Tag Archives: copyright

January 31, 2014 · 2:04 am

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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January 24, 2014 · 12:46 am

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. http://www.youtube.com/watch?v=4rVuZ0hJEyM

The new phone book’s here! The new phonebook’s here! Here’s a link to the clip, but … curses … copyright.
http://www.youtube.com/watch?v=4rVuZ0hJEyM

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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January 17, 2014 · 1:31 am

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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January 9, 2014 · 2:36 pm

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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October 14, 2013 · 3:43 pm

Using the DMCA to combat pirates

This blog has been a bit quiet over the last few weeks as I’ve worked on a chapter for a book on the future of intellectual property. I’m past the deadline (“Bad Writer! Bad!”). All my attention has necessarily been on that project. I’m getting closer to finishing that up, and then I should be back to my posting ways.

To hold you over, here’s a post from author Guy Anthony De Marco on how to use the section 512 safe harbor provisions to combat online piracy.

I will add that there is an even larger nuclear option available. I haven’t done it myself, so I don’t know all the details. But I do know more aggressive combatants of counterfeit sites (typically trademark, not copyright, infringements) have used this technique. You can challenge the domain name registration and get it shut off if the information used in the registration is not up to date or valid (name, physical address, etc.). This may frequently be the case in fly-by-night sites seeking to make a quick buck off piracy. It would of course apply to attempts to take down independent sites, not established intermediaries/retailers.

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September 18, 2013 · 10:20 am

Self Publishing Podcast

Johnny, Sean, and Dave over at The Self Publishing Podcast were gracious enough to have me on their most recent podcast. The video is available on YouTube. I join in around the 10:40 mark. We talked about a number of legal issues, ranging from how writers obtain copyright, whether to register your copyright and why, the use of and concern over trademarks as they relate to what writers do, the right way to structure a collaboration with an eye toward potential legal problems, etc.

I’ll post a link to the their blog post covering this particular cast when it goes live.

[9/19/13] And here is their blog post!

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September 5, 2013 · 4:03 pm

Co-authors, Collaboration, and Joint Authorship – Part I of All That

In this post, I’m going to go over what defaults the law provides for co-authors, detail why those defaults are not at all what you want, and recommend what you should do about it (i.e. enter into a collaboration agreement). I’ll leave the law on what constitutes joint authorship for a later post.

Federal copyright law provides for co-ownership of copyright rights when a work is jointly authored. The statute chooses to define “joint works” rather than “joint authors,” but courts typically discuss it in terms of joint authors and joint authorship. Co-ownership and the relative rights stemming from it are pretty much borrowed from the law of physical property, i.e. what happens when two people co-own a piece of land.

Co-ownership entails each co-owner having rights to the undivided whole. With land, that means that a co-owner has rights to possess and use the whole tract of land, even though their ownership percentage might only be 50%. Each of the owners has the rights to possess the entire piece of land. Thus, the law does not say that each of two co-owners gets to possess only half the land.

How can two people possess the entirety of a parcel of land at the same time? Well, they can’t. If one wants to sow the land and the other wants to build condominiums, they can’t both do what they want even though they each have the right to do as they want. When this sort of conflict arises, the law has several different types of partition that are available to the co-owners. Essentially, partition divides the ownership into separate pieces, and the co-owners no longer co-own anything. Each might own half the land (partition by kind), each might get half the proceeds from the sale of the land (partition by sale), or one might pay the other when the resulting parcels of land are of unequal value (owelty).

When these principles of concurrent ownership are imported into the area of intellectual property, we only get the ownership side and not the partition side. Because a work of authorship (that thing protected by copyright) is intangible, the law does not treat it as being, or even needing to be, divisible.

So, joint authors (aka co-authors) have an undivided interest in the copyright. That has some pretty big consequences.

It means that each joint author can do whatever they want to with the copyright rights. Each co-author can license it to whomever they want – without needing to seek the approval of the other.

Aside from meaning that one author may be stuck with the decision of a co-author, that fact has a second consequence. Because either joint author can license it to whomever they want, neither joint author can grant exclusive rights, what most publishers want, without the agreement of the other joint author. All co-authors would have to enter into a license or transfer in order to convey exclusive rights. If one doesn’t agree, then exclusive rights cannot be granted.

A co-author who unilaterally licenses a work does have to account to the other co-author for any profits realized from that transfer. But that lack of control and the reduced commercial possibilities that can stem from a lack of agreement remain – when you are stuck with the default rules provided by copyright law.

So, your co-author decides to post your novel online for anyone to download for free, and you’d rather offer it for sale? Fine, you can offer it for sale, but your co-author can leave it up for free. And if you do make any money off the sales, you have to give half the profit to your co-author (who put it up for free download). Those are the default settings of joint authorship.

What if one co-author wants to self-publish the novel while the other wants to go with a traditional publisher (assuming it was written on spec)? What about the sale of subsidiary rights? What about editorial decisions?

Copyright law provides co-authors with no resolution to these problems. Thanks for nothing, copyright law.

The solution, therefore, is to use a contract to build something beyond the default rules.

Writers who are going to work together to produce a story or novel should draft (or have a lawyer draft) and enter into a collaboration agreement. As a general matter, the purpose of contracts is to decide what happens when it all goes down the crapper – before it goes down the crapper.

Two Co-authors Resolving a Dispute over whether to use "said" or "asked" (Or maybe an image from the Clang Kickstarter) See: http://www.kurzweilai.net/clang-science-fiction-author-neal-stephenson-kickstarts-video-game-career On a related note, when is that game going to happen?!?!

Two co-authors resolving a dispute over whether to use “said” or “asked”
(Or maybe an image from the Clang Kickstarter)
See: http://www.kickstarter.com/projects/260688528/clang
On a related note, when is that game going to happen?!?!

As potential co-authors, think about all the things that could wrong and all the things about which you might disagree , and then decide how you would want to resolve those issues – now, beforehand, while you both are still on speaking terms (or even alive – death of one of the co-authors mid-project is something you might want to consider accounting for). Note that this means going beyond merely all of the “how would we make decisions” type of issues, but also thinking about “what if something bad happens” type of issues. For example, what if one of the co-authors stumbles into a George R.R. Martin novel and they are unable to finish the project on account of being dead along with everyone else?

I’m not going to attempt an even partial list here of what should go into such an agreement. My purpose is to point out the desirability of having such an agreement. And hopefully I’ve accomplished that.

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August 31, 2013 · 12:57 am

Used eBooks: Policy Pros and Cons

I wanted to give a brief policy overview, both for and against, the application of the first sale doctrine to eBooks. In other words, the arguments for and against allowing the sale of “used” eBooks.

I’ll go into the actual legal arguments (theory, doctrine, what have you) in a later post. I know you’re going to be waiting on that one with bated breath. If you want a preview, go and read the ReDigi district court opinion.

Most writers I’ve run across have VERY STRONG opinions on this subject, and all in one direction. (“I say we take off and nuke used eBooks from orbit. It’s the only way to be sure.”)

So naturally, keeping my audience ever in mind, I’ll start with the other side.

The policy arguments for permitting the resale of eBooks:

  1. Consumer protection thing 1. Some believe that converting sales of books from physical objects to technologically limited files negatively effects the consumer. It shifts power to the publisher and may ultimately reduce the value of what the consumer gets for the money. Some variation on same price/less value or lower price/much less value. The value in that formulation could relate to the monetary value in terms of resale possibilities or the longterm value of possessing something that will not disappear if you lose a password or device.
  2. Consumer protection thing 2. The lack of a secondary market (i.e. used market) will eventually lead to inflated prices. The availability of used books at a cheaper price than new books acts to decrease prices of new books. Eliminating the used market would therefore, it is argued, lead to increased prices.
  3. Copyright expansion. From a historical perspective, whether you consider the last two decades or the last two centuries, copyright has expanded GREATLY. This is true in terms of both the scope of rights given to the holders of copyrights and of the duration of the rights. The balance created by the first sale doctrine is seen as a small limitation on expansive copyright rights, whether you view that balance as stemming from personal property rights or from an exhaustion doctrine. (Okay, okay, I’ll save the theory for later. Hey, I’m a law professor – what do you expect?)

The policy arguments against permitting the resale of eBooks:

  1. Lack of degradation. Physical books break down. Their covers get bent, their spines are broken, . . . they get ratty or even fall apart. eBooks do not break down. A “used” eBook is identical in quality to a “new” eBook. With physical books, a purchaser of a new book would get something different than the purchaser of a used book, just as the purchaser of a new car gets something different than the purchaser of a used car.  Mmmm, new book smell. Under this thinking, “used” eBooks would be much stronger competition for new sales. With physical books, there are reasons to buy new; not so, it is argued, with eBooks.
  2. Frictionless markets. Finding the used book you want can take more time than finding a new version. Maybe your local used bookstore doesn’t have the one you want. In other words, it may be easier to buy a new copy than to find a used version. (Amazon’s used book system for physical books may make this less true than it once was.) For eBooks however, because geography is taken out of the equation (the only “geography” remaining would be finding the correct website), it would be just as easy to find a “used” eBook as it would be to find a “new” eBook. Like the degradation problem, this would increase the competition new would face from used.
  3. Lack of resale being built into the price. I’ve heard many authors say that what they are giving the reader for the price paid is not something that can be resold. In other words, the lack of ability to recoup a portion of the original purchase price through the resale of the “used” eBook is already built into a lower original price.
  4. PIRACY. PIRACY. PIRACY. This is the dominant player for many in the ‘con’ camp. People just don’t believe users would not simply make a copy of an eBook and then sell the eBook in the used market. Most people arguing the “pro” side assume, for the sake of argument, that copy protection would be good enough to prevent this if we were to end up with a used market for eBooks. ReDigi claimed to monitor users’ computers to insure duplication did not result in their transfer of “used” mp3’s. As long as the belief that copying could happen on a rampant scale, this concern will dominate policy debates.

I’m not here today to declare a winner between these arguments, but I will offer two thoughts, that I will call “sideways.” That is, they come at the dispute not from a “pro” or “con” view, but from the “side.” Both of these stem from thinking about re-evaluating, in light of new technology, the incentive/public benefit calculus at the heart of copyright.

  1. We might consider a departure from monolithic copyright. Doesn’t that sound like an impressive term – “monolithic copyright”? (Professor, remember?) What I mean by that is that maybe what works for one type of art might not work for another type of art. So, we might do something different for music than we would do for books. Books are quite often read once and then not read again. (At least for most books with most readers – we don’t need to go into how many times I’ve read the Harry Potter series.) Music is different; most people don’t listen to a song and then never listen to it again. Music is experienced over and over again in typical usage. Because of this difference, a secondary (“used”) market for MP3’s may make more sense than a secondary market for eBooks.
  2. We could create a middle ground. We could permit the resale of eBooks, but legally mandate some sort of payment to the copyright holder. This would be a compulsory license akin to the mechanical license available for musical composition copyrights.

That’s a quick and (hopefully not too) dirty overview of the policy debates surrounding “used” eBooks. If you think I’ve left out any arguments for or against, I’d love to hear about them in the comments.

 

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August 22, 2013 · 11:39 pm

The printing press is mightier than a thousand swords – and how that gave rise to copyright

The movable type printing press is oft cited as playing a role in the religious revolutions of the 16th and 17th centuries. The technology to print books and pamphlets created an ability to circulate ideas previously limited by word of mouth transmission and much less efficiently produced media (e.g. hand-transcribed manuscripts). This relationship is fairly well-known.

copyright baby

Congratulations! It’s an author-centered copyright doctrine!

What many people do not know, however, is that this maelstrom of religious upheaval and new printing technologies also gave birth to copyright law.

One of the weapons in the religious struggles in England was the censorship of the religious views by whoever happened to be on the throne at any particular time. The problem that various monarchs ran into was that the same technology that had contributed to these religious struggles also made it very difficult to censor effectively. They simply could not keep pace with the number of books and pamphlets that could be produced with the new printing technology.

So, they enlisted the aid of the Stationer’s Company, the members of the book trade who had received a royal charter to organize into a Company in 1557. English Companies were similar to and had evolved from medieval guilds. The Stationer’s Company was comprised of bookbinders, booksellers, and printers.

During almost the whole period from 1557 to 1709, a time of continuous religious struggle, censorship was a major policy of the English government. This policy made it convenient for the government to give the stationers large powers, which it did in increasing measure, in order to have them serve as policemen of the press.

L. Ray Patterson, Copyright in Historical Perspective

This system of censorship was enabled first by the Star Chamber Decrees of 1566, 1586, and 1637 and then later by the Licensing Act of 1662. The government did not intend to create copyright law with these statutes. Rather, their concern was merely with censoring opposing religious views.

Instead, the Stationer’s Company copyright arose as an offshoot of the powers granted by the government for censorship. In other words, the powers granted to the Stationer’s Company allowed them to create a form of copyright.

They did so as a way of increasing the profitability of their business endeavors by ordering their own internal affairs. Essentially, the members claimed their “copies” – what we call works of authorship. Whichever member registered a particular “copy” would have the exclusive right to print, bind and sell books from that copy. This act was referred to as “entrance” in the register. An entrance in the register* might take the form of:

Owyn Rogers ys lycensed to prynte a ballette Called have pytie on the poore.

(Apparently, it wasn’t “and sometimes Y.” It was “Y all the tyme.”)

These rights were initially enforceable privately within the company, but later grew to be enforceable in courts of law. It is quite likely that some form of copyright existed prior to these censorship efforts and even prior to the royal charter of the Stationer’s Company, but whatever form it took it did not have the full legal standing and scope of what we would view as copyright.

Note that the author was not a part of this picture. Authors were not members of the Stationer’s Company. They were considered “above” commerce. Selling copies of their work was considered improper. They did in fact sell manuscripts to members of the Stationer’s Company, but this relationship maintained the air, if not the reality, of the earlier system of patronage.

So how did the we end up with a governmental copyright that was focused on authors?

For that we have to fast forward to the late 17th and early 18th century. Two changes in what the government was able and willing to do led the members of the Stationer’s Company to seek what became the first copyright statute.

First, the government moved away from a policy of censorship. This threatened to pull the teeth out of the powers that had permitted the Stationer’s Company to create their internal system of copyright. Second, the government became very sensitive to public disapproval of government granted monopolies.

So as the censorship laws expired, the members of the Stationer’s Company had to seek out some way to maintain their economic advantage – and their effective monopoly had given them quite an advantage. In a relatively short period of time, they had moved from an unimportant guild** to one of the wealthiest and most influential.

What they sought from the government was legislation that would enshrine their previously private system into public law.  Importantly, those rights were perpetual. Once a member had rights to a particular copy, they had it forever.

So, how did we get limited-in-time copyrights focused on authors?

That is where the second change comes into play – public animosity toward monopolies.  In that anti-monopoly environment, a fight arose between two groups within the Stationer’s Company – the printers and the booksellers. (The oldest group, the bookbinders, were largely irrelevant at this point.)

One group wanted no copyright while the other wanted a perpetual copyright – one that never expired. The twist is that both groups argued not for their own good, but instead argued on behalf of the “author.” After all, those advocating for a perpetual copyright had a difficult time persuading anyone that a new monopoly should be granted. So instead they appealed to what was in the author’s interest, and once one side made this rhetorical move, the other side followed suit. It was the use of the “good of the author” by both sides to the argument that produced the concept of copyright as an author’s right.

In fact, public sentiment against monopolies was so strong that it took many years for the stationers to get anything enacted. In 1709, the decades-long fight produced the first copyright statute –  commonly referred to as the Statute of Anne, a much snappier name that the actual full title: “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.”

statute of anne

*Some of the earliest known uses of the actual term “copyright” occurred in the company register. However, such uses were quite rare.

**The Hatter’s Guild was one of the six most powerful guilds. In comparison, the Stationer’s Company would initially have been somewhere down in the forties in terms of ranked importance. Hats were apparently a big deal.

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August 19, 2013 · 6:34 pm

Copyright Law and the Availability of Books

One of my goals for this blog is to expose writers to other views of copyright law and policy. Writers, in my experience, tend to view copyright as akin property and as having a moral justification – “I created it, therefore I should own it.” I know that is an oversimplification; most writers’ views contain more nuance than that. But it is, I think, an accurate representation of the core of those views.

While one can find a thread of that view, the natural rights view, in copyright law and cases throughout the history of US copyright law, it is not the dominant or explicit justification for copyright in US law. It is a view more commonly associated with the continental European approach to copyright.

The Anglo-American approach to copyright has expressed a different narrative. In most explicit discussion of the theory underlying copyright law, copyright is about incentives. On the surface, this fits with the writer’s view. A creator would not invest the time and effort into writing a book unless the law provided a means to capitalize on that work. And if that were the extent of it, then we wouldn’t see many if any divergences between the natural rights view and the incentive view. However, the incentive view goes deeper when we examine the goals toward which those incentives are pointed.

The enumerated powers in the US Constitution includes the following in Article I, Section 8, Clause 8:

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

This is commonly referred to as the IP clause and it serves as the basis for federal legislative power covering patent and copyright laws.* Note that it sets forth as the goal “to promote the progress of science and useful arts” and not to promote the creation of works. The Constitution was drafted at the end of the 18th Century, a century featured a long debate in England about copyright and patent law. The Founders would have been quite familiar with the policy arguments.

founding fathersThe goal of the incentive structure set up by copyright law, so it is argued, is to promote benefits to society. That is done primarily by providing creators with economic incentives, but those economic incentives are not the ultimate goal. They are merely a means to an end.

This is where balancing comes in. In pursuit of that end, the economic incentives might be limited and balanced against the good of society. More specifically, copyright is seen as limiting the benefit to society by increasing costs of access to the works and at times reducing access to the works.

A theorist looking at the incentive theory would say that we want to maximize societal benefit. That means a couple of things. First, we should only give the bare minimum of copyright protection necessary to guarantee production, and not one bit more. Of course, there is no single line in the sand so to speak. It is a continuum in which more protection theoretically leads to more works, and less to less. Finding that optimum point for societal benefit is the incentive theorist’s goal. An incentive theorist only gives the bare minimum necessary to insure production because every increase in protection theoretically comes at a cost to society – some times literally, as in the works cost more. Second, most theorists would include not only production of a work but also access to the work as a necessary component of societal benefit. Greater and longer protection can in certain circumstances decrease the availability of a work.

It is this second point – the relationship between copyright law and access to works – that is the subject of a recent study that generated quite a bit of interest in academic copyright circles (and beyond – does The Atlantic qualify as beyond?):

How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs)

by Paul J. Heald

Heald’s study is nicely summarized by Rebecca Rosen in The Atlantic. Her summary features the tagline: “A book published during the presidency of Chester A. Arthur has a greater chance of being in print today than one published during the time of Reagan.” Some high points from the article:

There were as many books available [on Amazon] from the 1910s as there were from the 2000s. The number of books from the 1850s was double the number available from the 1950s. Why? Copyright protections (which cover titles published in 1923 and after) had squashed the market for books from the middle of the 20th century, keeping those titles off shelves and out of the hands of the reading public.

. . .

“Copyright correlates significantly with the disappearance of works rather than with their availability,” Heald writes. “Shortly after works are created and proprietized, they tend to disappear from public view only to reappear in significantly increased numbers when they fall into the public domain and lose their owners.”

. . .

Heald says that the WorldCat research showed, for example, that there were eight times as many books published in the 1980s as in the 1880s, but there are roughly as many titles available on Amazon for the two decades.

With beginning of the semester fully upon me, I haven’t had the time to go through the full study and likely won’t anytime soon. However allow me to play the TL;DNR devil’s advocate.

First, I wonder if the game has changed. Has the recently emerged ability to keep any book in stock without warehousing costs (eBooks, POD) changed what will happen to books in the future? Perhaps this dip is a thing of the past. In pre-Internet days, shelf space was at a premium and the costs of physical books over their lifespans perhaps contributed to the effect seen in the study. In that world, it made sense for publishers to maintain supplies of the most recent books if those were going to produce the most sales in the short-term. And keep in mind, that the lack of these books availability in eBook or POD formats may in large part  be due to the inability of publishers to undertake the digitization process for massive backlists and due to a simple loss of information on who owns the copyrights for the lost books (orphan works).** In a world where maintaining the availability of books is virtually costless, we may not see such a decrease in availability moving forward.

Second, I wonder how much influence school reading lists have on the availability of some of these older works. Is that list of canonical works skewing the data?

Third, even taking this effect into account, it may not indicate that current copyright law’s incentive calculus is off. Even if lengthy copyright duration is reducing the relative availability of works, the net creation and value produced by copyright incentives could still be ideal or at least positive. The number of available works is just one small part of the measurement of copyright’s results.

* Though perhaps counterintuitive to our modern word usage, “science” refers to copyright and “useful arts” refers to patents.

**The orphan works problem and proposed “solutions” could fill several more blog posts.

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