WIPIP: Copyright: Infringement & Enforcement

McFarlin, Restoring Joint Authorship

We apply a separate accrual approach to © infringement: Petrella. But a one-time plain & express repudiation of joint authorship to a claim for accounting, Zuill, 9^th Circuit. Should we continue to do so? Chuck Berry & Johnnie Johnson disputed authorship but Berry’s name was the only one on the record—counts as an express repudiation, so he loses his chance to claim authorship. But if Petrella could assert claims 40 years later, why not Johnson?

Zuill’s rationales: (1) inequitable to let claimant wait in the weeds and then pounce—seems inconsistent with Petrella. (2) adverse possession by ouster, since © is like real property in that it lasts for a really long time. Flawed analogy? Ouster generally means sole possession of a tangible thing in exclusion of co-owner. Requires actual dispossession, not just declaration or failure to share profits. Stability of title has economic importance, sure, but so did Scorcese’s title to Raging Bull. How can you become an author of another’s work by prescription?

Should new claimants be able to reopen this, like Johnnie Johnson’s estate?
Glynn Lunney: what counts as an accrual of a cause of action? W/infringement, a new infringement. How does a claim of authorship accrue multiple times?

A: the claim accrues as an acclaim for an accounting upon the failure to pay profits. A new revenue source comes in; the failure to pay creates the new claim.

Lemley: test case where there’s a repudiation but no profits for five years. What should happen then? (He thinks the inconsistency is that Petrella is wrong.)

A: standing for declaratory judgment, but no bar to future suit. That’s an inconsistency—using declaration standing for claim and then putting a bar on the accounting.

RT: Evidentiary difficulties (which aren’t as pressing for Petrella type cases)? What about applying this to WFH?

A: courts are already dealing with that, in e.g. the Jack Kirby case, and yes, to be consistent you’d probably have to extend that to WFH claims.

Q: how does this affect termination rights?

A: also a big problem. Also exists w/infringement and separate accrual. Courts may subconsciously be anti-joint authorship and pro-sole authorship, even if it’s not coherent.

Smith, Looser Forms of Parody

Campbell initially defined parody for © purposes as commenting on the original work; if it has no critical bearing on the substance or style of the original composition, its claim to fair use diminishes. Some decisions didn’t let you target the author or the subject: Salinger v. Colting; Dr. Seuss v. Penguin Books; Kienitz v. Sconnie Nation. Split though b/c cases like Burnett v. Twentieth Century Fox allowed targeting of author or someone associated with the work. Targeting the subject of the work—generally involving a photo. WWE v. Big Dogs—courts generally found that to be satire but not parody; some cases push the line.

Then, Goldsmith twice said that parody targets an “author or work.” So, the questions: parody of what: what can a secondary work target? And what are “looser forms of parody”? (In discussion she suggests “String of Puppies” as a possibility.) Is it on a scale or spectrum? Is there something between parody and satire? Is it something that’s more effective with the borrowing albeit not strictly necessary?

Linford: parody v. satire as proxies for necessary v. not necessary? But how do you figure that out?

Newman: Barbie fair use cases are not really commentary on the expression of Barbie but commentary on the social meaning of Barbie that she had accrued over time. [I think that’s revealing of the vapidity of the demand that a parodist comment on the “work”—not all parts of the work are protected by copyright law. Just like dissecting a joke kills it, the plaintiff in a fair use case tries to break the parody/commentary down and say it’s not required for whatever the defendant is trying to say.]

Lemley: Ralph Nader Mastercard ad: the judge was motivated not to rule for Mastercard & accepted that this was a parody of sanctimonious merchants of high interest consumer debt, but that was clearly not the primary message Nader was trying to send. One question is what the standard of proof is; another related one is who the audience is—“may reasonably be perceived” suggests the (reasonable) audience should be consulted.

Comments note that Europe (wisely) doesn’t distinguish parody from satire.

Lunney: courts like to look reasonable and split the baby, which may explain the language distinguishing satire in Campbell.

Rub, Circumventing SCOTUS

Copyright law needs updating, but Congress is not doing it. Examining 21^st century opinions Eldred, Grokster, Golan, Kirtsaeng, Star Athletica, Aereo-- attracted many amicus filings, use in copyright casebooks, citations in law reviews, so we understand them as important. But lower courts don’t always do much with them.

Part I: Narrow interpretation cases: Aereo, Star Athletica. Aereo: volition doctrine could be on the chopping block, but the Court didn’t name it, and the Second, Fifth, and Ninth Circuits have subsequently ignored it while the dissent blessed volition (and worried about its future) and the SCT majority didn’t disagree—no impact on the volition doctrine’s development.

Star Athletica: can I draw it? Seems a very test to meet. Separability still has some teeth, in some courts, sometimes; some courts apply a low standard and some courts don’t. Courts use other filtering doctrines extensively to replace separability. This is the messiest.

Grokster: worried that SCT created an independent duty to filter. But the tech moved on and distribution models moved on. Turns out that Grokster didn’t do much. Inducement cases tend not to turn on failing to filter and looking for profit. Got filtering through business models [and suing Cox and other connection providers!]

Kirtsaeng: Court prioritized free movement of copies. But market segmentation is still here. Most © materials are distributed digitally. Second Circuit shut down secondary market in digital copies (ReDigi) and libraries too (Internet Archive). Price discrimination by right is still here nonetheless.

Eldred & Golan: No limit on Congressional power to expand copyright—but user groups got organized to press against expanding copyright in SOPA/PIPA. Legal power can exist without political power. Didn’t open floodgates to new legislation. [Though that’s perhaps b/c of point one: Congress can’t often get it together to act.]

Even most significant SCT decisions w/Ginsburg & Breyer exert only modest influence on broader trajectory of © law. Repeat players in ecosystem can bypass any disturbance to Force. © is incremental. 0.7 opinions/year can’t do much. Are we spending too much time focusing on SCT? Is this minimalism justified?

RT: Do you mean © law or © practice? You make claims about the broader trajectory of © law but a lot of your points are about © industrial relations. Likewise, effects of Star Athletica on registrations/C&Ds may be very different.

Lunney: If Grokster had come out the other way, would the market look the same today as it does or would it be radically different? I think it would be different. Eldred, likewise—if Lessig hadn’t brought the case, would there have been enough political focus to develop the political pressure against term extension?

A: sure. Maybe not overruling Sony was a message.

Lemley: maybe we’ve ignored cases we should have paid attention to—Petrella has completely reshaped copyright litigation by trolls, with big effects on substantial similarity doctrine in music cases as a consequence (as well as other things like the law developed around actors like Higbee). Fourth Estate, the registration case, has also had a big impact.