IPSC session 5

Session 5: Copyright

Michael Carroll, The Law of Musical Borrowing: A concept of © distinctiveness is implicit in how we talk about substantial similarity.  Who decides this? It’s supposed to be the consumer: ordinary observer/intended audience. Both TM and © are trying to figure out what’s going on in the mind of the consumers. Distinctiveness plays a role in how juries/cts conceive of the work, and it becomes troublesome.  Similar to Bohannon’s idea of © harm/© dilution and criticism of the Dr. Seuss case but more basic/using TM distinctiveness as a reference point.

A coherent theory of © infringement analysis: you have to flip the filtration step; start w/idea that the author came to a world full of nonoriginal elements as preexisting materials. Originality is when they take that mix and do something original to the author; how do we know when they’ve done that? When we can distinguish what they’ve done from the background. It’s a bit Lockean.  It’s the elements of the work the audience attributes to the author.

If that’s about the work in suit, then you compare the accused work and look for the same elements.  If there is similarity, then is it substantial? This isn’t extrinsic/intrinsic, but it’s the decision framework we implicitly offer when we tell a jury to compare.  Postmodern: not what the author thinks the work is, but what the jury thinks.

In music infringement, there is a difference from other works. Value in popular works is in what’s distinctive, and there can be distinctiveness w/o originality.  A distinctive/original voice, not just someone who can sing on pitch.  A je ne sais quoi, but highly desired. Data still can’t predict success—either there’s something about the hook, or there’s payola.  “Closing Time”: The distinctiveness comes from your hammered-in memory even though the chord progression is common.  James Brown’s scream at the opening of “I Feel Good”: distinctive, but is it original expression?  No.  But from if value, then right perspective, you’re definitely taking value from Brown’s recording.  6^th Circuit/Bridgeport cases are the worst offenders here.  Bridgeport v. UMG: finds infringement in bow wow wow gimme yo gimme yay, Atomic Dog.  Blurred Lines case is the same thing, even though the court excluded the sound recording from the evidence. 

Fishman’s proposal is to judicially tailor scope of composition © to limit protection for nonmelodic originality. Carroll prefers strengthening the role of limiting doctrines, particularly idea/expression, scenes a faire, and de minimis use.  This avoids over-attribution of distinctiveness to nonmelodic elements of a composition.  He thinks Blurred Lines was troubling but an outlier.  If we’re going to live in a world of experts, experts will have to get better at describing scenes a faire in particular to the court.

The kind of claim he dislikes: the defendant repeated the same word/phrase I did and that’s infringing.  In these cases, courts turn out to prefer fair use (he’d prefer short words/phrases exclusion, de minimis use, lack of substantial similarity in the whole work).  Jimmy Smith Rap case (jazz is the only real music)/Last Poets (party and bullshit).  Don’t even bother with the belt and suspenders!

Zahr Said: “distinctive” does different thing in different places—misused in character cases all the time; it can play a TM role.  Are you stuck w/that word?  You identified a way of defining originality w/more discipline. Jury instructions are doing that in a pretty good way but using the word “original” which is confusing—can you find something that’s not a term of art elsewhere?  Using distinctiveness for infringement seems to be TM-like—in the bow wow wow case, they’re protecting more of a TM interest than a © interest and using “distinctive” entrenches that problem.  [Differentiation?]

Justin Hughes, Actors as Authors

Clearly, a number of dramatic performances cross the threshold for copyrightability [or at least the works in which they are fixed do].  Still, this isn’t set in the case law, allowing Google v. Garcia arguments to be made about how actors aren’t authors unless they have creative control over the script/performance (as Garcia allegedly did not).  Hasn’t been squarely raised b/c of WFH.

© Office compedium lists 10 elements of a motion picture that may be sources of authorship, one of which is performance: “the acting, speaking, singing, or dancing in a motion picture.” Courts have occasionally recognize this in deciding other issues like other authorial claimants and ROP claims/preemption of such claims by ©.

Performers really do think they’re artists/creators.  So do directors, except David Mamet.  Actors ad lib a lot more than you think, including Bogart’s “Here’s looking at you, kid,” DeNiro’s “You Talking to Me,” and Thor: Ragnarok [Also Wonder Woman’s great scene b/t Diana and Steve in the boat].  Like jazz improv, where the fixation is occurring simultaneously. But what do you do when there’s no ad libbing?  Are you as comfortable finding copyrightable expression added to the script?  It may be the case that it needs to be viewed as a zero-sum game.  Leeway given by directors is much greater in AV works than it is in theater where there’s lots of time for rehearsal.  Standard challenge: joint authorship doesn’t mean equal shares are required given the common law model.

Q: hard time explaining why athletes are different.

A: don’t follow a script, and are in a goal-oriented activity that is not a narrative activity; maybe dancing is the closest. Improvisational dance v. baseball game—gut feeling is there’s a difference, but Goldstein thinks no.

Samuelson: do the contracts b/t motion picture cos and actors speak to this possibility of authorship?

A: yes.

Beebe: © in public persona, once fixed?  Kim Kardashian, Barton Beebe, etc. seems like they could all make claims.

A: don’t need to solve persona; that seems like style—you can © every performance w/o being able to © persona. [That seems to finesse the problem of derivative works.]

Matt Sag: Clint Eastwood—is he a coauthor of the film or the author of a little subwork?

A: there’s © in the dailies, of which the motion picture is built. If financing stopped on the film and all they had was boxes of dailies, those are subject to ©. Garcia could more credibly have claimed joint authorship in the daily, then integrated into the larger work. That raises other interesting problems. Not sure that answers the Q.

Jim Gibson: you say author, but you really mean source of original creative expression, given that it might be a WFH. Sound engineers, record producers?

A: those are recognized as authors—SoundExchange is paying them and the Music Modernization Act will codify their right to payment.

Tim McFarlin, Tear Down the Stairway? Copyright Injunctions and the Public Interest

Partial contributions are of concern: if the contribution has audience appeal, perhaps that bears on authorship. If audience impact is important to authorship, where else might it affect doctrine?  Data-driven authorship is an example, and audience’s role in IP infringement (Fromer/Lemley).  What about eBay and the public interest factor in injunctive relief?

Discussion of suppressive motives & their relation to injunctions.

To what extent is nature/genesis of derivative work relevant? Willfulness, percentage of infringing content, whether it’s close to fair use.  Gilden argues that a stronger injunctive remedy may lead to more fair use findings, whereas courts may be more willing to find infringement if injunctions are rare.  If they are rare, do we get compulsory licensing case by case? If not, are we unfairly advantaging artist/works with a track record like Hitchcock over ones with out?  Do we define the public interest in the same way across different kinds of IP?

Q: stronger laches doctrine?  Could play into remedy.

Rosenblatt: if you focus on the audience, don’t you risk content discrimination/Bleistein problems?

A: true: hard to measure something’s classic status.

Rosenblatt: that’s not relevant; just consider how long it’s been out.

Van Houweling: Tasini raises concerns about recency—the articles might be recent but might still make holes in the record if removed.

Said: Stairway to Heaven is a weird example b/c credit was also at issue—Salinger v. Colting is a more interesting example of an enjoined then unenjoined non-classic.  What kind of First Amendment stand do you want to take?