Olufunmilayo Arewa, Creation Norms and Authorship: The Porgy and Bess Controversy
Porgy & Bess: Three estates involved in the rights. Production proposed to change song/change ending. Caused furor among audiences, others: Sondheim said it was appalling to propose to change the original. Result: limited planned changes.
Copyright and authority: we often think about copyright owners. But opposition came more from audiences—even Sondheim, no stranger to making radical changes—raising questions of authority as well as authorship. Copyright’s model is fixity, as with classical music. Classical music is now assumed to be unchangeable—but the norm of performing as written is relatively recent, and under challenge as musicians try for more improvisation.
Copyright came into being when writing was the only way to preserve music; now sound recordings can do so too. Our assumption that written music is the authority is exposed by the necessary incompleteness of the writing to the actual performance; some genres are systematically disadvantaged by the focus on writing over performance. Tension in music: African-American musical expression now dominant basis for worldwide popular music. Written doesn’t reflect performed; people increasingly perform before writing. Written expression now a reduction of oral performance and there are some things we can’t notate very well, such as rhythm, not just complex polyrhythms but medieval monks’ rhythms as well.
How do we value performance to recognize performers, not just financially but conceptually? Who has the authority to change things? If performers have the authority to change, that has implications for how expression actually happens.
Research goals: interviews with actual musicians; archival research about performance; quantitative research on, say, the same work performed by two different people.
Laura Heymann: fixation?
A: what is the meaning of a sound recording? Could be a musical composition in itself—a generic rendition of a musical composition—context matters.
Lisa Ramsey: audience expectations?
A: have to shape them: some people want to see the same rendition of Porgy & Bess as before, and others don’t. There was a commercial impetus: the Gershwins authorized changes to make it attractive to new audiences. Handle with disclosure.
IP at the Intersection of Creative and Useful Arts
Viva R. Moffat, Conceptual Separability and the Copyright/Patent Boundary
Ribbon rack: most famous hard case on conceptual separability, where there is no physical separability (as when you have a sculptured Mickey Mouse holding a working phone). Problems with the tests: They aren’t responsive to the reasons for/policy behind the useful article doctrine: to channel works out of copyright/to patent. They are subject to post hoc manipulation by parties (“I meant to design a beautiful object”). They allow or require artistic judgments by courts. They are unpredictable.
Proposal: borrow TM functionality. The perfect is the enemy of the good, despite the problems with Traffix. Functional aspects of a product design may not receive copyright protection. Proponent must demonstrate nonfunctionality: not essential to use or purpose/doesn’t affect cost or quality.
Upside: test exists and can be applied. SCt adopted it for exactly the same policy reasons we have the useful articles doctrine. Strong/clear line between TM and patent; similarly ©/patent. Consistent with the idea of “useful” instead of making judgments about whether something is art. Not perfectly predictable, but somewhat more predictable than the mess of tests out there. May shift burden more heavily to the proponent of copyright protection.
Risks: underprotection. Many proposed reforms say it’s unfair to lots of works of applied art that end up not getting protection. This rule would make that problem worse. Traffix said we were willing to bear the cost for TM; maybe so here. Have yet to grapple with aesthetic functionality. Importing it into copyright seems like a mess. But useful things shouldn’t necessarily be protected.
McKenna: A.f. is channeling between TM and ©. Patent and © each deal with things that are useful for different reasons, so a.f. seems inappropriate. What kinds of utility belong in each? Distinguish and that might help.
Also grapple with what “essential” means in the functionality test. Fed. Cir. is an outlier in that respect, but still an ambiguity.
Tradeoffs: in TM, if you kick functional things to patent, you lose very little because there are so many other ways to indicate source: label, package, etc. Can you do that in copyright? Is there some other way to capture the interest in copyright?
Q: You say burden shifting is advantage—not true of registered trade dress; would registered copyrights enjoy the same presumption? You don’t want a presumption!
Separability test of the 1976 Act wasn’t intended to separate copyright and patent, but rather to separate it from (ultimately unenacted) industrial design right. The idea was that there would be lesser but not nonexistent protection; the alternative wasn’t necessarily patent.
My Q: How does this proposal interact with design patent? Seems like it would create conflicts, whereas it’s easy to argue that aesthetic functionality makes sense for TM especially given the availability of design patent for new designs. (A.f.: idea/expression, merger in copyright arguably play the same role.) Also “cost or quality”: pressure on what counts as quality/aesthetic functionality.
Q: Dan Burk has a piece about how merger works in copyright, which might be like functionality. Channeling: maybe we want to make people choose a tranche, but always?
Zahr K. Said, Reverse-Engineering Textual Meaning
Copyright infringement cases involve analytical steps that judges rarely take with explicit acknowledgement/awareness. (1) How will the court read the works in question? (2) Who’s the appropriate reader?
Read means approach, then interpret. Nichols: 15 paragraphs, opens with sparse background on parties. Nine paragraphs, 60%, of textual analysis: a formalist tour de force, per Fred Yen. Might call it “New Critical.” Methodological approach is clearly being employed: how you read texts. Openly scoffs at plaintiff’s proposed structuralist analysis, though formalism and structuralism need not be opposed. Only what’s within the text counts. Also dicta on the reader’s role: must look at spectator’s reaction to character. Anticipates later critical reactions/Roth total concept and feel. But differs from the predominant text-based analysis.
Judge Hand doesn’t talk about reception. For example, says that Romeo & Juliet doesn’t give rights over star-crossed lovers trope, but doesn’t connect the works before him to their debt to Romeo & Juliet: no context, reception, etc. Only the works compared side by side. But their relation to each other may not make any sense without that context.
Both analytical steps implicate larger theoretical questions. Denaturalize the act of reading artistic works. Naivete leads to inconsistencies, but the problem is a larger methodological one: failure to anchor/define reading practice in any systematic way.
Who gets to say what the text means? The author? The disembodied text? The reader? The critic? Not trying to rehash the death of the author. Denaturalize any one reading strategy: over time, differences in strategies have remained robust. Not about faddishness or continental philosophy, rather the opposite: New Criticism is the default mode in copyright jurisprudence, but that’s the aberrant style of reading. New Criticism was thought of as faddish in the 1930s beginning; focus on text is historically bounded; historicism and other developments came after, and philology/linguistics etc. came before it. In the middle, 20-40 years that insisted that the text was central and everything else should be ignored, and that’s what made its way into the cases. History of theories: Text comes to the fore and context/history/author recedes, and then some move puts those back into the foreground. Hand inflates text and deflates context; perhaps this is to the good, but embedded into the approach are important methodological choices.
David Fagundes: interpretation/interpreters. Copyright might have a theory that says “don’t interpret overtly,” Bleistein. One possibility: Holmes was wrong; judges are as good at interpretation as at economic analysis. Another: Holmes was right, but you have to do something, so make it overt. Another: Holmes was right, better to have judges not try. The nature of the interpreter may affect your theory of interpretation.
A: Christine Haight Farley’s paper says a bunch about this. It requires a step to get to the proposition methodological choices necessarily implicate aesthetic judgments. Methodologies are not necessarily aesthetic choices. They can have consensus behind them.
Q: idea of anxiety: judge feels institutionally incapable. Is that a theme?
A: it would be nice if judges knew what they didn’t know: assumption that a work is transparent (meaning the same to everyone) is often arrogance rather than anxiety. Set of protocols, the way we do with contracts, about when we move from text to history.
Q: does this connect with what we want copyright to do/what it is for?
A: Example: formalism rejected context in Koons the first time around that would have made the work seem more transformative/original. Blanch v. Koons: appeal to context/genre helped this time around. Use of expert testimony and when we allow it is also relevant here.
Sarah Burstein, In Defense of Design Patents
Which general paradigm do we want to protect designs per se, TM excluded, should we have something like our modified patent system? Or should we have copyright or copyright-light?
Critique #1: design is art! The broad claim has been debated for centuries. Importing it wholesale into the legal system as if it were eternal truth is problematic. Weaker claim: Designs are hybrids: engineering/sculpture. #2: we just need protection against copying by bad people! Copyright is traditionally narrower than patent, and if we want tailored protection, then copyright is better. That may be true for prototypical subject matter: sculpture/paintings. But doesn’t translate well to useful articles. #3: patent requirements are too expensive, too long, too difficult/impossible to satisfy. But why is that a useful comparison for copyright, where the costs are basically zero so the comparison will always be unfavorable? Begs the question of what we want to protect and why? Fashion design is a red herring here, where they argue you need immediate protection. Even if true for fashion, not for tablet computers, smartphones, the kinds of things causing design patent fights now.
Most people who say copyright would be better really want a registration system: could avoid some evidence issues, have an inherent term limit—accepting a few years, and have tailoring. But how do you hold that line? EU had registered/unregistered design right. Now they’re thinking about doing away with limits because people are lobbying: you agreed that my designs are art, so you should give me more protection! Hard to hold the line.
Q: who gets design patents?
A: historically furniture, shoes. Apple’s sophisticated IP practice has increased interest in electronics; anecdotally guns are increasing.
Samson Vermont: if you believe, as I do, that design patent doesn’t cover anything not protected by copyright, then design patent is just another bite at the apple. The only reason to advise a client to get one is to take advantage of the possibility of error on the part of a court; the infringement standard is the same in substance but we might get lucky.
Q: the real problem here is the overlap. I’d favor your proposal if I believed it could keep industrial design out of the copyright/TM box instead of just giving it another box. Ex ante examination of design patents is important here: designers don’t want that; that needs justification.
A: UK is doing a big survey, calling for evidence. One proposal: more ex ante examination before a registration.
McKenna: Janis & DuMont’s historical piece may be of interest. In house lawyers love design patents as a way to get secondary meaning so they can get protection forever. If you want to defend this, you need a robust job figuring out how to deal with other fields of protection.
A: right, my project doesn’t solve this problem.
McKenna: election doctrine: registration should preclude trade dress claims.
A: politically very difficult. Proponents want both.
McKenna: we don’t have to give them what they want.