Copyright: Week 10 - Derivative Works vs. Substantial Similarity

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Reading:

October 30 – Copyright Infringement IV: the Right to Prepare Derivative Works (Casebook pp. 365-390)

November 1 – Copyright Infringement V: the Public Performance & Public Display Rights (Casebook pp. 411-431)


Here again we have an issue directly related to a common issue in the Creative Commons world: derivative works. The derivative works question is almost entirely the same question as the copyrightability question. There is one difference. To infringe the derivative works right (or violate the -ND provision), the derivative work does not need to be fixed. A play based on Star Wars or another Disney property that is never recorded would not be copyrightable (at least not at the federal level) but could nevertheless infringe the derivative works right.

That, however, is not the issue on which I want to focus.

THESIS FOR REBUTTAL: The substantial similarity doctrine is a mess and should be replaced with a derivative works analysis.

In part because the substantial similarity doctrine is such a mess I am not going to be able to give the topic thorough analysis this week. The mess of substantial similarity is, of course, also one of the reasons why last week I proposed a unitary copyright court. The topics I touch upon today cover at least ~170 pages in our text book. If this is a topic that interests you, please let us know so we can focus on it again later this week when we'll be covering moral rights and some specific types of liability. With mashups and YouTube, it will be plenty easy to work the derivative works discussion in at a later time.

Additionally, for this post I've brought back something I was doing this summer with a "Resources" section at the end of the post. I've also begun building up the resources sections for the DMCA and Fair Use posts which are coming up the next three weeks because I feel those posts will also be sufficiently complex to not allow for a thorough analysis without additional reading.

With that massive disclaimer out of the way...

In Warner Bros. Entertainment, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008), the court essentially found that a dictionary was not a copyrightable work because it was not sufficiently original. This, of course, flies in the face of the cases surrounding the Webster's dictionary, which was copyrighted in 1847. Nonetheless, the court found infringement. Huh? There was, of course, direct copying in that case but apparently dictionaries and novels are "substantially similar".

Even scarier, there exists a doctrine of "subconscious copying" from Three Boys Music Corp. v. Michael Bolton. This is particularly disturbing for our purposes here because this is a case that deals with music. By denying cert, SCOTUS has condoned such a doctrine.

Aside from the infringement implication, why is this important? Copyright is a bundle of the six rights. If you get a license for a derivative work, you might not be in the clear because you would still need a reproduction right under the "this is not actually a derivative work" doctrine. This does not even get into the issue in music of mechanical licenses, which unfortunately is not an issue I'll be able to address until next semester.

A Note on -ND Licenses Specifically

Remember that if you release under a -ND Creative Commons license, you are telling the world that you do not want translations of your work. If your work is not political, journalistic or educational, perhaps you don't care about such a limitation. Remember though that if you use a BY-NC-SA license (or even a BY license) the translator must attribute you as the original author. This, of course, serves to help promote your original work. Some people are concerned that a translation could give different meaning to your words. If this is the case, you would still likely have a defamation claim against the translator. You do not need copyright or a copyright license to defend against such misappropriation. Of course, in other countries this would fall under their conception of moral rights, a topic Brian and I will discuss this coming week in class.

Please be aware that even if an artist has released under -ND, you can always talk to the artist about your proposed adaptation and the artist can grant you a separate license. Unfortunately, an individual that chooses the -ND license "reintroduces the cost and complexity that standard licensing is supposed to avoid."

PUBLIC PERFORMANCE/DISPLAY

The derivative work right is not all we covered this week and while that's the area I'm proposing for Brian's rebuttal, I thought I should mention a bit about the public performance right as well.

In this section, we get one 3rd Circuit opinion, but otherwise it's the 2nd, 7th, 9th triumvirate again. Has no one in Texas, Boston, Atlanta, Miami, etc ever been accused of infringing copyright? It seems a bit bizarre and spending time between the 1st and 4th Circuits, I gotta say I find it pretty irritating.

The 3rd Circuit case is Columbia Pictures Indus. v. Redd Horne, Inc. 749 F.2d 154 (1984) and it seems like a load of garbage to me. This is a public performance case and I want to focus on derivative works, but since I made a big deal about the triumvirate, I figured I should at least point people toward the 3rd Circuit once.

Since, as you can probably tell, I am mildly obsessed with jurisdictional issues as they relate to copyright, I thought I might delve into this a bit more. According to UCLA, there is but one music case that has gone to the 4th Circuit. Additionally, there has been only one in the 1st Circuit. The 6th Circuit, which includes Detroit and Nashville, has more cases, coming in at 5 cases. Again, these are music cases, not total copyright cases. Those numbers include only the US Court of Appeals. The district of N.H. has had zero reported cases and no Michigan court has had any reported cases. It's also worth noting that while we talk about Golan v. Holder in terms of music, UCLA lists only three SCOTUS cases involving music:
White-Smith Music v. Apollo Company
Campbell v. Acuff-Rose
Fantasy v. Fogerty

White-Smith is interesting because it was an unanimous decision, but two years later Congress overruled it with the 1909 Copyright Act (Congress can generally overrule SCOTUS unless the matter is constitutional).

Another important point about the public performance right is that it is riddled with exceptions. Technically speaking, we haven't gotten to the exceptions in class, but with the heavy topics of moral rights and the DMCA coming up next week, I thought it important to go ahead and at least mention the existence of the exceptions here.

Resources

The Five Exclusive Rights and Moral Rights from Life of a Law Student
Creative Commons FAQ on Derivative Works
About the CC Suite.
Music Copyright Cases
Copyright Community (the question to which I link goes unanswered which is not a strong indication that it is a useful resource, but if people are not getting the answers here that they need, it might be a good place to ask additional questions)
LegalZoom on derivative works

Circuit Splits and Copyright Courts

This is not legal advice. Leave audio feedback at (512) 686-6329. This show was recorded and edited using GNU/Linux.
Expected Audience: Law Students

First I'd like to say I'm sorry this post is coming so late. After my midterms I was a little behind on the readings in all my classes. And the hurricane that came through certainly didn't help. 

Circuit splits are nothing new, nor are they particularly concentrated in one area of law over another. I found this site when looking on information on circuits splits.  Circuits split over things as simple as how to serve process on foreign nationals to things as essential as interpreting fundamental parts of our Constitution.

Doug's proposal for specialized courts is certainly interesting. If the government and the judicial branch had infinite resources I would certainly endorse it. However, in reality the judicial branch has a limited budget and specialized courts for copyright cases would cost a great deal of money.

I think the strongest argument for specialized copyright courts is the fact that there needs to be a strong knowledge of copyright law on the part of judges for correct rulings to be made. What I think is being overlooked is one of the roles lawyers play in our legal system. Lawyers are advocates, mediators, and occasionally negotiators. The role lawyers play in our system that is often overlooked is that of an educator.

Lawyers need to specialize in order to run an effective practice. That specialization is essential for judges. Judges are meant to be jack of all trades in order to be able to hear a wide variety of cases. As part of their advocacy lawyers play a role of educator as well as advocate. Lawyers need to teach judges about the relevant areas of their specialty for the judge to make a ruling. This interplay between judges and lawyers is why copyright law does not need its own specialized court system. 

Copyright: Week 9 - Infringement

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Expected Audience: Law Geeks. More so than a lot of weeks, the infringement discussion requires some knowledge of the framework of the US justice (I use that term loosely) system. If you are curious about infringement and you think the discussion is too high-level, please let us know. Between this week, next week and the week on contributory/vicarious liability, we should have six posts on the subject between Brian and me, so we have plenty of time to bring it down a level.

Reading:  

October 11 – Copyright Infringement I: the Reproduction Right & the Substantially Similar Copy (Casebook pp. 289-309)

October 23 – Copyright Infringement II: Contemporary Cases on Copying (Casebook pp. 309-314; 317-323; 334-337)

## October 25 – Copyright Infringement III: the Reproduction Right & the Distribution Right (Casebook pp. 337-354; 358-362)

You can only infringe rights. There are five (or six, depending on how you count) rights, which are:

1. reproduction
2. distribution
3. public display
4. public performance
5. creation of derivative works
6. "in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission" 17 U.S.C. §106.

You can learn more about these rights in The Five Exclusive Rights and Moral Rights on Life of a Law Student.

Before I move forward in the discussion, since I know we have readers from all over, I wanted to mention where a few places are located as far as circuits are concerned (these are by no means exhaustive!).

Maryland/North Carolina are in the 4th Circuit.
Michigan/Kentucky are in the 6th Circuit.
Chicago/Wisconsin are in the 7th Circuit.
While the 7th Circuit has some important judges in Posner and Easterbrook, most of the important copyright cases come out of the 2nd Circuit (NYC) and 9th Circuit (CA). Unfortunately neither the table of contents nor the table of cases in our book lists the court for the cases, but I did randomly come across Bridgeport Music from the 6th Circuit in preparing for this post. This also got me thinking about the relative position of the circuits as far as population.

According to Wikipedia, the 9th Circuit covers almost 20% of the nation's population. If the circuits were of roughly equal size, we'd have 5 or 6 circuits, instead of 11. The 9th Circuit is also by far the largest in terms of land mass, serving California and Alaska (among other large western states). Unfortunately, Wikipedia doesn't offer

I have to say that this week I have really struggled to come up with a reasonably novel or controversial idea for Brian to rebut/critque, or at least one that I actually believe or feel competent enough to discuss. There is no doubt that circuit splits are irritating, but this is not something particular to infringement or even Copyright. Nonetheless...

THESIS FOR CRITIQUE/REBUTTAL: 
Copyright needs a specialized tribunal like the Federal Circuit for patents.

Not to completely geek out on you, but in order to understand how this might work, you have to have *some* understanding of Article III of the US Constitution. I trust Brian can imagine how such a system will work, so I'll refrain from going into gory detail. If anybody wants the gory detail, next week is another infringement week, so maybe I can readdress the issue.

The obvious immediate rebuttal for my proposal is, "Where do you stop?" Certainly one might think specialized drug courts or specialized environment courts might make sense. The reason that I think drug courts and environmental courts are different is because those areas do not have full federal preemption. As has been discussed previously on Music Manumit and the Lawcast, Copyright preemption is not 100%, but it's pretty close.

Another major rebuttal to a special copyright court based on the Federal Circuit is that there is a sense that the Federal Circuit gets wrapped up in patents and forgets they have a duty to the public and not just the patent bar. Occasionally, SCOTUS must step in to smack them down. I don't accuse any judges at the Federal Circuit of intentionally skirting their duty to the public, but we probably are all a little guilty of tunnel vision when we get wrapped up in our work. Certainly a specialized Copyright Court could lose sight of the interplay between copyright law and any number of subjects which border it including telecommunications, trademarks, contracts, criminal law, etc. I bring up this additional rebuttal not because I want to squeeze Brian out of his rebuttal, but since he is not in Patent Law this semester the actions of the Federal Circuit will likely not be fresh on his mind.

Those are the two main reasons why I'm not necessarily convinced by my own proposal, but it provides us with a framework for discussion of circuit splits that goes a little beyond the "circuit splits are bad" thesis, which aside from the argument that it helps employ lawyers and (more importantly) provides SCOTUS with a variety of viewpoints, I don't think there's a lot to disagree with. I don't know, maybe Brian will surprise me.

An interesting thing that was brought up in class is that many people don't see the different tests in the 2nd and 9th circuits as being the type of split for SCOTUS to address. In theory the 2nd and 9th circuits are using different tests to get to the same conclusions. It would only be if the conclusions were different that SCOTUS would need to get involved. Of course, this does little to help individuals that don't follow the courts (i.e., non-lawyers) know when they are infringing and when they are not. A unified copyright court would help solve that problem.

Copyright: Week 8 - Midterm Time!

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Both a lot and a little has happened in Lawcast-land recently. Brian was sick. I was out of town for a funeral. I've completed 3/4 of my midterms and if I had to guess, I'd guess Brian was done with midterms.

We've also missed 3 days of normal class periods in the two-week period. Last week  we had class canceled  on Tuesday due to Columbus Day. That left us with one day of infringement last week. With all the craziness, I think I'm going to do infringement all together during Week 9. That will allow Brian and I to get back on the same schedule. I don't know if he's still planning to do a rebuttal/critique for the Week 6 stuff, which was boundary issues.

You probably noticed that Brian did a post on trademark law. One of the reasons for that was that we had no copyright class this week (1 from last week + 2 from this week = 3). With the week off, I spent some time looking ahead in the syllabus only to find out that there is a section of Chapter 5 with the subheading "Copyright and the Music Industry". Unfortunately, our course skips over that section entirely. I've begun reading the section and it discusses things such as the differences between "musical works" and "sound recordings," among other things (the section is 32 pages long).

I'll continue to spend some time reading those pages. I'll bring the material to the fore as necessary to discuss other aspects of copyright law the rest of this semester and in future semesters (next semester Brian and I plan to take Music Law, for example).

That's all for this week. I just wanted to mention where we are headed and explain why things haven't fit the normal schedule the last couple of weeks!

Music and Trademark Law: Who Owns a Bands Name?

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Sorry it’s been awhile since my last post. Some overlapping midterms got in the way. Before addressing infringement in music production I thought I might discuss trademark issues in band names.

Doug explained that music mostly deals with copyright law. For the most part that's true. However, one dispute sometimes arises in the music world that falls within the domain of trademark law is who owns a band’s name.

A band’s name is protectable under trademark law because it is used in commerce to identify where a good or service comes from. The general rule for who owns a trademark is that the owner is the person who controls the nature and quality of the goods or services. In terms of who owns a band name this can get rather complicated because of two unclear issues: what exactly does a band sell? And who controls the nature of the goods or services?

In 1986, the District of Massachussets decided the case of Bell v. Streetwise Records. The case dealt with the band New Edition. After being discovered and mentored by a producer in the music industry, New Edition was able to become a commercial success. After releasing a few albums, the band decided to switch labels. The dispute reached the district court because both the original record company and the band wanted to use the name New Edition.

In deciding the case, the court had to determine what exactly a band sells. The court discussed whether albums or concert performances were the primary good or service identified with the name New Edition. A determination of the album would have favored the record industry because music producers are more involved with record production compared to live performance. The court decided to combine the two and identified New Edition relating to the overall entertainment services the band provided.

In determining who controlled the nature of the entertainment services, the Court looked at the band’s history. Before being discovered, the band members could not read or write music. The music producer played five instruments at a time during the bands early performances. (I’m not entirely sure the judge completely believed this claim, but he did put it in his opinion.) The court ultimately found that it did not matter how much help the band needed to get off the ground because the band members are ultimately, what consumers think of when they hear the term New Edition. The court awarded the band the use of the name.

Copyright: Week 6 - Boundary Problems

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Reading:

October 2 – Boundary Problems I: Introduction & Useful Articles (Casebook pp. 191-213)

October 4 – Boundary Problems II: Computer Programs (Casebook pp. 215-241)

Make-up Class: October 4 - Boundary Problems III: Architectural Works & Characters (Casebook pp. 246-253; 255-262)

Long-story-short, I was at a Q&A session with a NH Supreme Court Justice during the make-up class and thus missed the part about architectural works and characters.

Before either classes on October 4, my gut told me to more formally discuss my proposal that perhaps software should be patented, but not copyrighted. Before you say "that is crazy," I know. I have a theory that basically anything that is going to work must be a little bit crazy because if it wasn't crazy someone would have already done it. Clearly this theory only goes but so far. Some things are, of course, ok to do more than once.

Anyway, the copyrightability of software actually came up in class, but for a variety of reasons a choose not to pursue the discussion there. Regardless, this is a blog about music. As I mentioned in my last post, patents and copyright brush up against each other in more places that copyright but Brian isn't taking a patent course, so that would be unfair to his critique/rebuttal. Fittingly enough, today in my patent course, we had a music-related "patent of the day."  We also were directed to this song (which is sorta) about patent law.

With patents disregarded, what boundary problems come up in music? According to our book, none directly. Our book divides things into "Useful Articles with Pictorial, Graphic, or Sculptural Aspects," "Computer Software," "Architectural Works," "Characters" and "Databases". You probably gathered most of those categories looking at the assigned readings. It's too bad that we are not covering databases in class, because with projects like libre.fm and Pandora, databases certainly touch on the modern musical landscape. I wanted to focus attention on characters though.

THESIS FOR REBUTTAL/CRITIQUE: The copyrightability of characters advantages incumbents at the expense of fans and remix culture.

Let me first say that I don't know that this is necessarily about corporations versus independent artists, though I do think there is a certain thread of that. J.K. Rowling hadn't published a book before the start of her Harry Potter series. I don't know how big her publisher (Bloomsbury) was when they accepted her book, but it had only been around since 1986, so I'm guessing it wasn't as big as Random House (and still isn't by an order of magnitude [admittdely I didn't do the £ to € conversion with the figures Wikipedia gave me]). What would have happened though, if the first Harry Potter book would have been a flop? Would the Harry Potter character have the same copyright protection?

Perhaps the real question is, can a literary character get copyright without a corresponding movie/TV character? The cases from our book include the characters James Bond, Razor Ramon, and various characters from The Wizard of Oz and Gone With The Wind.

A quote from Gaiman v McFarlane, 360 F.3d 644, 660-661 (7th Cir. 2004) is telling:

The reason is the difference between literary and graphic expression. The description of a character in prose leaves much to the imagination, even when the description is detailed-as in Dashiell Hammett's description of Sam Spade's physical appearance in the first paragraph of The Maltese Falcon. “Samuel Spade's jaw was long and bony, his chin a jutting v under the more flexible v of his mouth. His nostrils curved back to make another, smaller, v. His yellow-grey eyes were horizontal. The v motif was picked up again by thickish brows rising outward from twin creases above a hooked nose, and his pale brown hair grew down-from high flat temples-in a point on his forehead. He looked rather pleasantly like a blond satan.” Even after all this, one hardly knows what Sam Spade looked like. But everyone knows what Humphrey Bogart looked like.

In the Creative Commons realm, think about the BY-NC-SA "rock Opera" Space Crackers by Clawjob. In the story the protagonist (Greg) is "chasing" his love interest, Madeline. Could Warner Bros. turn Space Crackers into a movie without the consent of the guys from Clawjob (now of Hexmap)? It seems certainly not. Could they lift the characters for Space Crackers II or for a prequel? Again, I would think not. Sequels and Prequels are classic derivative works. However, could Star Trek have an episode where a space cadet named Madeline is sent off into space and her co-student Greg follows her. Could they name their bad guys "Dooks of Doom"? I guess like many things in the law...it depends. Certainly characters with many appearances would seem to have stronger protection through stronger character development. James Bond and Harry Potter are clearly examples of this. Characters from Gone With The Wind and The Wizard of Oz are more troubling though. I've never seen Wicked, so maybe I'd see more character development there.





Ultimately, music is firmly in copyright-land and boundary problems don't pose much of a threat of losing control of a work. Music videos or accompanying stage performance (of which I have never seen Clawjob) could lead to stronger character development in musical dramas and thus lead to stronger protection. If you want to take a character from another's work and use it in your work, it is best to consult a lawyer.

Other Tidbits

I have to say I have not listened to TWIL 181 after mentioning it last week. While on TWIL 182 both co-hosts Evan and Denise say they enjoyed 181, I found the conflict frustrating. I guess I feel like there is enough conflict in the world without listening to it on a podcast. What's weird is that I often disagree violently with people on the Federalist Society podcasts. I don't know if it is just because I am extra passionate about copyright issues or if I just see TWIL as a safe place. 

Talk Show Redux

I had thought we might talk about some of the TWIL 182 on the talk show Tom and I recorded last night with Craig Maloney of the OpenMetalcast (which will be released next week). As it turns out, we did end up talking about the public domain, fair use and state copyright, which was not something I figured we would talk about. I encourage people to listen to that show when it is released and in the meantime you can read this overview of state IP laws I wrote back in May. As the semester goes on we'll certainly talk more about fair use, so stay tuned if the show with Craig leaves you wanting more!

Copyright And The Constitution

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Unlike Doug, I see Golan v. Holder as primarily a copyright decision. Because §104A, the chapter that allows foreign holders of copyright to restore their works to copyright , was created to comply with international treaties it cannot be viewed in an American vacuum. The primary reason this should not be viewed primarily as a treaty case is because §104A is a law passed by Congress not a treaty made by the president and ratified by the Senate.

The U.S. Constitution grants the president and Senate the power to create treaties. However, there is no provision that allows Congress to enforce treaties with powers other than those granted to it by Article1 of the Constitution.  The constitutional limitation on Congress’ power is fundamental to the American system of government. The Constitution while limiting is not meant to bar progress or international agreements. Most treaties can be enforced by Congress through its commerce power, its power over the military and piracy, or as is the case here its power to regulate intellectual property.

Ultimately the decision in Golan v. Holder, boils down to what “securing for limited Times” in Article 1 Section 8 clause 8 of the Constitution means. Once a limited time is secured, can it be extended? When that time has expired, can it be restored? The majority of the Supreme Court tells us the answer to both questions is yes.

The majority relies on the meaning of the word limited and the precedent of Congress extending terms of copyrights and removing works from the public domain with the passage of the first copyright act in 1790 and after the world wars.

Ultimately I believe that the words “securing for limited times” implies that the term of copyright is fixed once it is granted. However, I do not believe that the Constitution’s words are meant to be rigidly interpreted. With strong rational reasons Congress should be allowed to extend the terms of copyright. The initial creation of copyright and the aftermath of world war are clearly strong rational arguments for granting copyright to works formerly in the public domain. Bringing the United States into full compliance with international intellectual property treaties is definitely a rational reason for restoring works to copyright. I’m just not sure I’m entirely convinced by it.