WIPIP Panel 2: Copyright and Culture

  Copyright’s Invisible Hand: Subsidizing America’s Cultural Institutions (Guy Rub)

© sometimes requires payment from more intensive users, sometimes not. Exclusive rights: unbundling—buy a book to read v. buy a book to adapt to movie. Fair use is sometimes bundling: buy a book to parody it, treated together w/ordinary readers; buy a book to extract facts for own work, fact/expression distinction bundles that user with other just-readers.

First sale: also bundling—museums and libraries pay the same as private purchasers. Subsidizes cultural institutions. Legislative process: ensure that libraries won’t be harmed by Copyright Act; 109(2) does not apply to libraries. Congress spent a lot of effort over time to treat libraries separately and promised to revisit the law if libraries started to suffer.

Why does this matter? Digital distribution is the elephant in the room, and the Internet Archive case with CDL.

Lemley: are we balkanizing fair use?

A: that ship may have sailed.

Theory, Technology, and Culture in the Development of the Legal Musical Work (Lauren Wilson)                    

Gap between legal and musical understandings of what a musical work is. Structure: Before the 1909 Act; 1909 hearings; before the 76 Act; 76 Act hearings.

Before 1909: the musical work was lines on a page, thus writings. But most major American cities developed an orchestra in the second half of the 1900s, exposing them to more music. Phonograph invention: originally for preservation; 1890: gramophone introduced. Sound recordings quickly recognized as a teaching tool for rhythm, tempo, accent, etc. Also as brutally honest records.

1909 Act hearings: Music publishers brought figures it hoped Congress would find sympathetic, like John Philip Sousa who hated records. Recording industry didn’t have household names; appealed to egalitarianism/access to music even w/o resources to invest in intensive musical training. Publishers won: Congress recognized records as ©able for the musical work authors, but not as works of their own.

Claim made by industry: Sound recordings were neutral records of sounds as they happened. But Victor published ads “Both are Caruso”—the singer and the record. Authenticity was a non-issue until record companies needed to convince the public that recordings were authentic.

By the mid-20^th century, recordings are standard way to experience music. Music publishers adopt similar strategy of putting composers on the stand, but they aren’t household names as they were before. Claimed that © protection for recordings would boost revenue allowing them to support “good” music, “serious” music that members of Congress would enjoy. Received some protection, though that protection is still limited compared to that for the musical work. Fictions about musical technology and taste led to a failure of imagination. Publishers could have brought the Beatles or the Beach Boys, Janis Joplin or Jimi Hendrix—the industry was buzzing with innovation. Congress squeezed concepts of creativity into existing legal boxes.

Q: quoting from a sound recording is almost always infringement so there’s more rights there.

A: yes, but no general public performance right. “Literal” copying is very strictly prohibited, but imitations are fine.

Matt Sag: Class, race and gender seem likely to have been important.

A: 76 hearings particularly—they chose only Western art music composers so excluded Black artists.

Caponigri: Comparative insights? Enrico Caruso—artists traveling from different places to different audiences.

Lemley: interesting to think about how those structures differ as b/t music and e.g., movies which we don’t pull apart. Plays also preexisted movies, just like the musical work.

Buccafusco: we weren’t worried about record piracy until the 1960s [side note that I think that “we” is doing a ton of work here; there were big “pirate” operations but not much home taping before that], but want to make sure it doesn’t screw up the mechanical reproduction right for musical works, so we have to limit the sound recording reproduction right in new ways.

Reproduction v. Reference (Benjamin Sobel)

Copyright cases are treating references as reproductions. Example from Salinger v. Colting: do you deny that he is Holden Caulfield? A: No. That is a key example of the mistake made in certain derivative works cases: treating a reference as sufficient to create an infringing derivative work. Inexplicable cases where substantial similarity of expression isn’t there: character names, sequels, and other noncopying derivatives. Maybe answer keys. Referring to expression in some other work, evoking it in reader’s mind—that’s not the same as reproduction.

What is the law they’re actually applying? Apparently they’re measuring referential specificity: it’s about the strength of a referential relationship, not presence of original expression: how tightly the character name corresponds to the characteristics we associate with the character. Towle (Batmobile) case—nothing in the analysis there turns on expressive qualities.

There’s no reason we should care about characters’ names, but they play a central role in some courts’ vision of copyrightability: Posner in Gaiman v. McFarlane—it’s harder if the character has no name. Names aren’t expressive, they’re too short.

Sequels: the law of character copyright suggests that if the character changes significantly across works then I don’t have a copyrightable character at all. But I should have the number of copyrightable works I have written.

Persistent conflation of identity with similarity. Is the character Mr. C Holden Caulfield? It’s irrelevant!

Anderson v. Stallone: does it reproduce copyrightable expression in a short treatment? Or does it just use Rocky’s name. The court says it doesn’t matter b/c the characters “are” the same. But identity is not substantial similarity. Anakin Skywalker from The Phantom Menace “is” Darth Vader but it’s ridiculous to say they’re similar. A child who is not covered in burns who races a pod racer is not similar to the character of Darth Vader.

The reproduction right isn’t a reproduction right—it covers much more than what you would colloquially describe as a “copy.” It has a principle, similarity, but the philosophical concept is exemplification: possession plus reference. A tailor’s swatch refers to the identified fabric & color by possessing the qualities to which it refers. Reference inquiry is copying in fact; possession inquiry: has to possess the relevant aesthetic features.

The problem for these cases is that a name doesn’t “exemplify.” It designates, but does not describe.

What role does the derivative work right play here? Can it be meaningfully distinguished from the reproduction right as expanded?

He believes: the reproduction right in a character can never be infringed by using its name. Assume you replace all instances of Sherlock Holmes’ name in a PD story with “Harry Potter,” that doesn’t appropriate copyrightable expression from JKR. Likewise: Calling something a sequel doesn’t make it a substantially similar copy.

In a suit alleging improper appropriation, a character’s name in both works should be excluded from the substantial similarity analysis (even if relevant to copying in fact). Prejudicial effect far outweighs its probative value.

Maybe the derivative work right would be another story. Reserving judgment. Either the derivative works right could be about something other than similarity, thus substantial similarity is not required for derivative works, or maybe this is a formal argument for why these cases are illegitimate b/c similarity is and should be the bedrock of ©.

Matt Sag: Ordinary observer standard: when the ordinary observer is presented with the name of a character, they remember a whole narrative backstory; isn’t that driving those cases?

A: descriptively accurate, but not reproduction! Maybe that’s what the derivative work right is.

Caponigri: could Dastar help? Content of work/originator of work isn’t supposed to be source indicator. The reference here is sort of like passing off/evoking associations in mind. [Maybe these are just TM cases]

Buccafusco: Barbie Girl is an example where reference doesn’t seem to infringe ©.

Shani Shisha: Courts are saying “I know it when I see it” and applying a but-for causation standard.

Occult Copyrights (Ari Lipsitz)

Rider-Waite-Smith tarot: a © story. The 1909 public domain deck has slightly different colors from the 1971 © claim. The publisher has acted as a steward and exploiter of the legacy of the RWS deck. New matter claimed: lithographic reproduction of designs & text.

Attributes of an occult ©: public domain core, derivative shell, and © owner uses mechanics of system—registration, notice, licenses—to yield a perception of protection & supracompetitive benefits. Evergreening: routinely republishing minor variations to reinforce the “aura” of ©. Litigation avoidance: often no enforcement at all, or only C&Ds, leading to market power: popularity of asset replaces monopoly right. No one else will compete even if they could.

Doctrinal rejoinder: anyone should be able to reproduce the work, and their contributions shouldn’t govern the original, but that’s not the reality. You’re not buying the work for the derivative contributions but for the PD asset.

Lemley: shouldn’t AI & other tech make market entry easy if not for the false © claims?

A: yes, they used to assert exclusive right to use this deck for digital readings, but don’t seem to try to enforce any more. [Presumably they’ve found another path to profit.]