Olufunmilayo B. Arewa, University of California, Irvine School of Law, Writing Rights: Performance, Creativity, and Copyright’s Visual Bias
Classical voice in the 19th century was a lot like jazz as we think of it now—more mixing, improvisation by singers. Copyright’s assumptions about the locus of creativity look to the writings, but most people’s experience of music focuses on musical performance.
Songwriters are not very visible today. Composers are visible in classical music, but the songwriter is like the composer prior to the late 19th century, when people went to opera to see the performers, who were the locus of musicality. Diane Warren, most successful songwriter of our era, is unknown though she’s a Grammy winner, wrote Solitaire (Laura Branigan), I Don’t Want to Miss a Thing, How Can we be Lovers (Bolton), etc.
We often assume notation is objective and neutral because it’s written. Part of this is the reality of music technology when music became subject to copyright: it had to be written down when there were no persistent means of auditory reproduction. But we’ve had a systemic written bias that favors composers over performers.
Sound recording copyright: not until 1972; fixation disfavors improvisation. Performers often get neighboring rights, not full copyright. First performers can’t control future performances under the mechanical license for musical works.
Implications: rise of singer/songwriters, or people who do get songwriting credits at least. If Celine Dion sings your song, she gets songwriting credit. Think of music as we experience it: oral tradition comes in. Most music filed at Copyright Office doesn’t reflect what’s actually performed.
Billboard charts: number of songs written by performers have grown steadily. This does reflect the perfomer-artiste, but also the recognition that copyright benefits composers so performers insist on songwriting credit. Shapes people’s decisions about credit.
Visual bias: notation focused, assumes that notation is the authoritative source of music and that composition is the locus of creativity in music. This is not true across genres.
Newton v. Diamond: unique performance elements found only in sound recording. Court thinking in dichotomous ways about performance and composition; the visual bias reflects the assumption that protectable results come from standard rendition of written work. This is not true. Newton is the right outcome for the wrong reason.
Three sources of visual bias: historical, cognitive, and linguistic/semiotic. Historical: sacralization of classical texts. Prior to late 19th century, there was more improvisation and change. Changing classical music became anathema; performers lost the ability to change the music. That significantly deadened the classical tradition. Leads to declines in audience participation. Aria insertion: opera diva would come out on stage and sing an aria of her choice. Verdi hated this so much he started to insert provisions in his contracts banning it, and by the end of the 19th century composers had the power to prevent this.
Cognitive: musical notation is incomplete representation of what we hear; written music is not neutral, but disfavors certain elements of music; favors melody and harmony over rhythm, which is almost impossible to notate. Music is partly oral in almost every tradition.
Implications: think about visual bias and how it influences our judgments of infringement. Nonvisual forms of reproduction are now the norm. Music is created in performance and reduced to written composition later. Think internationally: greater recognition for performer’s rights.
Q: countervailing force—fair use is generally nonexistent for sound recordings. Is that compensation for the bias?
A: She doesn’t think it’s compensation, because fair use doesn’t work well in the nonvisual world. A lot of fair use music cases are about text/lyrics (Campbell) not music. De minimis use does address some of this, but not fair use music cases.
Betsy Rosenblatt: is this a visual bias or a fixation bias?
A: both. What courts say about music shows broad belief that written music is an authoritative representation. If we want copyright to protect living traditions, we have to understand how they actually work.
Q: do we want to give more to performers?
A: as between composers and performers the allocation is off, even if we’ve overpropertized.
Q: raises the question of whether performers would be the ones to benefit from a change.
A: that’s a broader question about copyright generally.
Ann Bartow, Pace Law School, Copyright Law and the Commoditization of Sex
This is a scary and dangerous piece. Copyright is not required for works that are not useful and that do not promote the progress of science/useful arts. First Amendment law has never precluded a decision to keep harmful works out of copyright’s subject matter—we say works that are substantially similar to existing copyrighted works/unauthorized derivative works are harmful and thus they don’t get copyright protection.
Courts used to say that porn wasn’t copyrightable. She doesn’t think that porn should be copyrightable. We’d still have porn, just as we’d still have other creative works without copyright. But lots of pornographers use copyright extensively, and they’re a whole lot better at extracting money than the music industry because of the power of shaming: someone who downloads 1000 Britney Spears songs has no taste, but someone who downloads a hundred porn films, especially if they suggest racial or other taboos, is really threatened in his social existence if that were publicized. Thus, there’s big pressure to settle.
Content-neutrality: copyright is not content neutral, ever: definition of derivative works isn’t content neutral, and neither is fair use.
Really clear: the harm she is talking about here is harm to performers, period. She is not talking about users. People get hurt/coerced making movies, and distribution continues the harm. Proposal: identify harmful porn and prevent it from taking advantage of copyright. New kind of registration: have the Copyright Office make an initial determination of works with live human performers and make a call. Pornographer can offer proof of voluntariness. If people were being harmed, then registration could be denied/cancelled. Opposition proceedings: if performer said there was a problem. This would also be a defense to infringement claims. (Not sure how well this would work for the people subject to shaming sanctions.)
This would incentivize keeping better records and not relying on subcontractors.
Many pornographers don’t care about copyright. But there’s still an expressive value in having the government look for harm. Also, copyright performs a structural role in commoditizing sex—the Marriott makes a bunch of money from selling access; Google and Yahoo make a bunch of money from porn, though with a complicated relationship to copyright.
The law is: a generally illegal act of buying and selling sex becomes legal when there’s a camera in the room, at which point the First Amendment kicks in. Porn is significantly linked to sex trafficking, and even when “voluntary” it’s heavily linked to economic coercion. It’s also dangerous.
My Q: I’ve been reading a lot of work by my colleague Robin West, who offers a critique of voluntariness/the absence of coercion as hiding from us the costs of sex that is not coerced but that the person—the woman—having it does not want. This proposal seems to valorize consent in circumstances where consent might not match harm. See also Perfect 10, which gets detailed contracts not just consenting but transferring models’ rights of publicity.
A: Bartow would be willing to consider economic coercion, as when the pornographer addicts a woman to heroin or even knows she’s addicted.
Christopher Buccafusco, Chicago-Kent College of Law, Making Sense of Intellectual Property
Koosh ball: copyrightable sculptural work or patentable? IP dichotomizes the human senses, so appeals to certain senses count as one type of work. Touch, smell, and taste are lower; sight and sound are higher. This distinction has been undermined by recent work in social sciences, aesthetic theory. We should make distinctions based on aesthetic theory rather than randomly as the courts seem to now.
How do we distinguish value? Chair v. painting of chair. Painting of chair looks good, chair itself feels good. What’s the difference between the one (clearly the subject of copyright) and the other (clearly the subject of patent)? Copyright cordoned off the types of products that appeal to the senses of sight and hearing—visually or auditorially stimulating are presumed appropriate; appeals to other senses are likely to get utility patent protection. Fabrics, garments, sex toys, ergonomic and kinesthetic devices are for patents.
Deviant cases: people trying to get the wrong type of protection—Koosh ball denied copyright because of its tactility; visually pleasing user interfaces are not patentable (too subjective, though patent is entirely comfortable with things like “smooth feel”). And then we have design patents, which patent prefers not to think about at all.
Where we find dichotomies we tend to find hierarchies. Copyright is the high. The function of visual v. tactile pleasure. A toy model of an airplane allows children’s minds to wander, but there’s nothing “functional” about inspiring imagination. But the tactile feel of the Koosh ball is functional because it inspires physical pleasure. Associations with the body/constraint are non-copyright.
Recently, this tradition has been challenged by modern aesthetic theory as well as cognitive and evolutionary psychology, haptic communication, culinary communication. All senses are processed in the same region of the brain. Everyone understands why we like bacon and ice cream—evolutionary perspective; but there are reasons to think the same is true of what we think of as aesthetic preferences, visually and auditorily. Artist and social scientist surveyed people around the world to find what they liked in paintings. Americans like blue, landscapes, wild and domestic animals, historical figures. In Finland, the same things. Kenya, the same. What people hate in paintings: modern painting. Preferences are adaptive.
Payoff for IP: think about a unity of the senses when it comes to IP, specifically with respect to copyright law. Treat appeals to senses the same: any communication of ideas, emotions, or pleasures to any sense in such a way as to create an original work of authorship, it’s an appropriate subject for copyright law. Rollercoasters: plausibly copyrightable. Food, yoga positions. Don’t do away with separability—there are substantial components of functionality in these as well. In the process, we want to get stuff in the right basket. Copyright for roller coasters may not do the world much good, but it’s for economic or moral reasons, not for the reason that riding is functional and looking at a painting isn’t.
Q: Extending copyright to roller coasters and food and yoga would be bad for society, even if it would be consistent. Doesn’t this show how bad the system is?
A: might be the case.
Mark McKenna: had me until you confessed we still need functionality. If copyright and patent aren’t really separate, what is the point of functionality? What lines will it draw?
A: Agnostic on that. (But what does it mean to be functional?)
McKenna: but what is the functionality you have in mind and how does it differ from what happens now?
A: drug you might take to lower your cholesterol v. drug you might take to create exciting series of hallucinations. Might express emotions, pleasures, ideas, but the cholesterol drug doesn’t.
My Q: but if pleasure is adaptive, then it’s the same as taking the cholesterol drug so you don’t die. This suggests something about copyright and incentives: do we want to incentivize modern painting? Why would adaptive pressures have an obvious payoff for copyright policy? We like bacon but it’s not necessarily good for us at the level we are currently able to consume it at.
My comments: There are fractal components to the hierarchy: use of visuals in patent law. Other work on the legal denigration of pleasure (v. aesthetics, which are important)—Amy Adler has some good stuff, Susan Reid.
Q: TM?
A: TM treats the senses as second-order phenomena: helping you buy stuff. Copyright and patent want more stuff. So TM doesn’t have to care about the value of smell itself, whereas copyright and patent think of that.
International and Human Rights
Elizabeth A. Rowe, University of Florida Levin College of Law, If the Dress Fits, Hire Him: Exploring the Intersection of Intellectual Property and Employment Discrimination Law
1970s: Southwest Airlines dubbed itself the “Love Airline,” and had a predominantly male passenger base, so chose a sexy image. Flight attendants (and ticket counter people) were in all their ads about “spreading love all over Texas,” etc. Go-go boots and hot pants were the outfit. 1981: Southwest was sued by men who weren’t being hired for these jobs. One of Southwest’s defenses was its corporate image, and women did feminine better than men did. Court was not amused; pick a new image if you need to. Southwest has rebranded.
But this is still an issue. Hooters girls; Hooters briefly ran Hooters Air. Playboy Bunnies: very strict requirements. Dallas Cowboy Cheerleaders. Only certain people fit in this uniform. Why can’t a man claim the right to be hired as a cheerleader?
What has changed in the last 30 years in employment law? Employer would need legitimate, nondiscriminatory reason to refuse to hire. Courts are looser over time over what counts as a “business necessity.” Is IP as good or better an excuse as some of these reasons? Appearance codes: courts widely recognize that employers have a right to dictate how you look when you come to work—uniforms, makeup, hair—subject to very few exceptions. Authenticity: someone with the “real” ethnic background. Consumer privacy: it’s ok for female patients to have female nurses. In general, employment law is employment at will: the employer doesn’t need a reason. Also restrictive covenants favor the employer—employment is at will, but employer can bind the employee to keep him/her from competing and the employee doesn’t get much if anything in exchange.
IP has also expanded a lot in the past 30 years. Not just in the law but in the way businesses think.
Olialia Empire: entire marketing strategy is to use platinum blondes to market various things. Creating a resort in the Maldives staffed only by blondes.
Q: the decision to discriminate predates the IP. Wouldn’t judges be able to tell that?
A: that won’t always happen. Lots of situations where people try to figure out “how are we going to sell our wings/clothes” and then find the policy.
My Q: I think that answer is describing exactly this process: you decide to discriminate in order to build a brand. So the discrimination precedes the IP (the short-shorts aren’t inherently distinctive, for one thing, so the discrimination necessarily precedes the development of secondary meaning).
A: there are evidentiary issues about what your policy was. (I think they’d be easier if they were matters of branding v. matters of somehow not hiring any men.)
Market definition matters; if you’re selling air travel, you can’t sell it with discrimination. But the potential defense is: men feel better when they’re on the plane surrounded by women in go-go boots, so we’re selling nicer air travel. (I feel like discrimination law answered this, though not perfectly well, and that adding IP on the other side of the balance really doesn’t help.)
Q: so could we set a boundary—trade dress covers the uniform, but you have to design a uniform for guys?
A: TM office doesn’t evaluate trade dress for whether it’s discriminatory. Employment law is the area of the law that cares. One of her research questions is whether IP should care.
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