WIPIP at BU session 7

David A. Simon, Culture, Creativity and Copyright

Poppies and Nazis: Both take advantage of human brain to reproduce themselves. Humans began to cultivate poppy plants; made poppy plants more successful at spreading their genome, even though poppies are probably pretty bad for people—wars, death. Same for Nazi ideology: became successful at using people’s brains to produce more of itself.

Richard Dawkins, The Selfish Gene: what genes “want” to do is replicate. A replicator has 3 defining characteristics: (1) heredity/retention—thing replicated can be passed from host to host; (2) variation; and (3) selection—environment puts pressure on replicators so some will be more and some less successful. Replicators are substrate-neutral; genes operate on amino acid substrate, but memes operate on the neuronal substrate.

Fairey’s Hope poster as a meme/memeplex (as genes work together to form an organism, memes work together to form bigger cultural products). Yes, it can be transmitted from host to host. Variation: plenty of plays on it exist. Finally, selection: the original (that is, Fairey’s) poster was the one selected for. (Might be more interesting to go back to Garcia’s photo in this account.)

This fills a gap in creativity research. Dispositionism and situationism: classic debate. Memes might influence our subconscious creativity. Oliver Wendell Holmes Jr. thought that imitation was a necessity of human nature: most of the things we do, we do for no better reason than that our fathers did them.

Application to copyright: Deemphasize role of creative individual/conscious choice in the creative process; conscious choices are being made, but not to the full extent one might think. Options: we could discount the author as not playing much of a role, and emphasize rights that would honor collaboration and group theory. Other option: don’t trace; don’t change laws to reflect memes. Or: identify the conscious parts of the creative process and try to incentivize them.

Moral rights: the author imbues work with personality. Memetic idea: author’s creation is one in a line of many.

Comment: think about memes that replicate themselves without conferring social utility—can we define them well enough to deny them protection? Good salesmen are not in themselves valuable.

Boyden: any way to use memes to deal with things that become standard in the field? Could draw attention to the fact that the audience is responsible for the success of the meme.

Samson Vermont, Undue Multiplication of Doctrine in Copyright

Things that strike a novice as quite puzzling: Baker v. Selden gets no copyright protection; image of Skyy vodka bottle gets thin copyright protection; random photo snapped candidly gets broad copyright protection. But the first two were the product of much more judgment and effort! Also puzzling: the enormous overlap between limiting doctrines—hard to figure out which ones apply. Is it idea/expression or merger or useful articles? Blank forms, scenes a faire, single words and short phrases/familiar symbols or designs/individual design elements in architecture—all sorts of ways of talking about limits. Most limit cases can be redescribed as a different limit. Suggests there may be a deeper underlying principle they reduce to.

Compare to patent: It’s often the case that independent creators converge on patented devices—majority of suits are against people who invented on their own. If not the Wright Brothers, it wouldn’t have been that long before we got airplanes. But had we not had Lewis Carroll, we would never have gotten Alice in Wonderland. External constraints drive different inventors to converge on the same things. This isn’t true of copyrightable works, which are marked by divergence.

Innumerable works can achieve the same effect that comedy is supposed to achieve; no one will ever write the same comedic novel that you will. This principle of avoidability—that independent creators will avoid making the same work—is underneath these rules. This accounts for the line between utility patents and copyright, as well as for the line between what’s copyrightable and what’s not.

Compare lists of 100 best movies and 100 most financially successful movies. The former: different people will have different lists, and copyright will protect them. Copyright will not protect the latter, no matter how hard I work to independently gather the data. Baker v. Selden: only a finite number of ways to come up with a bookkeeping system.

Photo is protected because it captures an event in time that can never again be captured by anyone else. But product photos get thin copyright, and in Meshwerks fidelity to the original car is not copyrightable because if somebody else were to digitize the cars they’d get the same thing, and if someone were to take a photo they’d get something very similar.

Morrisey v. Procter & Gamble: sweepstakes rules, very straightforward. (Anachronistic horror: Entering the contest required you to send in your Social Security number!) Unprotectable. It’s plausible that someone could independently come up with rules very similar to this.

Degree of protection: Mickey Mouse gets broad protection because he’s so distinct—unlikely to be created independently. Medium protection for cases where there’s a common theme. Thin protection: Rosenthal v. Grossbardt (defendant used a mold to produce bee pins like Rosenthal’s) and Rosenthal v. Kalpakian (defendant made its own mold). No liability in the second case. The pin looks like a real bee—an external constraint.

Can also explain useful article cases. Would someone making a buckle make this buckle if they’d never seen it before, or one close to it? No. Pivot Point mannequin head Mara had a “hungry” look: if someone else made a mannequin head for beauty schools and didn’t know about Mara, would they have made a dead ringer for Mara? Probably not. At least thin protection. No protection for Carol Barnhart nameless generic torsos, basically anatomically correct. Anatomical correctness is an external constraint. Ribbon rack: the shape is very basic and confers lots of benefits that no other confers. (I am not sure that there was much evidence about the functionality issue before the court. Just because the rack doesn’t require welding doesn’t mean that it’s overall the cheapest/best way to make a bicycle rack.)

Idea/expression boils down to the same thing. Unprotected: boy meets girl at dance. Protected expression: prairie dog meets seahorse on Pluto. Similarity in pattern would mean borrowing something protectable. Maybe the taking wouldn’t be substantial enough/fair use, but still qualifies as protectable. (That doesn’t make sense to me. If only copying that summary, without copying anything else, is not infringing, then definitionally that summary is not protectable expression.) Unprotected factual work: list of face values of US currency in circulation today. Protectable expression: list of estimated values of Confederate currency. The difference is because people won’t converge on the same values.

Separability should mean avoidability: do you have to use the plaintiff’s design to achieve the intended effect?

Uncreative photo of event captured by bystander or planted camera is protected, because while not creative it’s avoidable. Uncreative photo of stable object accessible to others is not avoidable and thus not protected. Creative cartoon character is avoidable and protected. Creative, dominant software menu is not avoidable given the market structure, and thus is not protected.

What does the work here: independent creators will avoid this work. But he wants to leave room for cases in which honest creators have to copy in order to pursue some socially beneficial enterprise. “Indispensable” as a practical matter; creator has been rewarded out of proportion to social benefit—as in the Lotus v. Borland case. Borland acted in good faith, offering the menu only as an emulator.

Q: Heard two different definitions of avoidability here. (1) independent creation; (2) whether the work is dictated by external factors. These are two different things. My fingerprints are dictated by external factors, but chance of independent creation is nil. Under your theory we should protect them broadly, no?

There was consensus from that the fingerprint example foundered on authorship, but the point is also applicable to, say, a key cut in a particular pattern, which is unlikely to be replicated without copying. The teeth of a key are integral to its functionality, given the lock shape.

A: depends on whether that specific pattern conveys benefits that others wouldn’t. (This is why I think his analysis of Brandir is wrong; this is a TM functionality analysis, and a pretty cabined one at that.) Can competitors make locks that function just as well without that pattern? (But this depends on deciding that they’re not entitled to make keys for the locks that the initial keymaker makes.)

My (extensive) thoughts: This theory is very static, but copyright is also interested in dynamic incentives and effects. What the theory calls indispensable I might call path dependence (as per Wendy Gordon—works may change the environment that the next creator encounters); this theory seems to start with the proposition that the proper scope of copyright is any benefit causally related to it, subject to then arguing for each strikeout/limitation. I’d call this a mistake.

Look at the separability stuff: we have to agree how broadly to define the “effect” at issue before we can decide what the external constraints are. And this also occurs with comedies: you may say that there are lots of comedies, but I know that I’ve only laughed at Better Off Ted and I flee the room when other comedies are on.

But maybe we do need more discussion about proximate cause v. cause in fact—in many of these cases of lack of protection the plaintiff’s work is the cause in fact of the defendant’s—Meshwerks, for example. Why isn’t it also a proximate cause? (He says that proximate cause does a better job of explaining a case like Seinfeld than substantial similarity, since the show isn’t anything like a trivia book.)

His argument that “boy meets girl” is an unprotected idea; “prairie dog meets seahorse” is protected expression. This seems wrong to me (on the order of the error examined by Justin Hughes in his criticism of “microworks”): consider the Jurassic Park case, where “island of resurrected dinosaurs” is an idea, or in Hoehling “a pre-departure scene set in a German beer hall.” Ask you and me both to write the prairie dog story; I guarantee we’ll get very different results. Wendy Gordon made this point in comments: unexpected doesn’t mean protectable. (Believe in it? Hell, I’ve seen it! SF/fantasy, both pro and fannish, has a long tradition of giving people prompts of this nature and getting back stories of wild variety.)

His examples: List of 100 top grossing movies v. unique in time photo. But both seem inevitable once a decision has been made about what facts you are reporting. His analysis is using a counterfactual (if you’d done your own work you’d have produced the same work) in one case and not the other, even if copier lacks capacity to do the work in both cases. If you’d been there you could have taken the same picture; but you weren’t. If I interview someone about the Hindenberg who then dies, then no one can recreate my interview, but I shouldn’t get rights in the facts reported therein. (My suggestion: the philosophical literature on counterfactuals provides from tools to sort good counterfactuals from bad ones.) Can see this uncertainty about the role of counterfactuals also in discussion of the contest rules case—“plausible” that someone “could have” come up with rules “substantially” like these ones. But in fact the defendant gets to copy exactly these rules as the result of a finding of unprotectability. Likewise with useful articles: we have no reason to think that someone else would have come up with the ribbon rack within a couple of years, but the idea is that someone could have.

Honest creators: honesty is doing a lot of work here, probably too much. At the very least, have to deal with the acceptance of “unconscious copying” as infringing by the courts, which seems to make honesty a very odd concept.

Gordon: very unlikely combination creates evidence of causation, even without copyright infringement. Trying to rule out coincidence can explain a lot, serving an evidentiary role.

Simon: multiple definitions at work—whether people will converge on the same idea.

A: Avoidable means that it’s not plausible that people would independently create the same thing.

Eva Subotnik: Provide more evidence of what goes into typical product photo. Decide whether you want to look at existing cases v. coming up with a theory of what should be. Notice that there are very few cases where a photo is found to be uncopyrightable. Maybe this is about different media more than it is about anything else.

A: sound recordings—just a bit of a sound recording triggers infringement, because no one ever accidentally puts your sound recording on their song (unless they’re filming a documentary—which he says would be taken care of by an indispensability/honest filmmaker principle).