What is a derivative work is somewhat mysterious, especially
given the expansion of the reproduction right.
Courts and litigants have debated whether a photograph of a
sculpture is a derivative work of the sculpture or merely a reproduction, with
its copyrightable creativity present somewhere other than its representation of
the sculpture. The creativity in a
photograph of a sculpture, in the dominant understanding, comes from the
photographer’s choices with respect to lens, angle, timing, and so on, rather
than from transforming, recasting, or adapting the sculpture itself. So the new work has a standalone copyright
(and can be a reproduction of the three-dimensional work)—a new work
fundamentally dependent on the existence of the prior work, but not a
derivative of that prior work. But applied
to termination rights with respect to preexisting works, such as songs
incorporated into a motion picture, this same reasoning gives a
counterintuitive result.
When it comprehensively rewrote the Copyright Act and
created the current definition of derivative works, Congress tried to solve an
economic problem—what happens to works that incorporate other works as a
necessary component—with a conceptual definition. That didn’t work.
Cases about photos of sculpture seemed to make sense when I
read them—the copyrightable elements of the photo generally come from the
choices made by the photographer, not from the subject matter, and that
suggests that the photo isn’t a derivative work of the subject matter. If the subject matter were an uncopyrightable
object, we’d still recognize the photo itself as copyrightable, so it seems
that the photo’s copyrightability must be independent of the subject matter.
But I think on further reflection that’s wrong. A photo is a
translation of a sculpture into another medium, and translations are generally
recognized as derivative works. Indeed,
I think the comparison to a photo of an uncopyrightable object actually points
in that direction. All representational
creativity takes uncopyrightable subject matter as its starting point. It’s the resulting creative work that is
protected, and the fact that the subject matter was uncopyrightable—whether
fact, public domain, or something else—affects the scope of the copyright as
applied to other works that might allegedly infringe the representational
work. But this is also true to just the
same extent when the subject matter is copyrightable. Creative elements already present in the
underlying work can’t be part of the protectable increment of the derivative
work. This is the same as saying that
uncopyrightable elements like facts or public domain elements can’t be part of
the protectable increment of the freestanding work. That is, both derivative works and
nonderivative works contain a golden nugget of separately copyrightable
material, along with the noncopyrightable elements. It’s for that reason that the separability
of photo and subject matter doesn’t inherently take the photo out of the
derivative works category.
The cases reaching the conclusion that photographs aren’t
derivative works were distracted by an analytically separate and easily
answerable question, which was whether a photographer who had permission to
create a photo of a copyrightable 3-D object needed separate permission to
claim and enforce the copyright in the photo.
The answer is no, obviously so, but the courts then went on to say that
anyway the photo wasn’t a derivative work so hypothetical rules about
exploitation of derivative works didn’t apply.
And that holding is more troublesome. Consider the insight, largely incorporated
into copyright doctrine only via fair use, that change of context changes
meaning? The photo is, by general
agreement, a new copyrightable work, and it incorporates the original sculpture
in a way that copyright recognizes: isn’t incorporation of the copyrightable
elements of the original plus addition of new copyrightable expression another
standard way of defining a derivative work, as in the classic Batlin case?
There is a conceptual claim made in the photography cases:
the creativity of the photo does not interact with the creativity of the
sculpture. But what can that really mean?
There is a physical change in the new work: the sculpture has been
flattened into two dimensions. So it can’t be that there was no physical
transformation (though I suspect that our tendency to conflate the image with
that which it represents helps courts ignore the physical transformation). There is also a change in meaning. Entire books have been written about
photographs of sculpture and how they change what the viewer experiences: the
viewer does not see the sculpture, she sees a photo of the sculpture, and that
matters to what she sees, including what she sees of the creativity of the
sculpture.
Consider this photo of a mosaic:
(sculpture by Jack
Mackie, photo by Mike Hipple)
Why doesn’t that change the meaning of the mosaic through
the addition of the human following the steps and the framing choices that
create a particular experience of the mosaic?
Likewise, putting a song into a movie can often have
profound effects on the song and how it’s experienced. The final paper will go into the literature
on the relationship between sight and sound in TV and movies; the presence of
music affects both what people see and what they understand the music to mean,
which sounds very much like what we’ve come to understand in law as
transformativeness. Juxtaposition
regularly changes meaning: Kuleshov effect/commutation
test: “trying out a sound change and observing whether a meaning change is
produced or not.” If you’ve ever seen
fake movie trailers, such as The Shining as lighthearted
comedy or Diff’rent
Strokes as a story about a pedophile who adopts young children, you’ll
notice that the music has done almost all the work of effecting the genre
change.
From that perspective, it often would be fair to say that
the movie transforms the recording that appears in it, into a bearer of meaning
of the narrative. When Jon Cryer
lipsynchs to Otis Redding in Pretty in Pink, for example—or choose your own
favorite example—the song becomes part of the larger work, and not one that
could be extricated without making profound changes to the movie.
So what? Most of the time the reproduction and derivative
works rights overlap and so the distinction doesn’t make a difference, but it
is extremely common for films and particularly television shows to license the
inclusion of existing masters into their works, as fairly significant elements
of the narrative. For that matter, it’s
relatively common to license things like the appearance of within-copyright
sculptures in the background of scenes, after the BET case. Section 203 was designed to protect film and
TV producers, among others, by making terminations inapplicable to prevent the
continued exploitation of derivative works: “A derivative work prepared under
authority of the grant before its termination may continue to be utilized under
the terms of the grant after its termination.”
Now return to those photos of sculptures: if they’re not
derivative works, then the right to keep disseminating the photo can be
terminated. But the whole point of
giving copyright in photos based on the creative choices made by the
photographer was to recognize the creativity of the photographic enterprise,
which is precisely the reason that termination was thought to be problematic
when a derivative work was involved. The
theory was that the original copyright owner shouldn’t be able to completely
suppress the extra creative elements added by the creator of the second
work. If “derivative work” is a subset
of “creative works with separate copyrights based on/requiring license from a
prior copyright owner,” then that scheme fails.
This is even more true as applied to movies incorporating
previously recorded music; true, very few movies will have significant value 35
years after release, but those that do will face substantial termination risk
if they used existing masters unless we have a very expansive definition of
derivative work. Depending on lawyers’
cleverness, there could be other time bombs hidden in movies. For example,
there are at least lawyers out there willing to argue that actors’ performances
are separately copyrightable independent of the audiovisual works in which they
appear. If the overall movie or show
isn’t a derivative work of such a performance, it would follow that any
transfer that wasn’t a work for hire agreement would be terminable.
Possible theory to rationalize the result that the owner of
the copyright in the master of the song used at a crucial moment in the movie
could terminate a transfer even though the owner of the copyright in the
screenplay couldn’t: assumption of investment: movie is unusable/unexploitable
without the underlying book; could regularly edit out the song/sculpture in the
background and continue to extract economic value from the edited work? I don’t find that very persuasive, though.
One piece of evidence from the 1976 House Report suggests
that, though Congress didn’t think this through, it assumed that movies would
count as derivative works with respect to songs without addressing the question
of “derivative of what?”:
The definition of “joint works” has
prompted some concern lest it be construed as converting the authors of previously written works, such
as plays, novels, and music, into coauthors of a motion picture in which
their work is incorporated. It is true that a motion picture would normally be
a joint rather than a collective work with respect to those authors who
actually work on the film, although their usual status as employees for hire
would keep the question of co-ownership from coming up. On the other hand,
although a novelist, playwright, or songwriter may write a work with the hope
or expectation that it will be used in a motion picture, this is clearly a case
of separate or independent authorship rather than one where the basic intention
behind the writing of the work was for motion picture use. In this case, the motion picture is a derivative work
within the definition of that term, and section 103 makes plain that
copyright in a derivative work is independent of, and does not enlarge the
scope of rights in, any preexisting material incorporated in it.
Idea that I’m playing with: Addition of copyrightable
material plus recontextualization equals derivative work. Not a standard of
whether the use opened a new market, as the 9th Circuit held in the terrible
Mirage case, but would find a derivative work where the new copyrightable
material and the existing material affect each other’s meaning.
Recontextualization alone might be a fair use, but it wouldn’t count as
creating a derivative work. One way to think about that would be to say that
the pure recontextualizer just adds an idea—wouldn’t this be productive in a
search engine, or a database of potentially plagiarized papers, or in a new
frame on the wall—but I’m still trying to think about what that means. Mike Madison will probably say that what’s
going on here is an implicit theory of things and which things are unitary (the
painting and its frame and the gallery in which the frame hangs are all
separate things, despite the fact that the meanings of each influence the
meanings of the others). So, a collage
that reflects selection, coordination, and arrangement by the artist has
sufficient creativity to be copyrightable, and is its own fixed thing, meaning
that at least in my model it’s a derivative work.
Mike Madison: are you using perspective of the creators or
perspective of the audience? Perspective of some objective third party?
A: I’m most interested in the audience, but creators are
clearly thinking of the ways use of existing works affects their own
output—lots of literature on music selection for movies.
Glynn Lunney: are you just trying to solve termination?
Lemley: bizarre to treat derivative works separately; also
questions of fixation where there’s no reproduction: Midway versus Galoob—my
approach could make many more things into derivative works, and that might be a
reason to reject it. (I agree that’d be
a reason to reject it; I’m not sure Galoob would be affected by my theory,
since it essentially imposes a fixation requirement, which I don’t think I have
to disagree with. Tony Reese has done the most persuasive work on this,
convincing me that there should never be a violation of the derivative works
right without a violation of either the reproduction right or the performance
right.)
Jeremy de Beer and Mira Burri, Transatlantic Copyright Comparisons:
Hyperlinking and Making Available as Communication (presented by de Beer)
Treaties contain ambiguity about how signatories shall
provide protection about making available rights, in order to get agreement by
member states, mainly because US and European approaches dramatically differ.
US: dealt with in context of distribution right; Europe: communication right
(closer to US public performance). Canadian: hybrid approach: depends on
purpose for which you’re making work available. If for streaming, under brand
new Canadian law, it will likely implicate the communication right. But if for
downloading, other rights such as reproduction/authorization/distribution come
into play. It can’t impact all of those
rights because of a decision, ESA v.
SOCAN, saying you can’t stack royalties for different rights in the
particular context of transmitting music as part of video games online. One trial case: Publication for defamation
case: don’t break the internet—linking to a defamatory publication can’t be
itself defamation. Safe to say that
defamation cases and SCt’s approach in copyright, hyperlinking to copyright
infringing content is unlikely to constitute a communication itself.
Issue also alive in EU; pending before ECJ. Svensen:
a fairly typical news aggregator case.
Does there have to be an actual transmission/download? European approach in general, and copyright
scholars, think that transmission is necessary, and that the work has to be
made available to a new public—a public without previous access—for there to be
a violation of the making available right.
3 national courts: German news aggregator; Norwegian case against
Napster; Dutch case about pornography (unpublished Playboy images). German news aggregator was held liable, but
Norwegian court held that linking alone wasn’t enough for liability. Dutch case: unpublished nature made the difference.
Paper: comparative analysis is useful. Hopes the ECJ will
look at Canadian courts streamlining royalty payments and limiting defamation
liability. This could create a
validation for the Canadian SCt.
Note that no one is saying that linking could never lead to
liability, but that it’s not a transmission.
Matthew Sag, The Perils of Compulsory Licenses in Copyright
Law
Another timing failure!
I caught enough to know that part of his argument was that compulsory
licensing for digitization is offered as a solution to orphan works problems,
and really only makes sense in that context, but such licenses have structural
problems making statutory damages/remedies reform more appealing if what we
really care about is orphan works. I
look forward to the full paper.
Jack Lerner, Regulation and Oversight of Collective
Management of Copyright
Well known problems of corruption, self-dealing, etc. Transparency, organizational governance, and
institutional design literature offer insights.
Also has looked comparatively at collecting societies around the world.
There’s little regulation in the US beyond antitrust law, Copyright Royalty
Board. Other regimes require permission
to operate; membership may be regulated, or leadership. Transparency
requirements that aren’t present here.
Different people can have standing to enforce rights, and different
forms of oversight.
What are our goals? Are we trying to empower small
creators? In developing world, is there
a way to empower local creators, since CMOs mostly just take revenues out of
those countries? Is it just about decreasing
transaction costs?
What are our tools?
Need to assess whether CMO is doing what it’s supposed to, and that’s
difficult to measure.
Various scandals of abuse, including in Brazil. The window for reform is now here: the
question is how to generate legitimacy. Discloser and recipient must both
benefit from transparency—need carrots and/or sticks. Maybe users need an organization separate
from CMOs.
Oren Bracha & Talha Syed, Beyond the Incentive-Access Paradigm?
Copyright & Product Differentiation Revisited
Product differentiation is monopolistic competition: many offerings
in the market are variations of each other (e.g. action films), mapping onto
consumer tastes heterogenously. Christopher
Yoo: Can better explain competitive/monopolistic dynamics in IP industries.
Seems to allow us to finesse incentives/access: strong copyright but also
narrow copyright. Michael Abramowicz:
foregrounds an aspect of monopolistic competition, rent dissipation. More than
one entrant incurs costs of R&D in creating work that is nonrival and can
satisfy consumer demand; that’s waste. He suggests weak and broader copyright—reduced
protection may reduce incentives but that’s ok to deter wasteful competition;
strong derivative works rights allows control of subsequent development and
reduces wasteful activity.
Bracha & Syed: you can’t get rid of the deadweight loss
by appealing to monopolistic competition.
Property v. monopoly rhetoric is inconsequential. You can’t provide the
incentive of copyright or patent without the deadweight loss unless there is
costless perfect rights discrimination, which is a fantasy. The point is to allow a markup over a work
that should be provided at marginal cost; every markup over marginal cost
incurs deadweight loss unless there’s perfect price discrimination, which there’s
not. It’s a red herring to talk about
monopolistic competition. Product
differentiation suggests that the drawback doesn’t have to be access.
As you expand protection, you capture more supramarginal
works, but you lose inframarginal works.
Product differentiation shows that incentives/access isn’t the only tradeoff.
It is possible that if you increase protection, you induce more competition in
inframarginal markets over existing innovation, and therefore reduce or fail to
increase price competition. The cost is increasing duplication/rent
dissipation. Each increase in level of
protection provides or enables generation of supramarginal innovation or
increased variety in inframarginal markets.
The drawbacks may be increased inframarginal barriers to access, or
increased inframarginal price competition, which comes at the cost of rent
dissipation. Need a general equilibrium analysis, as Glynn Lunney has written.
May distort investment away from non-IP activities. Tradeoffs involve a series of factors, but
there’s no free lunch.
Yoo: We never claimed we weren’t in a second-best
world. The rent dissipation problem has
always been clearest to Yoo with patent races because of patent’s first past
the post. Even if you come in second in
copyright, you can still split the rents; this isn’t perfect, but it’s a
healthier equilibrium—people can compete to divide the market.
A: there’s a race to be first and inventing around. Both
involve social waste—there’s more variety than is socially optimal because of
cannibalizing rents. That happens at either stage of the race. The second comer in patents can be the big
winner, too.
Yoo: but you can have insufficient entry, with nothing to
dissipate. The differentiation
literature recognizes dissipation as an issue.
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