Posted by & filed under Copyright, Fair Use, Uncategorised.

One of the defining features of modern U.S. Copyright law is that it is very easy for works to receive copyright protection. Nearly any work that is recorded in some permanent form qualifies for copyright. However, even though it may be easy for a work to qualify, not everything does. In fact, some things aren’t creative enough to receive a copyright. Now, a recent story about copyright over recordings of white noise begs the question: when is something creative enough for copyright? 

As reported by the BBC, an Australian YouTube user, Sebastian Tomczak, posted a 10 hour long video of continuous white noise in 2015. Fast forward to January 4, 2018, when Tomczak received 5 adverse claims on his video from supposed copyright owners. Is this right? Can white noise really be copyrighted? Is it creative enough?

The U.S. Supreme Court looked at copyright’s creativity requirement in Feist Publication v. Rural Telephone Service, 499 U.S. 340 (1991). In this case, the Court wrote that works must have “at least some minimal degree of creativity” to qualify for copyright protection. Admittedly, this requirement is very small — the court says only “a modicum of creativity” is necessary. Still, even though it may be minimal, it certainly exists. Indeed, in Feist, the Court held that a mere alphabetical arrangement of names did not contain enough creativity for copyright protection. So, even though the amount required may be small, creativity is something we need to pay attention to. 

Sebastian Tomczak’s story clearly raises the creativity issue. Is a recording of white noise sufficiently creative to justify giving its creator a copyright monopoly over it? My gut reaction is “no way!” Isn’t it just fuzz? How is that creative at all? You can’t get a copyright just because you record the sound a radio makes when it can’t pick up a channel; That’s crazy talk!

But, let’s test my reaction. Perhaps I’m undervaluing the white noise recording because I don’t “get” it. For example, there is a Japanese artists who calls himself Merzbow who creates songs from feedback, distortion, and another noises that aren’t generally thought of as “music.” I may not enjoy his works, but that doesn’t mean they shouldn’t be protected by copyright.

Indeed, we need to remember that copyright doesn’t care about the quality of works. For instance, I own an album called Symphony #2 for Dot Matrix Printers which is comprised entirely of the clicking and clacking of old printers. I know only two people who enjoy it: me and my friend who introduced it to me. However, even though you may not like the music doesn’t mean it’s not a creative work. In fact, I’d argue it took an incredible degree of creativity to create such a unique piece of music.

Perhaps the white noise recording is similar. Perhaps it was specially crafted by the creator to achieve some sort of reaction in its listeners. Perhaps it’s creative in some way that I can’t see. And then perhaps it deserves copyright protection.

That said, we need to remember that copyright law also doesn’t care how much effort went into creating something. In Feist, the Court rejected the “sweat of the brow” doctrine that holds that “copyright was a reward for the hard work” of creating something. Instead, copyright rewards original creative works, no matter how hard it is to create them. 

I think this is particularly relevant when looking at whether a white noise recording should have copyright protection. I think this question requires us to ask how they were made. Did the creator craft the white noise in some way? Did he/she do so to elicit a response in the listener? If so, perhaps this is a creative work. Or is the noise computer generated? Did the creator simply record mechanical feedback? If so, this doesn’t seem creative enough for copyright. Or, did it take a lot of work to create this recording, but it’s not creative at all. If so, then it doesn’t seem to be enough for copyright.  

If I had to guess, I’d still say that this white noise copyright claim is no good. I’d guess this recording was not specially crafted to be creative in some way. Indeed, I think it would be hard to prove that it is, in fact, creative, and not just the product of hard work. However, we need to remember that it may be possible for noise art to be creative. And in that, a white noise recording may deserve copyright protection.

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Last week, I wrote about a case involving How the Grinch Stole Christmas and a parody play that follows Cindy Loo Who later in life. Now a new post at the Trademark and Copyright Law blog reminded me of an important issue about fair use that I should address. That is, what is the difference between parody and satire?

People often think about parody and satire as almost the same thing, but legally speaking they are quite different. The Supreme Court looked at this difference in the copyright  context in the case Campbell v. Acuff Rose Music. Campbell deals with a comedic version of the Roy Orbison song, Oh Pretty Woman. In 1989, the infamous and influential rap group, 2 Live Crew, recorded a parody of Orbison’s song for their album As Clean as the Wanna Be, simply called Pretty Woman. In it, they copied parts of both the music and lyrics of the original.  So, Acuff Rose sued, claiming copyright infringement. 

In its decision, the Court drew a line between parody and satire. It wrote that “parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Moreover, parody must comment on the original in some way. Satire, on the other hand, does not. Instead, it’s commentary may be more general, or it may targeted at something other than the original work. 

Ultimately the Court found that Pretty Woman is, in fact, a fair use. Importantly, the Court held that parody is not presumptively fair use. Instead, you must conduct a fair use balancing testing every single time we look at whether a use is fair or not. 

Still, it’s probably fair to say that we’re more likely to find fair use with parodies than with satires. We can see this from how the Court defines the two terms. Parodies needs the originals; they can’t exist with the original works because the parody specifically uses and comments on them. In this, it furthers the purpose of copyright, to support the progress of the creative arts. Copyright wants to allow people to comment on works, and to build on them in ways that do not usurp the works. Parodies can exist in the market at the same time as the works they use. One does not merely use the other to exploit its popularity. 

Satires that use other works as their bases, on the other hand, do not need the originals to do their satire. The could conduct their commentary without the original, because that commentary don’t target the originals. In this, satires may look like they are trying to trade on the popularity of the original works, instead of going through the effort of creating wholly original works themselves. Copyright protects against people profiting off of the works of others. 

In the end, all fair use analyses are gray, and even the strongest case for fair use has things that weigh against it. Whatever the case, Who’s Holiday is still fair use. 

 

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One of my favorite things about the holiday season is my annual viewing of How the Grinch Stole Christmas. Thurl Ravenscroft’s  voice on You’re a Mean One, Mr. Grinchcombined with Dr. Seuss’s lyrics, makes it an all time classic, and not just great for Christmas music. So, when I read about a recent copyright lawsuit over a play set as a parody follow-up to the Dr. Seuss classic, I immediately wanted to write a blog post about it.

Playwright Matthew Lombardo grew up as much of a fan of How the Grinch Stole Christmas as I am. But instead of just watching, he decided to write a play about Cindy Lou Who, and what she would have been like in later life. Unfortunately, however, the Seuss estate was none too happy with the play, and tried to stop it by claiming copyright infringement. 

But when I sat down to blog about the case and Lombardo’s eventual victory by fair use, I noticed a new post at the excellent website, Plagiarism Today, that does the job better than I ever could. Jonathan Bailey summarizes the whole case in a Seussian-style poem! Check it out; it’s worth every second of your time.

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One common argument you’ll hear for open scholarship  is that by loosening copyright restrictions on scholarly works, we can in turn increase their impact. The argument here is pretty straightforward: if you make scholarly works more easily available, then people are more likely to use them in their own work. However, there hasn’t been much scholarship on the social and economic impact of making copyright regulations more open. So Sean Flynn and Michael Palmedo from American University set out to study this question. 

In their paper, The User Rights Database: Measuring the Impact of Copyright Balance, Flynn and Palmedo look at two common hypotheses you’ll hear in discussions about copyright and openness: 1. “more openness in copyright user rights may drive innovation and growth in the technology sector”; and 2. “user rights that are more open may create larger stockpiles of inputs for creators, leading to more local production of works of creativity.”  

Because of the lack of empirical studies about openness in world copyright laws and how a change toward more or less openness affects growth in the tech sector and productivity in the creative sectors, Flynn and Palmedo created a database of how different countries approach fair use/fair dealing, and how those approaches have changed over time. 

Ultimately they find three things: 1. That more open user rights correlate with higher revenues in tech companies; 2. That more open user rights do not harm publishing and entertainment industries; 3. Researchers in countries with more open user rights produce more and better work. Additionally they find that there is a trend toward more openness, but less developed counties are about 30 years behind more developed countries.

This is an interesting study, for sure, but I want to think more about it before I feel completely comfortable with its findings. Right now, two things give me pause. First, I wonder if the way in which they define “more openness” happens to be associated with countries that already have a greater amount of production from the tech and entertainment/publishing industries. They define open fair use/fair dealing laws by looking at three factors: 1. “Openness: the user right can be applied to an open, as opposed to a defined (aka closed), list of purposes, uses, works or users”; 2. “Flexibility: the user right is applied through a flexible proportionality test that balances the interests of the rights holder with those of the user and general public”; 3. “Generality: the exception promotes uniform application by applying a single flexible test to a group of multiple uses or purposes.” I think, considering these three factors, that the most open country is probably the United States. And of course, some of the world’s most profitable tech and entertainment companies are based in the United States. But is this because of our “open” fair use law, or is it despite our “open” fair use law? Which came first, the chicken or the egg? I’m not sure the paper adequately deals with this question.  

Second, the paper only looks at the laws themselves, not how courts apply them. In the United States, for instance, the law is written very broadly, but I’m not sure it’s treated as broadly as its written. For instance, we at UNT probably don’t use fair use as much as we could, because we don’t want to risk copyright problems, even if the likelihood of being legally safe is greater than 50%. Of course, the less clear the fair use question is, the more likely it is for us not to risk copyright infringement.

Or, what if the US were a fair dealing country? Unlike fair use, which balances a number of factors to determine whether some use violates copyright or not, fair dealing laws provide a list of specific situations that do not violate copyright. Perhaps if the US had this kind of law, our tech and entertainment companies would be even more profitable, because people would know what they could/could not do under the law. We don’t know the answer to this, and I’m not sure how one could study it, but I think the paper would be stronger if it looked at the application of the law, rather than the law as written. 

Either way, even with my concerns, this paper seems like great evidence in support of open scholarship. It’s only a draft, so I hope the researchers continue to work with and refine it. We’ll see where it goes. 

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Jack Sparrow, everyone’s favorite lovable scamp and star of the Pirates of the Caribbean movies is the subject of a new lawsuit, that claims he wasn’t Disney’s creation, but that of three other screenwriters.

As the story goes, Arthur Alfred, Ezequiel Martinez, Jr., and Tova Laiter, submitted a screenplay entitled Pirates of the Caribbean to Disney in August 2000. Disney passed on their script, but did not immediately return it to its authors, as is customary in the film industry, and instead supposedly copied some parts of it. Within the script was a character named “Davy Jones” who is allegedly a lot like Jack Sparrow. So, the plaintiffs argue that Disney read their script, copied the character and some other parts, and made its Pirates movies without getting permission from the plaintiffs. And Disney owes them for it.

In their complaint, Alfred, Martinez, and Laiter argue that the features that show that Jack Sparrow is a copy of Davy Jones is that both are humorous and “good guy[s]”. They write that before Davy Jones, pirates were “traditionally (and historically) evil, loathsome, feared and enemies of mankind … [P]irates in film, while handsome or good-looking, have not been depicted as having a sense of humor, until ‘Captain Jack Sparrow’ in the Pirates franchise.” Accordingly, they claim that they invented the idea of a funny pirate with Davy Jones, and Disney copied that idea in creating Jack Sparrow.

To be blunt, this argument is ridiculous. Apparently they’ve never seen Ice Pirates (1984)Hook (1991), or The Pirates of Penzance (film 1983; Gilbert and Sullivan operetta 1879!), all of which are about funny pirates. And those are just the first that come to mind! I’m sure that with about 5 minutes of research, I could find more funny pirates in film history that existed before Pirates of the Caribbean.

Moreover, even assuming that there had never been a funny pirate before Davy Jones (which is definitely not true), I find it hard to believe that, just because the plaintiffs came up with the idea for a funny pirate, Disney did anything wrong under copyright law by creating Jack Sparrow. First, it’s harder for characters to have copyright protection than you may realize. As the 9th Circuit writes in Rice v. Fox Broadcasting, 30 F.3d 1170, 1175: “While characters are ordinarily not afforded copyright protection … characters that are ‘especially distinctive’ or the ‘story being told’ receive protection apart from the copyrighted work” (internal citation omitted). I doubt a “funny pirate” is “especially distinctive” enough to receive copyright protection.

Second, there is a problem here because of copyright’s idea/expression dichotomy. See, e.g.Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985). Copyright does not protect ideas; it protects the expression of those ideas. As an example, J.K. Rowling doesn’t own the idea of a boy wizard who goes to wizard school and fights evil wizards. That isn’t Harry Potter; it’s just a character sketch. However, once Rowling added the other elements of the character like his lightning bolt scar, that his parents died protecting him from Voldemort when he was a baby, so he was raised by his unmagical relatives, and that he goes to a secret school called Hogwarts where he learns magic from Dumbledore, Snape, and McGonagall, we start to see a copyright-protected character.

So, even if Disney took the idea of a funny pirate from the plaintiffs in this case, that doesn’t mean the film studio violated Alfred, Martinez, and Laiter’s copyright. Simply stated: funny pirate + good man does not equal Jack Sparrow. Jack Sparrow is the sum total of all the many character pieces that are in the Pirates movies.

Ultimately, I doubt this case will go very far. But I’m still going to pay attention to it, because it will be interesting to see what happens. Maybe Disney will settle, and we won’t hear about it again. Or maybe Disney will fight back, and we can see if the court agrees with me, or there is more to this story than meets the eye.

   

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With today’s release of Thor: Ragnarok (a movie I’m quite excited about), I want to point out a case that implicates the copyright of any number of CG characters from movies like it. As reported in this story from The Hollywood Reporterthe owner of software that captures facial recognition used to create and animate characters like everyone’s favorite green smashing machine, the Hulk from The Avengers, is now suing Disney, Fox, and Paramount, over their use of the software and the IP that comes from it.

This case deals with a interesting/strange copyright question. Rearden, the plaintiff, who owns the copyright to this software, argues that he also owns the copyrights to the output of that software: that is, the CG characters. Huh?

While I find it hard to believe that this argument will win the day, this is a case I want to keep my eyes on, if just because these CG characters are everywhere in modern movies. Since the software requires CG artists to create the characters, it seems to me the creator of the software that the artist uses isn’t the owner of the copyright. Isn’t the artist himself a more logical option? Or the producer of the movie, as the employer of that artist. Or perhaps no one owns the character, if the software does all the work on its own. After all, machines, like monkeys, can’t be authors. So I’m doubtful Rearden will win, but who knows? Stranger things have happened in the law.

Either way, I’ll be interested to see what happens.

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In honor of Halloween, the excellent blog, Plagiarism Today (which I’ve referred to before), has a post recapping 8 stories it has published on copyright and horror movies. Each one is great — there’s a whole post about the Rocky Horror Picture Show and copyright law! sadly, though, it doesn’t address copyright protection for the Time Warp — but the in particular one that caught my eye was How A Copyright Mistake Created the Modern Zombie. Before reading the post, I had no idea about this story, but it’s fascinating for both copyright law and for the history of film. I won’t spoil the surprise for you; go read it for yourself. It’s worth your time.

While we’re on the topic of zombies and copyright, I should mention that “zombie copyrights” are actually thing (sort of). Back in 1997, Adam Segal wrote an article entitled Zombie Copyrights: Copyright Restoration Under the New [sec] 104A of the Copyright Act. This article deals with one of the more curious provisions of copyright law: Copyright restoration for foreign works. Normally, when we think of works in the public domain, we think they are free to use forever. However, under the right circumstances, some works can come out of the public domain and come back under copyright protection. Just like zombies, they come back from the dead.

The reason the law provides for copyright restoration stems from a conflict between the way old US law treated copyrights compared to how other countries do. In 1989, the United States officially became part of the Berne Convention. This treaty — the oldest and most important multilateral treaty on copyright law — requires member countries to offer protection to all works that are still protected by copyright in their counties of origin. However, when the United States became a member of Berne, many works from around the world were in the public domain in the United States for failure to follow the “formalities” required by US law.

In copyright-speak, a formality is any sort of procedural hoop creators must jump through before their works receive protection. In the US before 1978, these formalities meant that people had to put copyright notice on their published works, or the works would enter the public domain. Similarly, copyright holders had to renew their copyrights after 28 years, or those works would fall into the public domain.

It’s easy to imagine how foreign authors who produced their works in countries without copyright formalities could have neglected to do one of these things and accidentally lost their protection in the United States. So, many foreign works entered the public domain unintentionally, and Berne required the US to do something about it.

So, in 1994, Congress passed the Uruguay Round Agreements Act. Codified as 17 U.S.C. sec.104A, this statute restored protection for foreign works that were in the public domain in the United States for failure to comply with formalities, but are still protected in their countries of origin.

This statute eventually found its way to the U.S. Supreme Court in Golan v. Holder, which affirmed Congress’s authority bring some copyrights back from the “dead” (the public domain). As such, this law isn’t going anywhere anytime soon and zombie copyrights may be coming to get you, Barbara….

   

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Though the name Richard Posner may not mean much to you, he is well known to lawyers and law students around the United States. Until suddenly retiring in September, Posner was for many years one of the most outspoken and influential judges in the country. In his booksscholarly articles, posts on Slate.com, and, of course, his judicial decisions, Posner used a view of the law influenced by economics to decide many important cases and influence the development of U.S. law. For many years, Posner has been both an influential jurist and an outspoken critic of the judiciary, including the U.S. Supreme Court. Indeed, shortly after his retirement, he published a book entitled Reforming the Federal Judiciary: My Former Court Needs to Overhaul its Staff Attorney Program and Begin Televising Its Oral Arguments, in which he issues serious criticism of his former court.

From his position on the 7th Circuit, Posner wrote countless important decisions, including several on copyright law. I still remember the first time I really noticed Posner’s writing. It was in my law school copyright class and his decision in Gaiman v. McFarlane. In this case, Neil Gaiman, the popular author of books like SandmanAmerican Gods, and Good Omens (with Terry Pratchett) sued Todd McFarlane, one of the most famous comic artists/authors of all time, over characters from McFarlane’s original comic book, Spawn. McFarlane hired Gaiman to write several early issues of the comic, and together they developed one story line that features a Medieval Spawn, an angel, Angela, and a mysterious homeless man, Cogliostro. Gaiman argued that they both owned the copyrights as joint authors because he and McFarlane created the characters together. McFarlane, for his part, said that Gaiman only provided bare character sketches, and the characters really came alive because of McFarlane’s artistry.

In his decision, Posner ultimately held for Gaiman, writing that both Gaiman and McFarlane created the characters together, and both should own the copyrights.

The Trademark & Copyright Law blog, an excellent intellectual property blog, discusses several decisions on copyright by Posner, including this one. It’s worth your time to check it out. And now that Posner is off the court, I doubt we’ve heard the last from him. Indeed, I’m certainly looking forward to whatever Posner does next.

 

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As I’ve mentioned a few times on this blog, copyright over music is a little funny. For any single piece of music you hear, there are at least a couple of potential copyright holders to consider, as well as many different rights that are available to be licensed. In this video, Jonathan Bailey — from the excellent blog PlagiarismToday — breaks down music copyright licensing as it applies to YouTube. It’s about 10 minutes long and definitely worth your time.      

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On September 15, 2017, the US Copyright Office released a “discussion document” detailing its suggestions for how Congress should update 17 USC 108, the section that grants a number of exceptions to copyright for libraries. And interestingly, there’s a lot of great news, here. While this document is just the first step toward copyright reform for memory institutions, it’s a good one.

This document is the result of over a decade of conversations, studies, and consideration about how best to revise section 108 in a way that balances the interests of the many stakeholders involved while addressing the way in which memory institutions work today in light of modern technology.

The result of these many conversations suggests updates to nearly every part of section 108. In the words of the Copyright Office: “The current section 108 language is insufficient to address digital works and digital transmissions, does not reflect the way that libraries and archives actually operate, and excludes museum, among other constraints.

Though a full analysis of the revisions proposed in this discussion document is outside of the scope of this blog, I want to highlight three particularly interesting parts.

First, the document proposes a fundamental reorganization of section 108 to make it easier to understand and use. Laws, regulations, judicial decisions, and other legal documents are all too often esoteric and nearly impossible for anyone but attorneys to decipher. So, this proposal is a welcome surprise, and hopefully would make section 108 much more user-friendly.

Second, the Copyright Office suggests adding museums to the scope of 108. Currently, section 108 only mentions libraries and archives in its text. As such, other types of similar institutions are unable to take advantage of 108’s exceptions. So right now, museums that are associated with libraries and archives can use these exceptions, but smaller museums cannot. This amendment would change this, adding museums to the list of institutions covered by 108’s protections.

Third, the document suggests a number of amendments to copyright law to bring it up to speed with the realities of digital copying. For instance, currently libraries and archives can make up to three copies of unpublished works for preservation. Not only does the discussion document suggest changing “publication” to “dissemination to the public” because of how the internet has blurred the definition of “publication.” It also allows libraries to make copies as “reasonably necessary” instead of limiting the number to three, recognizing that this arbitrary limit doesn’t make sense with the nature of digital copying.

Altogether, this discussion document is a very interesting start toward reforming 108, and maybe even points toward a conversation about a broader update of copyright law. Though we have no idea if/when Congress will do anything — certainly the Copyright Office has offered legislative suggestions that Congress has ignored several times in the past — it’s still refreshing to see that the agency is consciously aware of the limitations of copyright law due to its age and that libraries, users, and rightsholders are all being hurt because of the outdated laws. So we’ll keep our eyes open to see what happens.

Meanwhile, if you would like to read all 72 pages of the discussion document, you can find it here. If nothing else, it’s worth your time to check out the short and easy to understand summary at the beginning.