Creative reading

Law and Contemporary Problems

Volumn 70, Issue 2, 2007, Pages 175-184

  Litman, Jessica ^a  

^a UNIVERSITY OF MICHIGAN   (United States)

Author keywords

[No Author keywords available]

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EID: 35048866821     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (69)

1. HARV.J.L. & TECH. 47, 56 (1996).
2. See Rebecca Tushnet, Payment in Credit: Copyright Law and Subcultural Creativity, 70 LAW & CONTEMP. PROBS. 135 (Spring 2007).
3. (Although it seemed to have a perpetual life in syndication to the cheapest TV broadcaster in any given town.)
4. See JOANNA RUSS, MAGIC MOMMAS, TREMBLING SISTERS, PURITANS AND PERVERTS 80-99 (1985);
5. Kirk/Spock, Wikipedia, http://en.wikipedia.org/wiki/Kirk/Spock (last visited Sept. 27, 2006).
6. If references to "Kirk," "Spock," and "Klingon" seem like gibberish to you, you can find innumerable books and websites to introduce you to the basics of the Star Trek universe. A Google search for "Kirk Spock Klingon" turns up 248,000 results. I would suggest that you consult SAM RAMER, THE JOY OF TREK (1997), but you would have difficulty getting your hands on a copy. Mr. Ramer, who authored the book, neglected to get Paramount Pictures' permission. Paramount decided to bite the hands that feed it, and sued Mr. Ramer and his publisher for copyright infringement, persuading the court to enter an injunction prohibiting the manufacture, publication, or sale of the book.
7. See Paramount Pictures Corp. v. Carol Publ'g Group, 11 F. Supp. 2d 329, 338 (S.D.N.Y. 1998), aff'd, 181 F.3d 83 (2d Cir. 1999).
8. See, e.g., JOAN MARIE VERBA, BOLDLY WRITING: A TREKER FAN AND ZINE HISTORY 1967-1987 (2d ed. 2003).
9. STAR WARS EPISODE I: THE PHANTOM MENACE (1999); STAR WARS EPISODE II: ATTACK OF THE CLONES (2002);
10. STAR WARS EPISODE III: REVENGE OF THE SITH (2005). This is not to mention the multiple television spin-offs and Star Wars video games.
11. See Internet Movie DataBase, Search results for "Star Wars," http://www.imdb.com/find?s=all&q=star+wars (last visited Sept. 27, 2006).
12. See Star Wars Databank: Binks, Jar Jar, http://www.starwars.com/ databank/character/jarjarbinks/index.html (last visited Sept. 27, 2006).
13. See, e.g., Toy Wiz, Star Wars Toys & Action Figures, Light Sabers, Miniatures & More at Toy Wiz!, http://www.toywiz.com/ starwarcarga.html (last visited Sept. 27, 2006).
14. See Star Wars Force FX Light Sabers, Think Geek, http://www.thinkgeek.com/geektoys/warfare/69de/ (last visited Sept. 27, 2006).
15. See Darren Waters, Rowling Backs Fan Fiction, BBC News Online (May 27, 2004) http://news.bbc.co.uk/l/hi/entertainment/arts/ 3753001.stm (last visited Nov. 18, 2006).
16. See Star Wars Welcome: Terms of Use, http://www.starwars.com/ welcome/about/copyright.html (last visited Sept. 27, 2006).
17. In Lotus v. Borland, 49 F.3d 807,821 (1st Cir. 1995) (Boudin, J., concurring), aff'd by an equally divided court, 516 U.S. 233 (1996). for instance, Judge Boudin was concerned about user-written macros.
18. In Nintendo of America v. Lewis Galoob Toys, 780 F. Supp. 1283, 1291-98 (N.D. Cal. 1991), aff'd, 964 F.2d 965 (1992), the trial court felt it was important to preserve the consumer's interest in modifying games.
19. See, e.g., Julie E. Cohen, The Place of the User in Copyright Law, 74 FORDHAM L. REV. 347 (2005);
20. Joseph Liu, Copyright Law's Theory of the Consumer, 44 B.C. L. REV. 397 (2003).
21. See, e.g., SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257(11th Cir. 2001).
22. See McGraw Hill Cos. v. Google, No. 05 CV 8881 (S.D.N.Y. filed Oct. 15,2005);
23. Authors Guild v. Google, No. 05 CV 8136 (S.D.N.Y. filed Sept. 20, 2005);
24. Jonathan Band, The Google Print Library Project: A Copyright Analysis, available at http://www.policybandwidth.com/doc/ googleprint.pdf.
25. See Tushnet, supra note 2, at 140.
26. Id. at 134.
27. See id. at 151-55.
28. See id. at 138-39.
29. Cf. Gee v. CBS, 471 F. Supp. 600, 657 (E.D. Pa.) (finding that Columbia Records' possession of the recordings of Bessie Smith satisfies the requirements for common-law adverse possession), aff'd, 612 F.2d 572 (3d Cir. 1979).
30. See Tushnet, supra note 2, at 145.
31. YouTube, http://www.youtube.com/ (last visited Feb. 5, 2007).
32. See Fred Von Lohmann, You Tube's Balancing Act: Making Money, Not Enemies, HOLLYWOOD REPORTER, ESQ., July 10, 2006, http://www.hollywoodreporteresq.com/thresq/spotlight/ article_display.jsp?vnu_content_id=1002802746.
33. See Felicia R. Lee, Survey of the Blogosphere Finds 12 Million Voices, N.Y. TIMES, July 20, 2006, at B3.
34. Myspace, http://www.myspace.com/ (last visited Feb. 5, 2007). One can find on MySpace.com both advertising for mainstream commercial films and music and subscriber-created clips. The concept appears to be that major film studios and record labels have concluded that associating their release with MySpace.com. will give it desirable buzz.
35. See Elinor Mills, Advertisers Look to Grassroots Marketing, CINET News.com, Apr. 4, 2006, http://news.com.com/ 2102-1024_3-6057300.html;
36. see also Mike Yamanote, Can "Crowdsourcing" Be Slave Labor, CINET Media Blog, July 18,2006, http://news.com.com/ 2061-10802_3-6095563.html.
37. J.K. ROWLING, HARRY POTTER AND THE SORCERER'S STONE (1998).
38. Compare Caitlin Bell, Wild About Harry; Magic in the Air, BUFFALO NEWS, Nov. 13, 2001, at N6 ("The movie follows the exact plot of the book, condensed into a thrilling ride through a world no Muggle (non-wizard) has seen. The book came to life in the cast of old and new, handpicked with help from Rowling herself... Dame Maggie Smith as thin-lipped Professor McGonagall;
39. Ian Hart as the trembling Professor Quirrell and Alan Rickman as'Professor Snape, are those who Harry Potter readers will think jumped right from Rowling's imagination."), with Rory L. Aronsky, If You Liked Harry Potter Book, Skip the Film, FORT LAUDERDALE SUN-SENTINEL, Nov. 23, 2001 (Broward Metro Edition) at 102 ("As for the adult actors, here's a short version: Maggie Smith as McGonagall? She completely lacks what Minerva McGonagall stands for.... Alan Rickman? Snape has nastiness in the book, but Rickman just presents him as a looming character (the camera looks up at him at times) and speaks his lines like a drone.").
40. Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998). See, e.g., Fred von Lohmann, Measuring the Digital Millennium Copyright Act Against the Darknet: Implications for the Regulation of Technological Protection Measures, 24 LOY. L.A. ENT. L. REV. 635, 641 (2004);
41. Electronic Frontier Foundation, Unintended Consequences: Seven Years Under the DMCA (Apr. 2006), http://www.eff.org/IP/DMCA/ DMCA_Unintended_v4.pdf.
42. See, e.g., David L. Hayes, Application of Copyright Rights to Specific Acts on The Internet, COMPUTER LAWYER, Aug. 1998, at 1;
43. MARK LEMLEY, Dealing with Overlapping Copyrights on the Internet, 22 DAYTON L. REV. 547 (1997);
44. Jessica Litman, Copyright, Compromise and Legislative History, 72 CORNELL L. REV. 857, 883-84 (1987).
45. See Tushnet, supra note 2, at 136.
46. See, e.g., Bridgeport Music v. Dimension Films, 410 F.3d 792 (6th Cir. 2005);
47. MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993);
48. Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290, 1294 (D. Utah 1999);
49. Playboy Enterprises v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993).
50. See, e.g., Eldred v. Reno, 239 F.3d 372, 375 (D.C. Cir. 2001) ("[C]opyrights are categorically immune from challenges under the First Amendment."), aff'd sub. nom. Eldred v. Ashcroft, 537 U.S. 186 (2003);
51. CleanFlicks v. Soderbergh, 433 F. Supp. 2d 1236, 1242 (D. Colo. 2006) ("[T]he intrinsic value of the right to control the content of the copyrighted work which is the essence of the law of copyright.").
52. See, e.g., Jessica Litman, Reforming Information Law in Copyright's Image, 22 DAYTON L. REV. 587, 605-06 (1997),
53. James Boyle, Sold Out, N.Y. TIMES, Mar. 31, 1996, at 15;
54. Lemley, supra note 30.
55. The Lanham Act, 15 U.S.C. § 1115(b) (2000).
56. See, e.g., K.P. Permanent Makeup v. Lasting Impression, 543 U.S. 1ll (2004);
57. Gibson Guitar Corp. v. Paul Reed Smith Guitars, 423 F.3d 539 (6th Cir. 2005).
58. See Jessica Litman, The Exclusive Right to Read, 13 CARDOZO ARTS & ENT. L.J. 29 (1994). Nor is there something exceptional about copyright laws that indicates they are meant to be read more literally than statutes on other subjects. The 1909 Copyright Act defined copyright-owner exclusive rights with comparable breadth, compare 1909 Copyright Act § 1 with 17 U.S.C. § 106, but courts easily inferred limitations and exceptions, which later Congresses approved.
59. See Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290, 1294 (D. Utah 1999).
60. See, e.g., In re Napster Copyright Litigation, 377 F. Supp. 2d 796, 802-05 (N.D. Cal. 2005); Plaintiffs Opposition to Defendant's Motion to Dismiss at 15-20, Electra Entm't Group v. Barker, No. 05-CV7430 (KMK) (THK) (Jan. 24, 2006).
61. I was recently reminded of how little impact copyright scholars have had on the world outside of academia. Henry Hotbaczewski, general counsel of Reed Elsevier and a distinguished IP lawyer, gave a lecture last November to the Washington, D.C. chapter of the Copyright Society of the USA. He used his podium to alert fellow members of the copyright bar to a new and troubling threat to copyright that he had first discovered only months earlier: Unaccountably, suddenly, and improperly, a large number of copyright law professors had taken the position that copyright protection should be weakened, and had even filed amicus briefs to that effect. See Henry Horbaczewski, Copyright Under Siege: Some Thoughts of a Publisher's Counsel: The Sixth Annual Christopher A. Meyer Memorial Lecture, 53 J. COPYR. SOC'Y 387, 393 (2006). Obviously, Mr. Horbaczewski and his audience have not been reading our stuff.
62. See, e.g., Dastar v. Twentieth Century Fox Film, 540 U.S. 806 (2003) (rejecting cases reading section 43(a) of the Lanham Act to include an attribution right); Feist Publ'ns v. Rural Telephone Co., 506 U.S. 984 (1992) (rejecting cases giving copyright protection to facts).
63. See generally Jane C. Ginsburg, The Author's Name as a Trademark. A Perverse Perspective on the Moral Right of "Paternity"?, 23 CARDOZO ARTs & ENT. L. REV. 379 (2005) (criticizing DaStar);
64. Jane C. Ginsburg, No Sweat? Copyright and Other Protection for Works of Information After Feist v. Rural Telephone, 92 COLUM. L. REV. 338 (1992) (criticizing Feist).
65. See also Moseley v. V Secret Catalog, 537 U.S. 418 (2003) (rejecting judicial expansion of trademark dilution to include likelihood of dilution);
66. Walmart v. Samara, 529 U.S. 205 (2000) (rejecting trade-dress protection for inherently distinctive product designs).
67. See Jessica Litman, Lawful Personal Use, 85 TEX. L. REV. (forthcoming 2007) (manuscript on file with author).
68. See, e.g., Jane C. Ginsburg, From Having Copies to Experiencing Works: The Development of an Access Right in U.S. Copyright Law, 50 J. COPYR. SOC'Y. 113 (2003).
69. See, e.g., Julie Cohen, Copyright and the Jurisprudence of Self-Help, 13 BERKELEY TECH. L.J. 1089 (1998).