Copyrights as incentives: Did we just imagine that?

Theoretical Inquiries in Law

Volumn 12, Issue 1, 2011, Pages 29-58

  Zimmerman, Diane Leenheer ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79951531759     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1262     Document Type: Article

References (139)

1. For an interesting discussion of the noneconomic components of creativity, see generally Roberta Rosenthal Kwall, Inspiration and Innovation: The Intrinsic Dimension of the Artistic Soul, 81 NOTRE DAME L. REV. 1945 (2006) [hereinafter Kwall, Inspiration];
2. ROBERTA ROSENTHAL KWALL, THE SOUL OF CREATIVITY: FORGING AMORAL RIGHTS LAW FOR THE UNITED STATES (2009).
3. Julie E. Cohen, Creativity and Culture in Copyright Theory, 40 U.C. DAVIS L. REV. 1151 (2007).
4. Margaret Chon, Intellectual Property "from Below": Copyright and Capability for Education, 40 U.C. DAVIS L. REV. 803, 813 (2007).
5. The original copyright statute granted rights for 14 years with the possibility of a second such term should the author be alive when it was time to renew. Copyright Act of 1790, ch. 15, § 1, 1 Stat. 124, 124.
6. See, e.g., Stanley M. Besen & Leo J. Raskind, An Introduction to the Law and Economics of Intellectual Property, 5 J. ECON. PERSP., 3, 5 (1991) (arguing that producers will innovate only if they receive an appropriate return). As Landes and Posner put it, "[T]he more extensive copyright protection is, the greater the incentive to create intellectual property. "
7. William M. Landes & Richard A. Posner, Indefinitely Renewable Copyright, 70 U. CHI. L. REV. 471, 474 (2003) [hereinafter Landes & Posner, Renewable Copyright]. It should be added that, while Landes and Posner generally adhere to the proposition that "all valuable resources. should be owned,"
8. WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 213 (2003), they also believe that the incentive value of a copyright term diminishes to insignificance after a certain point, id. at 214. Once that point is reached, their reason for favoring the possibility of indefinite regular extensions of the copyright term for valuable works is to prevent "premature exhaustion" of their economic worth, id. at 223, and to encourage the owner to promote the work and make it continuously available, id. at 228-29.
9. Copyright Act of 1909, Pub. L. No. 60-349, § 23, 35 Stat. 1075, 1080.
10. 17 U.S.C. § 302 (1976) (amended 1998).
11. 17 U.S.C. § 302 (2006).
12. See Plant Variety Protection Act of 1970, 7 U.S.C. §§ 2321-2582 (2006);
13. Orphan Drug Act, Pub. L. No. 97-414, § 527, 96 Stat. 2049, 2050-51 (1983) (codified at 21 U.S.C. § 360aa-ee (2010)). A possible reason that the patent term has remained more stable is that the scope of the patent during that term is extremely broad, and the risk of harm from monopolies in inventions is perceived as being more severe than with copyrighted works.
14. Nancy Gallini & Suzanne Scotchmer, Intellectual Property: When Is It the Best Incentive System?, in 2 INNOVATION POLICY AND THE ECONOMY 51, 62 (Adam B. Jaffe, Joshua Lerner & Scott Stern eds., 2002). In fact, as noted earlier, some have gone so far as to propose that it would make sense to allow valuable copyrights to be indefinitely extendable, at the option of the owner.
15. Landes & Posner, Renewable Copyright, supra note 5, at 491. As noted earlier, however, Landes and Posner do not justify infinite copyrights on the ground of incentives to authors, but rather as a way to encourage efficacious marketing of the works at issue. Id. at 494-95.
16. One recent exception is Raymond Shih Ray Ku, Jiayang Sun & Yiying Fan, Does Copyright Law Promote Creativity? An Empirical Analysis of Copyright's Bounty, 62 VAND. L. REV. 1669 (2009). In it, the authors ask whether changes in the duration of copyright law actually have an effect on the number of new works produced. They measure changes in copyright registrations as the metric for evaluating the effect of lengthening terms of protection.
17. See, e.g., Kenneth W. Dam, Intellectual Property in an Age of Software and Biotechnology 3-4 (John M. Olin Law & Econ. Working Paper No. 53, 1995) (discussing the tension between need for incentives and needs of future innovators);
18. Mark A. Lemley, The Economics of Improvement in Intellectual Property Law, 75 TEX. L. REV. 989, 997-98 (arguing that because of the costs intellectual property laws impose on the public and on downstream innovators, such laws can be justified only if, on balance, they encourage the creation and dissemination of new works).
19. 537 U.S. 186 (2003).
20. Id. at 207 n.15.
21. Id.
22. Id. at 227.
23. Id. at 254-57.
24. Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions, 51 WM.& MARY L. REV. 513, 517-18 (2009). While this Article was in preparation, Tushnet published Economies of Desire, a study equally skeptical of the incentives story as an explanation of what leads authors to create. Her focus is complementary to the one in this Article, in that she concentrates on the personal narratives of creators and their explanations for what they do as evidence of the weak explanatory power of the theory that potential payment is the key to promoting authorship. By contrast, this Article looks at studies of artists' actual earnings and at the social science research on what motivates creative behavior.
25. Shakers belonged to a dissenting branch of Quakerism, founded in the middle of the eighteenth century in Britain by Mother Ann Lee and brought to the United States by her just as the American Revolution was beginning. She settled in New York State, and subsequent Shaker communities spread out from there through New England and south to Kentucky. For a brief history of the sect, see National Park Service, The Shakers, http://www.nps.gov/nr/travel/shaker/shakers. htm (last visited June 29, 2010).
26. EDWARD D. ANDREWS, THE COMMUNITY INDUSTRIES OF THE SHAKERS 40-44 (1932) (listing these and numerous other inventions).
27. Matthew Cooper, Relations of Modes of Production in Nineteenth Century America: The Shakers and Oneida, 26 ETHNOLOGY 1, 5 (1987).
28. Id.
29. ANDREWS, supra note 20, at 37.
30. See, e.g., Cooper, supra note 21, at 5 (arguing that inventiveness and hard work were primarily in the service of the Shakers' "sacred commitment" to God, although they also resulted in products that were desired by what the Shakers called "the World").
31. EVERETT E. HAGEN, ON THE THEORY OF SOCIAL CHANGE: HOW ECONOMIC GROWTH BEGINS 93 (1962).
32. Kwall, Inspiration, supra note 1, at 1951-62. Kwall, a supporter of moral rights, would, however, draw quite different conclusions about the implications of her argument from those in this Article.
33. See generally Yochai Benkler, Coase's Penguin, or, Linux and the Nature of the Firm, 112 YALE L.J. 369 (2002). That is not to deny that some participants in these projects might have specific economic objectives to further by their contributions. A company interested in promoting a product, or a publicist intending to promote a celebrity, might well contribute something favorable about the good or the personality to a peer-produced project in hopes of indirect economic gain.
34. Tushnet, supra note 18;
35. Tushnet, supra note 18; Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 LOY. L.A. ENT. L.J. 651, 657-58 (1997) [hereinafter Tushnet, Legal Fictions].
36. Diane Leenheer Zimmerman, Authorship Without Ownership: Reconsidering Incentives in a Digital Age, 52 DEPAUL L. REV. 1121, 1136-37 (2003).
37. Id.
38. I am not sure the situation has improved much, if at all, since then. According to the Academy of American Poets, "[v]ery few poets rely entirely on the proceeds from their work. Journal publication is frequently unpaid, compensated only by additional contributor's copies, and poetry book advances are modest sums. Most poets, even the most widely published, hold other jobs, such as teaching and journalism." Poets.Org, Writing and Publishing FAQ, http://www.poets.org/page.php/prmID/56 (last visited Feb. 23, 2010).
39. Zimmerman, supra note 29.
40. Stanley Kunitz, Matthew Arnold: A Biography, http://www.victorianweb.org/ authors/arnold/bio.html (last visited Feb. 23, 2010). Arnold worked at that job until five years before his death, when he was awarded a pension by British Prime Minister William Gladstone. Id.
41. Glenn Everett, Gerard Manley Hopkins, A Brief Biography, http://www.victorianweb.org/authors/hopkins/hopkins12.html (last visited Feb. 23, 2010). Most of Hopkins's poetry was not published until after his death.
42. The study showed that 60 percent of those who are identified as "professional" writers need other jobs to support themselves, and that more than half the income generated from writing flows to the top 10 percent of authors. Press Release, Authors' Licensing and Collecting Society, New Research Confirms UK Writers Still Struggle to Survive (Mar. 8, 2007), available at http://www.prnewswire.co.uk/cgi/news/release?id=192513.
43. KELLY HILL & KATHLEEN CAPRIOTTI, HILL STRATEGIES RESEARCH, INC., STATISTICAL INSIGHTS ON THE ARTS VOL. 7 NO. 4: A STATISTICAL PROFILE OF ARTISTS IN CANADA BASED ON THE 2006 CENSUS 11 (2009), available at http://www. canadacouncil.ca/publications-e/research/default.htm (follow "A Statistical Profile of Artists in Canada" hyperlink). The study was funded by the Canada Council for the Arts, the Department of Canadian Heritage and the Ontario Arts Council, and was based on census data.
44. The poverty line was set at $20,800. Id. at 10.
45. Id. at 11.
46. Id. at 42. Journalists were not included in the census category for writers and authors.
47. Id. at 3 (noting that the census category for authors is not a "perfect fit" for identifying novelists, poets, and so forth).
48. Artist Trust, Artists and the Economy Survey 2 (2009), http://www.artisttrust.org/artists-economy-survey. The survey covered artists in the state of Washington.
49. HILL& CAPRIOTTI, supra note 36, at 39.
50. Id. at 35.
51. Paul William Kingston & Jonathan R. Cole, Economic and Social Aspects of the Literary Situation, 47 PUB. OPINION Q. 361, 366 (1983).
52. Id. at 370. Kingston and Cole found that many but by no means all of those with outside employment would have preferred to write full-time.
53. Id. at 383.
54. NAT'L ENDOWMENT FOR THE ARTS, ARTISTS IN THEWORKFORCE 1990-2005, at 122 (2008). The income figures are given in 2005 dollars.
55. Id.
56. Id.
57. Id. Dancers are not protected by copyright, but choreographers are as soon as their work is fixed in tangible form, usually by dance notation systems or on video. 17 U.S.C. § 102(a)(4) (2006).
58. LEVERAGING INVESTMENTS IN CREATIVITY WITH HELICON COLLABORATIVE & PRINCETON SURVEY RESEARCH ASSOCS. INT'L, THE ARTISTS AND THE ECONOMIC RECESSION SURVEY: SELECTED FINDINGS 2 (2009), http://www.lincnet.net/sites/all/files/ Selected%20Findings%20Artists%20and%20the%20Reces sion%20Survey%202009.pdf.
59. See infra notes 58-59 and accompanying text.
60. This argument is laid out by Scherer, who quotes Schumpeter on the efficacy of lotteries with their promise of great rewards to the very few in stimulating business investment. Scherer, who has extensively studied the payoffs from technological innovation, concluded that in areas like pharmaceuticals investments are indeed made in hopes of finding a "blockbuster." Over time, the profits from the blockbusters not only reward the investments, but compensate for expenditures on research and development for drugs that are less successful. Scherer hypothesized, based on the earlier research, that in cultural production, too, risk and participation in "lotteries" has utility to many creators and they will risk all on the chance that one or two of them will win fame and economic success. He suggests, therefore, that copyright should be structured to offer the promise of such long shots because they are effective motivators for at least some creators.
61. F.M. Scherer, The Innovation Lottery, in EXPANDING THE BOUNDARIES OF INTELLECTUAL PROPERTY: INNOVATION POLICY FOR THE KNOWLEDGE SOCIETY 3 (Rochelle Dreyfuss, Diane L. Zimmerman & Harry First eds., 2001).
62. Id. at 19 (speculating that for most artists "the uncertain prospect of spectacular payoffs may be more of a 'nice to have' fringe benefit than a necessary incentive");
63. see also Niva Elkin-Koren, Tailoring Copyright to Social Production, 12 THEORETICAL INQUIRIES L. 309 (2011) (making the case that social factors, including a sense of community and the opportunity for social interaction, are more important than economic factors as motivators of participation in the collaborative production of information goods).
64. Both behavioral economists and psychologists have pointed out the negative effects of what is termed the "optimism bias" in human behavior. This bias leads individuals to miscalculate the level of risk involved in various activities with the result that they may make unwise decisions and engage in unduly imprudent behavior. This bias can lead people to follow avenues that turn out to be innovative and productive, but that far more often will lead to failure. For discussions of optimism bias, see generally, for example, Christine Jolles, Behavioral Law and Economics, in BEHAVIORAL ECONOMICS AND ITS APPLICATIONS 115 (Peter Diamond & Hannu Vartiainen eds., 2007);
65. Peter R. Harris, Dale W. Griffin, & Sandra Murray, Testing the Limits of Optimistic Bias: Event and Person Moderators in a Multilevel Framework, 95 J. PERSONALITY& PSYCH. 1225 (2008).
66. On this point, Scherer is in agreement; he notes that "creative activity is often driven by non-pecuniary motives." Scherer, supra note 53, at 19.
67. See, e.g., Kwall, Inspiration, supra note 1;
68. Bradford S. Simon, Intellectual Property and Traditional Knowledge: A Psychological Approach to Conflicting Claims of Creativity in International Law, 20 BERKELEY TECH. L.J. 1613 (2005);
69. Wendy J. Gordon, Render Copyright unto Caesar: On Taking Incentives Seriously, 71 U. CHI. L. REV. 75, 89 (2004).
70. Josh Lerner & Jean Tirole, Some Simple Economics of Open Source, 50 J. INDUS. ECON. 197, 198 (2002).
71. The authors note that Richard Stallman, for example, got interested in open source because he wanted to improve a printer program for which the owner would not release the source code. Id. at 218. Other economists have developed this theme in various ways. James Bessen, for example, has posited that contributions to a public good like open source software can often be understood as the most efficient way to provide certain highly complex products that need to be tested and debugged, and where information on how users intend to utilize the product is difficult to acquire in the market. JAMES BESSEN, OPEN SOURCE SOFTWARE: FREE PROVISION OF COMPLEX PUBLIC GOODS IN THE ECONOMICS OF OPEN SOURCE SOFTWARE DEVELOPMENT 3 (Jürgen Betzer & Philipp J.H. Schröder eds., 2006). Thus, the economic benefits of participation can outweigh the losses incurred by eschewing property rights in the product.
72. See also Eric von Hippel & Georg von Krogh, Open Source Software and the "Private-Collective" Innovation Model, 14 ORG. SCI. 209, 214 (2003).
73. Lerner & Tirole, supra note 58, at 218. Increased status might, however, also be conceived of as a psychic reward, rather than something the participant hopes to monetize.
74. von Hippel & von Krogh, supra note 59, at 216.
75. For a similar point, see ERIC VON HIPPEL, DEMOCRATIZING INNOVATION 60 (2005).
76. von Hippel & von Krogh, supra note 59, at 216.
77. Id.
78. John Cahir, The Information Commons 32-33 (July 23, 2003) (unpublished manuscript), available at http://papers.ssrn.com/=428584.
79. Morris Altman, Introduction to HANDBOOK OF CONTEMPORARY BEHAVIORAL ECONOMICS: FOUNDATIONS AND DEVELOPMENTS, at xv, xv-xvi (Morris Altman ed., 2006);
80. Colin Camerer, Behavioral Economics: Reunifying Psychology and Economics, 96 PROC. NAT'L ACAD. SCI. USA 10575, 10575 (1999) ("[E]conomists routinely - and proudly - use models that are grossly inconsistent with findings from psychology.").
81. For a discussion of Skinner's theories and his research on operant conditioning, see B.F. SKINNER, ABOUT BEHAVIORISM (1974).
82. According to one prominent researcher, skepticism about the Skinnerian model began to grow by the 1970s. TERESA AMABILE, CREATIVITY IN CONTEXT: UPDATE TO THE SOCIAL PSYCHOLOGY OF CREATIVITY 153 (1996).
83. ABRAHAM H. MASLOW, MOTIVATION AND PERSONALITY 15-31 (2d ed. 1970).
84. Id. at 142. The line between intrinsic and extrinsic is not perfect, and at the margin, reasonable people could disagree about how to characterize a motivation, but generally, a task performed for the purpose of obtaining a reward is extrinsically motivated, whereas one that is performed because of its inherent interest or out of some sense of one's own psychic needs or the needs of the individual's community might be said to be intrinsically motivated.
85. Id. at 69-70. Interestingly, he made no claim that his studies explain the causes of real "genius" in music, art, literature, the sciences, or other creative endeavors, but he also believed the traits that unusually creative people express are inborn. Id. at 142.
86. Id.
87. HAGEN, supra note 25, at 93.
88. MIHALY CSIKSZENTMIHALYI, CREATIVITY: FLOW AND THE PSYCHOLOGY OF DISCOVERY AND INNOVATION 37 (1996).
89. Id. at 107.
90. Id. The findings of Csikszentmihalyi are closely replicated by the stories that appear in Tushnet, supra note 18, at 522-36. Presumably, the comments of Csikszentmihalyi's subjects about preferring work for love over work for money were not absolute; one must assume they had some way at the time of the interviews to meet their basic economic needs for housing, food, health care and the education of their children. I do not understand the choice in question to have been between starving while doing work they loved or pursuing enough income to survive on.
91. RICHARD FLORIDA, THE RISE OF THE CREATIVE CLASS 89 (2002).
92. Florida notes that fewer than 10 percent of respondents selected the availability of stock options as a significant motivator. Id. Similar results were obtained in a study examining the motivating factors that lead college music professors to engage in research and publication. Responses to a survey showed that the most important motivators for these faculty were the satisfaction of their intellectual curiosity and their enjoyment of the research process. External rewards, including salary increases and recognition, were reported as much less significant. Albert LeBlanc & Jan McCrary, Motivation and Perceived Rewards for Research by Music Faculty, 38 J. RES. MUSIC EDUC. 61, 64-66 (1990).
93. CSIKSZENTMIHALYI, supra note 73, at 334-35.
94. Joseph E. Stiglitz, Economic Foundations of Intellectual Property Rights, 57 DUKE L.J. 1693, 1697 (2008).
95. For another interesting discussion of the ability of noncopyright economic models to support creative endeavors, see Mark S. Nadel, How Current Copyright Law Discourages Creative Output: The Overlooked Impact of Marketing, 19 BERKELEY TECH. L.J. 785 (2004). Universities, of course, do seek patents on the research of faculty members for the benefit of the institution, and some of the benefits may inure to the discoverer, but the basic compensation of faculty inventors is independent of the patent system.
96. Stiglitz, supra note 78, at 1695.
97. The focus of this Article is on individual creativity and does not take into account dissemination costs or unusual production costs (as, for example, in the production of a feature film). It may be the case that the copyright incentive will be the only practical way to finance such works, although as the work of Yochai Benkler suggests, even here, the emphasis on monetary returns could have negative effects on the end product. See, e.g.,Yochai Benkler, Intellectual Property and the Organization of Information Production, 22 INT'L REV. L. & ECON. 81, 91 (2002).
98. Stiglitz, supra note 78, at 1695. (Pubitemid 24823328)
99. Robert Eisenberger & Judy Cameron, Detrimental Effects of Reward: Reality or Myth?, 51 AM. PSYCHOLOGIST 1153 (1996) (rejecting the findings of negative effects of rewards on creativity).
100. For an excellent review of the studies and of the variety of interpretations to which they are subject, see Beth A. Hennessey, Self-Determination Theory and the Social Psychology of Creativity, 11 PSYCHOL. INQUIRY 293 (2000).
101. Examples include Teresa M. Amabile, Entrepreneurial Creativity Through Motivational Synergy, 31 J. CREATIVE BEHAV. 18 (1994) (discussing entrepreneurship in firms);
102. George P. Baker, Michael C. Jensen & Kevin T. Murphy, Compensation and Incentives: Practice vs. Theory, 43 J. FIN. 593 (1988) (examining typical pay practices and asking if they better fit the psychologists' or the economists' models);
103. Ignacio Falgueras Sorauren, Non-Monetary Incentives: Do People Work Only for Money?, 10 BUS. ETHICS Q. 925 (2000) (exploring the issue of motivation in firms).
104. Dan Ariely, Uri Gneezy, George Loewenstein & Nina Mazar, Large Stakes and Big Mistakes, 76 REV. ECON. STUD. 451 (2008).
105. Id. at 464.
106. Id. at 467.
107. DAN ARIELY, PREDICTABLY IRRATIONAL 323 (2009).
108. EDWARD L. DECI & RICHARD M. RYAN, INTRINSIC MOTIVATION AND SELFDETERMINATION IN HUMAN BEHAVIOR 66, 149, 310 (1985).
109. Edward L. Deci, Richard Koestner & Richard M. Ryan, Extrinsic Rewards and Intrinsic Motivation in Education: Reconsidered Once Again, 71 REV. EDUC. RES. 1, 14 (2001);
110. cf. AMABILE, supra note 67, at 133 (arguing that external evaluation does not have a harmful effect where the path to the solution is "clear and straightforward").
111. Deci, Koestner & Ryan, supra note 89, at 14.
112. AMABILE, supra note 67, at 161 ("Enhancement in performance [by rewards] is to be expected when intrinsic interest is initially low.").
113. For discussions of experiments using money as the salient reward, see DECI & RYAN, supra note 88, at 44-49.
114. In a study using college students, the second half were told that they would later have a chance to teach what they'd learned to others. EDWARD L. DECI WITH RICHARD FLAST, WHYWEDOWHATWEDO: THEDYNAMICS OF PERSONALAUTONOMY 47-48 (1995).
115. Id. at 47.
116. Id. at 48.
117. Id. at 51.
118. Amabile also gives an anecdotal example of the effect that the prospect of evaluation can have on output. She says that poet Ann Sexton was temporarily but completely blocked in her writing after her mentor, Robert Lowell, told her to write "ten more really good poems." AMABILE, supra note 67, at 9.
119. Amabile developed a method of evaluation in which the creative work product of the intrinsically and the extrinsically motivated subjects was mixed together, and given to a panel of experts to evaluate. The experts were then asked to rate the creativity and technical facility exhibited by each work. The results of this evaluation were then re-sorted according to the group that produced them and the average quality of each group was then calculated, based on the experts' scoring. The technique is described in Teresa M. Amabile, Motivation and Creativity: Effects of Motivational Orientation on Creative Writers, 48 J. PERSONALITY & SOC. PSYCH. 393 (1985).
120. AMABILE, supra note 67, at 135-41. A repeat of the experiment with students at Brandeis yielded similar results, id. at 142-43.
121. Id. at 144-45.
122. Id. at 175.
123. Id. at 176.
124. DECI WITH FLAST, supra note 93, at 142.
125. DECI& RYAN, supra note 88, at 49.
126. AMABILE, supra note 67, at 174 (quoting from STEPHEN KING, FOUR PAST MIDNIGHT, at xv (1990)).
127. Id. at 151.
128. Deci, Koestner & Ryan, supra note 89, at 7, 10. At least one kind of salient reward - positive verbal feedback-seems to have variable effects, depending on a wide variety of surrounding circumstances. Id. at 9.
129. Harry Kalven, Broadcasting, Public Policy and the First Amendment, 10 J.L. & ECON. 15, 30 (1967). The comment was induced by Coase's argument that it would have been more efficient had the government auctioned off broadcast licenses instead of having chosen in the 1920s to have a government agency handle them.
130. The demoralization argument is often made, although its empirical basis is not clear. What can be said with increasing confidence, however, is that people seem to have some internal compass for "fairness," and when they perceive a "bargain" as being unfair to them, even if its actual effect is to increase their financial welfare, they may walk away from the bargaining table and forego the profit. For discussions of this phenomenon, see, for example, Robert A. Hillman, The Limits of Behavioral Decision Theory in Legal Analysis: The Case of Liquidated Damages, 85 CORNELL L. REV. 717, 724-25 (2000);
131. Jennifer Arlen, Comment: The Future of Behavioral Economic Analysis of Law, 51 VAND. L. REV. 1765, 1775-76 (1998).
132. This idea has been played with by other scholars, as well, albeit with slightly different assumptions and in slightly different contexts. Lydia Loren has argued that greater fair use should be available with regard to works that would have been created even without the incentive of copyright. Lydia Loren, The Pope's Copyright? Aligning Incentives with Reality by Using Creative Motivation to Shape Copyright Protection, 69 LA. L. REV. 1, 38-39 (2008).
133. Rebecca Tushnet has argued that fair use should be more generous toward people who borrow to create noncommercial works. Tushnet, supra note 18, at 543.
134. Lawrence v. Dana, 15 F. Cas. 26, 59 (C.C. Mass. 1869) (stating that the doctrine that abridgments are permissible under copyright is too venerable to be open to dispute); Stowe v. Thomas, 23 F. Cas.
135. (C.C. Pa. 1853) (holding a translation not to be infringing, but rather a wholly independent copyrightable work).
136. Copyright Act of 1909, Pub. L. No. 60-349, § 1(b), 35 Stat. 1075, 1075.
137. Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., Inc., 900 F. Supp. 1287 (C.D. Cal. 1995) (ad showing an unnamed character held to violate the copyright in the James Bond character, as developed in the Bond movies); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir. 1936) (use of parallel plot elements can constitute infringement).
138. Examples of arguably "crabbed" uses of the look and feel test (the common test for infringement of visual works) can be found in Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970) (finding infringement based on similarity of look and feel where the defendant combined a public domain text with its own illustration to make a card that was similar in feel to plaintiff's);
139. Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977) (holding that McDonaldland characters infringe H.R. Pufnstuf characters despite clear differences in appearance).