Copyright: Issues of First Impression in the Courts

I spent the morning at the ABA’s Section on IP Law’s annual conference, getting updates on copyright law. Rather than provide a detailed recap, I wanted to follow up on a thought sparked by Rob Kasunic’s presentation on Bill Graham Archives v. Dorling Kindersley, the Grateful Dead case. In Bill Graham, the Second Circuit held that not every use is entitled to a fee even if a market exists, which seems right but also inconsistent with the various CCC/course packet cases. Why wasn’t this use one that was entitled to a fee?

I wonder whether there’s a lurking copyright misuse issue in Bill Graham that led the court to reject the plaintiff’s claim of market harm even though (1) there is in general a market for licensing images in the high-end picture books Dorling Kindersley produces, and (2) the plaintiff actually participates in the licensing market. In this particular case, plaintiff didn’t ask for the (customary) fee. Rather, it asked for a reciprocal grant of rights so that it would be able to produce and sell CDs and DVDs of Grateful Dead concerts in its archive. Plaintiff is presently involved in litigation – against, among others, the Grateful Dead – about its sales and streaming of archival concert footage. Essentially, plaintiff was trying to leverage its copyright rights in the posters to gain control over other, unrelated works – asking for something the copyright laws don’t entitle it to get. Though the court doesn’t discuss plaintiff’s licensing demands in its legal analysis, perhaps they affected the court’s perception of the legitimacy of its market effect argument.

J. Michael Keyes, of K&L Gates, also gave a neat talk, making the point that §1202’s provisions on “copyright management information” are arguably the most overlooked portions of the DMCA; we are just beginning to see cases about what constitutes CMI and what constitutes its removal.

As for what I said, I speculated about the treatment of visual and sculptural works as “facts” rather than expression when they are created through industrial processes such as molding, following the facts of Conwest Resources v. Playtime Novelties (earlier discussion here). In an era of computer-assisted design and 3D printers, we may expect more such cases where even works that seem to fit into traditional copyright categories may not be products of “authorship.”

I also talked about Dastar’s creeping imperialism. Copyright is, of course, generally the beneficiary of that imperialism, in the sense that courts don’t limit copyright in order to protect trademark’s coherence (though see IQ Group v. Weisner Publishing for an interesting variant where the court’s refusal to create a “mutant copyright law” led it to refuse to treat a trademarked logo as CMI for purposes of §1202). The issue for copyright practice is whether pendent state-law claims for varieties of unfair competition will be pervasively preempted, as the logical consequence of analysis like that in Antidote v. Bloomsbury (discussed here).