WIPIP Panel 2B Copyright: Authorship, Ownership

Newman, Adoption as Authorship

Concept of being an author: personally generating all the sensory signals other humans will process as part of the work—comes into being because my mind decides to put it there and my body guides it. Certainly in authorship disputes between the person who generates the idea and the one who creates the detailed expression, the latter is favored. But then it gets more complicated. Setting up a shot versus clicking the button to take the shot: Sarony. What matters is whether you had a clear intellectual conception and you used tools to embody the expression. To be an author is to have a fully formed work in your head and transcribe it in some medium? But even that is a bad model of authorship usually. What happens is more: I generally know what I want to say, and engage in trial and error to see what I can get on paper that makes sense. It probably bears some relation to what I started with, but not identical. The fundamental act of authorship is getting to some point where you recognize some set of signals that you recognize should have communicative meaning that you adopt as a communicative act. Until adopted, it was just a set of signals; adoption makes it a communicative act. Alfred Bell’s famous dicta: defective musculature or clap of thunder can be adopted. Don’t want to limit it to only the final product you choose to publish—if you’re engaged in working, it’s inherently adoptive, whether or not that’s your final product. Jackson Pollock: if one of those, he didn’t like the result and chose to discard it, that canvas is not a work of authorship.

RT: Read Karen Gover, Art and Authority. You aren’t saying the core is adoption rather that it’s the union of conception and adoption – have to already be engaged in a process of creation, not just wandering down the beach looking for driftwood—Duchamp’s urinal, or adopting the Constitution or the Rifleman’s Creed as your own expression.

A: he does think picking up the driftwood is expressive but not eligible for copyright because it’s a preexisting fact, just like using AI and picking a result might produce expressive work that’s not created by you. [RT: then what makes your theory a theory of copyright and not a theory of art?]

Betsy Rosenblatt: introducing intent? What about private works?

A: publication isn’t important, but communicative intent is. You can adopt something as your unpublished work.

Buccafusco: you’re defining authorship, not originality. [I will note that Feist seems to conflate those two.] There are some cases of authorship that might not have originality.

Q: if you reject a bunch of photos as bad, are you an author of them?

A: you took the photos with the intent of making a work, so probably. There’s some sense in which the subsequent act of reviewing the works I’ve generated/caused to be generated and identifying which are satisfying should be regarded as important.

Q: fixation as a proxy for adoption, at least as of 1976? Compare to Hemingway common law copyright case.

Op den Kamp, First: Shifting Benchmarks in Film History, Copyright, and Archival Practices

Palmedo, Lutes, & Safner, The Demographics of Authorship in the United States

Video essay about Leland Stanford’s commissioning of Edward Muybridge to try to determine whether horses’ feet left the ground all at once during a gallop. Copyright claimed 1878 by Muybridge, but Stanford published The Horse in Motion in 1882 with Muybridge’s name left off title page, mentioned only as technical assistant. Royal Society in UK shut him out as a result. Stanford used photos as raw material, informational only.

Rosenblatt: Muybridge did achieve IP protection, just couldn’t capitalize on it as he wanted to b/c Stanford was so powerful. Is this a story about IP or about power? The power of narratives to swamp law?

Q: but was Muybridge really a lone author or was there real collaboration?

A: Stanford is able to produce witnesses who say he paid for everything even though there are no written documents—it’s about the greater tensions in his wealth (letting M live on his land for free, etc.). Though he knew for years that M was registering © and taking out patents on inventions.

Brent Lutes, Demographics of Copyright Registrations in the US

2011-2022 applications; 9 most registered types of works; registrations by individuals; using registrations per person per year by zip codes; geographic matching. When you control for education, effects of income on registration go away—so income was a proxy for education. Education also drives a lot of the racial/ethnic data. Urbanness is also important: population/housing density. 10% increase in urbanness increases copyright registrations 5.5%, not coming from numbers or income—probably an agglomeration effect. Age also matters too—older adults register more than younger adults, even controlling for education and income.

Raw correlations with racial/ethnic groups were significant; if there were educational and income equalities, the range would shift a lot, but Native Americans would still not be registering very much and multiracial groups would be registering a lot. More diverse areas are associated with more registrations, but we don’t know which way the causation flows. We also know that urbanness and diversity are correlated. Controlling for urbanness, still there’s a positive statistically significant relationship with diversity.

Karol, American Art's Little Copyright Secret: Why So Many 20th Century Artworks Are in the Public Domain and Why That Matters

Basic claim: most works were published and placed in public domain when first exhibited for sale in commercial art galleries with no notice and no restrictions on copying. We should presume, absent contrary evidence, that midcentury visual art shown in a gallery for sale is in the public domain unless the estate/foundation demonstrates otherwise. Limitations: American art before Jan. 1, 1978. So roughly 1930-1977. Example: image from an art show from a photographer who was in there—making copies—without restrictions.

Publication without notice terminated ©. Exceptions for limited publication. American Tobacco v Werckmeister 207 US 284 (1907), pre 1909: no general publication because bylaws of Academy, where work was exhibited, expressly prohibited copying.

Letter Edged in Black, ND Ill 1970: No restrictions on copying, thus work of sculpture is in public domain. Others, including state court cases, reason similarly.

But publication under the 1909 Act is notoriously outcome-driven—MLK “I Have a Dream” case example b/c courts often think that preserving © in canonical works is important.

Museums as interest groups in support which would help them digitized collections?

Courts should not worry about issues going forwards since this is only for pre-1978 works. But will publishers accept the truth?

Deborah Gerhardt: Why not go all the way to 1989, when notice was eliminated fully as a requirement? Also, it’s not just visual art! Film, other modalities.