Drake part 5

Panel 5: Copyright Law

Susan Corbett, Senior Lecturer, School of Accounting and Commercial Law, Victoria University of Wellington (N.Z.)

The Photographer and Her Subject: The Case for Joint Ownership of Copyright in Photographs of the Human Image

ECJ: the concept of private life is a broad one which encompasses the right to identity. A person’s image reveals his or her unique characteristics and constitutes one of the chief attributes of her personality – in a case about an unauthorized photo of a newborn. 

Problem: Years of debate over whether photos should have copyright protection + democratization of publishing online; if we own our photos, we have the right to publish them + advanced tech that makes taking photos easy, frequently without the knowledge of the subject. In most countries there’s no absolute right not to be photographed or to prevent publication.  But most of us would claim some sort of rights over our images.

Breach of confidence won’t always work; passing off will also not cover most commercial uses, nor will misappropriation of personality; privacy will generally have high standards for breach.  Free speech interests often seem more compelling.

Early photography required substantial skill & effort by photographer, and the participation of the subject, who’d be told what to wear, how to pose, etc.  Things have changed.  Derrida: whatever precautions you take, … the photograph surprises you. It is the other’s gaze that wins out and decides.  She proposes co-ownership as a more robust protection than privacy.  Copyright has an established int’l regime, a statutory acknowledgement of public interest balance; provides for joint ownership.

But is it true that all photos have the requisite level of originality to be protected by copyright.  Standard in NZ is low: requires skill and effort of a minimal level; it is only that it is “not copied.”  Standard differs elsewhere.  But being in the right place at the right time is an established threshold for copyright in photos—a different standard for socially important events.  Uniqueness also might argue for copyright: we are all unique and therefore our photos must be original.  (Original to whom?  I haven’t done a lot to my own appearance, other than correcting nature’s mistake in failing to make me a redhead.)

Prof. Llewellyn Joseph Gibbons, University of Toledo College of Law

Love’s Labor’s Lost: Marry for Love, Copyright Work Made-for-Hire, and Alienate at

your Leisure

Congress worried that the Soviet Union would enter the CCC, expropriate dissident authors’ copyrights, and then try to suppress them in the US.  Chances of this were slim to none, but Congress amended the law anyway to bar a government from expropriating a copyright unless it had already once been voluntarily transferred, except in bankruptcy.

Is marriage alienation?  Is it a transfer of copyright in a work that does not even exist yet?  How can that be a voluntary transfer?  According to one case, living in California may constitute consent to its community property regime—but in that case wouldn’t living in the Soviet Union constitute consent? (Emigration from the Soviet Union was not voluntary, though, as I recall from many a “free Soviet Jewry” sign from my youth.)

Rodrigue v. Rodrigue, LA: a little bit of preemption, not enough to preempt Louisiana marriage law.  Court made up its own analysis. Distinguishes right to use, right to alienate, and right to enjoy the fruits of use.  Author-spouse retains exclusive managerial control of copyright, but has to split economic benefits of copyright with the community.  What happens when the artist continues to create in his own style?  When is there a new work and when a derivative work of the community property?  Also court suggested a duty, in dicta, to manage copyright for the benefit of the spouse.  Can stopping creation of derivative works, or exercising moral rights under §106, interfere actionably with the economic value of the works shared with the ex-spouse?

Proposal: get rid of marriage and think only of partnership.  Marriages exist and produce external & internal consumption items.  Some workers are highly skilled at selling stuff external to the marriage, others are skilled at household work; they can trade for the benefit of the family.  Would that make a copyright work created during the marriage a WFH/partnership asset?

Prof. Marc H. Greenberg, Golden Gate University School of Law

Creativity Constrained: Comics and the Law

Book project.  Start in 1954 with Seduction of the Innocent, in which Frederick Werther suggests that comics cause juvenile delinquency.  Led to book-burnings and congressional hearings.  Outcome: Comics Code Authority, voluntary guidelines adopting censorship.  Underground comics led to obscenity prosecutions; birth of the Comic Book Legal Defense Fund.  Had a case where a comic artist was ordered not to draw comics for years as part of a resolution of an obscenity case.  His view: SCt was wrong to allow obscenity prosecutions as outside the First Amendment.  New cases: personal possession—when they search your laptop at the border; Stanley v. Georgia allows personal possession but the law bars transportation, so how do you get it? Apparently create your own.

Another big topic: termination rights. Who owns Superman?  Comics companies argue that all these artists’ work was WFH, though heirs got Action Comics #1 and some strips back at the district court level.  The WFH doctrine was changing/evolving during these pre-1978 transfers, creating many puzzles.

Copyright and characters.  Issues arising from blended nature of comics: comics as sequential art.  Storytelling through graphics and text.  Cases deal with the separation of the two; law has real difficulty dealing with them together.  Even in a tax case!  California exempted “authors” sending manuscripts to publishers from definition of sales, but art sent to publishers was a sale.  So which was a cartoon?  Similarly, in an obscenity case, defendant was prosecuted twice for the text and the art in the same work; prosecution said they were different works.

Prof. Doris Estelle Long, John Marshall Law School

Have Copyrights Become the New Anti-Competitive ‘Monopoly’ in the Digital Universe?

Relationship between antitrust and IP.  Past perception that “monopoly” conferred by copyright was very different from a market perspective than the monopoly conferred by patent because of substitutes.  Computer software changed the nature of copyrighted works, as did digital communication.  Result: change view of copyright’s anticompetitive potential. Also why we need to theorize copyright separately from patents under antimonopoly laws. Types of activities giving rise to claims of abuse aren’t similar work- or patent-based claims. Except for software, books don’t fit.  People don’t walk into a bookstore looking for Harry Potter & walk out with Hunger Games.  (Speak for yourself.)  There’s no substitute, but at the same time it doesn’t fit standard antitrust thinking.

Borrowing from patent to copyright often works very badly, and likely to do so with antitrust as well.  Essentiality of copyright—a particular work—is based on its communicative aspect: I need parts of this work to make my own.  Fair use and other limitations already protect that communicative aspect.  Copyright has also developed doctrines about market efficiencies. If you’re talking about needing a work to communicate, that’s communicative essentiality; that’s not antitrust.  Antitrust analysis can be helpful with “distributional” essentiality where copyright enables market dominance.  Where there are switching costs, network effects, etc.—Microsoft v. Apple. First sale, home taping, personal use can also benefit from the concept of distributional essentiality.  Who gets to set the prices for items being sold?  An up-and-coming issue. If you argue that something is being abused—dominant position, essential facility—that language shows up in this area; just be careful not to overlap with communicative essentiality.

People who have the ability to control massive amounts of copyrighted materials can control markets.  Access to wide bodies of works: in the 1940s, motion picture companies controlled access by controlling movie screens; this can fit into antimonopoly analysis.  Ability to abuse an “operating system.”  An essential facility is not the same as an abuse of the market, and we should distinguish them; there is no piece of music that qualifies as an essential facility. Rather it’s software/tech access that pose potential of creating essential facilities. Bayer decision in India shows role of price differentiation where IP is considered essential; we need to theorize the boundaries now and focus on competitive issues as they relate to distribution.  Deal with communicative essentiality separately so as not to muddle the process.

Prof. Liam O’Melinn, Ohio Northern University Pettit College of Law

The Mythology of Common Law Copyright (previous WIPIP version)

Why didn’t Congress address the constitutionality of protecting sound recordings straight-on? Mythologies.  In Golan: Falzone was asked whether the public domain was a substance of its own, or just what happened to be there when things fell out of copyright?  Falzone said the latter.  Was there a public domain before 1790?  Falzone said yes, which was a consistent litigation position, though possibly not wise. Those are strange questions and answers betraying fundamental confusion about the relationship between copyright and the public domain.  Wants to show how common-law copyright thinking has influenced thinking up to today.

Censorship preceded copyright and ultimately gave us the Company of Stationers, who thought that the works that had been their property were still their property after the Statute of Anne.  Result—invention of the author?  A paucity of authors, an abundance of manuscripts circulating before and after the invention of the printing press.  One theorist thought that authorized manuscripts were “good” texts, properly printed, so that unauthorized texts derogated from a norm of permission.  Piracy = bad literature. Respect for norms = good literature.  This story is that long in advance of Statute of Anne (Shakespeare) people were collaborating in this way; O’Melinn thinks that this is pretty fanciful, but contributed to the mythology of common-law copyright.

Other authors talked about this over time: Jonathan Swift said there was no common law copyright in Scotland.  What about America?  His research suggests that Ben Franklin knew of Donaldson v. Beckett, and it seems likely that this was the common American understanding.

Comment for O’Melinn: with pre-1972 sound recordings, you have collectors today collecting cylinders with no clear understanding about what copyright law protects; doing it anyway because of lack of enforcement/perceived lack of market.  With no remedy and no reason to claim rights, myths persist about what the rule is.

For Gibbons: housework can be analogized to back office work supporting the “author.”  Changes the analysis because the author couldn’t be an author were it not for the fact that the spouse is taking care of other issues.

Gibbons, to my comment: I don’t believe living in Louisiana is a choice to a particular property regime with respect to copyright.  But Congress had a statute in search of a problem.  Rodrigue was bad because it’s imposing a common law trust on civil law, and because it’s unique to Louisiana; no real cites/discussion to actual Louisiana law.  So it’s a weak model on its own terms.  Could get rid of §201(e); could have a pre or post-nup.

Yu: for O’Melinn, when you talk about Shakespeare you seem to lump customs and common law together.  Isn’t it worth distinguishing a custom from something that could actually go to court?

O’Melinn: understands custom as source of common law, at least if law ultimately vindicates.  Trying to be fair to people who believe in the common-law authors’ right even though he doesn’t himself believe it.

Q for Corbett: consider the commodification/anticommodification literature—you seem to be choosing commodification.  Maybe the answer is that the photographer has already done that.  Second, what control does joint ownership give to the subject? In the US, either joint owner can license without the other’s permission, so the only control would be over exclusive licensing.  Note that in the US we already blur out TMs often, but not the faces of the crowd.

Corbett: thinks the photo is already commodified because the photographer already has the right.  (Though will often in these objectionable scenarios not be commodifying it, merely sharing it.)  US law is different; in NZ joint owners have to agree.  (Can agreement unreasonably be withheld?)

Liebler: Greenberg focuses on US law, but that’s difficult to do because the obscenity cases are often comics from other countries. Border control/US citizens’ travel are often at issue.  Bring in some unlicensed comic uses—scanlations—and how that works in the US and may stimulate distribution chains in the US.

Greenberg: It’s a multivolume process!  These are important aspects.  Japanese authors are very interested in US attitudes.  Much difficulty seems to be cultural misunderstandings.  In one case, a manga/anime obscenity case, they brought in trial experts on the cultural significance of the genre, and the court wasn’t interested in hearing about artistic/cultural significance.

Me for Corbett: there’s uniqueness, but who’s the origin?

Corbett: My image is personal to myself, unique to me.  We could say that about anything, though; any book owes its creation to other influences on the author. 

Me: why the image then and not the biography? Both owe their existence to the uniqueness of the subject.

Corbett: images are different; the creation of the photo isn’t entirely from the photographer; the subject contributes to the ultimate work. Copyright only covers what the writer adds. 

Me: but that’s just to say the next photographer and the next biographer can make their own representations of the subject.  (The writer didn’t add the facts and doesn’t own them, but neither does the subject own them even though the subject is a but-for cause of the biography as much as she’s a but-for cause of the photo.)

Gibbons: maybe an interest in concealment/private facts.

Greenberg: maybe a person has an interest in their own biological material if used to develop a cure.  (But a copy is not the original.  If I set a photo or a biography on fire, the subject doesn’t get burned.  So the physicality of it can’t be the dividing line between photo and biography.)

Greenberg: character copyright analysis may be taking a step forward with Superman, since DC will own what it created during its ownership; heirs can’t use anything created by DC, and DC can’t create new derivative works without heirs’ consent; this will shape how the character is defined.  It’s the heirs and not the creator, making this particularly interesting. 

Q: does common law copyright mean a right of publication, or something else, in this period?

O’Melinn: More than right of publication, or state common law copyright; instead discussing a theory presented as if it were law that said that before there was a statute there was perpetual protection surviving publication. This theory’s vagueness is its advantage for proponents.