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.
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