The Pope's copyright? Aligning incentives with reality by using creative motivation to shape copyright protection

Louisiana Law Review

Volumn 69, Issue 1, 2008, Pages 1-41

  Loren, Lydia Pallas ^a  

^a LEWIS AND CLARK LAW SCHOOL   (United States)

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EID: 56849106024     PISSN: 00246859     EISSN: None     Source Type: Journal    
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References (241)

1. Richard Owen, Vatican 'Cashes In' by Putting Price on The Pope's Copyright, THE TIMES (United Kingdom), Jan. 23, 2006.
2. JAMES BOSWELL ET AL., BOSWELL'S LIFE OF JOHNSON 19 (G. Hill ed., 1934). Samuel Johnson's famous quote has been included in several important copyright decisions in the United States.
3. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994);
4. Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 142 (2d Cir. 1998). I offer no comment on this quote when considered in the context of papal writings.
5. Courts and commentators often refer to "thin" copyright protection for those works that, while eligible for copyright protection, have less creativity or originality. See, e.g., Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 349 (1991);
6. Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003);
7. TransWestern Publ'g Co. LP v. Multimedia Mktg. Assoes., Inc., 133 F.3d 773, 776 (10th Cir. 1998).
8. Lisa Ramsey has proposed such reduced protection for advertising works. Lisa Ramsey, Intellectual Property Rights in Advertising, 12 MICH. TELECOMM. & TECH. L. REV. 189, 246-47 (2006).
9. JULIE E. COHEN ET AL., COPYRIGHT IN A GLOBAL INFORMATION ECONOMY 6-8 (2d ed. 2006).
10. As discussed more below, providing a stronger right of attribution may be more in line with the desires of creators whose motivations for creating new works are non-monetary. For a general discussion of the significant effects that an author's name can have, see Laura A. Heymann, The Birth of Authornym: Authorship, Pseudonymity, and Trademark Law, 80 NOTRE DAME L. REV. 1377 (2005),
11. and Roberta Rosenthal Kwall, Inspiration and Innovation: The Intrinsic Dimension of the Artistic Soul, 81 NOTRE DAME L. REV. 1945, 1949-70 (2006).
12. See Ramsey, supra note 4.
13. See, e.g., Jessica D. Litman, The Economics of Open Access Law Publishing, 10 LEWIS & CLARK L. REV. 779 (2006).
14. This list is not meant to be exhaustive but merely illustrative of the types of works that should be granted a narrower scope of copyright protection. There certainly are other types of works that may fit the criteria. The types of works identified here will be used to illustrate the points asserted throughout this article.
15. In settling on the phrase "differently motivated works," I rejected "non-economically motivated works" as many of these types of works are directly economically motivated. For example, portrait photographers are motivated by the compensation they receive from their clients and subjects, and lawyers are motivated by the payment of fees to create legal documents. Being motivated by economics, however, is not the same as being motivated by the marketable right granted by copyright law.
16. JESSICA LITMAN, DIGITAL COPYRIGHT (2001) [hereinafter DIGITAL COPYRIGHT];
17. Jessica Litman, Copyright, Compromise and Legislative History, 72 CORNELL L. REV. 857 (1987) [hereinafter Copyright, Compromise].
18. COHEN, supra note 5, at 6-8.
19. Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533, 1544-45 (1993).
20. Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 972 (1982).
21. See also Gordon, supra note 13.
22. Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 TUL. L. REV. 991, 992 (1990);
23. Gordon, supra note 13, at 1533.
24. Ramsey, supra note 4, at 217-223;
25. cf. Alfred C. Yen, Restoring the Natural Law: Copyright as Labor and Possession, 51 OHIO ST. L.J. 517 (1990).
26. This purpose behind copyright law is expressly stated in the Constitution. U.S. CONST, art. I, § 8, cl. 8. Exclusive rights granted to authors are meant to "promote progress in science."
27. Id. (emphasis added). At the time of the framing of the Constitution, "science" connoted broadly "knowledge and learning."
28. Arthur H. Seidel, The Constitution and a Standard of Patentability, 48 J. PAT. & TRADEMARK OFF. SOC'Y 11 n.13 (1966) (noting that the most authoritative dictionary at the time listed "knowledge" as the first definition of "science").
29. Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343 (1989).
30. COHEN, supra note 5, at 6-7.
31. Cf. Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281 (1970). Professor (now Justice) Breyer argues that there are other means for publishers to recoup investment, including lead-time advantage and brand loyalty.
32. Eldred v. Ashcroft, 537 U.S. 186, 212 n.18 (2003).
33. Both initial disclosure to others and public distribution facilitate the advancement of knowledge. First publication can be an important right for all copyright owners and is protected through the reproduction right. See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).
34. The complicated dynamics between authors and publishers, or creators and disseminators more broadly, remains part of the copyright world that cannot be ignored. See Maureen A. O'Rourke, A Brief History of Author-Publisher Relations and the Outlook for the 21st Century, 50 J. COPYRIGHT SOC'Y U.S.A. 425 (2003). While the use of internet distribution of certain types of creative works can be accomplished without the need for distributors, distributors still play an important role off the internet and on the internet as well.
35. See Raymond Shih Ray Ku, The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology, 69 U. CHI. L. REV. 263 (2002).
36. See supra notes 20-21 and accompanying text.
37. For a discussion of copyright as a form of authors' welfare, see Tom W. Bell, Authors' Welfare: Copyright as a Statutory Mechanism for Redistributing Rights, 69 BROOK. L. REV. 229 (2003).
38. A particularly interesting example of this principle is demonstrated by cease and desist letters sent by lawyers to alleged copyright infringers. Those letters are created not because of the incentive that copyright protection provides, but rather to protect the marketable right in a copyrighted work. Yet the copyright office has registered and courts have acknowledged the copyright in the cease and desist letter itself. See, e.g., In re 43sb.com LLC, No. MS-07-6236-EJL-MHW (D. Idaho Nov. 16, 2007), available at http://pub.bna.com/eclr/076236_111607.pdf.
39. See id.
40. For example, building-contractor associations are a main proponent of model building codes and stand to benefit by the enactment of the codes they create.
41. The protection for model codes becomes almost non-existent once that code is enacted into law. See Veeck v. S. Bldg. Code Congress Int'l, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc).
42. Id. at 794-95.
43. To the extent that some groups may enter the model code business in order to profit from sales of the works, those may not be the groups society would be most interested in having draft model legislation. While there are also problems with industry groups writing the codes that govern the players in that industry, affording model codes less robust copyright protection would likely not significantly reduce industry group incentive to create such codes.
44. In many situations of portrait photography today, the photographer is employed by a corporation and is taking the photographs within the scope of her employment. In these situations, the author of the work would be the corporation. See 17 U.S.C. § 101 (2000) (definition of "work made for hire").
45. It is possible that the existence of copyright protection for these images helps keep the initial price for the creation of these images lower. If a photographer factors in the profits that are possible from the marketable copyright rights in the photographs, she may initially charge less to the client, figuring to make additional profits through the copyright. Industry pricing practice may differ for other types of professional portrait photography. As any parent of a teenager can convey, the industry practice surrounding "senior pictures" varies widely. One recent example relayed to me involved payment of over $150 for an initial set of approximately ten photographic proofs. Additional prints from those proofs were also extremely expensive when ordered through the photographer. No assignment of copyright could be obtained. When asked what type of prints the parent was going to order, the response was that the parent planned to scan the proofs and make their own prints at home. This anecdote may, in fact, indicate that copyright protection in the digital age is meaningless for the photographer, thus explaining the high price for the initial proofs. If that is the case, then robust copyright protection is unnecessary as these works will be created regardless of the level of copyright protection.
46. Just try taking one studio-produced portrait photograph to a copy store to include as one of over twenty home photographs in a personalized calendar as a gift for the grandparents. Stores routinely refuse to reproduce such images. See Fred Meyer Brochure, Copyright and Your Photographic Products (on file with author). Additionally, privacy concerns and rights of publicity claims may restrict the ability of the photographer, as creator of these works, from authorizing further distribution.
47. See Flickr, http://www.flickr.com (last visited July 31, 2008); Picasa (from Google), http://www.picasa.com (last visited July 31, 2008).
48. Ramsey, supra note 4, at 217-23. Professor Ramsey also questions the net social benefit of the government encouraging the creation and dissemination of advertising.
49. Id. at 229-36.
50. Id. at 218.
51. Id. at 219-23.
52. TERESA M. AMABILE, CREATIVITY IN CONTEXT 115 (1996) (discussing the Intrinsic Motivation Principle as a fundamental principle in our understanding of human creativity).
53. See also Kwall, supra note 6, at 1949-70 (exploring the theological and secular perspectives on inspirational motivations).
54. Kwall, supra note 6, at 1947.
55. Id.
56. Id. at 1991-2012. Professor Kwall endorses the need for greater protection of these non-economic rights, but does not argue that a reduction in the scope of protection for the economic rights is warranted. This article makes the case for a reduction in scope of economic rights, although not a complete elimination of those economic rights.
57. See BOSWELL, supra note 2 and accompanying text.
58. See, e.g., Louis Uchitelle, Encouraging More Reality In Economics, N.Y. TIMES, Jan. 6, 2007.
59. Julie Cohen, Creativity and Culture in Copyright Theory, 40 U.C. DAVIS L. REV. 1151 (2007).
60. See Glynn S. Lunney, Jr., The Death of Copyright: Digital Technology, Private Copying, and the Digital Millennium Copyright Act, 87 VA. L. REV. 813, 900-02 (2001).
61. See, e.g., Michael W. Carroll, One for All: The Problem of Uniformity Cost in Intellectual Property Law, 55 AM. U. L. REV. 845 (2006). Professor Carroll argues that "perfectly tailored rights that promise innovators only the expected value required to induce socially desirable innovation would be theoretically optimal if intellectual property rights were the only policy tool available to promote innovation."
62. Id. at 848 (footnote omitted).
63. See also Dan L. Burk & Mark A. Lemley, Biotechnology's Uncertainty Principle, 54 CASE W. RES. L. REV. 691, 695-706 (2004);
64. Glynn S. Lunney, Jr., Patent Law, the Federal Circuit, and the Supreme Court: A Quiet Revolution, 11 SUP. CT. ECON. REV. 1 (2004).
65. Professor Carroll identifies some reasons as "uncertainty about innovation, information asymmetries between policymakers and innovators, administrative costs of tailoring, and the political economy of intellectual property policymaking." Carroll, supra note 48, at 848.
66. Infringement liability is not certain as the test for infringement requires substantial similarity, or sufficient verbatim copying. Additionally, in certain contexts fair use shields the reuse of expressive content from liability.
67. LAWRENCE LESSIG, FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY 95-99 (2004).
68. Other examples are recounted in KEMBREW MCLEOD, FREEDOM OF EXPRESSION: OVERZEALOUS COPYRIGHT BOZOS AND OTHER ENEMIES OF CREATIVITY (2005).
69. See Bell, supra note 26, at 229.
70. The required authorization may be obtained from the copyright owner or may be found in the Copyright Act itself in sections such as those providing fair use rights, 17 U.S.C. § 107, mechanical copying rights, § 115, or other statutory limitations, §§ 107-123.
71. Lunney, supra note 47, at 900-03 (questioning the wisdom of pointing to the growth in the copyright industries in recent years as evidence of increased creative output, suggesting instead that growth may be the result of the bold extension of additional rights to copyright owners, which has allowed copyright owners to capture more consumer surplus without adding new works into the marketplace).
72. Molly Shaffer Van Houweling, Distributive Values in Copyright, 83 TEX. L. REV. 1535 (2005).
73. Id. at 1537-38.
74. Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354-408 (1999);
75. Kwall, supra note 6, at 1996;
76. Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 STAN. L. REV. 1, 65 (2001).
77. Van Houweling, supra note 56, at 1548.
78. Madhavi Sunder, Intellectual Property and Identity Politics: Playing with Fire, 4 J. GENDER RACE & JUST. 69, 70 (2000).
79. Id. at 70-72.
80. Julie E. Cohen, Copyright and the Perfect Curve, 53 VAND. L. REV. 1799 (2000).
81. Glynn S. Lunney, Jr., Reexamining Copyright's Incentives-Access Paradigm, 49 VAND. L. REV. 483, 487-88, 589-99 (1996). Of course, it may be the case that if a creator is not motivated by monetary concerns in the initial creation of a work, he may, nonetheless, become motivated once the market feedback mechanism kicks in. If the market is "telling" the author to create more of that type of work, then the proxy of the market, at least, is indicating that the socially optimal quantity of that type of work has not yet been reached. Alternatively, a creator not motivated by monetary concerns may remain unmotivated by any feedback from the market, in which case even the existence of copyright protection is irrelevant as an influencing factor.
82. In several of the examples, there are other monetary rewards, just not ones created by copyright law. Legal pleadings, for example, are created by lawyers who are reaping monetary rewards for their work. Those monetary rewards, however, are not created as a result of copyright protection.
83. John Tehranian, Infringement Nation: Copyright Reform and the Law/Norm Gap, 2007 UTAH L. REV. 537, 539 (2007). Photographs of toys constitute derivative works of those toys.
84. Schrock v. Learning Curve Int'l, Inc., 531 F. Supp. 2d 990 (N.D. Ill. 2008).
85. Tehranian, supra note 65, at 543.
86. Tom R. Tyler, Compliance with Intellectual Property Laws: A Psychological Perspective, 29 N.Y.U. J. INT'L L. & POL. 219, 225 (1997).
87. 17 U.S.C. § 102(a) (2000).
88. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991).
89. See infra notes 113-21 and accompanying text.
90. For new works created today copyright protection lasts for the life of the author plus 70 years. For works made for hire, pseudonymous and anonymous works, copyright lasts for 95 years from publication or 120 years from creation, whichever expires first.
91. Justin Hughes, Size Matters (or Should) in Copyright Law, 74 FORDHAM L. REV. 575 (2005).
92. See Tehranian, supra note 65.
93. § 102 (defining works eligible for protection as those that are "fixed in any tangible medium of expression"). The 1909 Copyright Act eliminated publication as a requirement for protection for certain works, allowing those unpublished works to obtain protection through registration.
94. The digital world has largely altered the landscape and, therefore, the calculations that copyright owners must make concerning the ease of replication once a work has been first published. The duplication and distribution made possible by the internet counter-balances the protections afforded to copyright owners when considering how little unauthorized reproduction can be controlled. In the end, however, all that may be necessary is "some assurance that copying will be limited." Trotter Hardy, Property (and Copyright) in Cyberspace, 1996 U. CHI. LEGAL F. 217, 222 (1996).
95. See Michael P. Van Alstine, The Costs of Legal Change, 49 UCLA L. REV. 789, 845 (2002);
96. Dennis S. Karjala, The Relative Roles of Patent and Copyright in the Protection of Computer Programs, 17 J. MARSHALL J. COMPUTER & INFO. L. 41, 53 (1998) (arguing that some protection is necessary for computer software, but not "thick" protection).
97. See Bell, supra note 26, at 272-75 (comparing the distribution of entitlements provided by the Copyright Act to those provided by welfare benefits).
98. See Yen, supra note 16.
99. The early experiences with creative commons licenses were that 97% to 98% of creators selected the licenses that required authorial attribution. See Lydia Pallas Loren, Building a Reliable Semicommons of Creative Works: Enforcement of Creative Commons Licenses and Limited Abandonment of Copyright, 14 GEO. MASON L. REV. 271, 288 n.98 (2007).
100. See also Kwall, supra note 6, at 1991-2011 (arguing in favor of an attribution right for works that are intrinsically motivated). Professor Kwall argues that "moral rights protections that are narrowly crafted to promote public education regarding the authorship and original artistic meaning of the work represent appropriate measures to achieve the very objectives of the Copyright Clause."
101. Id. at 1986.
102. See Catherine L. Fisk, Credit Where It's Due: The Law and Norms of Attribution, 95 GEO. L.J. 49 (2006).
103. Laura C. Marshall, Catwalk Copycats: Why Congress Should Adopt a Modified Version of the Design Piracy Prohibition Act, 14 J. INTELL. PROP. L. 305, 309 (2007);
104. Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 VA. L. REV. 1687, 1702-04 (2006).
105. Hearn v. Meyer, 664 F. Supp. 832 (S.D.N.Y. 1987) (rejecting copyright protection for reproduction of public domain art prints completed using an exacting and time-consuming process).
106. See also Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999).
107. See Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004).
108. See, e.g., Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991) (permitting use of unpublished letters in an unflattering biography);
109. New Era Publ'ns Int'l., ApS v. Carol Publ'g Group, 904 F.2d 152 (2d Cir. 1990) (permitting use of unpublished journal entries and letters in scholarly biography).
110. This concern was identified by the Vatican in its pronouncement on its copyright policy. See Owen, supra note 1.
111. See, e.g., Wright, 953 F.2d at 731 (permitting use of unpublished letters in an unflattering biography);
112. New Era, 904 F.2d at 152 (permitting use of unpublished journal entries and letters in scholarly biography).
113. See Online Policy Group, 337 F. Supp. 2d at 1195.
114. See Heymann, supra note 6.
115. Berne Convention for the Protection of Literary and Artistic Works, art. 2, July 24, 1971, 1161 U.N.T.S. 36 [hereinafter Berne Convention].
116. The definition goes on to provide examples: books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science. Id.
117. Id. at art. 2(3).
118. See also Daniel J. Gervais, Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law, 49 J. COPYRIGHT SOC'Y U.S.A. 949 (2002).
119. DANIEL C.K. CHOW & EDWARD LEE, INTERNATIONAL INTELLECTUAL PROPERTY 130 (2006).
120. Agreement on Trade-Related Aspects of Intellectual Property Rights, pt. I, art. 9, Apr. 15, 1994, 108 Stat. 4809, 1869 U.N.T.S. 299 [hereinafter TRIPs Agreement].
121. Berne Convention, supra note 89, at art. 12.
122. 17 U.S.C. § 106(2) (2000).
123. Schrock v. Learning Curve Int'l, Inc., 531 F. Supp. 2d 990, 994-95 (N.D. Ill. 2008).
124. Gracen v. Bradford Exch., 698 F.2d 300, 302 (7th Cir. 1983).
125. As the Court observed in Harper & Row: "[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas."
126. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985).
127. Eldred v. Ashcroft, 537 U.S. 186, 221 (2003).
128. Id.
129. In Eldred the Court did not provide any guidance on what are the traditional contours of copyright law or how to determine those traditional contours. The Tenth Circuit has attempted to provide some guidance on interpreting the traditional contours of copyright law.
130. See Golan v. Gonzales, 501 F.3d 1179, 1188-92 (10th Cir. 2007).
131. See, e.g., In re Mavety Media Group, Ltd., 33 F.3d 1367, 1374 (Fed. Cir. 1994) (rejecting First Amendment challenge to the refusal to register a mark as scandalous and immoral).
132. See also Ritchie v. Simpson, 170 F.3d 1092, 1099 (Fed. Cir. 1999).
133. See Lydia Pallas Loren, Digitization, Commodification, Criminalization: The Evolution of Criminal Copyright Infringement and the Importance of the Willfulness Requirement, 77 WASH. U. L. Q. 835, 885 (1999).
134. See supra Part III.A.5.
135. Eldred, 537 U.S. at 221.
136. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340 (1991). Courts have also recognized varying levels of protection on the basis of the level of utility that shapes the expression in the plaintiffs work.
137. Apple Computer, Inc. v. Microsoft Corp., 799 F. Supp. 1006, 1446-47 (9th Cir. 1994) (noting the "thinness" of the protection for software and requiring the defendant's work be "virtually identical" to the plaintiffs work in order to find infringement).
138. 188 U.S. 239 (1903).
139. Id. at 251.
140. Id. (emphasis added).
141. DIGITAL COPYRIGHT, supra note 11 (describing copyright lawmaking as a "one-way rachet up").
142. Sound recording amendments are an excellent example of this dynamic. When sound recordings were granted copyright protection in 1971, specific provisions were included to reduce the level of protection. See, e.g., 17 U.S.C. § 114 (2000). In 1996, when sound recordings were afforded some performance rights, the rights granted were not as robust as those of other copyright owners. § 106(6).
143. See, e.g., § 110 (limitations on the rights of copyright owners in certain types of works enacted as part of the 1976 Copyright Act).
144. § 102.
145. "A copyist's bad eyesight or defective musculature, or a shock caused by a clap of thunder, may yield sufficiently distinguishable variations." Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 105 (2d Cir. 1951).
146. Time, Inc. v. Bernard Geis Assoes., 293 F. Supp. 130 (S.D.N.Y. 1968) (acknowledging copyright protection for the Zapruder film, a home movie of the presidential motorcade during which JFK was shot).
147. One might be tempted to consider that papal texts are actually the work of God and therefore not protected. However, the Vatican does not assert that the words of the Pope are the words of God, thus the Pope is the "author" of the works he creates. See, e.g., Urantia Found, v. Maaherra, 114 F.3d 955 (9th Cir. 1997) (concluding that the work that the parties agreed was received from celestial beings was a composite work and subject to a valid copyright).
148. See Litman, supra note 8.
149. See Veeck v. S. Bldg. Code Congress Int'l, Inc., 293 F.3d 791 (5th Cir. 2002) (en banc).
150. Indeed, international treaty obligations require that no formalities be imposed in order to obtain copyright protection. See Berne Convention, supra note 89, at art. 5.
151. Registration is not required, although certain benefits do flow from registration, such as serving as prima facie evidence that the work is original and owned by the registrant. 17 U.S.C. § 412 (2000).
152. "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression ...."§ 102. The U.S. Constitution permits Congress to award copyright protection to all "writings" of an "author." U.S. CONST, art. I., § 8, cl. 8. While the 1909 Copyright Act used those words to identify the works eligible for protection, the 1976 Act utilizes words that do not risk a constitutional collision when a court determines that a work does not qualify for protection.
153. Id.
154. § 106.
155. See § 106(4)-(5). Sound recording copyright owners are granted a more limited public performance right: the right "to publicly perform the copyright work by means of a digital audio transmission." § 106(6).
156. § 107.
157. See, e.g., Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004);
158. Tufenkian Imp./Exp. Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127 (2d Cir. 2003).
159. The degree of similarity is relevant at two points in the infringement inquiry. First, because independent creation is an absolute defense to infringement, to infringe a defendant must be found to have copied from the plaintiff's work. Unless the defendant admits copying, copying is typically demonstrated through circumstantial evidence of copying, by showing defendant's access to the plaintiff's work and the similarity between the two works. See, e.g., Selle v. Gibb, 741 F.2d 896, 902 (7th Cir. 1984). Additionally, courts also then use the degree of similarity in determining whether the defendant has improperly appropriated the protectable elements of the plaintiff's copyrighted work.
160. See, e.g., Three Boys Music Corp. v. Michael Bolton, 212 F.3d 477 (9th Cir. 2000). As argued in this Article, it is this latter inquiry into substantial similarity that should be affected by motivational concerns.
161. Stewart v. Abend, 495 U.S. 207, 237 (1990);
162. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 563 (1985);
163. Abend v. MCA, Inc., 863 F.2d 1465, 1481 (9th Cir. 1988);
164. Brewer v. Hustler Magazine, Inc., 749 F.2d 527, 529 (9th Cir. 1984).
165. Computer Assoes. Int'l, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992).
166. See, e.g., Boisson v. Banian, Ltd., 273 F.3d 262 (2d Cir. 2001).
167. See, e.g., Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 349 (1991);
168. Fleener v. Trinity Broad. Network, 203 F. Supp. 2d 1142, 1149 (C.D. Cal. 2001).
169. See, e.g., Bellsouth Adver. & Publ'g Corp. v. Donnelley Info. Publ'g, Inc., 999 F.2d 1436 (11th Cir. 1993) (en banc).
170. Section 106 states that the rights granted to copyright owners are "subject to sections 107-123 . . . ." 17 U.S.C. § 106 (2000).
171. Id.
172. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).
173. Lydia Pallas Loren, Redefining The Market Failure Approach to Fair Use in an Era of Copyright Permission Systems, 5 J. INTELL. PROP. L. 1, 27-28 (1997).
174. Id.
175. Michael J. Madison, A Pattern-Oriented Approach to Fair Use, 45 WM. & MARY L. REV. 1525 (2004).
176. 17 U.S.C. § 107(1) (2000).
177. Campbell, 510 U.S. at 598.
178. § 107(4).
179. Princeton Univ. Press v. Michigan Document Servs., Inc., 99 F.3d 1381, 1385 (6th Cir. 1996).
180. See also Mark A. Lemley, The Economies of Improvement in Intellectual Property Law, 75 TEX. L. REV. 989, 1077 (1997) (noting the tendency of the courts to focus primarily on market harm "to the exclusion of all else").
181. Campbell, 510 U.S. at 583-85.
182. Princeton Univ. Press, 99 F.3d 1381;
183. Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994).
184. Campbell, 510 U.S. 569.
185. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984).
186. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).
187. Campbell, 510 U.S. 569.
188. TY, Inc. v. Publ'ns Int'l Ltd., 2000 WL 1499449 (N.D.Ill), rev'd 292 F.3d 512 (7th Cir. 2002);
189. Byrne v. British Broad. Corp., 132 F. Supp. 2d 229, 235 (S.D.N.Y. 2001);
190. Hofheinz v. AMC Prods., Inc., 147 F. Supp. 2d 127, 138 (E.D.N.Y. 2001).
191. Campbell, 510 U.S. 569.
192. Harper & Row, 471 U.S. at 556.
193. Joseph P. Liu, Copyright and Time: A Proposal, 101 MICH. L. REV. 409 (2002) (urging courts to consider duration issues in this factor as well).
194. 17 U.S.C. § 110(6)-(8) (2000).
195. § 115.
196. § 106(6).
197. § 114.
198. § 113. "Useful article" is a term of art in the Copyright Act, defined in Section 101.
199. § 117.
200. § 120.
201. One way to guard against post-hoc explanations would be to examine the timing of the registration of the copyright in the particular work. While copyright registration is not required to obtain protection, there are significant evidentiary and monetary benefits to be gained by prompt registration. See §§ 411, 412. If a creator is motivated by monetary concerns it is therefore likely that such a creator will register his work promptly. Delay in registration could be a proxy used as circumstantial evidence of true motivation.
202. See supra Part I.
203. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 349 (1991);
204. Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606 (1st Cir. 1988);
205. Schroeder v. William Morrow & Co., 566 F.2d 3 (7th Cir. 1977);
206. Sid & Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157, 1167 (9th Cir. 1977);
207. Penelope v. Brown, 792 F. Supp. 132, 135 (D. Mass. 1992).
208. Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir. 1986);
209. MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.03[A] (2005).
210. But see MARSHALL A. LEAFFER, UNDERSTANDING COPYRIGHT LAW 412-14 n.27 (2005) (proposing a different terminology: "verbatim similarity" and "pattern similarity").
211. 663 F. Supp. 706 (S.D.N.Y. 1987).
212. For example, this case is used in COHEN, supra note 5, at 336;
213. ROBERT A. GORMAN & JANE C. GINSBERG, COPYRIGHT: CASES AND MATERIALS 572 (7th ed. 2006);
214. ROBERT P. MERGES, PETER S. MENELL & MARK A. LEMLEY, INTELLECTUAL PROPERTY IN THE NEW TECHNOLOGICAL AGE 474 (4th ed. 2006).
215. Some may take issue with this classification arguing that magazine covers are often produced by artists and are highly creative. Even though highly creative, the bulk of the compensation expected by artists for these covers comes from the commissioning entity - the magazine - to whom all copyright rights are assigned. The artist does not profit from the copyright except to the extent that copyright affects the willingness of the magazine publisher to pay for the commission and the amount it is willing to pay. Further, it is unlikely that the commissioning entity factors the various potential licensing opportunities for derivative works of its covers into the price it is willing to pay for the commission.
216. See also Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. 1998) (additional example of a magazine cover being used as a basis for a movie poster advertisement).
217. Section 107 states: "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include . . . ." 17 U.S.C. § 107 (2000). The use of the word "include" to introduce the four factors draws upon the definitions provided in the Copyright Act which provides that "[t]he terms 'including' and 'such as' are illustrative and not limitative." § 101.
218. § 107(2).
219. Reconciling such an approach with international treaty obligations is also possible using a robust interpretation of "fair remuneration" in the permitted exceptions test of both the Berne Convention and the TRIPs Agreement. See Ruth Okediji, Toward an International Fair Use Doctrine, 39 COLUM. J. TRANSNAT'L L. 75 (2000).
220. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985);
221. Faulkner v. Nat'l Geographic, 294 F. Supp. 2d 523 (S.D.N.Y. 2003),
222. aff'd in part, rev 'd in part, 409 F.3d 26 (2d Cir. 2005).
223. Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622, 629 (9th Cir. 2003);
224. A&M Records, Inc. v. Napster, Inc., 293 F.3d 1004, 1016 (9th Cir. 2001);
225. Gulfstream Aerospace Corp. v. Camp Sys. Int'l, Inc., 428 F. Supp. 2d 1369, 1378 (S.D. Ga. 2006);
226. Kelly v. Arriba Soft Corp., 336 F.3d 811, 820 (Cal. 2003). Cf. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (concluding the work at issue lies in the core of copyright protection, but that such conclusion is not
227. Professor Ramsey has previously suggested consideration of the fact that the work is advertising copy as weighing in favor of fair use under the second factor. Ramsey supra note 4, at 248-249.
228. See also Carroll, supra note 48 (suggesting such tailoring to ameliorate the cost of uniform copyright protection).
229. Harper & Row, 471 U.S. 539.
230. Folsom v. Marsh, 9 F. Cas. 342, 348 (D. Mass. 1841) (No. 4,901).
231. See supra Part IV.C.
232. 17 U.S.C. §§ 110(6)-(8), 115-16 (2000).
233. § 114.
234. § 113. "Useful article" is a term of art in the Copyright Act, defined in Section 101.
235. § 117.
236. § 120.
237. See supra Part II.A.
238. Pub. L. No. 92-140, 85 Stat. 391 (1971, effective Feb. 15, 1972).
239. § 114(b). This limitation was significantly influenced by the dynamics of the music industry and the powerful lobby forces behind the different positions at stake. See Lydia Pallas Loren, Untangling the Web of Music Copyrights, 53 CASE W. RES. L. REV. 673 (2003).
240. Copyright, Compromise, supra note 11, at 879.
241. DIGITAL COPYRIGHT, supra note 11, at 80.