that a work can be a work for hire (or work made for hire in the Act’s terminology):

A “work made for hire” is—

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

An Employee Within the Scope of His or Her Employment

Let’s consider the first means – a work created by “an employee within the scope of his or her employment.” For many years, courts developed their own tests specifically for this area of copyright. They focused on whether the hiring party had the right to control or actually controlled aspects of the creation of the work. However, the Supreme Court swept these aside in our primary case for today’s class, CCNV v. Reid (oral arguments).

The Community for Creative Non-Violence, an organization devoted to combatting homelessness, made the decision to commission a sculpture:

Snyder and fellow CCNV members conceived the idea for the nature of the display: a sculpture of a modern Nativity scene in which, in lieu of the traditional Holy Family, the two adult figures and the infant would appear as contemporary homeless people huddled on a streetside steam grate. The family was to be black (most of the homeless in Washington being black); the figures were to be life-sized, and the steam grate would be positioned atop a platform “pedestal,” or base, within which special effects equipment would be enclosed to emit simulated “steam” through the grid to swirl about the figures. They also settled upon a title for the work — “Third World America” — and a legend for the pedestal: “and still there is no room at the inn.”

Snyder, on behalf of CCNV, began to negotiate with a Baltimore-based sculptor, James Earl Reid.

In the course of two telephone calls, Reid agreed to sculpt the three human figures. CCNV agreed to make the steam grate and pedestal for the statue. Reid proposed that the work be cast in bronze, at a total cost of approximately $100,000 and taking six to eight months to complete. Snyder rejected that proposal because CCNV did not have sufficient funds, and because the statue had to be completed by December 12 to be included in the pageant. Reid then suggested, and Snyder agreed, that the sculpture would be made of a material known as “Design Cast 62,” a synthetic substance that could meet CCNV’s monetary and time constraints, could be tinted to resemble bronze, and could withstand the elements. The parties agreed that the project would cost no more than $15,000, not including Reid’s services, which he offered to donate. The parties did not sign a written agreement. Neither party mentioned copyright.

After Reid received an advance of $3,000, he made several sketches of figures in various poses. At Snyder’s request, Reid sent CCNV a sketch of a proposed sculpture showing the family in a creche-like setting: the mother seated, cradling a baby in her lap; the father standing behind her, bending over her shoulder to touch the baby’s foot. Reid testified that Snyder asked for the sketch to use in raising funds for the sculpture. Snyder testified that it was also for his approval. Reid sought a black family to serve as a model for the sculpture. Upon Snyder’s suggestion, Reid visited a family living at CCNV’s Washington shelter, but decided that only their newly born child was a suitable model. While Reid was in Washington, Snyder took him to see homeless people living on the streets. Snyder pointed out that they tended to recline on steam grates, rather than sit or stand, in order to warm their bodies. From that time on, Reid’s sketches contained only reclining figures.

ccnv v reid sculptureThroughout November and the first two weeks of December, 1985, Reid worked exclusively on the statue, assisted at various times by a dozen different people who were paid with funds provided in installments by CCNV. On a number of occasions, CCNV members visited Reid to check on his progress and to coordinate CCNV’s construction of the base. CCNV rejected Reid’s proposal to use suitcases or shopping bags to hold the family’s personal belongings, insisting instead on a shopping cart. Reid and CCNV members did not discuss copyright ownership on any of these visits.

On December 24, 1985, 12 days after the agreed-upon date, Reid delivered the completed statue to Washington. There it was joined to the steam grate and pedestal prepared by CCNV, and placed on display near the site of the pageant. Snyder paid Reid the final installment of the $15,000. The statue remained on display for a month.

The statue was then returned to the sculptor for minor repairs. At that point, the relationship between the two parties began to sour. CCNV asked for the sculpture to be returned to them so that they could take it on a multi-city tour. Reid refused, claiming that the sculpture had not been made to withstand such a tour. The eventual result was the litigation between the parties that made its way all the way to the Supreme Court.

Reid argued that he owned the copyright in the statue. He sculpted it after all. CCNV argued that they owned the copyright because the sculpture was a work for hire. CCNV could not argue that it was a work for hire under the second definition in 101 because there was no contract and because a sculpture was not one of the specific types of works listed in the second definition that could be converted into a work for hire by a contract. So instead, they argued that Reid had created the sculpture as an employee acting within the scope of his employment.

The Supreme Court rejected CCNV’s claim and in the course of doing so also established the legal rule for making a determination under the first work for hire definition. Previously, lower courts had developed special tests (right to control, actual control) for figuring out when a work was created by “an employee within the scope of his or her employment.” The Supreme Court rejected those tests, holding instead that the determination was made by “using principles of the general common law of agency, [to ascertain] whether the work was prepared by an employee or an independent contractor.”

The Court identified a number of factors a court should consider in making that determination:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

The list is non-exhaustive and no single factor is determinative. A court evaluates each factor under the given facts of a particular case and then makes an overall determination of whether the creator is an employee or an independent contractor. (The Restatement cited by the Court actually uses the terminology of “Master” and “Servant” rather than “Employer” and “Employee.” Those are just very old terms, not a reference to a Depeche Mode song.)

After examine each of these factors, the Court determined that Reid was an independent contractor, and that therefore, the sculpture was not a work for hire.*

Because they did not find him to be an employee, the Court did not have to go on to discuss the second half of the definition. If the creator of the work is an employee, the work still has to have been created within the scope of the creator’s employment in order to be considered a work for hire. Consider this, if you work a full-time job unrelated to writing, you are an employee, right? Would you consider everything you write at night and on weekends while employed as a work for hire just because you are an employee? No, you wouldn’t. While you are an employee, you are not writing those works of authorship within the scope of your employment.

The determination under the second half of the first definition (“within the scope of his or her employment”) is also based on general principles of agency law. A work is created within the scope of the employees work if “(a) [the act of creation] is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the [employer].” (Restatement (Second) of Agency, Section 228)

Specially Commissioned Works

Here’s the second way in which a work can be a work for hire (just so you don’t have to scroll ALL the way back up there to re-read it):

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

The definition also requires a signed contract, but that signed written instrument can actually come later as long as the initial agreement was for a work for hire arrangement. It also can only be used to create work for hire status for certain specified types of works.

We should immediately notice that merely saying a work will be a work for hire in a contract only works for very limited types of works enumerated in (2). That is contrary to my impression of the common belief among writers and other creatives that a contract can always make something a work for hire. I believe, though it is difficult for me to verify, that this may also be contrary to common practices in the publishing industry. I suspect that there are a lot of contracts out there that specify that a book is a work for hire and that most everyone involved believes those books are works for hire.

But they are probably are not.

Can you imagine a novel written under conditions that would meet the first definition (“employee within scope of his or her employment”)? Almost everyone of the factors would go in favor of the writer being an independent contractor. And novels do not appear to fall under any of enumerated categories of works that fall under the second definition that allows work for hire status to be created by contract.

Now even if that is the case, it does not make a huge difference. I’m also pretty sure a court looking at those contracts would interpret them as a complete transfer of the copyright even though it was an unsuccessful attempt to make the book a work for hire. There is so much built up understanding in the publishing industry about what comes with work for hire status, that a court might be willing to interpret the contract in light of that common understanding.

Additionally, many contracts contain a savings clause that says just that – that in the event a court finds the work not to be a work made for hire, then the contract will act as a complete transfer. The notable difference between a work for hire and a complete transfer is termination rights (see below).

The Result of a Work Being a Work For Hire

Section 201 of the Copyright Act details who owns a copyright. Generally, as provided in 201(a), copyright vests in the author of the work. However, 201(b) specifies that if the work is a work for hire, then the hiring party is considered the author, and thus the copyright vests in the hiring party initially. In other words, a work for hire is not a transfer of copyright rights. Instead, it defines who the author is for copyright purposes.

To understand what that means, let’s compare a book written as a work for hire with a non-work for hire book in which the entire copyright has been transferred away.  Any transfer of copyright, including a transfer on the entire copyright for its entire duration, can be terminated unilaterally by the author after a specified period of time (35 years for works created today). You can get it back. If, however, the work is a work for hire, you as the writer are not considered the author; you have no termination rights.


*As an aside, note that this conclusion reached by the Supreme Court did not appear to resolve the dispute. It looks like the parties were arguing about the wrong set of rights the entire time – all the way to the Supreme Court! Recall that what CCNV wanted was to take the physical embodiment of the work of authorship, i.e. the sculpture itself, on tour. That’s not a copyright issue. Who owns the sculpture itself is matter of personal property law.  Maybe there was more to the situation not made apparent in the litigation, but if not, it’s a potentially a bit embarrassing for the lawyers involved.

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Copyright Class 6 – Joint Authorship

So, what we will be looking at this week is two special categories of authorship: joint authorship and works for hire. We’ll examine what the law says about each and then what  impact that has for writers. I’m going to split them into two different posts to keep the length down to a manageable level. So today, it’s joint authorship.

What happens when two or more people contribute to a single work of authorship? That is the basic question we will start with.

Copyright law uses the term joint authors while the copyright act refers to joint works. You may also see terms like co-authors and collaborators.

Section 101 of the Copyright Act provides the following definition:

A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.

The first aspect to note is that the statute defines what qualifies as a joint work, and thus who qualifies as joint authors. What I want you to take away from that initially is that you cannot simply decide who is a joint author. Each putative joint author has to do “something.” So you can’t write a book and then make your best friend is going to be a joint author. You can of course make them a co-owner of the copyright by transferring half of your ownership interest to them, but that does not make them a joint author.

Now, we will see that intending joint authorship status is likely necessary to being joint authors, but it is not  sufficient by itself to create joint authorship. So a court may require that you have intended for the other person to be a joint author, but that by itself won’t accomplish it.

So, what do you have to do to qualify as a joint author?

Let’s look at our first case: Childress v. Taylor. Here’s what led up to the case:

Moms Mabley

Defendant Clarice Taylor has been an actress for over forty years, performing on stage, radio, television, and in film. After portraying “Moms” Mabley in a skit in an off-off-Broadway production ten years ago, Taylor became interested in developing a play based on Mabley’s life. Taylor began to assemble material about “Moms” Mabley, interviewing her friends and family, collecting her jokes, and reviewing library resources.

In 1985, Taylor contacted the plaintiff, playwright Alice Childress, about writing a play based on “Moms” Mabley. Childress had written many plays, for one of which she won an “Obie” award. Taylor had known Childress since the 1940s when they were both associated with the American Negro Theatre in Harlem and had previously acted in a number of Childress’s plays.

When Taylor first mentioned the “Moms” Mabley project to Childress in 1985, Childress stated she was not interested in writing the script because she was too occupied with other works. However, when Taylor approached Childress again in 1986, Childress agreed, though she was reluctant due to the time constraints involved. Taylor had interested the Green Plays Theatre in producing the as yet unwritten play, but the theatre had only one slot left on its summer 1986 schedule, and in order to use that slot, the play had to be written in six weeks.

Taylor turned over all of her research material to Childress, and later did further research at Childress’s request. It is undisputed that Childress wrote the play, entitled “Moms: A Praise Play for a Black Comedienne.” However, Taylor, in addition to providing the research material, which according to her involved a process of sifting through facts and selecting pivotal and key elements to include in a play on “Moms” Mabley’s life, also discussed with Childress the inclusion of certain general scenes and characters in the play. Additionally, Childress and Taylor spoke on a regular basis about the progress of the play.

Taylor identifies the following as her major contributions to the play: (1) she learned through interviews that “Moms” Mabley called all of her piano players “Luther,” so Taylor suggested that the play include such a character; (2) Taylor and Childress together interviewed Carey Jordan, “Moms” Mabley’s housekeeper, and upon leaving the interview they came to the conclusion that she would be a good character for the play, but Taylor could not recall whether she or Childress suggested it; (3) Taylor informed Childress that “Moms” Mabley made a weekly trip to Harlem to do ethnic food shopping; (4) Taylor suggested a street scene in Harlem with speakers because she recalled having seen or listened to such a scene many times; (5) the idea of using a minstrel scene came out of Taylor’s research; (6) the idea of a card game scene also came out of Taylor’s research, although Taylor could not recall who specifically suggested the scene; (7) some of the jokes used in the play came from Taylor’s research; and (8) the characteristics of “Moms” Mabley’s personality portrayed in the play emerged from Taylor’s research. Essentially, Taylor contributed facts and details about “Moms” Mabley’s life and discussed some of them with Childress. However, Childress was responsible for the actual structure of the play and the dialogue.

Childress completed the script within the six-week time frame. Childress filed for and received a copyright for the play in her name. Taylor produced the play at the Green Plays Theatre in Lexington, New York, during the 1986 summer season and played the title role.

Childress and Taylor then had a falling out when they could not agree how to proceed with the play after a few initial runs. After that falling out, Taylor hired a different playwright, gave him a copy of the play written by Childress, and told him which parts to change. That second play was produced in 1987.

Childress sued Taylor and the others involved in the second play for copyright infringement, among other things. In defense, Taylor claimed that she was a joint author of the original play. You see, if she were a joint author of the original, then she would have equal rights with Taylor and thus would be able to do whatever she wanted with the first play without it being copyright infringement (though she would have to account to Taylor for any profits).

The court looked at the definition of a joint work from section 101 of the Copyright Act and identified three essential elements necessary to qualify as a joint author: (1) a copyrightable contribution, (2) the requisite intention, and (3) a unitary whole.  It is the first two that are at issue in most disputes.  The court explained those two:

Nevertheless, we are persuaded to side with the position taken by the case law and endorsed by the agency administering the Copyright Act. The insistence on copyrightable contributions by all putative joint authors might serve to prevent some spurious claims by those who might otherwise try to share the fruits of the efforts of a sole author of a copyrightable work, even though a claim of having contributed copyrightable material could be asserted by those so inclined. More important, the prevailing view strikes an appropriate balance in the domains of both copyright and contract law. In the absence of contract, the copyright remains with the one or more persons who created copyrightable material. Contract law enables a person to hire another to create a copyrightable work, and the copyright law will recognize the employer as “author.” 17 U.S.C. s 201(b). Similarly, the person with non- copyrightable material who proposes to join forces with a skilled writer to produce a copyrightable work is free to make a contract to disclose his or her material in return for assignment of part ownership of the resulting copyright. Id. s 201(d). And, as with all contract matters, the parties may minimize subsequent disputes by formalizing their agreement in a written contract. Cf. 17 U.S.C. s 101 (“work made for hire” definition of “specially ordered” or “commissioned” work includes requirement of written agreement). It seems more consistent with the spirit of copyright law to oblige all joint authors to make copyrightable contributions, leaving those with non-copyrightable contributions to protect their rights through contract.

There remains for consideration the crucial aspect of joint authorship–the nature of the intent that must be entertained by each putative joint author at the time the contribution of each was created. The wording of the statutory definition appears to make relevant only the state of mind regarding the unitary nature of the finished work–an intention “that their contributions be merged into inseparable or interdependent parts of a unitary whole.” However, an inquiry so limited would extend joint author status to many persons who are not likely to have been within the contemplation of Congress. For example, a writer frequently works with an editor who makes numerous useful revisions to the first draft, some of which will consist of additions of copyrightable expression. Both intend their contributions to be merged into inseparable parts of a unitary whole, yet very few editors and even fewer writers would expect the editor to be accorded the status of joint author, enjoying an undivided half interest in the copyright in the published work. Similarly, research assistants may on occasion contribute to an author some protectable expression or merely a sufficiently original selection of factual material as would be entitled to a copyright, yet not be entitled to be regarded as a joint author of the work in which the contributed material appears. What distinguishes the writer-editor relationship and the writer- researcher relationship from the true joint author relationship is the lack of intent of both participants in the venture to regard themselves as joint authors.

The court went on to find that Childress had not had the requisite intent to be a joint author with Taylor. The court deduced that intent not from the playwright’s statements during litigation but rather from objective indicia contemporaneous to the creation and production of the play.

A different court came to an identical conclusion given very similar facts in Erickson v. Trinity Theater. Erickson held both that each putative joint authors contributions had to be separately copyrightable and that each author have the requisite intent described in Childress.

Take note of the step that Childress took and that Erickson followed with respect to intent. The statute appears to require only that the putative joint authors have created their contributions with the contemporaneous intent to joint that contribution with someone else’s contribution to form a unitary work. It’s their intention in the act of creation. However, the Childress court, later followed by the Erickson court, added to that intention requirement by saying that each putative joint author had to intend the legal status of joint authorship.

This reflects judicial hostility toward finding joint authorship. That hostility stems from the broad, virtually unchecked rights granted to joint authors. A joint author can do whatever they want with the copyrighted work without the need to seek any permission whatsoever from the other joint author. The only “limit” is that one joint author has to account to the other joint author for any profits from said activity. But if one joint author wanted to give the work away, the other joint author could do nothing about it.  As the court in Childress said,

Intent matters.

Intent matters.

Examination of whether the putative co-authors ever shared an intent to be co- authors serves the valuable purpose of appropriately confining the bounds of joint authorship arising by operation of copyright law, while leaving those not in a true joint authorship relationship with an author free to bargain for an arrangement that will be recognized as a matter of both copyright and contract law. Joint authorship entitles the co-authors to equal undivided interests in the work, see 17 U.S.C. s 201(a); Community for Creative Non-Violence v. Reid, 846 F.2d 1485, 1498 (D.C.Cir.1988), aff’d without consideration of this point, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). That equal sharing of rights should be reserved for relationships in which all participants fully intend to be joint authors. The sharing of benefits in other relationships involving assistance in the creation of a copyrightable work can be more precisely calibrated by the participants in their contract negotiations regarding division of royalties or assignment of shares of ownership of the copyright, see 17 U.S.C. s 201(d).

There are several other interesting cases in this area: Neil Gaiman and Todd McFarlane fighting over joint authorship of some side characters in the Spawn universe in Gaiman LLC v. McFarlane; an expert on Malcom X claiming joint authorship in the Spike Lee movie based on consulting work done on set in Aalmuhammed v. Lee; and a very recent case about an actress in the video “Innocence of Muslims” claiming a copyright interest in her parts of the video. In the last case, the underlying situation was similar to other joint authorship cases but her legal claims were slightly different.

So what should you take away from this as an author?

First, you don’t need to worry too much about losing a case in which an editor or critique group member claims to be a joint author of your work. Intent within a working relationship is very important. (But not this sort of intent.)

Second, because the default rules for joint authors do very little to regulate control between the two joint authors, you really should not rely on the default rules. Instead, you should have collaboration agreement with any co-authors. See this earlier post.

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Copyright Class 5 – Snow Delay

Can't … reach … keyboard ...

Can’t … reach … keyboard …


Our regularly scheduled class will be snow delayed.  The winter fun has altered my travel plans which has in turn pushed this blog post back a day or two. I should be able to get the class up by Saturday night or Sunday at the latest.

Once I post it, we will be talking about two special types of authorship under US copyright law: Joint Authorship and Work for Hire. The cases we will be reading are Childress v. Taylor and CCNV v. Reid, in case you want to get a head start.


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Copyright Class 4 – Superstars Special Edition

Today I’m going to take a slight detour with the class. The live class at the law school is canceled today because I am in Colorado Springs speaking at the Superstars Writing Seminar. So what I thought I would do today is share with you some of the thoughts that I am including in my talk at the seminar. My session is basically a primer on copyright and other intellectual property law for authors. For class today, I am going to focus on two of the most important parts of my talk: “a bundle of sticks” and “can I?”

A Bundle of Sticks

Understanding this metaphor is important to making proper business decisions regarding one of your primary assets as a writer – your copyright.

In law, we use the metaphor of a bundle of sticks to describe property. Typically, a lay person (i.e. someone who is not trained as a lawyer) would think that property is a thing – a ring, a car, or a house.  For a lawyer, property is an intangible set of rights. The thing – the ring, the car, the house – are the subjects of property. They are the things to which the rights attach.

A bundle of sticks is the metaphor we use to describe that intangible set of rights. We describe it as a bundle of sticks rather than saying it is a single stick because each of those sticks can be owned by different people. For example, if someone owns an easement right of way over your land, then ownership is split. You own most of the sticks in the bundle, but the owner of the easement owns a few sticks in that bundle.

How does this relate to copyright?

Copyright is a type of property. Instead of being an intangible set of rights that attach to a physical object, copyright is an intangible set of rights that attach to an intangible object – the work of authorship. So copyright can also be thought of as a bundle of sticks.

Why is understanding this so important for writers?

You can (and often should) transfer the sticks in that bundle separately.  In fact, one of the most important parts of negotiating any contract is looking at which sticks are transferred and making certain that you are not transferring more sticks than what you are being paid for. If someone is paying you a value that is appropriate for book rights in North America but you are granting that person all of the sticks in the bundle, all of the copyright, then you are giving away value.

Can I?

I frequently get questions from authors along the lines of “Can I do this”? An example would be “Can I use song lyrics in my short story?”

That is a question that seems straightforward but I maintain that it is really three questions. Or at least, writers should think about it as three different questions.  Here are the three questions for traditional publishing:

  • What will a court of law determine?
  • Will I have to defend a suit by a copyright holder?
  • How will an editor/publisher react to the possibility of a lawsuit?

For indie publishing, the third question is slightly different:

  • What will a court of law determine?
  • Will I have to defend a suit by a copyright holder?
  • How will a retailer react to a take-down notice from the rights holder?

The first question is what both the writer and the lawyer typically think of first. It is important and it impacts the other question, but it may not be what drives your ultimate decision.

The second question (“Will I have to defend a suit by a copyright holder?”) may drive your decision because having to litigate a lawsuit may cost you a lot of money and time, even if you ultimately win the case in slam dunk fashion. You have to ask yourself if this particular part of your story, the element that may get you sued, is worth the risk of that cost. What is your purpose? Is it to make a living? Is it to make a point that requires the questionable content?

The third question (“How will an editor/publisher react to the possibility of a lawsuit?”) keys on your ability to get past a gatekeeper in traditional publisher. If you include something in your story or novel that scares an editor or publisher about the possibility of getting sued, then that may make the editor reject your work in favor of a work of similar quality that does not carry the same risk. For indie publishers, you have to worry about a retailer (e.g. Amazon) pulling your book if they are threatened by a rights holder.

Thus, questions two and three quite often will dictate your choice even without having a full answer to the first question or even when the answer to the first question is that you would win the lawsuit.

I’ve discussed this in detail previously, a discussion you can find here.

So, how might this relate to what we have talked about in this class so far? Recall what we talked about last week

Judge Hand started his analysis by pointing out that if literal copying were required in order for infringement to be found, then it would be painfully easy for someone to copy a work while escaping liability. Would you think someone could just change the names of the characters in a book and thereby escape from copyright infringement? Clearly not. Thus it should be apparent that an exact word for word copy is not necessary for a plaintiff to make out a basis for infringement.

However, if the copier only takes the most basic premise, then the copier may not be an infringer. Note that the case is not talking about a motion picture that happens to be similar to a play. The analysis and conclusion assumes that the creators of the movie did take the premise from the play – and still found no infringement.

But when the plagiarist does not take out a block in situ, but an abstract of the whole, decision is more troublesome. Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their ex- pression, his property is never extended.

This series of abstractions is at the heart of what we call the idea/expression dichotomy. Ideas are not protected but expression is. Thus, copying ideas is not infringement while copying expression is. But what constitutes “idea” and what constitutes “expression”? That’s where the series of abstractions comes into play.

So, you’ve written a book that has a plot similar to another book. Can you do that? Well, we could do the analysis described by Judge Hand. We could apply the idea/expression and try to answer the question of what a court would conclude. But we should also consider the likelihood we might be sued and whether an editor we might submit our book to might not want to publish our book because it is too similar to the other book.

The answers to the second and third questions may be more influential in your decision-making than the answer to the first question. Now, the questions are all related. The closer the call is on the first question, the more certain we are that the action is infringing, the more likely we will reach negative answers on questions two and three.


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Copyright Class 3 – Copyright Protection and Ideas

Welcome to the snowpocalypse version of copyright class.  This is where following a virtual version has its advantages. The live class was actually canceled since the law school was closed today. I decided to go ahead with the class here on the blog.

Today’s class will continue to explore the lack of copyright protection for ideas. One of the most basic principles of copyright is that copyright protects expression but not ideas. Last week’s class examined this from the standpoint of attempts to protect “facts.” Because those “facts” were not created by the author, but instead were discovered, they did not receive copyright protection. They were not original.

This week, we are still dealing with ideas, but these ideas are created by someone. They can be seen as originating from the author, but the law still might not protect them. What we will see is that ideas are not protected but expression is.

In writing, we might describe this as an idea for a book. If I write a book about a vampire hunter who rides a unicorn, can I get copyright protection for that idea? Could I successfully sue someone who wrote a completely different novel about a vampire hunter who rides a unicorn? That’s the question we want to answer today.

A Brief Meta Detour

But before we get into that, I’d like to go a bit meta on you. There are a couple of things I want to tell you about this blog series, based on comments and feedback I’ve gotten up until this point.

1. I’m linking to the full text of each case. If you want a fuller effect, you should be reading those primary texts. Of course, you still won’t have anything close to the full copyright class experience (see the caveats here), but you should get more out of it if you read the full texts. The easiest approach would be to get a copy of the casebook we are using Copyright Law: Essential Cases and Materials by Yen ad Liu. But it costs around $200 – so I’m not expecting that to be a popular option. That’s why I’m linking to online versions of the cases. Just be aware that the online versions of the cases are not edited as the cases in the book are. Quite often they will contain and discuss many more issues than what we are reading them for. So you will want to realize that portions of the cases will not be relevant to what we are discussing that week.

I have been putting some of the highlights in the posts themselves, but I’m not going to necessarily put everything in the posts themselves for two reasons.

First, I’m not trying to write a book. And that’s what it would be if I included every detail.

Second, the posts would be too long for what some people want. So you have a choice. Read just the posts or read the cases plus the posts. Either is fine, just realize you are getting a different experience with each option.

2. Keep in mind that a little knowledge can be a dangerous thing. No one is going to come out of this blog series as a copyright lawyer. Even a law student taking the full course is just taking the first step toward being a copyright lawyer.

Ideas and Copyright Protection

OK, with those points out of the way, let’s get back to the content: Ideas and Copyright Protection. Expression is protected by copyright; ideas are not.

We read three cases for today: Baker v. Selden, Nichols v. Universal Pictures Corp., and Kregos v. Associate Press.

Baker v. Selden

Slightly more interesting than baseball

Slightly more interesting than baseball

This is one of the most cited cases in the copyright world. It involved a book on a particular system of accounting that the author licensed to various government agencies in Ohio. That’s right! An accounting book! Clearly this is going to a thriller the like soy which would make Patterson himself jealous.

They third paragraph nicely sums up the dispute:

The book or series of books of which the complainant claims the copyright consists of an introductory essay explaining the system of bookkeeping referred to, to which are annexed certain forms or banks, consisting of ruled lines, and headings, illustrating the system and showing how it is to be used and carried out in practice. This system effects the same results as bookkeeping by double entry, but, by a peculiar arrangement of columns and headings, presents the entire operation, of a day, a week, or a month on a single page or on two pages facing each other, in an account book. The defendant uses a similar plan so far as results are concerned, but makes a different arrangement of the columns, and uses different headings. If the complainant’s testator had the exclusive right to the use of the system explained in his book, it would be difficult to contend that the defendant does not infringe it, notwithstanding the difference in his form of arrangement; but if it be assumed that the system is open to public use, it seems to be equally difficult to contend that the books made and sold by the defendant are a violation of the copyright of the complainant’s book considered merely as a book explanatory of the system.

So the question is whether the Selden’s copyright in his accounting book is infringed by a book that (1) describes a system (and provides forms for such a system) that works in the same way as Selden’s system but that (2) does not copy the actual text and forms in Selden’s books. Stated another way, the question is whether the copyright in the book protects the system itself.

The Court concludes that it does not, stating “[b]ut there is a clear distinction between the book as such and the art which it is intended to illustrate.” The latter, as the Court pointed out, could only be protected by a patent if at all. The Court concluded:

The conclusion to which we have come is that blank account books are not the subject of copyright, and that the mere copyright of Selden’s book did not confer upon him the exclusive right to make and use account books, ruled and arranged as designated by him and described and illustrated in said book.

That conclusion if read  too broad might arguably be incorrect. It goes further than what the court actually discussed. In other words, the court found that what was copied from Selden was not protected by copyright. For example, if someone had directly reproduced Selden’s books exactly word for word, form for form, then we would probably not have any trouble saying some level of copyright infringement occurred.  If they reproduced his forms exactly but not the text, we would have a much tougher question, involving a doctrinal analysis beyond what Baker v. Selden covered.

Nichols v. Universal Pictures Corp.

Of all the cases we have read so far, this one is probably the most directly relevant for authors. It really gets at the heart of the question I asked above. You know, the one involving a vampire hunter riding a unicorn.

Not going to risk an attempt at humor here

Not going to risk an attempt at humor here

The opinion was also written by a judge not only famous but also blessed with one of the greatest names ever for a judge – Learned Hand. Yep, Judge Learned Hand. Who needs a pen name when you have a real name like that?

The dispute involved the author of a play (“Abie’s Irish Rose”) arguing that a movie (“The Cohen’s and the Kelly’s”) infringed his copyright.  In order to understand the implications of the court’s holdings, it is critical to understand the similarities and differences between the two. And because I am too lazy to paraphrase all of it but not quite too lazy to cut and paste from the case, you get a long block quote:

“Abie’s Irish Rose” presents a Jewish family living in prosperous circumstances in New York. The father, a widower, is in business as a merchant, in which his son and only child helps him. The boy has philandered with young women, who to his father’s great disgust have always been Gen- tiles, for he is obsessed with a passion that his daughter-in-law shall be an orthodox Jewess. When the play opens the son, who has been courting a young Irish Catholic girl, has already married her secretly before a Protestant minister, and is concerned to soften the blow for his father, by securing a favorable impression of his bride, while concealing her faith and race. To accomplish this he in- troduces her to his father at his home as a Jewess, and lets it appear that he is interested in her, though he conceals the marriage. The girl somewhat reluctantly falls in with the plan; the father takes the bait, becomes infatuated with the girl, concludes that they must marry, and assumes that of course they will, if he so decides. He calls in a rabbi, and prepares for the wedding according to the Jewish rite.

Meanwhile the girl’s father, also a widower, who lives in California, and is as intense in his own religious antagonism as the Jew, has been called to New York, supposing that his daughter is to marry an Irishman and a Catholic. Accompanied by a priest, he arrives at the house at the moment when the marriage is being celebrated, but too late to prevent it, and the two fathers, each infuriated by the proposed union of his child to a heretic, fall into unseemly and grotesque antics. The priest and the rabbi become friendly, exchange trite sentiments about religion, and agree that the match is good. Apparently out of abundant caution, the priest celebrates the marriage for a third time, while the girl’s father is inveigled away. The second act closes with each father, still outraged, seeking to find some way by which the union, thus trebly insured, may be dissolved.

The last act takes place about a year later, the young couple having meanwhile been abjured by each father, and left to their own resources. They have had twins, a boy and a girl, but their fathers know no more than that a child has been born. At Christmas each, led by his craving to see his grandchild, goes separately to the young folks’ home, where they encounter each other, each laden with gifts, one for a boy, the other for a girl. After some slapstick comedy, depending upon the in- sistence of each that he is right about the sex of the grandchild, they become reconciled when they learn the truth, and that each child is to bear the given name of a grandparent. The curtain falls as the fathers are exchanging amenities, and the Jew giving evidence of an abatement in the strictness of his orthodoxy.

“The Cohens and The Kellys” presents two families, Jewish and Irish, living side by side in the poorer quarters of New York in a state of perpetual enmity. The wives in both cases are still living, and share in the mutual animosity, as do two small sons, and even the respective dogs. The Jews have a daughter, the Irish a son; the Jewish father is in the clothing business; the Irishman is a po- liceman. The children are in love with each other, and secretly marry, apparently after the play opens. The Jew, being in great financial straits, learns from a lawyer that he has fallen heir to a large fortune from a great-aunt, and moves into a great house, fitted luxuriously. Here he and his family live in vulgar ostentation, and here the Irish boy seeks out his Jewish bride, and is chased away by the angry father. The Jew then abuses the Irishman over the telephone, and both become hysterically excited. The extremity of his feelings makes the Jew sick, so that he must go to Florida for a rest, just before which the daughter discloses her marriage to her mother.

On his return the Jew finds that his daughter has borne a child; at first he suspects the lawyer, but eventually learns the truth and is overcome with anger at such a low alliance. Meanwhile, the Irish family who have been forbidden to see the grandchild, go to the Jew’s house, and after a vio- lent scene between the two fathers in which the Jew disowns his daughter, who decides to go back with her husband, the Irishman takes her back with her baby to his own poor lodgings. [*121] The lawyer, who had hoped to marry the Jew’s daughter, seeing his plan foiled, tells the Jew that his for- tune really belongs to the Irishman, who was also related to the dead woman, but offers to conceal his knowledge, if the Jew will share the loot. This the Jew repudiates, and, leaving the astonished lawyer, walks through the rain to his enemy’s house to surrender the property. He arrives in great dejection, tells the truth, and abjectly turns to leave. A reconciliation ensues, the Irishman agreeing to share with him equally. The Jew shows some interest in his grandchild, though this is at most a minor motive in the reconciliation, and the curtain falls while the two are in their cups, the Jew in- sisting that in the firm name for the business, which they are to carry on jointly, his name shall stand first.

Judge Hand started his analysis by pointing out that if literal copying were required in order for infringement to be found, then it would be painfully easy for someone to copy a work while escaping liability. Would you think someone could just change the names of the characters in a book and thereby escape from copyright infringement? Clearly not. Thus it should be apparent that an exact word for word copy is not necessary for a plaintiff to make out a basis for infringement.

However, if the copier only takes the most basic premise, then the copier may not be an infringer. Note that the case is not talking about a motion picture that happens to be similar to a play. The analysis and conclusion assumes that the creators of the movie did take the premise from the play – and still found no infringement.

But when the plagiarist does not take out a block in situ, but an abstract of the whole, decision is more troublesome. Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their ex- pression, his property is never extended.

This series of abstractions is at the heart of what we call the idea/expression dichotomy. Ideas are not protected but expression is. Thus, copying ideas is not infringement while copying expression is. But what constitutes “idea” and what constitutes “expression”? That’s where the series of abstractions comes into play.

If we examine the plaintiff’s play in each detail, scene for scene, word for word, we would say that we are looking at expression. We could then imagine a series of abstractions of that play where each level in that series contained fewer and fewer details, The series would continue until we got the most basic, most abstract, description of the play – something like “a comedy about the marriage of children of Irish and Jews. The idea/expression dichotomy says that at some point along that series in the direction of increased detail copyright protection begins. In over words, adding enough details and specifics results in ideas becoming expression. With too few details, no copyright protection can be had.

A comedy based upon conflicts between Irish and Jews, into which the marriage of their children enters, is no more susceptible of copyright than the outline of Romeo and Juliet.

Where do we draw that line? Well, we draw it between idea and expression. How do we know what is idea and what is expression? We draw that line. Yep, it’s that clear. As Judge Hand said, “Nobody has ever been able to fix that boundary, and nobody ever can.”

The court determines that the movie only takes the most basic of plots from the play – the conflict created by children from families of different religions who want to marry. (It was the 1920’s.) The differences between the two become apparent once you go deeper than the highest level of abstraction. The court also concludes any similarities between the two in terms of characters are to basic to qualify as infringement.

If we put this into publishing terms, we would say that something like a log line using generic characters is almost assuredly idea. As you turn that basic concept into an outline and start adding more specifics and more details, the whole of it at some point becomes expression that is protected by copyright.

Kregos v. Associate Press

Kregos picks up where Baker v. Selden left off – namely with the question of whether a blank form could be protected by copyright. It also involves a subject matter as boring as accounting – namely baseball. (Let the comment flaming commence!)

I went there.

But beer does help.

I’m not going to go into much detail here. Basically, Kregos created a form to list data about pitchers that he maintained had predictive value in how he pitchers would perform. This included making some decisions about what data to include (e.g. average base on balls for the pitcher’s last three games versus average base on balls for the pitcher that season). The court addressed two arguments that Kregos should not receive copyright protection.

First, the court said that the merger doctrine did not prevent protection. The merger doctrine basically says that if there is only one or very few ways to express an idea, then the idea and expression merge such that no copyright protection can be had. A common example is instructions for a simple game or contest. If there is only one (or a very limited number) of different ways to describe the rules of a game, then giving copyright protection to the description would effectively give someone copyright protection for the game itself. The court concluded that enough different types and combinations of data existed, that merger was not applicable.

Second, the court said that the blank form rule that emerged from Baker v. Selden did not prevent copyright protection. In essence, they said that the selection of data by Kregos might constitute enough originality to create copyright protection. Note that they said that even if it did, it would be very little copyright protection.

So, what’s the answer to our initial question? Can I sue someone who steals my idea for a book about a vampire hunter who rides a unicorn? That’s a big no. It’s just an idea.


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Copyright Class 2 – Originality and Ideas

Welcome to “day” 2 of class.   Day 1 is here, and the class introduction is here.

In today’s class, we continued our discussion of copyright’s originality requirement – the sine qua non of copyright. These cases all address the distinction between facts (or ideas) and expression. Does it make a difference if the work for which copyright protection is claimed is primarily factual in nature? If so, what is the difference? What is and is not protected? This differential treatment by copyright law of facts on one hand and expression on the other is crucial. We will see it again in greater detail when we look at the infringement analysis in more detail. In fact, our third case for today is actually framed as an infringement determination.

In short, facts are not protected by copyright. Thus, you can copy facts from someone else. However, a compilation of facts may be protected if there is sufficient originality in the selection and arrangement of the facts.  Further, if the “facts” were created rather than discovered (see the CDN case below), those “facts” might be protected.

We discussed three cases today: Feist v. Rural Telephone (oral arguments), CDN Inc v. Kapes, and CBS v. Nash.

Feist v. Rural Telephone

Feist is the go to case for the basic rule for what constitutes originality in copyright. It’s the case other courts cite.

The new phone book's here! The new phonebook's here! Here's a link to the clip, but … curses … copyright.

The new phone book’s here! The new phonebook’s here! Here’s a link to the clip, but … curses … copyright.

The case surrounded a dispute over the white pages. Anyone remember those? Well back in the olden days of the 1990’s, in addition to having to walk uphill in the snow both ways to get to school, telephone books were big business. There was money in them there pages. Specifically in the advertisements.

But those advertisements were only valuable if people used the telephone book, and in order to insure that, the books needed to be complete.

Feist was not a telephone service provider; they were merely a publisher. Feist produced a set of telephone books that included as a part of its coverage area the region in which Rural Telephone provided service. As a part of providing that telephone service, Rural assigned phone numbers. They used their knowledge of those numbers to produce telephone books (in which they sold ads).

Feist entered into license agreements with a number of other telephone providers in the area to obtain telephone number data. Of all the providers, only Rural refused to license their data to Feist. Because Feist’s telephone book would be worth less without Rural’s numbers, Feist copied them out of Rural’s own telephone book (including several completely fake entries included to detect just such copying).

At the time, this type of dispute was not isolated to the plains of Kansas. Similar fights between traditional telephone companies and upstart publishers were being litigated elsewhere.

The fight was over whether compilations such as telephone books were protected by copyright. It pitted two competing theories of copyrightability. The first stated that if the creator of the work had put enough labor into creating the work, then it should be protected by copyright. The “sweat of the brow” should be rewarded and incentivized. After all, why would anyone invest the time and resources into gathering data into a usable compilation if a stranger could simply copy the data and undersell the original creator. The second theory said that a work could only be protected by copyright if the work itself contained enough originality. The Court accepted the second theory while explicitly rejecting the “sweat of the brow” theory.

The court started its analysis by finding the originality requirement to spring from the words in the copyright and patent clause of the constitution. In that clause, Congress was empowered to grant rights to “authors” in their “writings”. It is from those two words that the Court drew their definition of the originality required:

Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.

As I mentioned last week when I set forth the above blacklettter definition of originality, you have to be careful not to read too much into “some minimal degree of creativity.”

To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious” it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable.

In applying this standard to compilations of facts (such as a telephone book), the Court said that

It is this bedrock principle of copyright that mandates the law’s seemingly disparate treatment of facts and factual compilations. “No one may claim originality as to facts.” This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence.

They continued the analysis, however, by saying that compilations of uncopyrightable facts could have sufficient originality to obtain copyright protection. Remember the bar for a minimum level of creativity is very low. The selection and arrangement of the facts within the compilation could be enough to satisfy the originality requirement.

They concluded that simply alphabetizing names with their accompanying phone numbers was insufficient to meet that low bar. (To show how low the bar is, at least one later case held that the selection and arrangement of telephone numbers into different categorizations in the yellow pages was sufficient to meet the originality requirement.)

CDN Inc v. Kapes

CDNIn CDN, the court concluded that the “facts” in question were themselves sufficiently original to be copyright protected. Note that I keep putting “facts” in quotation marks when I’m talking about CDN. CDN, or Coin Dealers Newsletter, published a weekly list of wholesale collectible coin prices. These prices certainly look like “facts” and thus the sort of thing that is not protected.

Discoverable facts, like ideas, are not copyrightable. But compilations of facts are copyrightable even where the underlying facts are not. The distinction between facts and non-facts, and between discovery and creation, lies at the heart of this case. The essential ingredient present in creations, but absent in facts, is originality, “the sine qua non of copyright.” Subject matter created by and original to the author merits copyright protection. Items not original to the author, i.e., not the product of his creativity, are facts and not copyrightable. In Feist, the issue was whether white page listings of telephone numbers qualified for copyright protection as compilations. The Court held that they did not. In order to warrant protection, compilations and other works must contain a minimal amount of originality or creativity. The white page listings, which included everyone within a geographical area and were arranged alphabetically, did not. Thus they could be copied in their entirety despite the time and effort spent to compile them.

However, in this case the wholesale prices published by CDN each week were created, not merely discovered.

Here, the district court, explicitly referencing Feist, held that the prices in CDN’s guides are not facts, they are “wholly the product of [CDN’s] creativity. The evidence indicates that the plaintiff uses its considerable expertise and judgment to determine how a multitude of variable factors impact upon available bid and ask price data. And it is this creative process which ultimately gives rise to the Plaintiff’s `best guess’ as to what the current `bid’ and `ask’ prices should be. As such, the Court finds that these prices were created, not discovered.”

The court emphasized that it was not the work that CDN put into generating the prices. Instead, the process used by CDN was sufficient to be that minimal level of creativity set forth by Feist.

Nash v. CBS

If this case were in a Venn diagram, it would sit in the tiny area comprising the intersection of (1) conspiracy theories about John Dillinger and (2) the cheesy 80’s television show, Simon & Simon. You can’t make this stuff up.

I'm not sure why Flavor Flav didn't make the poster.

I’m not sure why Flavor Flav didn’t make the poster.

History, and Judge Easterbrook, say that

John Dillinger, Public Enemy No. 1, died on July 22, 1934, at the Biograph Theater in Chicago. He emerged from the air conditioned movie palace into as sweltering evening accompanied by two women, one wearing a bright red dress. The “lady in red,” Anna Sage, had agreed to betray his presence for $10,000. Agents of the FBI were waiting. Alerted by Polly Hamilton, the other woman, Dillinger wheeled to fire, but it was too late. A hail of bullets cut him down, his .45 automatic unused. William C. Sullivan, The Bureau 30-33 (1979). Now a national historic site, the Biograph bears a plaque commemorating the event. It still shows movies, and the air conditioning is not better now than in 1934.

Author Jay Robert Nash penned several books arguing that Dillinger was not killed in that shootout. Instead, Nash maintained that Dillinger sent a look-alike to the theater knowing a sting was in place and that the FBI covered that fact up to avoid embarrassment. He pointed to physical differences between the corpse and Dillinger’s known appearance (e.g. a scar on his upper lip, a missing tooth, etc.) as well as other facts such as Dillinger’s father insisting that his son be entombed in concrete before being buried. Nash argued that Dillinger lived many years after that night in Chicago, that he got married and grew old in California.

80's Television!!

80’s Television!!

In 1984, CBA broadcast an episode of Simon & Simon called The Dillinger Print that was based in part on Nash’s premise that Dillinger was still alive. The odd-couple detective brothers were hired to investigate the FBI by the widow of another detective who had been killed while investigating whether Dillinger had not died outside the Biograph Theater. The episode even used as plot elements many of the same alleged discrepancies Nash identified in his books.

So, Nash sued CBS for infringing the copyright in his books. CBS did not rely on arguing that they had not seen his books or even that they had not taken ideas from his books. Instead, they argued that it did not matter if they had taken the ideas from his books because as ideas, they were not protected by copyright. Ideas, or as in this case “facts”, are not protected by copyright. Only expression is protected. Ideas are not original while expression is.

Nash does not portray The Dillinger Dossier and its companion works as fiction, however, which makes all the difference. The inventor of Sherlock Holmes controls that Character’s fate while the copyright lasts; the first person to conclude that Dillinger survived does not get dibs on history. If Dillinger survived, that fact is available to all. Nash’s rights lie in his expression: in his words, in his arrangement of facts (his deployment of narration interspersed with interviews, for example), but not in the naked “truth”. The Dillinger Print does not use any words from The Dillinger Dossier or Nash’s other books; it does not take over any of Nash’s presentation but instead employs a setting of its own invention with new exposition and development. Physical differences between Dillinger and the corpse, planted fingerprints, photographs of Dillinger and other gangsters in the 1930s, these and all the rest are facts as Nash depicts them.

Section 103 of the Copyright Act states: “In no case does copyright protection for an original work . . . extend to any idea, . . . or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Since CBS merely took “facts” or “ideas” from Nash’s book while adding their own overlay of context, story and other expression, CBS has not taken anything protected by copyright.


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Copyright Class 1 – Originality

Welcome to the first “day” of class. I hope that you find this series both interesting and informative. Please keep in mind the caveats I set forth last week. The first of those caveats, that this is a course focused on copyright generally and not copyright for writers, is fully applicable to today’s material. The issues explored in these cases, originality, is not usually an issue for writers.

Today’s class briefly covered the history of copyright from its birth in the Stationer’s Company of 15th century London and its use as a tool for religious censorship to the modern copyright of today as embodied in the Copyright Act of 1976. I will spare you that … for now.

We spent the majority of the class discussing what constitutes an “original work of authorship.” Section 102 of the copyright act says:

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression…

So, asking what is an “original work of authorship” is basically asking “What gets copyright protection?” Sure, there’s the “fixed in any tangible medium of expression” part, but that is not the difficult part to satisfy.

Accordingly, originality is often said to be “[t]he sine qua non of copyright.”

If you want the short answer, here it is. Originality includes two related concepts. First, the work must be original to the author; in other words, it cannot be copied from another. Second, it must contain at least a modicum of creativity. This is a fairly low hurdle.

We explored the first half of that this week and will look at the second half next week.

To explore that part of the concept of originality and get a better feel for its contours, we read four cases: Burrow Giles Lithographic Co. v. Sarony, Bleistein v. Donaldson Lithographing Co., Meshwerks v. Toyota Motor Sales U.S.A., and Gracen v. Bradford Exchange.

The first two, Burrow Giles and Bleistein, are historic cases from 1884 and 1903 respectively. The latter two are modern cases (2008 and 1983).

Burrow Giles Co. v. Sarony

A photographer, Sarony, sued the lithographer, Burrow Giles, for infringing the copyright in his photograph (titled Oscar Wilde, No. 18). At trial, a jury found that Burrow Giles had infringed Sarony’s rights and rendered $610 in damages. In challenging the result on appeal, Burrow Giles presented two arguments of note.

First, they argued that the constitution did not give Congress the power to enact a copyright statute that included copyright protection for photographs. Protection of copyright and patent subject matter is actually one of the specifically enumerated powers in Article I.

To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Sarony wildeBurrow Giles argued that “writings” did not include photographs, that the copyright statute could not therefore cover photographs, and thus their copying of the photograph was not copyright infringement. However, since the first copyright act passed in 1790 was written by many of the same men who drafted the Constitution and included such media as charts and maps, the Court held that the word “writings” should not be limited to the literal meaning asserted by Burrow Giles.

Second, Burrow Giles argued that a photograph, unlike a painting or engraving, did not include an intellectual conception of an author; rather, a photograph was a mere mechanical reproduction of reality. Photographs therefore were not “original.” While the Court left open the possibility that some photographs might not contain sufficient originality to be copyrightable, the photograph in this case did contain sufficient originality.

[I]n regard to the photograph in question, that it is a ‘useful, new, harmonious, characteristic, and graceful picture, and that plaintiff made the same * * * entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.’

Bleistein v. Donaldson Lithographing Co.

Bleistein involved a lithographic company copying posters created to advertise a traveling circus. The printing of poster advertisements for traveling circuses was actually a pretty big industry in those days. I’m not kidding. Entertainment options were obviously a bit more limited at the end of the 19th century.

bleistein-posterThe defendants argued first that advertisements were not protected by copyright and second that the posters were not sufficiently original because the artist who had painted the artwork was attempting to portray what the performers actually looked like.

Though both the trial court and the intermediate appellate court held that advertisements were not protected by copyright, the Supreme Court interpreted the statute more broadly so as to include works of authorship beyond the “fine arts.” Further, they said that it would be dangerous for judges only trained in law to pass aesthetic judgments about whether something was “art.”

With respect to the defendant’s originality argument, the Court said that:

It is obvious also that the plaintiff’s case is not affected by the fact, if it be one, that the pictures represent actual groups — visible things. They seem from the testimony to have been composed from hints or description, not from sight of a performance. But even if they had been drawn from the life, that fact would not deprive them of protection. The opposite proposition would mean that a portrait by Velasquez or Whistler was common property because others might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy. The copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible which is one man’s alone. That something he may copyright unless there is a restriction in the words of the act.

Meshwerks v. Toyota Motor Sales U.S.A.

Meshwerks created 3D digital models of Toyota cars to be used in advertising. They argued that they had only licensed Toyota to use the models they created in one television advertising. Therefore, when Toyota used the digital models in additional advertising, they went beyond the scope of copyright permissions Meshwerks had granted them.

Toyota argued in response that because the digital models were intended to be exact representations of their cars the models were not “original” in the copyright sense.

The case thus focused “on the question whether Meshwerks’ models qualify as independent creations, as opposed to copies of Toyota’s handiwork.”

The court said that this particular type of “art” was certainly capable of being original enough to gain copyright protection but that these particular digital models did not contain enough originality. They based that conclusion on both an assessment of the models themselves and their creators’ intent when making them.

Key to our evaluation of this case is the fact that Meshwerks’ digital wireframe computer models depict Toyota’s vehicles without any individualizing features: they are untouched by a digital paintbrush; they are not depicted in front of a palm tree, whizzing down the open road, or climbing up a mountainside. Put another way, Meshwerks’ models depict nothing more than unadorned Toyota vehicles – the car as car. And the unequivocal lesson from Feist is that works are not copyrightable to the extent they do not involve any expression apart from the raw facts in the world. As Professor Nimmer has commented in connection with the predecessor technology of photography, “[a]s applied to a photograph of a pre-existing product, that bedrock principle [of originality] means that the photographer manifestly cannot claim to have originated the matter depicted therein . . . . The upshot is that the photographer is entitled to copyright solely based on lighting, angle, perspective, and the other ingredients that traditionally apply to that art-form.” It seems to us that exactly the same holds true with the digital medium now before us: the facts in this case unambiguously show that Meshwerks did not make any decisions regarding lighting, shading, the background in front of which a vehicle would be posed, the angle at which to pose it, or the like – in short, its models reflect none of the decisions that can make depictions of things or facts in the world, whether Oscar Wilde or a Toyota Camry, new expressions subject to copyright protection.

The court acknowledged that the creation of the digital models had taken tremendous skill and required the investment of a great deal of work; however, labor and skill was not the measure of originality.

In the case before us, there is no doubt that transposing the physical appearances of Toyota’s vehicles from three dimensions to two, such that computer-screen images accurately reflect Toyota’s products, was labor intensive and required a great amount of skill. But because the end-results were unadorned images of Toyota’s vehicles, the appearances of which do not owe their origins to Meshwerks, we are unable to reward that skill, effort, and labor with copyright protection.

The court also said that authorial intent can also shed light on the originality, or lack thereof, contained in a work. Because Meshwerks had created the models with the intent of creating as exact a series of replicas as they could, the resultant works were not original.

Gracen v. Bradford Exchange

Gracen is both a strange and sad case. It is strange in that the level of originality required of the court for copyright protection seems much higher than that seen in most other cases. It is sad in that the artist not only lost the case but also suffered in other ways besides losing her quest to be paid. She lost her job, was maligned by the defendants, and never even got her original painting back.

With respect to originality, the case essentially leaves us with uncertainty about the standard of originality required for derivative works to receive copyright protection. Derivative works are works of authorship based on a pre-existing work. In this case, Gracen’s painting of Dorothy on the gold brick road was based on the images in the movie starring Judy Garland.

The court held that derivative works must contain more originality than non-derivative works to receive copyright protection, but it is unclear whether the court’s reasoning would be followed by other courts faced with different facts.


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Copyright Law Class Sing-Along!

OK, it’s not really a sing-along. Because no one wants to hear me sing. Trust me on this.

But it is a copyright law class, and it is going to be here on this blog. Kind of, anyway.

This spring I will be teaching a course in copyright law* to law students, and I thought I would do a series of posts in conjunction with the course.  The class meets 14 times, each Thursday for 15 weeks with one week off for spring break, starting a week from today. In other words, January 16th.

So, what I am going to do is to post a summary of each class here on the blog along with links to the cases we read and talked about on that day. That way, any of you who want to can follow along. (And you can sing too, I guess, if that is what works for you.)

A few caveats:**

  1. The course itself is not specific to the interests of writers. Copyright is much broader than that and the course reflects that. I will try to point how specific issues do and do not apply to writers where relevant, but most of the content will be general copyright.
  2. This series will not duplicate the full law school course. Not even close. That is just not possible. However, that being said, I don’t think that will prevent the series from being interesting and informative.
  3. Full understanding of the material really requires more general legal training of the sort one would receive during the first year or so of law school. A series of blog posts will not make you a copyright lawyer. The goal is not to make you able to evaluate and handle copyright law matters on your own.
  4. The course will focus almost entirely on US copyright law. That’s just what the course is.

Posts will go up late afternoon or early evening each Thursday. So forget about going out on Thursday nights – it’s copyright time!


*I am also teaching a course on Real Property, but I presumed there would be less interest in equitable servitudes, adverse possession and the Rule Against Perpetuities. Though the Rule Against Perpetuities is pretty cool. I mean what else involves fertile octogenarians and unborn widows?

**I’m a lawyer. Of course there are going to be caveats.


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Superstars: from writer to professional writer

The Superstars Writing Seminar is one of the only seminars I know of that focuses on the profession as opposed to the craft. You can find craft seminars right and left, but finding one that focuses on the business side of writing is a little more difficult. And the 2014 edition is fast approaching (February 6–8, 2014).

From the Superstars website:

Superstars Writing Seminars, founded in 2010, is unique among writing seminars. The curriculum is focused on teaching writers the business of being successful in the publishing industry. The instructors are chosen from the top of the industry and include International Bestselling Authors, Top Editors, Indie Publishing Platform Managers, and many more. The only focus at Superstars is to teach you how to have a successful writing career by sharing how those at the top of the industry manage their careers.

The 2014 instructors are Kevin J. Anderson, Brandon Sanderson, Rebecca Moesta, James A. Owen, David Farland, and Eric Flint. There’s a couple of published books between those guys. And this year they will be joined by three guest instructors: Mark Leslie Lefebvre of Kobo, Lisa Mangum of Shadow Mountain, and Diana Gill of Harper Voyager.

I separate the benefits of Superstars into three categories. First, it teaches you how to be a professional. In other words, not just a writer, but a professional writer. Second, it teaches you about the radically changing landscape of the publishing business. In fact, change is happening so fast that many attendees of the seminar come back year after year. The industry is changing so much even from year to year that getting together once year to talk about it with a group of such accomplished professionals seems like a minimum to keep up with it. Third, it provides an already built network of professional writers at different points in their careers and with different views that a writer can call on to deal with all the challenges brought these changes.

If you are looking for a seminar about the business of being a writer, then this is the one I recommend.

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